Exhibit 19
CONFORMED COPY
- --------------------------------------------------------------------------------
IRREVOCABLE UNDERTAKING
(Jerry Benjamin)
To: Ohsea Holdings Limited
Marine Court
The Parade
Cowes
Isle of Wight
PO31 7QJ
("Offeror")
WestLB Panmure
Woolgate Exchange
25 Basinghall Street
London
EC2V 5HA
Nabarro Wells & Co. Limited
Saddlers House
Gutter Lane
London
EC2V 6HS
Rossini plc
Buckland House
Waterside Drive
Langley Business Park
Slough
Berkshire
SL3 6EZ ("Target")
Dated: 15 April, 2003
Scheme of arrangement in relation to the Target
I understand that:
(a) the Target intends to propose to its shareholders a scheme of arrangement
under section 425 of the Companies Act 1985 (the "Scheme") whereby,
together with the shares that the Offeror intends to acquire under the
terms of a share exchange agreement, the Offeror intends to acquire all of
the issued share capital of the Target for cash at a price of $2.10 per
share;
(b) the Scheme will be on the terms and conditions to be set out in a press
announcement of the Scheme (the "Press Announcement") in the form of the
attached draft Press Announcement, together with such additional terms and
conditions as may be required to comply with the rules of The City Code on
Take-overs and Mergers (the "City Code") and any other applicable laws or
regulations, including the NASD Rules;
- --------------------------------------------------------------------------------
2
- --------------------------------------------------------------------------------
(c) other than in respect of all the ordinary shares owned or controlled by the
Offeror, CS Services Limited and Andrew Dixey and some of the ordinary
shares owned or controlled by Benjamin Blackden, the Scheme will extend to
all the ordinary shares of 2 pence each in the Target ("Ordinary Shares")
issued prior to the close of business on the business day preceding the
date on which the Court confirms the capital reduction involved in the
Scheme (the "Relevant Time"), including any Ordinary Shares issued as a
result of the exercise of options under the Target's Employee Share Option
Scheme and the Target's Company Share Option Plan prior to the Relevant
Time (together the "Share Schemes");
(d) under or in connection with the Scheme, the Offeror will:
(i) issue to Andrew Dixey shares in the Offeror in exchange for the 69,000
Ordinary Shares held by him, issue to Benjamin Blackden and Sally
Blackden (as joint holders) shares in the Offeror in exchange for
400,000 of the 408,000 Ordinary Shares held by such persons and issue
to Osborne Clarke Trustees Limited (as nominee for the trustees of the
Blackden Personal Settlement) shares in the Offeror in exchange for
300,000 of the 393,500 Ordinary Shares held by the trustees (the
Ordinary Shares being exchanged by such persons being referred to as
the "Exchange Shares", and the Exchange Shares together with the
93,500 Ordinary Shares held by Osborne Clarke Trustees Limited and the
8,000 Ordinary Shares held jointly by Benjamin Blackden and Sally
Blackden which are to be cancelled pursuant to the Scheme, the "NI
Shares");
(ii) issue to CS Services Limited, a connected person to the Offeror,
ordinary shares in the Offeror in exchange for the Ordinary Shares
held by it; and
(iii) pay to each other shareholder of the Target a cash amount of $2.10 in
respect of each Ordinary Share held by such shareholder; and
(e) the proposal of the Scheme is conditional on:
(i) the receipt by the Offeror of completed irrevocable undertakings (in
forms acceptable to the Offeror):
(A) from Andrew Dixey and Benjamin Blackden (the "Non-Independent
Directors") and their associated persons undertaking not to
exercise the voting rights in respect of the NI Shares and the
Ordinary Shares held by Christopher Blackden, Mary Blackden and
Philippa Berry at the court meeting of the holders of the
Ordinary Shares (the "Court Meeting") to be convened by the High
Court in England and Wales (the "Court") and undertaking to be
bound by the Scheme; and
(B) to vote in favour of the Scheme from each of the independent
directors of the Target in respect of a total of not less than
2,000 Ordinary Shares
(for the purposes of this clause, a person is associated with a
director if that director would have to notify the Target under
section 324 or section 328 of the Companies Act 1985 of any sale of
shares in the Target by that person);
- --------------------------------------------------------------------------------
3
- --------------------------------------------------------------------------------
(ii) the release of the Press Announcement,
but the Offeror may waive condition (i) above in whole or in part (and
either conditionally or otherwise) if it so chooses and all my obligations
under this undertaking will lapse if the above conditions are not fulfilled
(or, where permitted, waived by the Offeror) by 12.00 noon on 30 April,
2003 (or such later time or day as the Offeror may notify to the board of
the Target).
