RNS Number:6218T
Donatantonio PLC
23 December 2003
Not for release, distribution or publication, in whole or in part, in or into
the United States, Canada, Australia, Japan or Ireland
FOR IMMEDIATE RELEASE
23 December 2003
DONATANTONIO PLC
Cash offer
by
Hurst Morrison Thomson LLP
on behalf of
MC298 Limited
for
Donatantonio plc
and
Notice of Extraordinary General Meeting
Summary
* MC298 and the Independent Director of Donatantonio
announce the terms of a cash offer, to be made by Hurst Morrison Thomson LLP on
behalf of MC298, for the entire issued share capital of Donatantonio.
* The Offer will be 80 pence in cash for each Donatantonio
Share, which values the existing issued ordinary share capital of Donatantonio
at approximately #12.0 million.
* The Offer represents a premium of approximately 10 per
cent to the Closing Price of 72.5 pence per Donatantonio Share on 22 December
2003, the last dealing day prior to this announcement.
* The Independent Director, Dennis Holmes, has taken
responsibility for considering the Offer and providing his views on the Offer to
Donatantonio Shareholders.
This summary should be read in conjunction with the full text of this
announcement.
Enquiries:
Hurst Morrison Thomson LLP
Tel: 01491 579740
Andrew Thomson
Independent Director
Tel: 01789 269485
Dennis Holmes
Fiske Plc
Tel: 0207 448 4700
James Harrison
Hurst Morrison Thomson LLP is an appointed representative of Hurst Morrison
Thomson, which is authorised and regulated in the United Kingdom by the
Financial Services Authority, is acting exclusively for MC298 and no one else in
connection with the Offer and will not be responsible to anyone other than MC298
for providing the protections afforded to clients of Hurst Morrison Thomson LLP
nor for providing advice in relation to the Offer or any other matter referred
to herein.
Fiske Plc which is authorised and regulated in the United Kingdom by the
Financial Services Authority, is acting for Donatantonio and no one else in
connection with the Offer and will not be responsible to anyone other than
Donatantonio for providing the protections afforded to clients of Fiske Plc or
for providing advice in relation to the Offer or any other matter referred to
herein.
The Offer will not be made, directly or indirectly, in or into the United
States, Canada, Australia, Japan or Ireland and this announcement, the Offer
Document and the Form of Acceptance are not being, and should not be, mailed or
otherwise distributed or sent in or into the United States, Canada, Australia,
Japan or Ireland or any other jurisdiction outside the United Kingdom where to
do so would constitute a violation of the relevant laws of such jurisdiction.
Certain terms used in this summary are defined in Appendix III.
Not for release, distribution or publication, in whole or in part, in or into
the United States, Canada, Australia, Japan or Ireland
FOR IMMEDIATE RELEASE
23 December 2003
DONATANTONIO PLC
Cash offer
by
Hurst Morrison Thomson LLP Corporate Finance Limited
on behalf of
MC298 Limited
for
Donatantonio plc
and Notice of Extraordinary General Meeting
Introduction
MC298, and the Independent Director of Donatantonio announce the terms of a cash
offer to be made by Hurst Morrison Thomson LLP on behalf of MC298 for the entire
issued ordinary share capital of Donatantonio.
The Independent Director's views on the Offer
Having been so advised by Fiske, the Independent Director considers the terms of
the Offer to be fair and reasonable. The Independent Director would draw
Shareholders' attention to the important factors set out below, which should be
carefully considered by Shareholders in the light of their own personal
circumstances before deciding whether or not to accept the Offer. In providing
such advice, Fiske has taken into account the commercial assessments of the
Independent Director.
The Offer
On behalf of MC298, Hurst Morrison Thomson LLP will offer to acquire, on the
terms and subject to the conditions set out below and in Appendix I of this
announcement, and to be set out in the Offer Document and in the Form of
Acceptance, all of the issued and to be issued Donatantonio Shares on the
following basis:
for each Donatantonio plc Share 80 pence in cash
The Offer values the whole of the current issued ordinary share capital of
Donatantonio at approximately #12.0 million.
The Offer represents a premium of approximately 10 per cent to the Closing Price
of 72.5 pence on 22 December 2003, the last dealing date prior to the
announcement of the Offer.
The Ordinary Shares to which the Offer relates will be acquired by MC298 fully
paid and free from all liens, equities, mortgages, charges, encumbrances, rights
of pre-emption and other interests and together with all rights attaching
thereto, including all voting rights and the right to receive and retain all
dividends and other distributions declared, made or paid on or after the date of
this announcement.
Irrevocable undertakings to accept the Offer and interests in Donatantonio
MC298 has received irrevocable undertakings to accept the Offer from
Donatantonio Shareholders in respect of an aggregate of 5,161,687 Ordinary
Shares representing approximately 34.07 per cent of the issued share capital of
the Company. All such undertakings will remain binding even in the event of a
higher offer being announced.
Compulsory acquisition, de-listing and re-registration
If the Offer becomes or is declared unconditional in all respects and MC298 has
received sufficient acceptances, it will exercise the right pursuant to the
provisions of sections 428 to 430F of the Act to acquire compulsorily the
remaining Ordinary Shares not purchased by MC298.
MC298 intends to procure that the Company shall apply to the London Stock
Exchange for the cancellation of the Company's listing on the Official List of
the London Stock Exchange if and when the Offer becomes, or is declared,
unconditional in all respects.
As soon as practicable after the Offer becomes or is declared unconditional in
all respects, MC298 currently intends to propose a resolution to re-register
Donatantonio as a private company under the relevant provisions of the Act.
