RNS No 4944f
FILOFAX GROUP PLC
25th September 1998
Not for release, publication or distribution in or into Canadaa,
Australia or Japan
Day Runner UK plc
Revised and Recommended Offer
for
Filofax Group plc
Part 2
Appendix I
Conditions and certain further terms of the Recommended Offer
The Recommended Offer, which is being made by Wasserstein Perella
on behalf of Day Runner UK, will comply with the applicable rules
of the London Stock Exchange and the Code and with US federal
securities laws (except to the extent that exemptive relief has
been granted by the SEC). In addition, the Recommended Offer
(which includes the Loan Note Alternative) will be subject to the
following conditions:
(i) valid acceptances being received (and not, where permitted,
withdrawn) by not later than 3.00 pm (London time) on the
first closing date of the Recommended Offer (or such later
time(s) and/or date(s) as Day Runner UK may, subject to the
rules of the Code, decide) in respect of not less than 90
per cent. (or such lesser percentage as Day Runner UK may
decide) in nominal value of the Filofax Shares to which the
Recommended Offer relates, provided that this condition
shall not be satisfied unless Day Runner UK and/or its
wholly owned subsidiaries shall have acquired or agreed to
acquire, whether pursuant to the Recommended Offer or
otherwise, Filofax Shares carrying in aggregate more than
50 per cent. of the voting rights then exercisable at a
general meeting of Filofax. For the purposes of this
condition:
(a) to the extent, if any, required by the Panel,
Filofax Shares that are unconditionally allotted but
not issued before the Recommended Offer becomes or
is declared unconditional as to acceptances, whether
pursuant to the exercise of any outstanding
subscription or conversion rights or otherwise,
shall be deemed to carry the voting rights they will
carry upon issue; and
(b) the expression "Filofax Shares to which the
Recommended Offer relates" shall be construed in
accordance with Sections 428 to 430F of the
Companies Act;
(ii) an announcement being made indicating in terms satisfactory
to Day Runner UK that it is not the intention of the
Secretary of State for Trade and Industry to refer the
proposed acquisition of Filofax by Day Runner UK, or any
matters arising therefrom, to the Monopolies and Mergers
Commission;
(iii)no relevant authority having intervened in a way that would
or might reasonably be expected to:
(a) make the Recommended Offer or its implementation or
the acquisition or proposed acquisition by any
member of the Wider Day Runner Group of any Filofax
Shares, or the acquisition of control of any member
of the Wider Filofax Group by any member of the
Wider Day Runner Group, void, unenforceable and/or
illegal or directly or indirectly restrain,
restrict, prohibit, delay or otherwise interfere
with the implementation thereof, or impose
additional conditions or obligations with respect
thereto, or otherwise challenge or hinder the
Recommended Offer or its implementation or the
acquisition or proposed acquisition of any Filofax
Shares, or the acquisition of control of any member
of the Wider Filofax Group by any member of the
Wider Day Runner Group;
(b) require, prevent or delay the divestiture or alter
the terms of any proposed divestiture by any member
of the Wider Day Runner Group or the Wider Filofax
Group of all or any part of their respective
businesses, assets or properties or impose any
limitation on the ability of any of them to conduct
any of their respective businesses or to own any of
their respective assets or properties or any part
thereof;
(c) impose any limitation on, or result in a delay in,
the ability of any member of the Wider Day Runner
Group or of any member of the Wider Filofax Group,
directly or indirectly, to acquire or hold or
exercise effectively any rights of ownership of
shares or loans or securities convertible into
shares or any other securities (or the equivalent)
in any member of the Wider Filofax Group or to
exercise management control over any such member of
the Wider Filofax Group;
(d) require any member of the Wider Day Runner Group or
the Wider Filofax Group to acquire or to offer to
acquire any shares or other securities (or the
equivalent) or interest in any member of the Wider
Day Runner Group or the Wider Filofax Group or any
asset owned by any third party or to sell, or to
offer to sell, any shares or other securities (or
the equivalent) or interest in or any asset owned by
any member of the Wider Day Runner Group or the
Wider Filofax Group;
(e) result in a material delay in the ability of any
member of the Wider Day Runner Group, or render any
member of the Wider Day Runner Group unable, to
acquire some or all of the shares or other
securities (or the equivalent) or interest in, or
control of, any member of the Wider Filofax Group or
require or prevent or delay divestiture by any
member of the Wider Day Runner Group or the Wider
Filofax Group of the same;
(f) impose any material limitation on the ability of any
member of the Wider Day Runner Group or the Wider
Filofax Group to co-ordinate all or any part of its
business with all or any part of the business of any
