This Offer expires at 15:00 hours, Amsterdam time, on 21 March 2006 unless extended
OFFER MEMORANDUM J dated 24 February 2006 .gsg^
DFDS RECOMMENDED CASH OFFER W F R A N S M A A S
TRANSPORT BY ^
DFDS TRANSPORT GROUP A/S i (a public limited liability company incorporated under the laws of Denmark, a wholly-owned '
subsidiary of DSV A/S and having its registered office at Brondby, Denmark)
FOR ALL THE ISSUED AND OUTSTANDING ORDINARY SHARES WITH A NOMINAL * / ( J
P
VALUE OF EUR 4.80 ^ 5
IN THE CAPITAL OF ° KONINKLIJKE FRANS MAAS GROEP N.V.
(a public limited liability company (naamloze vennootschap) incorporated under the laws of The Netherlands, with statutory seat at Venlo, The Netherlands)
1 1 _ This offer memorandum (the "Offer Memorandum") contains details of the recommended cash offer
by DFDS Transport Group A/S (the "Offeror"), a wholly-owned subsidiary of DSV A/S (a public limited liability company, incorporated under the laws of Denmark), to holders of issued and outstanding ordinary shares with a nominal value of EUR 4.80 each (the "Shares", holders of such Shares being referred to as "Shareholders") in the share capital of Koninklijke Frans Maas Groep N.V. ("Frans Maas" or the "Company") to purchase for cash all of or part of their Shares, on the terms and subject to the conditions and restrictions contained in this Offer Memorandum (the "Offer"). Capitalised terms used in this Offer Memorandum have the meanings as set out in Section 3 (Definitions).
Shareholders tendering their Shares under the Offer will be paid, on the terms and subject to jthe conditions and restrictions contained in this Offer Memorandum, in consideration of each Share validly tendered (or defectively tendered provided that such defect has been waived by the Offeror) and delivered (geleverd) a cash amount of EUR 38.00, inclusive of any accrued profits or any distributions, such as dividend, declared payable between the date of this Offer Memorandum and the Settlement Date (the "Offer Price"). See Section 5.1 (Offer Price).
The Supervisory Board and the Management Board fully support and unanimously recommend jthe Offer to the Shareholders for acceptance. See Section 7 (Recommendation by the Supervisory Board and Management Board).
Certain holders of Shares have irrevocably undertaken to tender Shares held by them under the Offer. Such undertakings are in respect of a total of 3,461,997 Shares, representing 58.55% of the Shares at
the date of this Offer Memorandum. See Section 6.3 (Irrevocables). ! The Acceptance Period under the Offer commences at 9:00 hours, Amsterdam time, on 27 February
2006 and expires at 15:00 hours, Amsterdam time, on 21 March 2006, unless extended (the "Acceptance Closing Date"). Acceptance under the Offer must be made in the manner specified in this Offer Memorandum. Shares tendered on or prior to the Acceptance Closing Date may not be withdrawn, subject to the right of withdrawal of any tender during any extension of the Acceptance Period in accordance with the provisions of article 9o paragraph 5 of the Bte 1995. The Offeror reserves the right to extend the Acceptance Period. If the Acceptance Period is extended, the Offeror will make an announcement to that effect within three Business Days following the Acceptance Closing Date, in accordance with the provisions of article 9o paragraph 5 of the Bte 1995. See Section 5
(Invitation to the Shareholders). ; Within five Business Days following the Acceptance Closing Date, the Offeror will announce whether
the Offer is declared unconditional (gestand wordt gedaan) (the "Unconditional Date"). The Offeror reserves the right to waive any of the Offer Conditions, provided that the waiver of certain of such conditions shall be subject to the prior written consent of Frans Maas. See Section 5.5 (Declaring ;the
Offer Unconditional). ' Announcements contemplated by the foregoing paragraphs will be issued by press release and will be
published in at least Het Financieele Dagblad and the Daily Official List, as appropriate. See
Section 5.11 (Announcements). ! In the event that the Offeror announces that the Offer is declared unconditional (gestand wordt
gedaan), the Shareholders who have tendered and delivered their Shares for acceptance pursuant to the Offer will receive within five Business Days following the Unconditional Date (the "Settlement Date") the Offer Price in respect of each Share validly tendered (or defectively tendered provided that
such defect has been waived by the Offeror) and delivered (geleverd). ' At 15:00 hours, Amsterdam time, on 13 March 2006, the Extraordinary General Meetingj of
1. RESTRICTIONS AND IMPORTANT INFORMATION 1.1 Restrictions
The Offer is not being made, and the Shares will not be accepted for purchase from or on behalf of any Shareholders, in any jurisdiction in which the making or acceptance thereof would not be in compliance with the securities or other laws or regulations of such jurisdiction or would require any registration, approval or filing with any regulatory authority not expressly contemplated by the terms of this Offer Memorandum. Persons obtaining the Offer Memorandum are required to take due note and observe all such restrictions and obtain any necessary authorisations, approvals or consents. Neither the Offeror, nor DSV A/S, nor Frans Maas, nor any of their advisers accepts any liability for any violation by any person of any such restriction. Any person (including, without limitation, custodians, nominees and trustees) who would or otherwise intends to forward this Offer Memorandum or any related document to any jurisdiction outside The Netherlands should carefully read this Section 1 (Restrictions and Important Information) before taking any action. The distribution of this document in jurisdictions other than The Netherlands may be restricted by law and therefore persons into whose possession this document comes should inform themselves about and observe such restrictions. Any failure to comply with any such restrictions may constitute a violation of the securities law of any such jurisdiction.