Background to and reasons for the Offer
In March 2003 the Board of Donatantonio announced that a strategic review of the
business would be carried out with a view to maximising the value of the Company
for the shareholders. Deloitte & Touche were appointed to assist in this review,
which was to include a search for a potential buyer for the whole business.
Following the strategic review the Board reached the view that the interests of
the shareholders would be best served by securing an offer for all the shares in
the Company at an acceptable level. A thorough search was made within the
industry to obtain an acceptable offer for the Company. This search was
ultimately unsuccessful.
In October 2003 the Board received a conditional indicative offer from the
Managing Director of the Company, Sheila Donatantonio, which led to this Offer
by MC298.
In considering the conditional indicative offer, the Independent Director, as
the sole Independent Director, together with Fiske plc, the Company's Financial
Adviser, have reviewed which course of action would be in the best interests of
all shareholders.
The Independent Director has decided that the current Offer of 80p per share in
cash meets the Board's criteria and the recommendation of this letter is for all
shareholders to accept the Offer. In reaching this decision the Independent
Director has taken into account the value of the assets of the Company and the
prospects for the Company's earnings over the next two years.
Factors considered by the Independent Director in relation to the Offer
In considering the merits of the Offer on behalf of all Shareholders, the
Independent Director has taken into account the following important
considerations:
* the Offer provides for an immediate and certain cash sum for
Shareholders. This must be compared to the uncertainties that would surround
Shareholders retaining their holdings in the Company.
* Donatantonio's shares currently suffer, and historically have suffered
from, limited liquidity on the London Stock Exchange, whilst the Offer provides
all Shareholders with the opportunity to realise their entire investment in the
Company for cash.
* the Offer represents a certain cash value per Ordinary Share at a
premium of approximately 10 per cent over the Closing Price of 72.5 pence per
Ordinary Share on 9 October 2003, the last Dealing Day prior to the announcement
by the Company that it had received an indicative conditional offer and a
premium of approximately 10 per cent. to the Closing Price of 72.5 pence per
Ordinary Share on 22 December 2003, being the last dealing day prior to the
announcement of the Offer and the publication of this document.
* while it is possible that a higher cash offer may emerge , the
Independent Director is advised by Fiske plc that the attempt to attract
potential buyers over a considerable period , as described above, showed that
such a prospect now seems unlikely.
* Shareholders who accept the Offer will be able to dispose of their
Ordinary Shares free of dealing costs.
* if the Offer becomes or is declared unconditional in all respects, and
assuming sufficient acceptances are received, MC298 will be entitled to (and has
stated herein that it intends to) invoke the provisions of s428 to 430F of the
Act, which will allow it to acquire compulsorily all Ordinary Shares which are
not purchased by MC298, whether or not the Shareholders holding such Ordinary
Shares wish their Ordinary Shares to be so acquired.
The Independent Director believes that all these factors should be carefully
considered by Shareholders. Following their consideration the Independent
Director believes that Shareholders have three principal courses of action in
respect of the Offer:
(a) you may choose to accept the Offer of 80 pence in cash per Ordinary
Share;
(b) you may choose not to accept the Offer of 80 pence in cash per
Ordinary Share, but you should be aware that it is possible that your shares
will be compulsorily purchased at a price of 80 pence per Ordinary Share at some
future date should MC298 invoke the provisions of s428 to 430F of the Act (as it
has stated herein that it intends to do), which will allow it to acquire
compulsorily all Ordinary Shares which are not purchased by MC298, whether or
not the Shareholders holding such Ordinary Shares wish their Ordinary Shares to
be so acquired, or if MC298 does not invoke the provisions of s428 to 430F of
the Act, then any Shareholders choosing not to accept the Offer will be left
with a minority Shareholding in the Company which will no longer be publicly
traded, thereby significantly reducing the ability of such Shareholders to
realise their shareholdings at their own discretion in the future; or
(c) you may choose to sell your shares in the open market where the price
that may be obtainable may vary from time to time and may not be equal to, or
exceed, the 80 pence in cash per Ordinary Share available through the Offer once
dealing costs are taken into account.
Nevertheless, having been so advised by Fiske and taking into account the
factors set out above, the Independent Director believes that the offer is fair
and reasonable and recommends Shareholders to accept the Offer.
Information on MC298 and financing of the Offer
MC298 was incorporated for the purpose of acquiring of Donatantonio. The cash
payable under the Offer will be provided by MC298 from equity rollover and bank
funding. Further information on MC298 and the financing of the Offer will be
set out in the Offer Document.
Information on Donatantonio
Donatantonio's activities consist of the manufacture, import and distribution of
fine quality Italian foods. For the year ended 31 January 2003, Donatantonio
achieved consolidated group turnover of #13.9 million (2002: #15.2 million). As
at 31st July 2003, Donatantonio had net assets of #9.0 million.).
Management and employees
The Independent Director has agreed to resign from the board of the Company if
the Offer becomes or is declared unconditional in all respects.
MC298 has confirmed to the Independent Director that the existing employment
rights, including pension rights, of the management and employees of
Donatantonio will be fully safeguarded.
Sheila Donatantonio who is a director of the Company holds approximately 9.8% of
the issued share capital of the Company. She is also a director and shareholder
in MC298 and holds approximately 79.7% of the issued share capital of MC298
(before the exercise of any proposed Options). Under the terms of Rule 16 of
the Code any offer made by persons having such interests cannot be made on terms
which apply favourable conditions to some shareholders which are not offered to
all other shareholders. On reviewing the terms of the arrangements for the
ongoing involvement of Sheila Donatantonio in the management of MC298 it is the
opinion of Fiske, the independent adviser to the Independent Director, that the
terms of these arrangements are fair and reasonable and comply with Rule 16 of
the Code.