other member of the Wider Day Runner Group or the
Wider Filofax Group; or
(g) otherwise materially and adversely affect the
business, assets, profits or prospects of any member
of the Wider Day Runner Group or Wider Filofax
Group,
and all applicable waiting and other time periods during
which any relevant authority could have intervened, in
respect of the Recommended Offer or the acquisition or
proposed acquisition of any shares or other securities (or
the equivalent) or interest in, or control of, any member
of the Wider Filofax Group by any member of the Wider Day
Runner Group, having expired, lapsed or terminated;
(iv) all necessary notifications and filings having been made,
all regulatory and statutory obligations having been
complied with, all appropriate waiting or other time
periods under any applicable legislation or regulations in
any jurisdiction having expired, lapsed or terminated in
each case in respect of the Recommended Offer or the
acquisition or proposed acquisition of any shares or other
securities (or the equivalent) or interest in, or control
of, any member of the Wider Filofax Group by any member of
the Wider Day Runner Group and all authorisations and
determinations necessary or appropriate in any jurisdiction
for or in respect of the Recommended Offer or the
acquisition or proposed acquisition of any shares or other
securities (or the equivalent) or interest in, or control
of, any member of the Wider Filofax Group by any member of
the Wider Day Runner Group or in relation to the affairs of
any member of the Wider Filofax Group having been obtained
in terms and in a form satisfactory to Day Runner UK from
all relevant authorities or (without prejudice to the
generality of the foregoing) from any persons or bodies
with whom any member of the Wider Filofax Group has entered
into contractual arrangements and such authorisations and
determinations together with all authorisations and
determinations necessary or appropriate for any member of
the Wider Filofax Group to carry on its business remaining
in full force and effect at the time at which the
Recommended Offer becomes otherwise unconditional in all
respects and all filings necessary for such purpose having
been made and there being no notice of any intention to
revoke, suspend, restrict, modify or not renew any of the
same having been received;
(v) there being no provision of any agreement, arrangement,
licence, permit or other instrument to which any member of
the Wider Filofax Group is a party or by or to which any
such member or any of its assets may be bound, entitled or
subject which would or might reasonably be expected to, as
a result of (i) the Recommended Offer, (ii) the proposed
acquisition by any member of the Wider Day Runner Group of
the shares or other securities (or the equivalent) or
interest in any member of the Wider Filofax Group or any of
them, or (iii) a change in the control or management of any
member of the Wider Filofax Group, result in, in any such
case to an extent or having a significance that is material
in the context of the Wider Filofax Group as a whole:
(a) any moneys borrowed by, or any other indebtedness,
actual or contingent, of or any grant available to
any such member being or becoming repayable or
capable of being declared repayable immediately or
prior to its stated maturity, or the ability of any
such member to borrow moneys or incur any
indebtedness being withdrawn or inhibited;
(b) any such agreement, arrangement, licence, permit or
other instrument being terminated or modified or any
obligation or liability arising or any action being
taken or arising thereunder;
(c) the rights, liabilities, obligations or interests of
any such member under any such agreement,
arrangement, licence, permit or instrument or the
interests or business of any such member in or with
any other person, firm, company or body (or any
arrangements relating to any such interests or
business) being terminated or modified or affected;
(d) any such member ceasing to be able to carry on its
business under any name under which it at present
does so or ceasing to be able to use in its business
any names, trademarks or other intellectual property
rights which it at present uses, in each case on the
same basis and terms as at present apply;
(e) any assets or interests of any such member being or
falling to be disposed of or charged or any right
arising under which any such asset or interest could
be required to be disposed of or charged;
(f) the creation of any mortgage, charge or other
security interest over the whole or any part of the
business, property or assets of any such member or
any such security interest (whenever and wherever
arising or having arisen) becoming enforceable;
(g) the value of, or financial or trading position or
prospects of, any such member being prejudiced or
adversely affected; or
(h) the creation of any liability, actual or contingent,
by any such member;
and no event having occurred which, under any provision of
any agreement, arrangement, licence, permit or other
instrument to which any member of the Wider Filofax Group
is a party or by or to which any such member or any of its
