Exhibit 23
CONFORMED COPY
- --------------------------------------------------------------------------------
IRREVOCABLE UNDERTAKING
(Ed Shea)
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:
(i) 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"); and
(ii) the Ordinary Shares held by the Bank of New York (as depositary) in
respect of which American depositary shares (each representing one
Ordinary Share) have been issued under the terms of a depositary
agreement dated 6 August, 1996 (the Depositary Agreement);
(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
- --------------------------------------------------------------------------------
3
- --------------------------------------------------------------------------------
(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);
(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. I am the beneficial owner of the number of American depositary shares (each
representing one Ordinary Share) specified in the Schedule (the "ADSs"),
free from all liens, charges, encumbrances and restrictions whatsoever, and
of all rights attaching to them.
2. I have full power and authority (without the approval or consent of any
other person) to exercise (or procure the exercise of) all the voting
rights in respect of the ADSs in accordance with the terms of the
Depositary Agreement.
3. I will (either personally or by proxy) instruct (or procure that the Bank
of New York is instructed to) the Bank of New York (as depositary) to
exercise the voting rights in respect of the Ordinary Shares underlying the
ADSs:
(a) in favour of the resolution(s) to be proposed at the Court Meeting to
be convened by order of the Court in connection with the Scheme; and
(b) in favour of the resolution(s) to be proposed at the extraordinary
general meeting of the Target (the "EGM") to be convened by the Target
in connection with the Scheme and the associated approval of the
arrangements with the Non-Independent Directors, reduction in the
share capital of the Target, the cancellation of (pound)13,122,000
standing to the credit of the Target's share premium account and
amendments to the Target's articles of association.
4. I will or will procure that the voting instruction card (containing
instructions to the Bank of New York on how to vote the Ordinary Shares
underlying the ADSs at the Court Meeting and at the EGM) sent to me by the
Bank of New York is returned to the Bank of New York, duly completed and
executed and indicating that the Bank of New York should, in respect of the
Ordinary Shares underlying the ADSs, vote in favour of the resolutions to
be proposed at the Court Meeting and the EGM, within the time prescribed
for return of the voting instruction card.
- --------------------------------------------------------------------------------
4
- --------------------------------------------------------------------------------
5. Unless and until the Scheme becomes effective or lapses, I will not except
pursuant to the Scheme:
(a) sell, transfer, charge, pledge or grant any option over or otherwise
dispose of any of the ADSs or any interest in any of the ADSs; or
(b) remove the Ordinary Shares underlying the ADSs from the ADS programme;
or
(c) accept any offer in respect of any of the ADSs or any interest in any
of the ADSs (whether it is conditional or unconditional and
irrespective of the means by which it is to be implemented); or
(d) restrict or (in so far as it is within my power to do so) permit the
creation of any restriction on the voting rights in respect of the
ADSs or enter, or (in so far as it is within my power to do so) allow
the entry into, any agreement which would or might prevent the ADSs
from being subject to the terms of the Scheme; or
(e) acquire any further interest in any shares in the Target.
6. 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.
7. 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.
8. To the extent that any of the ADSs are not registered in my name, I will
procure the registered holder(s) to act in accordance with the terms of
this undertaking.
9. 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
- --------------------------------------------------------------------------------
5
- --------------------------------------------------------------------------------
(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 30 April,
2003.
(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.
(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.
(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.
- --------------------------------------------------------------------------------
6
- --------------------------------------------------------------------------------
THE SCHEDULE
The ADSs
Name(s) of beneficial holder(s) No. of Ordinary Shares
Ed Shea 942,500
- --------------------------------------------------------------------------------
7
- --------------------------------------------------------------------------------
SIGNED as a deed ) /s/ Ed Shea
by ED SHEA ) -----------------------------------
In the presence of: Name: Ed Shea
Witness's
Signature: Jackie Hodge
Name: Jackie Hodge
Address: 655 Brea Canyon Road, Walnut, CA 91789
- --------------------------------------------------------------------------------