1.1.1 United States, Canada, Australia and Japan
The Offer is not being made directly or indirectly, in or into the United States, Canada, Australia or Japan and this Offer Memorandum, and any and all materials related thereto should not be sent in or into the United States, Canada, Australia or Japan, whether by use of the United States, Canadian, Australian or Japanese interstate or foreign commerce, of any facility of a United States, Canadian, Australian or Japanese national securities exchange (including, but without limitation, electronic mail, post, facsimile transmission, telex and telephone), and the Offer cannot be accepted by any such use, means or instrumentality, in or from within the United States, Canada, Australia or Japan. Accordingly, copies of this Offer Memorandum and any related materials are not being, and must not be, mailed or otherwise distributed or sent in or into or from the United States, Canada, Australia or Japan or, in their capacities as such, to custodians, trustees or nominees holding Shares for United States, Canadian, Australian or Japanese persons, and persons receiving any such documents (including custodians, nominees and trustees) must not distribute or send them in, into or from the United States, Canada, Australia or Japan and doing so will render invalid any relevant purported acceptance of the Offer.
1.1.2 United Kingdom
This Offer Memorandum is directed only at persons who (i) are persons falling within Article 49(2) (a) to (d) ("high net worth companies, unincorporated associations, etc.") of The Financial Services and Markets Act 2000 (Financial Promotion) Order 2001 (as amended) (the "Order") or (ii) are investment professionals as in the meaning of Article 19 of the Order or have professional experience in matters relating to investments or (iii) are outside the United Kingdom. This Offer Memorandum must not be acted on or relied on by such persons. The Offer may only be accepted by, and any investment activity to which this communication relates is available only to and will be engaged in only with, such persons.
1.2 Important information
This Offer Memorandum contains important information that should be read carefully before any decision is made to tender Shares in connection with the Offer. The Shareholders are advised to seek independent advice where necessary. In addition, the Shareholders may wish to consult with their tax advisers regarding the tax consequences of tendering their Shares in connection with the Offer. The information included in Sections 1.1, 4.1, 4.3, 4.6, 4.7 - 4.11 (inclusive), 4.12 (second sentence), 5.1 - 5.10 (inclusive), 5.11 (second sentence), 6.3, 6.5, 6.7.1 - 6.7.4 (inclusive), 6.8 and 11 has been solely provided by the Offeror. The information included in Sections 4.4, 4.5, 6.4, 6.7.5 (second paragraph), 7, 9, 10.1, 10.4, 10.5, 13.1, 13.3, 13.4 and 14 has been solely provided by Frans Maas. The information included in Sections 1.2, 2, 3, 4.2, 4.12 (first sentence), 4.13, 5.11 (first sentence), 6.1, 6.2, 6.6, 6.7.5 (first paragraph), 6.7.6, 6.7.7, 6.9, 10.2, 10.3, 12 and 15 has been provided by the
Offeror and Frans Maas jointly. The information included in Section 8 has been provided by Rabo Securities, the equity investment bank of Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. ("Rabo Securities"), and is identical to the original fairness opinion as of the same date issued by Rabo Securities. The information included in Section 13.2 and 13.5 have been provided by PricewaterhouseCoopers Accountants N.V. ("PricewaterhouseCoopers") and are identical to the original auditor statements as of the same dates issued by PricewaterhouseCoopers. Section 16 is a translation of information provided by the Offeror and/or Frans Maas in the English language.
The Offeror and Frans Maas are exclusively responsible for the accuracy and completeness of the information provided in this Offer Memorandum, each with respect to such information as it has provided, and together with respect to the information they have provided jointly, except for information that has not been provided by either of them (which includes the fairness opinion in Section 8, for which Rabo Securities is responsible, and the auditor statements in Sections 13.2 and 13.5, for which PricewaterhouseCoopers is responsible) or jointly by them as set out in the previous paragraph of this Section. Each of the Offeror and Frans Maas confirms, with respect to such information it has provided in this Offer Memorandum, that to the best of its knowledge and belief as of the date hereof the information contained in this Offer Memorandum is true and accurate in all material respects and that there are no facts the omission of which would make any statement in this Offer Memorandum misleading in any material respect. Please be aware that certain financial and statistical information in this Offer Memorandum may be rounded up or down and should therefore not be regarded as definitive.
The information included in this Offer Memorandum reflects the situation as at the date of this Offer Memorandum. Neither the issue nor the distribution of this Offer Memorandum shall under any circumstances imply that the information contained herein is accurate and complete as of any time subsequent to this date or that there has been no change in the information set out in this Offer Memorandum or in the affairs of Frans Maas and/or its subsidiaries and/or its affiliates since the date of this Offer Memorandum. The foregoing does not affect the obligation of both the Offeror and Frans Maas, each in so far as it concerns them, to make a public announcement pursuant to article 9b paragraph 1 of the Bte 1995, if applicable.
No person, other than the Offeror and Frans Maas and without prejudice to the auditors' and review reports issued by PricewaterhouseCoopers and the fairness opinion issued by Rabo Securities included in this Offer Memorandum, is authorised in connection with the Offer to provide any information or to make any statements on behalf of the Offeror or Frans Maas in connection with this Offer or any information contained in this Offer Memorandum. If any such information or statements is provided or made by parties other than the Offeror or Frans Maas such information or statements should not be relied upon as having been provided by or made by or on behalf of the Offeror or Frans Maas. Any information or representation not contained in this Offer Memorandum must not be relied upon as having been provided by or made by or on behalf of the Offeror or Frans Maas.
This Offer Memorandum and the Offer are, and any tender, purchase or delivery of Shares will be governed by and construed in accordance with the laws of The Netherlands. The District Court of Amsterdam (Rechtbank Amsterdam) and its appellate courts shall have exclusive jurisdiction to settle any disputes which might arise out of or in connection with this Offer Memorandum, the Offer and/or any tender, purchase or delivery of Shares. Accordingly, any legal action or proceedings arising out of or in connection with the Offer Memorandum, the Offer and/or any tender, purchase or delivery of Shares may be brought exclusively in such courts.
The Offer Memorandum is published in English and a Dutch summary is included as Section 16. In the event of any differences, whether or not in interpretation, between the English text of the Offer Memorandum and the Dutch summary of this Offer Memorandum, the English text of the Offer Memorandum shall prevail.