assets may be bound, entitled or subject, would or might
reasonably be expected to result in any of the events or
circumstances as are referred to in subparagraphs (a) to
(h) of this condition (v), in any such case to an extent or
having a significance that is material in the context of
the Wider Filofax Group as a whole;
(vi) no member of the Wider Filofax Group having since 31 March
1998 (save as disclosed in the annual report and accounts
of Filofax for the year ended 31 March 1998 or otherwise
announced on or before
23 September 1998 by Filofax on the London Stock Exchange
(information which has been disclosed or announced in such
manner and on or before such date being "publicly
announced")):
(a) (save as between Filofax and members of the Wholly
owned Filofax Group or upon the exercise of rights
to subscribe for Filofax Shares pursuant to the
exercise of options granted under any of the Filofax
Share Schemes on or prior to 31 March 1998 or
disclosed in writing by Filofax to the Offeror prior
to the issue of this announcement) issued or
allotted or agreed to issue or allot or authorised
or proposed the issue or allotment of additional
shares of any class, or of securities convertible
into, or rights, warrants or options to subscribe
for or acquire, any such shares or convertible
securities;
(b) recommended, declared, paid or made or proposed to
recommend, declare, pay or make any bonus, dividend
or other distribution other than to a member of the
Wholly owned Filofax Group, save for the final
dividend of 2.42 pence per Filofax Share payable on
30 October 1998;
(c) acquired or disposed of or transferred, mortgaged or
charged or created any security interest over any
assets or any rights, title or interest in any asset
(including shares and trade investments) in any such
case that is material in the context of the Wider
Filofax Group as a whole or merged with or demerged
any body corporate or authorised or proposed or
announced any intention to propose any such merger,
demerger, acquisition, disposal, transfer, mortgage,
charge or security interest;
(d) made or authorised or proposed or announced an
intention to propose any change in its share or loan
capital (save for any Filofax Shares allotted upon
exercise of options granted on or before 31 March
1998 or disclosed in writing by Filofax to the
Offeror prior to the issue of this announcement
under the Filofax Share Schemes);
(e) issued, authorised or proposed the issue of any
debentures or incurred or increased any indebtedness
or contingent liability;
(f) purchased, redeemed or repaid or proposed the
redemption or repayment of any of its own shares or
other securities (or the equivalent) or reduced or
proposed the reduction of any of its share or loan
capital;
(g) entered into any contract, reconstruction,
amalgamation, commitment or other transaction or
arrangement otherwise than in the ordinary course of
business and which is material or (save as disclosed
in writing by Filofax to the Offeror prior to the
issue of this announcement) entered into or varied,
or announced its intention to enter into or vary,
any contract with or in relation to any of the
directors or senior executives or consultants of the
Wider Filofax Group;
(h) entered into or varied or authorised or proposed any
contract, transaction or commitment (whether in
respect of capital expenditure or otherwise) which
is of a material and long-term, onerous or unusual
nature or magnitude or which involves or could
involve an obligation of such a nature or magnitude;
(i) entered into any contract, transaction or
arrangement which consents to or may result in any
material restriction of the scope of the business of
any member of the Wider Filofax Group or of the
Wider Day Runner Group and no member of the Wider
Filofax Group being a party to or otherwise affected
by any such contract, transaction or arrangement
whether the same was entered into before or after 31
March 1998;
(j) waived or compromised any claim which is material in
the context of the Wider Filofax Group as a whole;
(k) taken any corporate action or had any legal
proceedings started or threatened against it for its
winding-up, dissolution or reorganisation or for the
appointment of a receiver, administrator,
administrative receiver, trustee or similar officer
of all or any of its assets or revenues or any
analogous proceedings or appointment in any
jurisdiction or had any such person appointed;
(l) made or agreed or consented to any significant
change to the terms of the trust deeds constituting
the pension schemes 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 qualifications
for, or accrual or entitlement to, such benefits or
pensions are calculated or determined or to the
basis upon which the liabilities (including
pensions) of such pension schemes are funded or
made, or agreed or consented to any change to the
trustees involving the appointment of a trust
corporation or allowed any deficit (actual or
contingent) to arise or persist in relation to the
funding of any such scheme;
(m) been unable or admitted in writing that it is
unable, to pay its debts or having stopped or
suspended (or threatened to stop or suspend) payment