In consideration of the Offeror releasing the Press Announcement and agreeing
(subject to the above conditions) to undertake to the Court to be bound by the
Scheme and of the Target agreeing to propose the Scheme to the shareholders of
the Target, I undertake, agree and represent to and with the Offeror and the
Target in the following terms:
1. Unless and until the Scheme becomes effective or lapses, I will not except
pursuant to the Scheme acquire any interest in any shares in the Target
(other than pursuant to the exercise of options held by me under the Share
Schemes).
2. The Press Announcement may incorporate a reference to me substantially in
the terms set out in the attached draft Press Announcement and, in
accordance with the City Code, this undertaking will be referred to in the
Scheme and will be available for inspection until the Scheme becomes
effective or lapses.
3. Promptly on request by the Offeror or the Target, I will supply to the
Offeror or the Target or their professional advisers for inclusion in the
Scheme Document details (as required by Rules 24.3 and 25.3 of the City
Code) of:
(a) my interests in securities of the Offeror and the Target; and
(b) all my dealings in securities of the Offeror and the Target during the
period of 12 months prior to the date of this undertaking.
4. As a director of the Target:
(a) I agree to the issue of the Press Announcement containing the
reference to the unanimous recommendation and associated opinions of
the independent directors of the Target and confirm the accuracy of
the information in the Press Announcement other than the information
relating to the Offeror, CS Services Limited, the directors of the
Offeror and CS Services Limited and their connected persons;
(b) I will provide to the Offeror and the Target or their professional
advisers promptly on request all information which is in my possession
or control (or which I could reasonably obtain possession or control
of) that may be reasonably necessary to complete the Scheme Document;
(c) I will comply with the requirements of the City Code and any other
applicable laws or regulations including, in particular, the
requirement to join with the other directors or independent directors
(as appropriate) of the Target in making in the Press Announcement and
the Scheme Document statements of responsibility in relation to the
information contained in such documents (other than the information
relating to the Offeror, CS Services Limited, the directors of the
Offeror and CS Services Limited and their connected persons) and in
relation to the unanimous
- --------------------------------------------------------------------------------
4
- --------------------------------------------------------------------------------
recommendation and associated opinions of the independent directors,
in the terms or to the effect required under Rule 19.2 of the City
Code;
(d) I agree to use all reasonable endeavours to ensure that (at all
reasonable times following the release of the Press Announcement and
before the Scheme becomes effective or lapses) the Offeror or its
professional advisers are provided with such information regarding the
Target and its subsidiaries (the "Group") as the Offeror or its
professional advisers reasonably require to enable the Offeror to
establish whether or not the conditions of the Scheme are or will be
satisfied;
(e) subject to any overriding fiduciary duty I have as a director of the
Target, I will confirm in the Scheme Document that, having been so
advised by Nabarro Wells & Co. Limited, I consider the cash price of
$2.10 per Ordinary Share subject to the Scheme to be fair and
reasonable, and I will recommend shareholders of the Target to approve
the Scheme and to vote in favour of the resolutions to be proposed at
the Court Meeting and the extraordinary general meeting of the Target
(the "EGM") in connection with the Scheme and I will not recommend any
other offer or scheme of arrangement;
(f) subject to any such overriding fiduciary duty, I will at all times
until the Scheme becomes effective or lapses:
(i) carry out such actions as are reasonably required of me to
procure that all information relating to the Group required to be
contained in the Press Announcement, the Scheme Document and all
other documents required to be sent to shareholders of the Target
in connection with the Scheme under the City Code and any other
applicable laws or regulations will promptly be supplied to the
Offeror or the Target or their professional advisers;
(ii) provide such assistance and take such actions as the Offeror or
the Target reasonably requests to ensure that the Scheme is
proposed to the shareholders of the Target including without
limitation:
(aa) procuring despatch of the Press Announcement;
(bb) procuring the issue of the Part 8 Claim Form in relation to
the Scheme;
(cc) convening the EGM;
(dd) procuring despatch of the Scheme Document and the notices of
the Court Meeting and the EGM;