Copies of this Offer Memorandum, the Frans Maas Articles of Association, the proposed articles of association of Frans Maas, the financial information of Frans Maas relating to the Financial Year 2005 and the annual financial statements (Jaarrekening) of Frans Maas for the Financial Year 2004, the Financial Year 2003 and the Financial Year 2002 as adopted by the general meeting of Shareholders, which documents are incorporated by reference in, and form an integral part of, this Offer Memorandum, are available free of charge at the offices of Frans Maas and the Exchange Agent and can be obtained by contacting Frans Maas or the Exchange Agent at the addresses below.
Frans Maas The Exchange Agent Koninklijke Frans Maas Groep N.V. ABN AMRO Bank N.V. Attn: secretariat of the Executive Board Attn. Servicedesk MF 7020 Noorderpoort 15 Kemelstede 2
5916 PJ Venlo 4817 ST Breda The Netherlands The Netherlands
P.O. Box 968 P.O. Box 3200 5900 AZ Venlo 4800 DE Breda The Netherlands The Netherlands Tel: +31 (0)77 359 7611 Tel: +31 (0)76 579 9455 Fax: +31 (0)77 351 8411 Fax: +31 (0)76 579 9643
Email: offermemorandum@nl.fransmaas.com Email: So.Servicedesk.WCS@nl.abnamro.com This Offer Memorandum includes forward-looking statements that involve risk and uncertainty. Generally, words such as may, will, expect, intend, estimate, anticipate, believe, plan, seek, continue or similar expressions identify forward-looking statements. Although each of the Offeror and Frans Maas, each with respect to the statements it has provided, believes that the expectations reflected in such forward-looking statements are based on reasonable assumptions, no assurance can be given that such statements will be fulfilled or prove to be correct, and no representations are made as to the accuracy and completeness of such statements. Any such forward-looking statement must be considered together with the fact that actual events or results may vary materially from such forward-looking statements due to, among other things, political, economic or legal changes in the markets and environments in which the Offeror and/or Frans Maas does business, to competitive developments or risks inherent to the Offeror's and/or Frans Maas' business plans and to uncertainties, risk and volatility in financial markets and other factors affecting the Offeror and/or Frans Maas.
The Offeror and Frans Maas undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by applicable laws and regulations or by any appropriate regulatory authority (such as Book I and Book II of the Euronext Rule Book of Euronext Amsterdam).
Carnegie Bank A/S and ABN AMRO Bank N.V. are acting as joint financial advisers exclusively to the Offeror and to no one else in connection with the Offer and are not responsible to anyone other than the Offeror for providing the protections afforded to the clients of Carnegie Bank A/S and ABN AMRO Bank N.V. or for providing advice in relation to the Offer.
Lazard B.V. is acting as financial adviser exclusively to Frans Maas and to no one else in connection with the Offer and is not responsible to anyone other than Frans Maas for providing the protections afforded to the clients of Lazard B.V. or for providing advice in relation to the Offer.
Rabo Securities is acting as fairness opinion provider exclusively to Frans Maas and to no one else in connection with the Offer and is not responsible to anyone other than Frans Maas for providing the protections afforded to the clients of Rabo Securities or for providing advice in relation to the Offer.
2. TABLE OF CONTENTS
1. RESTRICTIONS AND IMPORTANT INFORMATION 3
2. TABLE OF CONTENTS 6
3. DEFINITIONS 7 4. SUMMARY 10 5. INVITATION TO THE SHAREHOLDERS 15
6. EXPLANATION OF THE OFFER 18 7. RECOMMENDATION BY THE SUPERVISORY BOARD AND THE MANAGEMENT
BOARD 25 8. FAIRNESS OPINION 26
9. INFORMATION REGARDING FRANS MAAS 28
10. CAPITAL AND SHARES 32 11. INFORMATION ON THE OFFEROR AND DSV 34
12. FURTHER DECLARATIONS PURSUANT TO THE BTE 1995 36
13. FINANCIAL INFORMATION 37 14. EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS OF FRANS MAAS 79
15. PRESS RELEASES 80 16. NEDERLANDSE SAMENVATTING VAN HET BOD 85
3. DEFINITIONS
Any reference in this Offer Memorandum to defined terms in plural form shall constitute a reference to such defined terms in singular form, and vice versa. All grammatical and other changes required by the use of a definition in singular form shall be deemed to have been made herein and the provisions hereof shall be applied as if such changes have been made.