of its debts generally or ceased or threatened to
cease carrying on all or substantial part of any
business;
(n) made any alteration to its memorandum or articles of
association, or other incorporation documents; or
(o) entered into an agreement, contract, arrangement or
commitment or passed any resolution or made any
offer (which remains open for acceptance) or
proposal with respect to any of the circumstances or
events, referred to in this condition (vi);
(vii) since 31 March 1998, and save as publicly announced:
(a) no material adverse change or deterioration having
occurred in the business, assets, financial or
trading position or profits or prospects of Filofax
or any other member of the Wider Filofax Group;
(b) no material litigation or arbitration proceedings,
prosecution or other legal proceedings to which any
member of the Wider Filofax Group is or may become a
party (whether as plaintiff or defendant or
otherwise) or which may otherwise affect any such
member having been announced, instituted or
threatened by or against or remaining outstanding by
or against any member of the Wider Filofax Group or
which may otherwise affect any such member and no
investigation by any relevant authority against or
in respect of or affecting any member of the Wider
Filofax Group having been threatened, announced or
instituted or remaining outstanding and which in any
such case might materially and adversely affect any
member of the Wider Filofax Group;
(c) there having been no receiver, administrator,
administrative receiver, trustee or similar officer
appointed over any of the assets or revenues of any
member of the Wider Filofax Group or any analogous
proceedings or steps having taken place under the
laws of any jurisdiction and there having been no
petition presented for the administration of any
member of the Wider Filofax Group or any analogous
proceedings or any steps having taken place under
the laws of any other jurisdictions; and
(d) no contingent or other liability having arisen or
become apparent or increased that might be likely to
have a material adverse effect on any member of the
Wider Filofax Group;
(viii)Day Runner UK not having discovered that:
(a) any financial, business or other information
concerning Filofax or the Wider Filofax Group that
has been publicly disclosed at any time by or on
behalf of any member of the Wider Filofax Group is
misleading, contains a misrepresentation of fact or
omits to state a fact necessary to make the
information contained therein not misleading and
which was not corrected by subsequent public
announcement made on the London Stock Exchange on or
before 23 September 1998; or
(b) any member of the Wider Filofax Group or any
partnership in which any member of the Wider Filofax
Group has a significant economic interest having any
liability (contingent or otherwise) that is not
publicly announced and that is material in the
context of the Wider Filofax Group as a whole;
(ix) Day Runner UK not having discovered that:
(a) any past or present member of the Wider Filofax
Group has not complied with all applicable
legislation or regulations of any jurisdiction with
regard to the storage, carriage, disposal,
discharge, spillage, leak or emission of any waste
or hazardous substance or any substance likely to
impair the environment or harm human health, which
non-compliance or any other disposal, discharge,
spillage, leak or emission which has occurred would
be likely to give rise to any material liability
(whether actual or contingent) on the part of any
member of the Wider Filofax Group; or
(b) there has been a disposal, discharge, spillage,
emission or leak of waste or any hazardous substance
or any substance likely to impair the environment or
harm human health on or about, or there has been an
emission or discharge of any waste or any hazardous
substance or any substance likely to impair the
environment or harm human health from, any land or
other asset owned, occupied or made use of by any
member of the Wider Filofax Group, or in which any
such member may have an interest, which would be
likely to give rise to any material liability or
cost (whether actual or contingent) on the part of
any member of the Wider Filofax Group; or
(c) there is or is likely to be any material liability
(whether contingent or otherwise) 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 Filofax Group,
or in which any such member may now or previously
have had or be deemed to have or have had an
interest, under any environmental legislation,
regulation, notice, circular or order of any
relevant authority, or to contribute to the cost
thereof or associated therewith or indemnify any
person in relation thereto; or
(d) circumstances exist whereby a person or class of
persons would be likely to have any claim or claims
in respect of any product, by-product or process of
manufacture or service or materials used therein now
or previously manufactured, supplied, sold or
carried out or in any way dealt with or handled by
any past or present member of the Wider Filofax
Group which claim or claims would be likely
materially and adversely to affect any member of the
Wider Filofax Group.