Cancellation of listing and compulsory acquisition of Ordinary Shares
MC298 has indicated to the Independent Director that it intends to procure the
Company to apply to the London Stock Exchange for the cancellation of the
Company's listing on the Official List of the London Stock Exchange if and when
the Offer becomes, or is declared, unconditional in all respects. This action
will significantly reduce the liquidity and marketability of Ordinary Shares not
purchased by MC298 under the Offer and Shareholders who do not accept the Offer
may be left with minority shareholdings in an unquoted private company from
which it would be difficult to exit or realise value.
MC298 has stated that if the Offer becomes or is declared unconditional in all
respects, and assuming sufficient acceptances are received and/or sufficient
Ordinary Shares are otherwise acquired, it intends to exercise its rights
pursuant to the provisions of sections 428 to 430F of the Act to acquire
compulsorily the remaining Ordinary Shares on the same terms as those acquired
under the Offer whether or not the Shareholders holding such Ordinary Shares
wish their Ordinary Shares to be so acquired.
General
The conditions and certain further terms of the Offer are set out in Appendix I
of this announcement. Sources of information and bases of calculation used in
the announcement are given in Appendix II. The definitions of certain terms
used in this announcement are contained in Appendix III.
Hurst Morrison Thomson LLP, on behalf of MC298, will despatch the Offer
Document, setting out full details of the Offer as soon as practicable and in
any event within 28 days of the date of this announcement.
This announcement does not constitute, or form part of, an offer or an
invitation to purchase any securities.
The Offer will be made solely by the Offer Document and the Form of Acceptance
accompanying the Offer Document, which will contain the full terms and
conditions of the Offer, including details of how the Offer may be accepted.
The laws of the relevant jurisdictions may affect the availability of the Offer
to persons not resident in the UK. Persons who are not resident in the UK, or
who are subject to the laws of any jurisdiction other than the UK, should inform
themselves about, and observe, any applicable requirements. Further details in
relation to overseas shareholders will be contained in the Offer Document.
The Offer referred to in this announcement will not be made, directly or
indirectly, in or into the United States, Canada, Australia, Japan or Ireland or
any other jurisdiction if to do so would constitute a violation of the relevant
laws of such jurisdiction and the Offer cannot be accepted from or within the
United States, Canada, Australia, Japan or Ireland or any other such
jurisdiction. Accordingly, this announcement, the Offer Document and the Form of
Acceptance or any accompanying document will not be, directly or indirectly,
mailed or otherwise distributed or sent in or into or from the United States,
Canada, Australia, Japan or Ireland or any other such jurisdiction.
Any person (including nominees, trustees and custodians) who would, or otherwise
intends to, forward this announcement, the Offer Document and the Form of
Acceptance or any accompanying document to any jurisdiction outside the UK
should refrain from doing so and seek appropriate professional advice before
taking any action.
Enquiries:
Hurst Morrison Thomson LLP
Tel: 01491 579740
Andrew Thomson
Independent Director
Tel: 01789 269485
Dennis Holmes
Fiske Plc
Tel: 0207 448 4700
James Harrison
Hurst Morrison Thomson LLP is an appointed representative of Hurst Morrison
Thomson, which is authorised and regulated in the United Kingdom by the
Financial Services Authority, is acting exclusively for MC298 and no one else in
connection with the Offer and will not be responsible to anyone other than MC298
for providing the protections afforded to clients of Hurst Morrison Thomson LLP
nor for providing advice in relation to the Offer or any other matter referred
to herein.
Fiske Plc which is authorised and regulated in the United Kingdom by the
Financial Services Authority, is acting for Donatantonio and no one else in
connection with the Offer and will not be responsible to anyone other than
Donatantonio for providing the protections afforded to clients of Fiske Plc or
for providing advice in relation to the Offer or any other matter referred to
herein.