Taking into account the above statements, defined terms used in this Offer Memorandum shall have the following meaning:
Acceptance Closing Date the time and date on which the Offer expires, being at 15:00 hours, Amsterdam time, on 21 March 2006, unless extended in accordance with article 9o paragraph 5 of the Bte 1995
Acceptance Period the period during which the Shareholders can tender their Shares to the Offeror, which begins on 27 February 2006 and ends on the Acceptance Closing Date
Admitted Institutions those institutions admitted to Euronext Amsterdam
AFM The Netherlands Authority for the Financial Markets (Stichting Autoriteit Financiële Markten)
Boards the Supervisory Board and the Management Board together Bte 1995 the Securities Market Supervision Decree 1995 (Besluit
toezicht effectenverkeer 1995), as amended from time to time Business Day a day on which Euronext Amsterdam is open for trading
Commission the European Commission
Daily Official List the Daily Official List (Officiële Prijscourant) of Euronext Amsterdam
DSV DSV A/S, a public limited liability company duly incorporated and validly existing under the laws of Denmark, having its registered office at Brondby, Denmark and a parent company of the Offeror
EUR or € euro, the legal currency of the European Monetary Union Euronext Amsterdam Euronext Amsterdam N.V., or the Official Market Segment of
the stock exchange of Euronext Amsterdam N.V., as appropriate
Exchange Agent ABN AMRO Bank N.V. Extraordinary General Meeting of
Shareholders the extraordinary general meeting of Shareholders to be convened at 15:00 hours, Amsterdam time, on 13 March 2006, at Noorderpoort 15, 5916 PJ Venlo, The Netherlands, at which meeting the Offer, among other matters, will be discussed, in accordance with the provisions of article 9q paragraph 1 of the Bte 1995
Financial Year 2002 financial year of Frans Maas ended 31 December 2002 Financial Year 2003 financial year of Frans Maas ended 31 December 2003 Financial Year 2004 financial year of Frans Maas ended 31 December 2004
Financial Year 2005 financial year of Frans Maas ended 31 December 2005 Frans Maas Articles of
Association the articles of association (statuten) of Frans Maas, as most recently amended on 23 June 2005
Frans Maas or the Company Koninklijke Frans Maas Groep N.V., a public limited liability company (naamloze vennootschap) incorporated under Dutch law, with its statutory seat in Venlo, The Netherlands and, where appropriate, also including its group companies as described in article 2:24b of the Dutch Civil Code and its affiliates
Furness Zaandam Furness Logistics (Zaandam) B.V., a wholly-owned (indirect) subsidiary of Frans Maas
KFM Protection Trust Stichting Preferente Aandelen Koninklijke Frans Maas Groep Legal Merger a legal merger (juridische fusie) in accordance with article
2:309 of the Dutch Civil Code, including a possible cross border merger
Management Board the management board (raad van bestuut) of Frans Maas Material Adverse Change has the meaning attributed to it in Section 6.2.3
Merger Protocol the merger protocol agreed and signed by DSV and the Company on 5 January 2006
Minimum Acceptance Condition has the meaning attributed to it in Section 6.2.1 Offer the offer described in this Offer Memorandum Offer Conditions the conditions to the Offer as set out in Section 6.2 Offer Memorandum this offer memorandum relating to the Offer
Offer Price a cash amount of EUR 38.00 for each Share validly tendered (or defectively tendered provided hat such defect has been waived by the Offeror) and delivered (geleverd) under the terms and subject to the conditions and restrictions of the Offer. This amount is inclusive of any accrued profits or any distributions, such as dividend, declared payable between the date of this Offer Memorandum and the Settlement Date
Offeror DFDS Transport Group A/S, a public limited liability company duly incorporated and validly existing under the laws of Denmark, having its registered office at Brondby, Denmark and a wholly-owned subsidiary of DSV
Order the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001
PricewaterhouseCoopers PricewaterhouseCoopers Accountants N.V.
Rabo Securities The equity investment bank of Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. acting under the name Rabo Securities
Regulation regulation (EC) 139/2004
Share(s) issued and outstanding ordinary share(s) in the share capital of Frans Maas, with a nominal value of EUR 4.80 each
Settlement Date the date on which, in accordance with the terms and conditions of the Offer, the Offeror shall pay the Offer Price to the Shareholders who have validly tendered (or defectively tendered provided that such defect has been waived by the Offeror) and delivered (geleverd) their Shares under the Offer, being no later than the fifth Business Day after the Unconditional Date, subject to the Offer being declared unconditional (gestanddoening)
Shareholder(s) holder(s) of one or more Share(s)
Supervisory Board the supervisory board (raad van commisarissen) of Frans Maas Unconditional Date the date on which the Offeror shall publicly announce whether
the Offer is declared unconditional (gestand wordt gedaan), being not later than five Business Days after the Acceptance Closing Date, in accordance with article 9t paragraph 4 of the Bte 1995
Wte 1995 Act on the Supervision of the Securities Trade 1995 (Wet toezicht effectenverkeer 1995), as amended from time to time
4. SUMMARY
This summary is qualified in its entirety by, and should be read in conjunction with, the more detailed information appearing elsewhere in this Offer Memorandum. Shareholders are advised to review the Offer Memorandum in detail and to seek independent advice where appropriate in order to reach a reasoned judgement in respect of the contents of the Offer Memorandum and the Offer itself. Unless the context requires otherwise, capitalised terms used in this Offer Memorandum shall have the meanings set out in Section 3 (Definitions).
4.1 The Offer
The Offeror is making an Offer to purchase from Shareholders all Shares, on the terms and subject to the conditions and restrictions contained in this Offer Memorandum. Shareholders tendering their Shares under the Offer will be paid in cash the Offer Price of EUR 38.00, inclusive of any accrued profits or any distributions, such as dividend, declared payable between the date of this Offer Memorandum and the Settlement Date, in respect of each Share validly tendered (or defectively tendered provided that such defect has been waived by the Offeror) and delivered (geleverd), subject to the Offer being declared unconditional.
The Offer Price of EUR 38.00 per Share represents an attractive price to the Shareholders and a: (i) premium of 36% to the average Share price in the 12 months (excluding non-trading days) prior to
21 December 2005, the day DSV and Frans Maas issued a press release confirming the discussions between DSV and Frans Maas;
(ii) premium of 40% to the average Share price in the 6 months (excluding non-trading days) prior to 21 December 2005, the day DSV and Frans Maas issued a press release confirming the discussions between DSV and Frans Maas;
(iii) premium of 39% to the average Share price over the last 90 trading days prior to 21 December 2005, the day DSV and Frans Maas issued a press release confirming the discussions between DSV and Frans Maas;
(iv) premium of 25% to the average Share price over the last 30 days trading prior to 21 December 2005, the day DSV and Frans Maas issued a press release confirming the discussions between DSV and Frans Maas.
See Section 6.5 (Substantiation of the Offer Price). 4.2 Rationale for the Offer
DSV and Frans Maas have discussed their combined business strategy upon successful completion of the Offer. DSV respects the successful business strategy of the Company and wishes to ensure the continued benefit thereof in the interest of the combined business, which also encompasses the Logistics, Air & Ocean and Road business lines of Frans Maas.
DSV and Frans Maas are of the firm opinion that the Company's business and DSV's businesses are highly complementary and provide the growth and platform necessary for the combined business to remain competitive in their businesses in Europe and elsewhere, taking advantage of synergies and economies of scale, and fully utilising their combined networks. The combined business will benefit from each of DSV's and Frans Maas' vast know-how and experience, excellence in service delivery to its customers and brand names.