(ee) procuring reasonable access for the Offeror and its
professional advisers to the Target's registrars in
connection with the Scheme;
(ff) following the Court Meeting and the EGM, procuring the
presentation to the Court of the Petitions in relation to
the Scheme and the associated reduction in the share capital
of the Target; and
(gg) procuring an office copy of the Court Order sanctioning the
Scheme
- --------------------------------------------------------------------------------
5
- --------------------------------------------------------------------------------
and appropriate documents relating to the associated
reduction in the share capital of the Target;
(iii) co-operate with the Offeror and the Target and use all
reasonable endeavours to ensure the Scheme becomes unconditional
in all respects, including (without limitation) the obtaining of
any regulatory and third party consents, and becomes effective;
(iv) join with the Offeror and the Target in endeavouring to obtain
such consents of clients, customers or banks or other third
parties as are necessary to avoid termination or variation of
contracts or other arrangements which are material to the
business of any member of the Group; and
(v) so far as I am able, procure that no shares or interests in
shares in the Target or any other member of the Group are
allotted or issued (except pursuant to options which exist as at
the date of this undertaking), no bonus issues, dividends or
distributions are declared, made or paid and no material change
will be made in the manner or conduct of the business of the
Group;
(g) I will not directly or indirectly solicit any general offer for all or
any part of the issued share capital of the Target from any third
party and will immediately inform the Offeror of any approach by a
third party which may lead to such an offer; and
(h) so far as I am aware, conditions 1 to 9 inclusive in the appendix to
the attached draft Press Announcement can currently be satisfied, I am
not aware of any circumstances whereby they would cease to be
satisfied before the Scheme becomes effective and, if I become so
aware, I will immediately notify the Offeror.
5. The following additional provisions apply to this undertaking:
(A) All my obligations under this undertaking will lapse if:
(a) the resolution(s) to be proposed at the Court Meeting (are) not passed
by the requisite majority at the Court Meeting (or any adjournment
thereof); or
(b) the resolution(s) to be proposed at the EGM (are) not passed by the
requisite majority at the EGM (or any adjournment thereof); or
(c) the Court refuses to sanction the Scheme or confirm the associated
reduction in the share capital of the Target; or
(d) the Scheme does not become effective by 31 July, 2003 (or such later
date as the Offeror and the Target may, with the consent of the Panel
on Take-overs and Mergers, agree); or
(e) the Scheme Document has not been posted to shareholders by 13 May,
2003 (as Attorney).
(B) Any time, date or period mentioned in this undertaking may be extended by
mutual agreement between the parties to this undertaking but as regards any
time, date or period originally fixed or so extended time shall be of the
essence.
- --------------------------------------------------------------------------------
6
- --------------------------------------------------------------------------------
(C) References in this undertaking to a person having an "interest in shares"
include all interests which that person would be required to notify to the
Target if he were a director of the Target.
(D) In this undertaking the expression the "Scheme" extends to the Scheme as
modified from time to time.
(E) This undertaking shall bind my estate and personal representatives, except
in relation to those obligations which relate to my position as a director
of the Target.
(F) I acknowledge that, until the Press Announcement is released, the fact that
the Scheme is under consideration is strictly confidential and is inside
information for the purposes of offences relating to insider dealing. Prior
to the release of the Press Announcement, I will not disclose any
information relating to the Scheme and will not deal or encourage any other
person to deal in the securities of the Target.
(G) This undertaking is governed by and shall be construed in accordance with
English law.
IN WITNESS of which this undertaking has been executed as a deed and has been
delivered on the date which first appears on page 1.
- --------------------------------------------------------------------------------
7
- --------------------------------------------------------------------------------
SIGNED as a deed ) /s/ Jerry Benjamin
by JERRY BENJAMIN ) Name: Jerry Benjamin
In the presence of: Title: Director
Witness's
Signature: Sandra Fowle
Name: Sandra Fowle
Address: 126 Walsingham Gardens, Stoneleigh, Epsom, KT19 0ND
- --------------------------------------------------------------------------------