APPENDIX I
CONDITIONS AND CERTAIN FURTHER TERMS OF THE OFFER
The Offer, which will be made by Hurst Morrison Thomson LLP on behalf of MC298,
will comply with the provisions of the Code. The Offer will be subject to the
following conditions:
(a) Valid acceptances being received (and not, where permitted, withdrawn) by
not later than 3.00 p.m. on the first closing date of the Offer, (or such later
time(s) and/or date(s) as MC298 may, subject to the rules of the City Code,
decide) in respect of not less than 90 per cent. (or such lower percentage as
MC298 may decide) in nominal value of the Ordinary Shares to which the Offer
relates, including for this purpose (to the extent, if any, required by the
Panel) any such voting rights attaching to any Ordinary Shares that are
unconditionally allotted or issued before the Offer becomes or is declared
unconditional as to acceptances, whether pursuant to the exercise of any
outstanding conversion or subscription rights or otherwise and for this purpose:
(i) Ordinary Shares which have been unconditionally allotted but not issued
shall be deemed to carry the voting rights they will carry upon issue; and (ii)
the expression "Ordinary Shares to which the Offer relates" shall be construed
in accordance with sections 428 to 430F (inclusive) of the Act;
(b) MC298 not having discovered or otherwise become aware prior to the date
when the Offer would otherwise have become or been declared unconditional that
the Secretary of State for Trade and Industry intends, or is reasonably likely,
to refer the proposed acquisition of Donatantonio by MC298, or any matters
arising therefrom, to the Competition Commission;
(c) no government or governmental, quasi-governmental, supranational,
statutory, administrative or regulatory body, or any court, institution,
investigative body, association, trade agency or professional or environmental
body or any other person or body in any jurisdiction (each, a "Third Party")
having decided to take, institute, implement or threaten any action, proceeding,
suit, investigation, enquiry or reference or enacted, made or proposed any
statute, regulation, decision or order or having taken any other step or done
anything and there not continuing to be outstanding any statute, regulation,
decision or order which would or might reasonably be expected to:
(i) materially restrict or restrain, prohibit, materially delay, impose
additional material adverse conditions or obligations with respect to, or
otherwise materially interfere with the implementation of, the Offer for any
Donatantonio Shares by MC298 or any matters arising therefrom;
(ii) require, prevent or materially delay the divestiture (or materially
alter the terms envisaged for such divestiture) by any member of the wider
Donatantonio Group of all or any material portion of its business, assets or
properties or impose any material limitation on its ability to conduct its
business or own its assets or properties or any part thereof;
(iii) impose any material limitation on, or result in a material delay
in, the ability of MC298 to acquire or hold or exercise effectively, directly or
indirectly, all or any rights of ownership of shares or other securities of any
member of the wider Donatantonio Group or on the ability of any member of the
wider Donatantonio Group to hold or exercise effectively, directly or
indirectly, all or any rights of ownership of shares or other securities or to
exercise management control over any other member of the wider Donatantonio
Group;
(iv) require MC298 or any member of the wider Donatantonio Group to
offer to acquire any shares or other securities or rights thereover in any
member of the wider Donatantonio Group owned by any Third Party;
(v) make the Offer or its implementation or the proposed acquisition by MC298
of any shares or other securities in Donatantonio or the acquisition or control
of Donatantonio or any member of the wider Donatantonio Group, illegal, void or
unenforceable in or under the laws of any jurisdiction or directly or indirectly
materially restrict or materially delay, prohibit or otherwise interfere with
the implementation of, or impose additional conditions or obligations with
respect to, or otherwise challenge, the Offer or the acquisition of any shares
in Donatantonio, or control of Donatantonio, by MC298;
(vi) result in any member of the wider Donatantonio Group ceasing to be able to
carry on business under any name under which it presently does so, the
consequences of which would be material in the context of the Donatantonio Group
taken as a whole; or
(vii) otherwise materially and adversely affect the business, assets,
prospects or profits of any member of the Donatantonio Group,
and all applicable waiting and other time periods during which any such Third
Party could decide to take, institute, implement or threaten any such action,
proceeding, suit, investigation, enquiry or reference or otherwise intervene
having expired, lapsed or been terminated;
(d) all authorisations, orders, grants, recognitions, consents, clearances,
confirmations, licences, permissions and approvals ("authorisations") necessary
or appropriate in any jurisdiction for or in respect of the Offer and the
proposed acquisition of any shares or securities, directly or indirectly, in, or
control of, Donatantonio or any member of the wider Donatantonio Group by MC298
having been obtained in terms and/or form reasonably satisfactory to MC298 from
all appropriate Third Parties or (to an extent which is material in the context
of the Donatantonio Group taken as a whole) from any persons or bodies with whom
MC298 or any member of the Donatantonio Group has entered into contractual
arrangements and such authorisations together with all authorisations necessary
(to an extent which is material in the context of the Donatantonio Group taken
as a whole) for any member of the wider Donatantonio Group to carry on its
business remaining in full force and effect and there being no notice or
intimation of any intention to revoke, suspend, materially modify or not to
renew the same and all necessary filings having been made, all appropriate
waiting and other time periods (including extensions thereto) under any
applicable legislation and regulations in any jurisdiction having expired,
lapsed or been terminated and all necessary statutory or regulatory obligations
in any jurisdiction in respect of the Offer or the proposed acquisition of
Donatantonio by MC298 or of any Donatantonio Shares or any matters arising
therefrom having been complied with;
(e) save as publicly announced by Donatantonio prior to 23 December 2003 and
in each case delivered to a Regulatory Information Service (as defined in the
UKLA Listing Rules) or as fairly disclosed in writing by Donatantonio to MC298
prior to 23 December 2003 (such information being referred to as "publicly
announced"), there being no provision of any agreement, permit, lease, licence
or other instrument to which any member of the wider Donatantonio Group is a
party or by or to which it or any of its assets may be bound or subject which,
as a consequence of the making or implementation of the Offer or the acquisition
by MC298 directly or indirectly of Donatantonio or because of a change in the
control or management of Donatantonio or any member of the wider Donatantonio
Group, could or might reasonably be expected to result in (to an extent which is
material in the context of the Donatantonio Group taken as a whole):
(i) any moneys borrowed by, or other indebtedness (actual or contingent) of,
or grant available to, any member of the wider Donatantonio Group becoming
repayable or capable of being declared repayable immediately or earlier than the
stated maturity or repayment date or the ability of any member of the wider
Donatantonio Group to borrow moneys or incur indebtedness being or becoming
capable of being withdrawn or inhibited or any such agreement, permit, lease,
licence or other instrument or any right, interest, liability or obligation of
any member of the wider Donatantonio Group therein, being terminated or
adversely modified or affected or any adverse action being taken or any onerous
obligation or liability arising thereunder;
(ii) any mortgage, charge or other security interest being created over the
whole or any part of the business, property or assets of any member of the wider
Donatantonio Group or any such security (whenever arising) becoming enforceable;
(iii) the value of any member of the wider Donatantonio Group or its financial
or trading position or prospects being prejudiced or adversely affected;
(iv) any assets or interests of any member of the wider Donatantonio Group