The proposed merger will have a number of advantages for Frans Maas, its Shareholders, employees, customers and other stakeholders and for DSV:
(i) The new company will be better positioned for Road, Air&Sea and Logistics operations to face increasing competition;
(ii) The combination will enable Frans Maas to fully utilise its excellent network through increased volumes;
(iii) The proposed transaction will give Frans Maas the necessary financial flexibility to pursue future investment opportunities;
(iv) Clients will have improved services at competitive terms and access to the extensive combined international network; and
(v) Employees will be part of a much larger and more profitable group, with high growth expected in the years ahead thereby creating more jobs.
In the coming months, DSV and Frans Maas together will investigate the implications on the employment level of the combined workforce and the effect of the synergies of the proposed merger. See Section 6.6 (Rationale for the Offer).
4.3 Financing of the Offer
The Offeror group has in place committed credit facilities enabling it to fund the Offer. 4.4 Recommendation by the Supervisory Board and Management Board
The Supervisory Board and the Management Board have duly considered the strategic, financial, social and cultural aspects of the Offer and have reached the conclusion that the Offer is in the best interests of Frans Maas, the Shareholders and other stakeholders in Frans Maas.
The Supervisory Board and the Management Board are of the opinion that the Offer is reasonable and fair to the Shareholders. In this respect, reference is made to the fairness opinion rendered by Rabo Securities, as included in Section 8 (Fairness Opinion) of this Offer Memorandum. Therefore, the Supervisory Board and the Management Board fully support the Offer and unanimously recommend the Offer to the Shareholders for acceptance. See Section 7 (Recommendation by the Supervisory Board and Management Board).
4.5 Overview of shares held directly or indirectly by members of the Boards
At the date of this Offer Memorandum, no Shares are held by directly or indirectly by members of the Boards. See Section 6.4 (Overview of Shares held directly or indirectly by members of the Boards).
4.6 Irrevocables
Delta Lloyd Asset Management N.V., Het Hidden Value Fund, Orange Deelnemingen Fund N.V., Orange Fund N.V., Marsala B.V. and NPM Capital N.V. have irrevocably undertaken to tender Shares held by them under the Offer. Such undertakings represent 58.55% of the Shares at the date of this Offer Memorandum. See Section 6.3 (Irrevocables).
4.7 Offer Conditions, Acceptance Period, Declaring the Offer Unconditional, Extension and Settlement
4.7.1 Offer Conditions
The Offer shall be declared unconditional (gestanddoening) if the Offer Conditions as set out in Section 6.2 (Offer Conditions) are fulfilled or, if permitted by applicable law, waived by the party entitled to waive.
4.7.2 Acceptance Period
The Acceptance Period begins on 27 February 2006 and ends, subject to extension in accordance with Article 9o paragraph 5 of the Bte 1995, on 21 March 2006 at 15:00 hours, Amsterdam time. See Section 5.4 (Acceptance Period).
Shares tendered on or prior to the Acceptance Closing Date may not be withdrawn, subject to the right of withdrawal of any tender during any extension of the Acceptance Period in accordance with the provisions of article 9o paragraph 5 of the Bte 1995.
If one or more of the Offer Conditions is not fulfilled, the Offeror may extend the Acceptance Period until all such Offer Conditions have been satisfied or, where appropriate, waived. During an extension of the Acceptance Period, any Shares previously tendered and not withdrawn will remain subject to the Offer, subject to the right of each Shareholder to withdraw the Shares he or she has already tendered in accordance with the provisions of article 9o paragraph 5 of the Bte 1995. See Section 5.6 (Extension).
If all Offer Conditions are satisfied or, where appropriate, waived, the Offeror will accept all Shares that have been validly tendered (or defectively tendered provided that such defect has been waived by the Offeror) and not previously withdrawn, pursuant to the terms of the Offer and in accordance with the procedures set forth in Section 5.2 (Acceptance by Shareholders).
4.7.3 Declaring the Offer Unconditional (gestanddoening)
The Offer shall be subject to the fulfilment of the Offer Conditions, including, but not limited to the condition that at least 95% (ninety-five per cent.) of the issued and outstanding share capital of Frans Maas has been tendered under the Offer as set out in Section 6.2.1. The Offeror reserves the right to waive such Offer Conditions, provided that the waiver of certain of such Offer Conditions shall be subject to the prior written consent of Frans Maas. See Section 5.3 (Offer Conditions). If the Offeror wishes to waive or reduce the Minimum Acceptance Condition, the Offeror will inform Shareholders that it waives or reduces the Minimum Acceptance Condition, by means as required by the Bte 1995.
Unless the Acceptance Period is extended, the Offeror will determine within five Business Days following the Acceptance Closing Date, such date being the Unconditional Date, whether the Offer Conditions have been fulfilled or are to be waived by the Offeror and will announce whether (i) the Offer has been declared unconditional, (ii) there is still uncertainty as to the fulfilment of any of the Offer Conditions, or (iii) the Offer is terminated, as a result of the Offer Conditions not having been fulfilled or waived by the Offeror, all in accordance with article 9t paragraph 4 of the Bte 1995. See Section 5.5 (Declaring the Offer Unconditional (gestanddoening)).
4.7.4 Extension
The Offeror may extend the Offer past the Acceptance Closing Date, in which case all references in this Offer Memorandum to the "Acceptance Closing Date" or "15:00 hours, Amsterdam time, on 21 March 2006" shall, unless the context requires othenwise, be moved to the latest date and time to which the Offer has been so extended. The bank or stockbroker may set an earlier deadline for communication by holders of Shares in order to permit the bank or stockbroker to communicate their acceptances to the Exchange Agent in a timely manner.
If the Acceptance Period is extended such that the obligation pursuant to article 9t of the Bte 1995 to announce whether the Offer has been declared unconditional (gestand wordt gedaan) is postponed, a public announcement to that effect shall be made not later than the third Business Day following the initial Acceptance Closing Date, in accordance with the provisions of article 9o paragraph 5 of the Bte 1995. See Section 5.6 (Extension).
