RNS No 4067b
FILOFAX GROUP PLC
24th September 1998
PART 2
Not for release, publication or distribution in or
into Canada, Australia or Japan
Day Runner UK plc
(a wholly owned subsidiary of Day Runner, Inc.)
Cash offer
for
Filofax Group plc
Appendix I
Conditions and certain further terms of the Offer
The 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 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withdrawn) by not later than 3.00 pm (London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
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 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 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 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 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) the expiry or early termination of all
applicable waiting periods under the United
States Hart-Scott-Rodino Antitrust Improvements
Act of 1976 and the regulations made
thereunder;
(iv) no relevant authority having intervened in a
way that would or might reasonably be expected
to:
(a) make the 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 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 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 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 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
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;
(v) 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
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 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 or the
Wider Day Runner 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 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;
(vi) 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, could or
might reasonably be expected to, as a result
of (i) the 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:
(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, could 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
(vi);
(vii) 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) 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 ordinary 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)
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 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 or 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 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 the
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;
(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 dependents 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 (vii);
(viii)since 31 March 1998, and save as publicly announced:
(a) no 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 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
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 an adverse effect on
any member of the Wider Filofax Group;
(ix) 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;
(x) 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 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 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 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
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 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 Offer and the date on which
the 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 (x)
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 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 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 Offer and
the date on which the Offer becomes or is declared
unconditional as to acceptances. In such circumstances,
the 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 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 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 "Offeror" Day Runner UK plc, a wholly
owned 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 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 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 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 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 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;
"Offer" the offer by Wasserstein Perella on behalf of
Day Runner UK to acquire 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 Offer Document and the Form
of Acceptance including, where the
context so requires, any subsequent
revision, variation, extension or
renewal of such offer;
"Offer Document" the document by means of which the Offer is
made;
"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
FX rate #1 = $1.68
The loss of value of over 59 per cent. against the FTSE All-Share Index
is calculated as 1 - (a/b) where:
a = Filofax's closing share price of 140 pence on 23 September 1998;
b = the value of the FTSE All-Share Index on 23 September 1998,
having rebased the index to Filofax's share price on 1 January 1996.
END
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