being or falling to be charged or disposed of or any right arising under which
any such asset or interest could be required to be disposed of or charged
otherwise than in the ordinary course of business;
(v) the rights, liabilities, obligations or interests or business of any
member of the wider Donatantonio Group in or with any other person, firm or
company (or any arrangement relating to such interest or business) being
terminated or adversely modified or affected;
(vi) any member of the wider Donatantonio Group ceasing to be able to carry on
business under any name under which it currently does so; or
(vii) the creation of any liability, actual or contingent, by any member of the
wider Donatantonio Group;
(f) since 31 January 2003 (save as disclosed in the audited accounts for the
year ended 31 January 2003 (the "Donatantonio Accounts") or save as publicly
announced), no member of the Donatantonio Group having:
(i) issued or agreed to issue or authorised or proposed the issue of
additional shares of any class or securities convertible into or rights,
warrants or options to subscribe for or acquire any such shares or convertible
securities;
(ii) recommended, declared, paid or made or proposed to recommend,
declare, pay or make any dividend, bonus or other distribution (whether payable
in cash or otherwise) other than dividends lawfully paid to Donatantonio or
wholly-owned subsidiaries of Donatantonio;
(iii) merged with or demerged or acquired any body corporate, partnership
or business;
(iv) acquired, or (other than in the ordinary course of business)
disposed of, transferred, mortgaged or charged or created any security interest
over any asset or any right, title or interest in any asset (including shares
and trade investments) or authorised, proposed or announced any intention to do
so which, in any such case, is material in the context of the Donatantonio Group
taken as a whole;
(v) issued or authorised or proposed the issue of any debentures or incurred
or increased any indebtedness or contingent liability or made, authorised,
proposed or announced an intention to propose any change in its share or loan
capital;
(vi) entered into or varied or announced its intention to enter into or
vary any contract, transaction, commitment or arrangement (whether in respect of
capital expenditure or otherwise) which is of a long term or unusual nature or
which involves or could involve an obligation of a nature or magnitude which, in
any such case, is material in the context of the Donatantonio Group taken as a
whole or which is or is likely to be restrictive in any material respect on the
business of any member of the wider Donatantonio Group or MC298;
(vii) entered into, implemented, authorised or proposed any
reconstruction, amalgamation, scheme of arrangement or other transaction or
arrangement otherwise than in the ordinary course of business or announced any
intention to do so;
(viii) entered into, or varied in any material respect the terms of, any
contract or agreement with any of the directors or senior executives of
Donatantonio or any of its subsidiaries;
(ix) taken or proposed any corporate action or had any material legal
proceedings started or threatened against it or had any petition presented for
its winding-up (voluntary or otherwise), dissolution or reorganisation or for
the appointment of a receiver, administrator, administrative receiver, trustee
or similar officer of all or any of its assets and/or revenues or any analogous
proceedings in any jurisdiction;
(x) waived or compromised any material claim other than in the ordinary
course of business;
(xi) made any material amendment to its memorandum or articles of association;
(xii) purchased, redeemed or repaid or proposed the purchase, redemption
or repayment of any of its own shares or other securities or reduced or made any
other change to any part of its share capital;
(xiii) been unable or admitted that it is unable to pay its debts or having
stopped or suspended (or threatened to stop or suspend) payment of its debts
generally or ceased or threatened to cease carrying on all or a substantial part
of its business; or
(xiv) entered into, varied or modified any contract, commitment or
agreement with respect to any of the transactions, matters or events referred to
in this condition (f) or announced an intention to do so;
(g) since 31 January 2003 (save as disclosed in the Donatantonio Accounts or
save as publicly announced):
(i) no litigation, arbitration, prosecution or other legal proceedings having
been instituted, announced or threatened or become pending or remaining
outstanding by or against any member of the wider Donatantonio Group or to which
any member of the wider Donatantonio Group is or may become a party (whether as
claimant, respondent or otherwise) and no enquiry or investigation by or
complaint or reference to any Third Party or other investigative body having
been threatened, announced, implemented or instituted or remaining outstanding
against or in respect of any member of the wider Donatantonio Group which, in
any such case, would or might reasonably be expected adversely to affect any
member of the wider Donatantonio Group to an extent which is material in the
context of the Donatantoniom Group taken as a whole;
(ii) no material adverse change having occurred in the business, assets,
financial or trading position, profits or prospects of the wider Donatantonio
Group taken as a whole; or
(iii) no contingent or other liability having arisen which might reasonably be
expected materially adversely to affect the Donatantonio Group taken as a whole;
(h) MC298 not having discovered that (other than to the extent disclosed in
writing by Donatantonio to MC298 prior to 23 December 2003):
(i) any business, financial or other information concerning any member of the
wider Donatantonio Group publicly disclosed or disclosed to MC298 at any time by
or on behalf of any member of the Donatantonio Group is misleading, contains a
misrepresentation of fact or omits to state a fact necessary to make the
information contained therein not misleading which, in any such case, is
material in the context of the Donatantonio Group taken as a whole;
(ii) any member of the wider Donatantonio Group is subject to any liability,
actual or contingent, which is not disclosed in the Donatantonio Accounts and
which is material in the context of the Donatantonio Group taken as a whole;
(iii) any past or present member of the wider Donatantonio Group has not
complied with all applicable legislation or regulations of any jurisdiction with
regard to the storage, disposal, discharge, spillage, leak or emission of any
waste or hazardous substance or any substance likely to impair the environment
or to harm human health or otherwise relating to environmental matters (which
non-compliance might give rise to any liability (whether actual or contingent)
on the part of any member of the wider Donatantonio Group which is material in
the context of the Donatantonio Group taken as a whole) or that there has
otherwise been any such disposal, discharge, spillage, leak or emission (whether
or not the same constituted a non-compliance by any person with any such
legislation or regulations and wherever the same may have taken place) which in
any such case might give rise to any liability (whether actual or contingent) on
the part of any member of the wider Donatantonio Group which is material in the
context of the Donatantonio Group taken as a whole;
(iv) there is, or is likely to be, any liability (whether actual or contingent)
to make good, repair, reinstate or clean up any property now or previously
owned, occupied or made use of by any past or present member of the wider
Donatantonio Group or any controlled waters under any environmental legislation,
regulation, notice, circular or order of any Third Party or otherwise and which
is material in the context of the Donatantonio Group taken as a whole; or
(v) circumstances exist (whether as a result of the making of the Offer
or otherwise) which would be likely to lead to any Third Party instituting, or
whereby any member of the wider Donatantonio Group or MC298 would be likely to
be required to institute, an environmental audit or take any other steps which
in any such case would be likely to result in any actual or contingent liability
on the part of any member of the wider Donatantonio Group or MC298 to improve or
install new plant or equipment or make good, repair, re-instate or clean up any
land or other asset now or previously owned, occupied or made use of by any
member of the wider Donatantonio Group which liability is or is likely to be
material in the context of the Donatantonio Group taken as a whole.
