Exhibit 26
CONFORMED COPY
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IRREVOCABLE UNDERTAKING
(Osborne Clarke Trustees Limited)
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: 14 April, 2003
Scheme of arrangement in relation to the Target
We 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
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rules of The City Code on Take-overs and Mergers (the "City Code") and any
other applicable laws or regulations, including the NASD Rules;
(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 jointly by Benjamin and Sally Blackden or registered in our
name, 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 nominee (the
Ordinary Shares being exchanged by such persons on the terms of a
share exchange agreement dated April, 2003 (the "SEA") 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
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(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 our 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, we undertake, agree and represent to and with the Offeror and the
Target in the following terms:
1. We are the nominee for the trustees of the Blackden Personal Settlement and
the registered holder of the number of Ordinary Shares specified in the
Schedule (the "Shares"), free from all liens, charges, encumbrances and
restrictions whatsoever, and of all rights attaching to them.
2. We have all relevant 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 Shares at general and class meetings of the
Target.
3. We will not exercise the voting rights (or will procure that the voting
rights are not exercised) in respect of the Shares at the Court Meeting
and, following approval of the Scheme by the Court Meeting, we will
irrevocably instruct the appropriate firm of solicitors to instruct Counsel
to attend the Court hearing of the petition to sanction the Scheme and to
undertake to the Court on our behalf to be bound by the Scheme in respect
of the Shares.
4. Other than in respect of the ordinary resolution approving the arrangements
with the Non-Independent Directors (in respect of which we undertake not to
exercise such voting rights) or as otherwise prevented under the Scheme or
the City Code, we will (either personally or by proxy) exercise (or procure
the exercise of) the voting rights in respect of the Shares 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 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.
5. We will or will procure that in relation to the Shares (save to the extent
that we are prevented from doing so by the Scheme or the City Code):
(a) the proxy form(s) in respect of the EGM (are) returned to the Target's
registrars, duly completed and executed and indicating that the proxy
should vote in favour of the resolutions to be proposed at the EGM
(other than the resolution approving the arrangements with the
Non-Independent Directors) within the time prescribed for return of
forms of proxy in the document to be issued by the Target which will
contain details of the Scheme (the "Scheme Document"); and
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(b) such proxy form(s) (are) not revoked or withdrawn.
6. Unless and until the Scheme becomes effective or lapses, we will not except
pursuant to the Scheme (and save as contemplated by the SEA in respect of
the Exchange Shares):
(a) sell, transfer, charge, pledge or grant any option over or otherwise
dispose of any of the Shares or any interest in any of the Shares; or
(b) accept any offer in respect of any of the Shares or any interest in
any of the Shares (whether it is conditional or unconditional and
irrespective of the means by which it is to be implemented); or
(c) restrict or (in so far as it is within our power to do so) permit the
creation of any restriction on the voting rights in respect of the
Shares or enter, or (in so far as it is within our power to do so)
allow the entry into, any agreement which would or might prevent the
Shares from being subject to the terms of the Scheme; or
(d) acquire any further interest in any shares in the Target.
7. The Press Announcement may incorporate a reference to us 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.
8. Promptly on request by the Offeror or the Target, we 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) our interests in securities of the Offeror and the Target; and
(b) all our dealings in securities of the Offeror and the Target during
the period of 12 months prior to the date of this undertaking.
9. The following additional provisions apply to this undertaking:
(A) All our 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
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(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) We 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, we 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.
(F) We shall not be subject to any personal liability under this undertaking
and shall only be liable to the extent that we are able to indemnify
ourselves out of the assets for the time being held in the trust property.
(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.
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THE SCHEDULE
The Ordinary Shares
Name(s) of registered holder(s) No. of Ordinary Shares
Osborne Clarke Trustees Limited 393,500
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SIGNED as a deed )
by OSBORNE CLARKE )
TRUSTEES LIMITED )
acting by: ) /s/ Matthew Bennett
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) Name: Matthew Bennett
) Title: Director
)
and: ) /s/ Sandra Brown
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) Name: Sandra Brown
) Title: Director
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