For the purposes of these conditions:
(a) "relevant authority" means any government, government
department or governmental, quasi-governmental,
supranational, statutory or regulatory body, court, trade
agency, professional association or institution or
environmental body or any other body or person in any
jurisdiction;
(b) a relevant authority shall be regarded as having
"intervened" if it has instituted, implemented, threatened
or communicated its intention to take any action,
proceedings, suit, investigation, inquiry or reference, or
made, enacted or proposed any statute, regulation, decision
or order, or taken any measures or other steps or otherwise
having indicated that it may do any of the foregoing and
"intervene" shall be construed accordingly;
(c) "authorisations" means authorisations, orders, grants,
recognitions, determinations, confirmations, consents,
licences, clearances, permissions, exemptions and
approvals;
(d) "the Wider Filofax Group" means Filofax and its subsidiary
undertakings, associated undertakings and any other
undertakings in which Filofax and such undertakings
(aggregating their interests) have a substantial interest
and "the Wider Day Runner Group" means Day Runner, any
holding company and any subsidiary undertaking, associated
undertakings and any other undertaking in which Day Runner
and such undertakings (aggregating their interests) have a
substantial interest and, for these purposes, "holding
company", "subsidiary undertaking", "associated
undertaking" and "undertaking" have the meanings given by
the Companies Act (but for this purpose ignoring paragraph
20(1)(b) of Schedule 4A to the Companies Act) and
"substantial interest" means a direct or indirect interest
in 15 per cent. or more of the equity or voting capital of
an undertaking; and
(e) "the Wholly owned Filofax Group" means Filofax and those of
its subsidiaries in which it has a direct or indirect
interest in 100 per cent. of the equity and voting capital.
Day Runner UK reserves the right to waive all or any of the above
conditions, in whole or in part, except condition (i). The
Recommended Offer will lapse unless all the above conditions have
been satisfied or (if capable of waiver) waived, or, where
appropriate, have been determined by Day Runner UK in its
reasonable opinion to be or remain satisfied, by midnight on the
day which is 21 days after the later of the first closing date of
the Recommended Offer and the date on which the Recommended Offer
becomes or is declared unconditional as to acceptances, or such
later date as Day Runner UK may, with the consent of the Panel,
decide, provided that Day Runner UK shall be under no obligation
to waive or treat as satisfied any of conditions (ii) to (ix)
inclusive by a date earlier than the latest date specified or
referred to above for the satisfaction thereof notwithstanding
that any such condition or the other conditions of the
Recommended Offer may at such earlier date have been waived or
satisfied and that there are at such earlier date no
circumstances indicating that any of such conditions may not be
capable of being satisfied.
The Recommended Offer will lapse if the acquisition of Filofax is
referred to the Monopolies and Mergers Commission before the
later of 3.00 pm (London time) on the first closing date of the
Recommended Offer and the date on which the Recommended Offer
becomes or is declared unconditional as to acceptances. In such
circumstances, the Recommended Offer will cease to be capable of
further acceptance and Day Runner UK and accepting Filofax
Shareholders shall thereupon cease to be bound by forms of
acceptance submitted at or before the time when the Recommended
Offer so lapses.