(i) The Resolution to be proposed at the Extraordinary General Meeting being
duly passed by the Independent Shareholders.
(j) None of the Drawstop Events of Default having occurred, these being:
(i) any written information or projection given or any representation,
warranty or statement made or repeated by or on behalf of Donatantonio (or any
of its subsidiaries) to Bank of Scotland (whether before or after the date of
this letter) being incorrect, inaccurate, incomplete or, misleading in any
respect and, if the relevant circumstances are capable of remedy, those
circumstances are not remedied within 14 days of notice by Bank of Scotland
calling for its remedy;
(ii) any borrowings of Donatantonio (or any of its subsidiaries) (other than
sums due to Bank of Scotland) in excess of #5,000 not being paid when due for
payment (whether because of acceleration or otherwise) or within any originally
permitted period of grace or any creditor of all or any of such companies
becoming entitled to declare any such borrowings due and payable prior to their
stated maturity;
(iii) Donatantonio (or any of its subsidiaries) failing to:
(a) announce the Offer within 3 Business Days of the date of this letter;
(b) ensure that the terms and conditions of this document comply in all respects
with all applicable laws and regulations and the Code;
(c) obtain Bank of Scotland's prior approval to issue any press announcements
regarding the Offer (such approval not to be unreasonably withheld) or keep Bank
of Scotland advised of the progress of the Offer and of all material matters
affecting or likely to affect the interests of Bank of Scotland arising in
connection with the Offer or provide Bank of Scotland with any information and
copies of professional advice received, as Bank of Scotland may request;
(d) disclose to Bank of Scotland all material information which has come to its
attention and which is necessary to make any decision whether or not to waive
(or to consent to the waiver of) any condition of the Offer;
(e) promptly deliver to Bank of Scotland copies of the Offer Document and press
announcements made by or on behalf of MC298 in relation to the Offer, all
written public statements made by or on behalf of Donatantonio in response to or
otherwise commenting on the Offer, and other public documents issued by the
Panel on Takeovers and Mergers, the Office of Fair Trading or the Competition
Commission or any other regulatory authority in relation to the Offer, this
document or the transactions contemplated herein or therein;
(f) ensure that it shall not and shall use its best endeavours to procure
that no person acting in concert with it (as defined in the Code) shall become
obliged to make an offer to the shareholders of Donatantonio under Rule 9 of the
Code, and ensure that neither it nor persons acting in concert with it acquire
any shares in Donatantonio at a price above the Offer price which may result in
an obligation to increase the Offer price;
(g) ensure that at all times all laws and directives applicable in relation to
the Offer or any documents connected thereto are complied with and that, as and
when necessary all consents from all governmental and other regulatory
authorities required in connection therewith (including (without limitation),
the Financial Services and Markets Act 2000, applicable rules of any
self-regulatory organisation deriving authority from the Securities and
Investments Board and the rules of The Stock Exchange) are obtained, maintained
and/or renewed;
(h) ensure that all its obligations in connection with the Offer are strictly
complied with and performed, use all reasonable endeavours to ensure that the
conditions attached to the Offer are satisfied as soon as reasonably practicable
and declare the Offer unconditional in all respects immediately such conditions
are satisfied (or, with the consent of Bank of Scotland, waived);
(i) immediately after the date on which the Offer becomes or is declared
unconditional in all respects use its best endeavours to acquire all of the
issued share capital of Donatantonio either pursuant to or otherwise on the same
terms as the terms of the Offer;
(j) promptly and in any event no later than 45 days after the date on
which the Offer becomes or is declared unconditional in all respects comply and
procure that the Donatantonio complies with all the procedures under sections
428 to 430F of the Companies Act 1985 (in respect of acquiring minority
shareholdings);
(k) within seven days of the date on which acceptances of the Offer are received
from holders of not less than 90% of the Donatantonio shares to which the Offer
relates give notice to close the Offer in accordance with the Code PROVIDED THAT
the Offer may be kept open for such period as may reasonably be necessary during
the period required to acquire shares in Donatantonio under section 430
Companies Act 1985 following the service of valid notices under section 429(2)
of the Companies Act 1985;
(l) immediately on acquisition by it of any of the Donatantonio Shares
(whether or not pursuant to the Offer) procure the delivery to Bank of Scotland
of all copies of forms of acceptances, receipts and acknowledgements (whether or
not documents of title) and all documents of title in respect of such
Donatantonio Shares and give to the receiving agent irrevocable instructions
accordingly;
(m) ensure that, without the prior written consent of Bank of Scotland, MC298
shall not make any acquisition of Donatantonio Shares prior to the Offer
Document being posted; or
(n) procure satisfaction of all the conditions attaching to the Offer on or
before 60 days from the Posting Date (or such other longer period as Bank of
Scotland may approve);
(o) pay or procure the payment of stamp duty in respect of any Donatantonio
Shares acquired within 30 days of payment of the purchase price in respect
thereof.