4.7.5 Settlement
In the event that the Offeror announces that the Offer is declared unconditional (gestand wordt gedaan), the Shareholders who have tendered and delivered their Shares for acceptance pursuant to the Offer will receive within five Business Days following the Unconditional Date the Offer Price in respect of each Share validly tendered (or defectively tendered provided that such defect has been waived by the Offeror) and delivered (geleverd). See Section 5.7 (Settlement).
4.8 The Offeror
DFDS Transport Group A/S, a public limited liability company duly incorporated and validly existing under the laws of Denmark, is the Road division within and a wholly-owned subsidiary of DSV A/S, a Danish provider of international transport and logistic services. See Section 11 (Information on the Offeror).
4.9 Liquidity and delisting
The purchase of Shares by the Offeror pursuant to the Offer, among other things, will reduce the number of Shareholders and the number of Shares that might otherwise trade publicly and could adversely affect the liquidity and market value of the remaining Shares not tendered.
Should the Offer be declared unconditional (gestanddoening), it is intended that Frans Maas' listing on Euronext Amsterdam will be terminated as soon as possible. This would further adversely affect the
liquidity of any Shares not tendered. In addition, the Offeror may initiate any of the procedures as set out in Section 6.7.3 (Legal Structure of Frans Maas following the Offer), including procedures which would result in termination of the listing of the Shares (including Shares not being tendered). See Section 6.7.2 (Liquidity and delisting).
4.10 Legal structure of Frans Maas following the Offer
Following the Offer, the Offeror plans to achieve full integration of the operational activities of the DSV group and the Frans Maas group.
The Offeror reserves the right to use any legally permitted method to obtain 100% of the Shares. For this purpose the Offeror will consider, depending inter alia on the number of Shares obtained by the Offeror as a result of the Offer, to initiate after the Settlement Date a squeeze-out procedure (uitkoopprocedure) in accordance with article 2:92a of the Dutch Civil Code. The Offeror will also consider effecting a legal merger (juridische fusie) in accordance with article 2:309 of the Dutch Civil Code, including a possible cross border merger ("Legal Merger"), between Frans Maas and the Offeror or a subsidiary of the Offeror, with Frans Maas being the disappearing entity and the Offeror, or a subsidiary of the Offeror, being the surviving entity. Also, the Offeror and Frans Maas reserve the right to have the Offeror contribute assets to Frans Maas against the issuance of shares in the capital of Frans Maas, while at the same time pre-emptive rights (voorkeursrecht) of other Frans Maas Shareholders may be excluded, all in accordance with Dutch law and the Frans Maas Articles of Association in force at the relevant time.
In the event that the Offeror has acquired 95% (ninety-five per cent.) or more of the issued and outstanding share capital of Frans Maas following the Settlement Date, the Offeror, as soon as possible, intends to initiate a squeeze-out procedure in accordance with article 2:92a of the Dutch Civil Code, in order to acquire the remaining Shares not tendered and not held by the Offeror or Frans Maas.
In the event that the Offeror has declared the Offer unconditional and does not acquire 95% (ninety-five per cent.) or more of the issued and outstanding share capital of Frans Maas following the Settlement Date, such that it is not possible to initiate the squeeze-out procedure, in accordance with article 2:92a of the Dutch Civil Code, the Offeror may by simple majority of the general meeting of Shareholders of Frans Maas vote to effect directly a Legal Merger between either the Offeror or a wholly-owned subsidiary of the Offeror, and Frans Maas, in which the Offeror or such wholly-owned subsidiary is the surviving entity and Frans Maas the disappearing entity.
In case a Legal Merger is effected, Shareholders that have not tendered their Shares under the Offer will become, by operation of law, shareholders in the surviving entity, alongside the Offeror, a subsidiary of the Offeror or the Offeror's shareholder(s) (including without limitation the Offeror's ultimate parent company DSV A/S), as the case may be. After a Legal Merger is effected the Offeror or DSV may initiate a squeeze-out procedure in accordance with article 2:92a of the Dutch Civil Code or similar proceedings in order to obtain any shares in the surviving entity not held by the Offeror or DSV. At any time after the Offer has been declared unconditional (gesfand is gedaan) and the listing on Euronext Amsterdam has been terminated, it may be decided that Frans Maas is converted into a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid), all in accordance with Dutch law and the Frans Maas Articles of Association in force at the relevant time.
Finally, the Offeror reserves the right to submit proposals to the Shareholders in order to alter the company structure and the capital structure of Frans Maas and/or intended to achieve an optimal financial or other structuring, including amendments to the Frans Maas Articles of Association, a liquidation, a demerger (splitsing) as specified in article 2:334a of the Dutch Civil Code or a sale of all or substantially all of the assets of Frans Maas, which may or may not be followed by a distribution of proceeds to the Shareholders, all in accordance with Dutch law and the Frans Maas Articles of Association in force at the relevant time. Such a distribution may take the form of a distribution out of reserves, an interim dividend, a dividend or, in case the Company is also liquidated, a liquidation distribution. This would be done in order to align the company structure of Frans Maas with the group's new holding and financing structure that will materialise once the Offer has been declared unconditional (gestand is gedaan).
4.11 Dividend Policy
The Offeror expects to amend significantly Frans Maas' dividend policy should the Offer be declared unconditional (gestanddoening). The Shareholders should be aware that Frans Maas may not pay (cash) dividends to the Shareholders in the future.
4.12 Announcements
Announcements contemplated by the foregoing paragraphs will be issued by press release or advertisement and will be published in at least Het Financieele Dagblad and the Daily Official List, as appropriate. Subject to any applicable requirements of Dutch public offer regulations and without limiting the manner in which the Offeror may choose to make any public announcement, the Offeror will have no obligation to communicate any public announcement other than as described above.