If Day Runner UK is required by the Panel to make an offer for
Filofax Shares under the provisions of Rule 9 of the Code, Day
Runner UK may make such alterations to the terms and conditions
of the Recommended Offer as are necessary to comply with the
provisions of that Rule.
Appendix II
Definitions
The following definitions apply throughout this document, unless
the context requires otherwise:
"business day" any day, other than a Saturday or Sunday or a
US federal holiday or UK Bank Holiday and
consisting of the time period from 12.01 am
until and including 12.00 (midnight) (New
York City time);
"Cazenove" Cazenove & Co.;
"Code" The City Code on Takeovers and Mergers;
"Companies Act" the Companies Act 1985, as amended;
"Daily Official
List" the Daily Official List of the London
Stock Exchange;
"Day Runner" Day Runner, Inc.;
"Day Runner Group" the group of companies of which Day Runner is
the ultimate holding company;
"Day Runner UK" or the Day Runner UK plc, a wholly owned
"Offeror" subsidiary of Day Runner;
"Filofax" Filofax Group plc;
"Filofax Group" the group of companies of which Filofax is
the ultimate holding company;
"Filofax Share
Schemes" the Filofax Employee Sharesave Scheme,
the Filofax Group plc 1998 Sharesave Scheme,
the Filofax approved Executive Share Option
Scheme and the Filofax unapproved Executive
Share Option Scheme;
"Filofax
Shareholders" holders of Filofax Shares;
"Filofax Shares" the existing unconditionally allotted or
issued and fully paid ordinary shares of 5
pence each in the capital of Filofax and any
further such shares that are unconditionally
allotted or issued at or prior to the time at
which the Recommended Offer ceases to be open
for acceptance (or, subject to the provisions
of the Code, such earlier time and/or date as
Day Runner UK may decide);
"Form of Acceptance" the Form of Acceptance, Authority and
Election for use by Filofax Shareholders in
connection with the Recommended Offer;
"Henry Ling" the company formerly named Henry Ling & Son
(London) Limited and renamed Elijo (London)
Limited on 9 April 1998;
"LIBOR" London Interbank Offered Rate for one year
sterling deposits;
"Loan Note
Alternative" the alternative whereby Filofax
Shareholders (other than certain overseas
persons) validly accepting the Recommended
Offer may elect to receive Loan Notes instead
of all or part of the cash consideration to
which they would otherwise be entitled under
the Recommended Offer;
"Loan Note Instrument" the loan note instrument constituting
the Loan Notes;
"Loan Notes" the floating rate, guaranteed, unsecured loan
notes to be issued by Day Runner UK pursuant
to the Loan Note Alternative;
"London Stock Exchange" the London Stock Exchange Limited;
"Recommended Offer"the Recommended Offer by Wasserstein Perella
on behalf of Day Runner UK to acquire all of
the Filofax Shares (other than those already
owned by Day Runner UK) on the terms and
subject to the conditions to be set out in
the Recommended Offer Document and the Form
of Acceptance including, where the context so
requires, any subsequent revision, variation,
extension or renewal of such offer;
"Recommended Offer Document" the document by means of which the
Recommended Offer is made;
"Rothschild" N M Rothschild & Sons Limited;
"Panel" The Panel on Takeovers and Mergers;
"SEC" the US Securities and Exchange Commission;
"Securities Act" the US Securities Act of 1933, as amended,
and the rules and regulations promulgated
thereunder;
"UK" or "United Kingdom"the United Kingdom of Great Britain and
Northern Ireland;
"United States, US or USA" 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;
"US$" or "US dollar" the lawful currency of the US;
"US Person" as defined in Regulation S under the
Securities Act;
"Wasserstein Perella" Wasserstein Perella & Co. Limited.
Bases of calculation in this document
Foreign exchange rate #1 = $1.68
END
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