(iv) Donatantonio (or any subsidiary of Donatantonio), save with the prior
written consent of Bank of Scotland:
(a) granting or permitting to subsist any security over its assets;
(b) incurring or contracting to incur or permitting to subsist any
borrowings;
(c) disposing of or parting with control of (whether by a single
transaction or a series of transactions) any asset or undertaking;
(d) lending or giving credit to or indemnifying or guaranteeing any other
person(s) unless it is in the ordinary course of trade or employee loans of up
to #10,000 in aggregate;
(e) joining any partnership or entering into any joint venture with any
other person or merging or amalgamating with any other person (other than as
part of a solvent reconstruction with the prior written consent of Bank of
Scotland);
(f) acquiring any company (or any shares in any company) or any business
for a consideration (including repayment of any borrowings) in excess of
#100,000;
(g) entering an arrangement for finance not shown in its balance sheet as
borrowings;
(h) factoring or discounting its debts;
(i) agreeing to amend or waive or permit the amendment or waiver of the
documents relating to the sale and lease back of the premises as described in
this document in any way which is likely to have an adverse effect upon the
interests of Bank of Scotland;
(j) declaring or making any distribution to its shareholders;
(k) except to the extent, if any, required by law, or by the Code, or by
the Panel, or the Listing Rules, making or authorising the making of any
announcement or issuing or authorising the issue of any publicity material
concerning the proposed arrangements with Bank of Scotland; or
(l) agreeing or granting any significant improvements in the pension
benefits available to its employees at the date of this letter for the benefit
of any present or future employees of any such company;
(v) Donatantonio (or any of its subsidiaries) ceasing or threatening to
cease to carry on its business or a significant part of it (except as part of a
solvent reconstruction approved by Bank of Scotland) or suspending or
threatening to suspend payment of its debts or being unable or being deemed to
be unable to pay its debts within the meaning of Section 123 (1) of the
Insolvency Act 1986;
(vi) a proposal being made, or a nominee or supervisor being appointed,
for Donatantonio (or any of its subsidiaries) for a composition in satisfaction
of its debt or for a scheme of arrangement of its affairs or other arrangement
or any proceedings for the benefit of its creditors being commenced under any
law, regulation or procedure relating to the reconstruction or readjustment of
debt;
(vii) any step being taken (including, without limitation, the making of an
application or the giving of any notice) by Donatantonio (or any of its
subsidiaries) or by any other person to appoint an administrator in respect of
Donatantonio (or any of its subsidiaries);
(viii) any steps being taken (including, without limitation, the making of
an application or the giving of any notice) by Donatantonio (or any of its
subsidiaries) (without the prior written consent of Bank of Scotland) or any
other person to wind up or dissolve Donatantonio (or any of its subsidiaries) or
to appoint a liquidator, trustee, receiver, administrative receiver or similar
officer to Donatantonio (or any of its subsidiaries) or any part of its
undertaking or assets;
(ix) any attachment, distress, diligence, arrestment, execution or legal
process (not being reasonably considered by Bank of Scotland to be defensible or
vexatious, in good faith) being levied, enforced or sued against Donatantonio
(or any of its subsidiaries) or its assets or any person validly taking
possession of any of the property or assets of Donatantonio (or any of its
subsidiaries) or steps being taken by any person to enforce any security against
any of the property or assets of Donatantonio (or any of its subsidiaries);
(x) any event occurring or proceedings being taken in respect of
Donatantonio (or any of its subsidiaries) in any jurisdiction to which it is
subject which has an effect equivalent or similar to any of the events mentioned
in paragraphs (x) to (ix) (inclusive) above;
(xi) any part of any document recording the arrangements with Bank of
Scotland ceasing to be legal or effective (or Donatantonio (or any of its
subsidiaries) so alleging) or any consent required to enable Donatantonio (or
any of its subsidiaries) to perform its obligations under a Bank of Scotland
Document ceasing to have effect;
(xii) control of Donatantonio (or any of its subsidiaries) passing to any
person or persons (whether acting individually or in concert) (other than MC298)
who is or are not a shareholder in it without the prior written consent of Bank
of Scotland; or
(xiii) any financial statements of Donatantonio (or any of its
subsidiaries) being qualified by the auditors of any such company.
For the purpose of these conditions: (a) "wider Donatantonio Group" means
Donatantonio, its subsidiaries, subsidiary undertakings and associated
undertakings and any other body corporate, partnership, joint venture or person
in which Donatantonio and such undertakings (aggregating their interests) have
an interest in 20 per cent. or more of the voting or equity capital (or the
equivalent); and (b) "subsidiary", "subsidiary undertaking", "associated
undertaking" and "undertaking" shall be construed in accordance with the Act
(but for this purpose ignoring paragraph 20(l)(b) of Schedule 4A of the Act).