4.13 Indicative Timetable
Expected Date and Time Event (All times are Amsterdam time)
25 February 2006 Publication of advertisement announcing the availability of the Offer Memorandum and commencement of the Offer, in accordance with article 9o paragraph 2 of the Bte 1995
09:00 hours, 27 February 2006 Commencement of the Acceptance Period under the Offer 15:00 hours, 13 March 2006 Extraordinary General Meeting of Shareholders, at which
meeting the Offer, among other matters, will be discussed in accordance with the provisions of article 9q paragraph 1 of the Bte 1995
15:00 hours, 21 March 2006, subject
to extension Acceptance Closing Date
Deadline for Shareholders wishing to tender Shares Not later than five Business Days
after the Acceptance Closing
Date Unconditional Date
the date on which the Offeror shall publicly announce whether the Offer is declared unconditional (gestand wordt gedaan), being not later than five Business Days after the Acceptance Closing Date, in accordance with article 9t paragraph 4 of the Bte 1995
Not later than five Business Days
after the Unconditional Date Settlement Date
the date on which, in accordance with the terms and conditions of the Offer, the Offeror shall pay the Offer Price to the Shareholders who have validly tendered (or defectively tendered provided that such defect has been waived by the Offeror) and delivered (geleverd) their Shares under the Offer, being no later than the fifth Business Day after the Unconditional Date, subject to the Offer being declared unconditional (gestanddoening)
5. INVITATION TO THE SHAREHOLDERS
The Offeror makes a recommended public cash offer for all the Shares. The Shareholders are advised to review this Offer Memorandum (including all documents incorporated by reference herein) and in particular Section 1 (Restrictions and Important Information) thoroughly and completely and to seek independent advice where appropriate in order to reach a balanced judgement with respect to the Offer and this Offer Memorandum. With due reference to all statements, terms, conditions and restrictions included in this Offer Memorandum, Shareholders are hereby invited to tender their Shares under the Offer in the manner and subject to the terms and conditions set out below.
5.1 Offer Price
For each Share tendered under the terms and conditions of the Offer, the Offeror offers the Offer Price of EUR 38.00 in cash, inclusive of any accrued profits or any distributions, such as dividend, declared payable between the date of this Offer Memorandum and the Settlement Date.
5.2 Acceptance by Shareholders
5.2.1 Acceptance by holders of Shares held through an Admitted Institution
Holders of Shares who hold their Shares through an Admitted Institution are requested to make their acceptance known via their bank or stockbroker no later than 15:00 hours Amsterdam time on 21 March 2006, unless the Acceptance Period is extended in accordance with Section 5.6 (Extension). The bank or stockbroker may set an earlier deadline for communication by holders of Shares in order to permit the bank or stockbroker to communicate their acceptances to the Exchange Agent in a timely manner.
The Admitted Institutions may tender Shares for acceptance only to the Exchange Agent and only in writing. In tendering the acceptance, the Admitted Institutions are required to declare that (i) they have the tendered Shares in their administration, (ii) each Shareholder who accepts the Offer irrevocably represents and warrants that the Shares tendered by him are being tendered in compliance with the restrictions set out in Section 1 (Restrictions and Important Information) and (iii) they undertake to transfer these Shares to the Offeror on the Settlement Date, provided that the Offer has been declared unconditional (gestand is gedaan).
Subject to article 9o paragraph 5 of the Bte 1995, the tendering of Shares in acceptance of the Offer shall constitute irrevocable instructions to block any attempt to transfer the Shares tendered, so that on or prior to the Settlement Date no transfer of such Shares may be effected (other than to the Exchange Agent on or prior to the Settlement Date if the Offer has been declared unconditional (gesfand is gedaan) and the Shares have been accepted for purchase) and to debit the securities account in which such Shares are held on the Settlement Date in respect of all of the Shares tendered, against payment by the Exchange Agent of the Offer Price in respect of those Shares.
5.2.2 Acceptance by holders of Shares individually recorded in the Frans Maas' Shareholders' register
Holders of Shares which are individually recorded in their name in Frans Maas' Shareholders' register wishing to accept the Offer in respect of such Shares must deliver a completed and signed acceptance form to ABN AMRO Bank N.V. marked to the attention of "Issuing Institutions -Corporate Actions MF 2020", Kemelstede 2, 4817 ST Breda, The Netherlands, fax. +31 (0)76 579 9620, in accordance with the terms and conditions of the Offer, not later than 15:00 hours, Amsterdam time, on 21 March 2006, being the Acceptance Closing Date, unless the Acceptance Period is extended in accordance with Section 5.6 (Extension). The acceptance forms are available upon request from Frans Maas, marked to the attention of "Secretariat of the Executive Board", P.O. Box 968, 5900 AZ Venlo, The Netherlands, fax: +31 (0)77 351 8411, e-mail offermemorandum@nl.fransmaas.com and from ABN AMRO Bank N.V. The acceptance form will serve as a deed of transfer (akte van levering) with respect to the Shares referenced therein.
5.2.3 Undertakings, representations and warranties by tendering Shareholders
Each Shareholder tendering Shares pursuant to the Offer, by such tender, undertakes, represents and warrants to the Offeror, on the date that such Shares are tendered through to and including
the Settlement Date, subject to the proper withdrawal of any tender, in accordance with article 9o paragraph 5 of the Bte 1995, that:
(i) the tender of any Shares constitutes an acceptance by the Shareholder of the Offer, on and subject to the terms and conditions of the Offer;
(ii) such Shareholder has full power and authority to tender, sell and deliver (leveren), and has not entered into any other agreement to tender, sell or deliver (leveren), the Shares stated to have been tendered to any party other than the Offeror (together with all rights attaching thereto) and, when the same are purchased by the Offeror, the Offeror will acquire such Shares, with full title guarantee and free and clear of all third party rights and restrictions of any kind; and
(iii) such Shares are being tendered in compliance with the restrictions as set out in Section 1 (Restrictions and Important Information) and the securities and other applicable laws or regulations of the jurisdiction in which such Shareholder is located or of which it is a resident and no registration, approval or filing with any regulatory authority of such jurisdiction is required in connection with the tendering of such Shares.