MC298 reserves the right to waive all or any of conditions (b) to (j)
(inclusive) above, in whole or in part. Conditions (b) to (j) (inclusive) must
be fulfilled or waived by midnight on the 21st day after the later of the first
closing date of the Offer and the date on which condition (a) is fulfilled (or
such later date as the Panel may agree). MC298 shall be under no obligation to
waive or treat as fulfilled any of conditions (b) to (j) (inclusive) by a date
earlier than the latest date specified above for the fulfilment thereof
notwithstanding that the other conditions of the Offer may at such earlier date
have been waived or fulfilled and that there are at such earlier date no
circumstances indicating that any of such conditions may not be capable of
fulfilment.
MC298 may not invoke any of conditions (e) to (i) inclusive so as to cause the
Offer to lapse if the circumstances giving rise to the right to invoke the
condition arise as the result of events under the control of MC298 which occur
after the date of the announcement of the Offer or which were known to MC298
prior to that date.
If MC298 is required by the Panel to make an offer for Donatantonio Shares under
the provisions of Rule 9 of the Code, MC298 may make such alterations to the
conditions as are necessary to comply with the provisions of that Rule.
The Offer will lapse if the Offer is referred to the Competition Commission
before the later of 3.00 p.m. on the first closing date of the Offer and the
date when the Offer becomes or is declared unconditional as to acceptances.
If the Offer lapses, it will cease to be capable of further acceptance and
accepting Donatantonio Shareholders and MC298 will cease to be bound by Forms of
Acceptance submitted on or before the time when the Offer lapses.
APPENDIX II
BASES OF CALCULATION AND SOURCES OF INFORMATION
In this announcement, unless otherwise stated, or the context otherwise
requires, the following bases of calculation and sources of information have
been used:
(a) Unless otherwise stated, financial information concerning
Donatantonio has been derived from the published annual report and accounts and
the interim and preliminary results of Donatantonio for the relevant periods.
(b) The value of the Offer is based on 15,150,000 Ordinary Shares in
issue based on the Donatantonio share register as at 22 December 2003.
APPENDIX III
DEFINITIONS
The following definitions apply throughout this announcement, unless the context
requires otherwise:
"Act" or the "Companies Act" the Companies Act 1985, as amended
"AIM" the Alternative Investment Market of the London Stock Exchange
"Australia" the Commonwealth of Australia, its states, territories and
possessions
"authorisations" authorisations, orders, grants, recognitions, confirmations,
consents, clearances, certificates, permissions or approvals
"Board" or "Directors" the board of directors of Donatantonio
"business day" a day (other than a Saturday, Sunday or public holiday) on
which banks are generally open for business in the City of
London
"Canada" Canada, its provinces and territories and all areas subject
to its jurisdiction or any political sub-division thereof
"Closing Price" the closing middle market price of an Ordinary Share as derived
from the AIM Appendix to the Daily Official List of the London Stock Exchange on
a particular trading day
"Code" or "City Code" The City Code on Takeovers and Mergers as from time to
time interpreted by the Panel
"Form of Acceptance" the form of acceptance, authority and election for use by
Donatantonio Shareholders in connection with the Offer to accompany the Offer
Document
"Independent Director" Dennis Holmes
"Donatantonio" or the "Company" Donatantonio plc
"Donatantonio Group" or the "Group" Donatantonio plc and its subsidiary
undertakings and, where the context
permits, each of them
"Donatantonio Shareholders" or "Shareholders" the holders of Ordinary Shares
"Donatantonio Shares" the Ordinary Shares
"Ireland" the Republic of Ireland, its cities, counties and possessions
"Japan" Japan, its cities, prefectures, territories and possessions
"Fiske" Fiske Plc
"London Stock Exchange" London Stock Exchange plc
"MC298" MC298 Limited a company registered in England & Wales registered number
4934963, whose registered office is at Apax Plaza, Forbury Road,
Reading, Berkshire. RG1 1AX.
"Offer Document" the formal offer document to be sent to Donatantonio
Shareholders
"Offer Period" the period commencing on the date of the Offer Document until whichever of the following
dates shall be the later of (i) the first closing date of the Offer, (ii) the
date on which the Offer lapses and (iii) the date on which the Offer becomes
unconditional as to acceptances
"Offer" the cash offer to be made by Hurst Morrison Thomson LLP on behalf of MC298 to
acquire all of the issued and to be issued Ordinary Shares on the terms and
subject to the conditions to be set out in the Offer Document and the Form of
Acceptance, including, any subsequent revision, variation, extension or renewal
thereof
"Ordinary Shares" the existing unconditionally allotted or issued and fully paid
ordinary shares of 5 pence each in the capital of Donatantonio and any further
such shares which are unconditionally allotted or issued prior to the date on
which the Offer closes (or such earlier date or dates, not being earlier than
the date on which the Offer becomes or is declared unconditional as to
acceptances or, if later, the first closing date of the Offer, as MC298 may,
subject to the City Code and the consent of the Panel, decide)
"Panel" the Panel on Takeovers and Mergers
"pounds" or "#" UK pounds sterling
"UKLA" the UK Listing Authority, being the Financial Services Authority
acting in its capacity as the competent authority for the purposes
of Part IV of the Financial Services and Markets Act 2000
"United Kingdom" or "UK" United Kingdom of Great Britain and Northern Ireland
"United States" or "US" the United States of America, its territories and
possessions, any State of the United States of America
and the District of Columbia and all other areas
subject to its jurisdiction
All the times referred to in this announcement are London times
This information is provided by RNS
The company news service from the London Stock Exchange
END
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