Shares tendered on or prior to the Acceptance Closing Date may not be withdrawn, subject to the right of withdrawal of any tendered Shares during any extension of the Acceptance Period in accordance with the provisions of article 9o paragraph 5 of the Bte 1995. During any such extension of the Acceptance Period, any Shares previously tendered and not withdrawn will remain subject to the Offer.
5.3 Offer Conditions
The Offer shall be declared unconditional (gestanddoening) if the conditions as set out in Section 6.2 (Offer Conditions) are fulfilled or, if permitted by applicable law, waived by the party entitled to waive. Subject to the Conditions set out in Section 6.2 (Offer Conditions), the Offeror reserves the right to accept any tender for acceptance, even if it has not been effected in such manner as set out in Section 5.2 (Acceptance by Shareholders).
5.4 Acceptance Period
The Acceptance Period begins on 27 February 2006 and ends, subject to extension in accordance with Article 9o paragraph 5 of the Bte 1995, on 21 March 2006 at 15:00 hours, Amsterdam time.
If one or more of the Offer Conditions set out in Section 6.2 (Offer Conditions) is not fulfilled, the Offeror may extend the Acceptance Period until all such Offer Conditions have been satisfied or, where appropriate, waived. See also Section 5.6 (Extension). During an extension of the Acceptance Period, any Shares previously tendered and not withdrawn will remain subject to the Offer, subject to the right of each Shareholder to withdraw the Shares he or she has already tendered.
If all Offer Conditions are satisfied or, where appropriate, waived, the Offeror will accept all Shares that have been validly tendered (or defectively tendered provided that such defect has been waived by the Offeror) and not previously withdrawn pursuant to the terms of the Offer in accordance with, for the Shares, the procedures set forth in Section 5.2 (Acceptance by Shareholders).
5.5 Declaring the Offer Unconditional (gestanddoening)
The Offer shall be subject to the fulfilment of the Offer Conditions, including, but not limited to the condition that at least 95% (ninety-five per cent.) of the issued and outstanding share capital of Frans Maas has been tendered under the Offer as set out in Section 6.2.1 (the "Minimum Acceptance Condition"). The Offeror reserves the right to waive such Offer Conditions, provided that the waiver of certain of such Offer Conditions shall be subject to the prior written consent of Frans Maas. See Section 6.2 (Offer Conditions). If the Offeror wishes to waive or reduce the Minimum Acceptance Condition, the Offeror will inform Shareholders that it waives or reduces the Minimum Acceptance Condition, by means as required by the Bte 1995.
Unless the Acceptance Period is extended, the Offeror will determine within five Business Days following the Acceptance Closing Date, such date being the Unconditional Date, whether the Offer Conditions have been fulfilled or are to be waived by the Offeror and will announce whether (i) the Offer has been declared unconditional, (ii) there is still uncertainty as to the fulfilment of any of the
Offer Conditions, or (iii) the Offer is terminated, as a result of the Offer Conditions not having been fulfilled or waived by the Offeror, all in accordance with article 9t paragraph 4 ot the Bte 1995.
The announcement, if any, by the Offeror that there is still uncertainty as to the fulfilment of any of the Offer Conditions, does not mean that any Shareholder will have the right to withdraw any tender of Shares or that any tender of Shares shall be deemed to be automatically withdrawn.
5.6 Extension
The Offeror may extend the Offer past the Acceptance Closing Date, in which case all references in this Offer Memorandum to the "Acceptance Closing Date" or "15:00 hours, Amsterdam time, on 21 March 2006" shall, unless the context requires otherwise, be moved to the latest date and time to which the Offer has been so extended. The bank or stockbroker may set an earlier deadline for communication by holders of Shares in order to permit the bank or stockbroker to communicate their acceptances to the Exchange Agent in a timely manner.
If the Acceptance Period is extended such that the obligation pursuant to article 9t of the Bte 1995 to announce whether the Offer has been declared unconditional (gesfand ivordf gedaan) is postponed, a public announcement to that effect shall be made not later than the third Business Day following the initial Acceptance Closing Date, in accordance with the provisions of article 9b, paragraph 5 of the Bte 1995. During any such extension of the Acceptance Period, any Shares previously tendered and not withdrawn will remain subject to the Offer. In accordance with article 9o, paragraph 5 of the Bte 1995, Shares tendered on or prior to the original Acceptance Closing Date may during the period to which the Acceptance Period has been extended, be withdrawn.
5.7 Settlement
In the event the Offeror announces that the Offer is declared unconditional (gestand wordt gedaan), Shareholders who have tendered and delivered their Shares for acceptance pursuant to the Offer will receive within five Business Days following the Unconditional Date (the "Settlement Date") the Offer Price in respect of each Share validly tendered (or defectively tendered provided that such defect has been waived by the Offeror) and delivered (geleverd), at which point, dissolution or annulment of a Shareholder's tender or delivery (levering) shall not be permitted.
5.8 Dividends
Upon the terms of and subject to the Offer Conditions, the Offer shall commit the Offeror to acquire each Share tendered pursuant to the Offer against cash payment of the Offer Price being EUR 38.00. The Offer Price includes any accrued profits or any distributions, such as dividend, declared payable between de date of this Offer Memorandum and the Settlement Date.
5.9 Commission
Admitted Institutions shall receive from the Exchange Agent on behalf of the Offeror a commission in the amount of EUR 0.0988 in respect of each Share validly tendered (or defectively tendered provided that such defect has been waived by the Offeror) and delivered (geleverd), up to a maximum of EUR 10,000.00 per Shareholder tender. The commission must be claimed from the Offeror through the Exchange Agent within 30 days of the Unconditional Date. No costs will be charged to the Shareholders by the Offeror or Frans Maas for the delivery and payment of the Shares in case an Admitted Institution is involved. Costs might be charged in case a foreign institution is involved in the delivery and payment of the Shares.
5.10 Restrictions
The Offer is being made with due observance of such statements, conditions and restrictions as are included in the Offer Memorandum. The Offeror reserves the right to accept any tender under the Offer, which is made by or on behalf of a Shareholder, even if it has not been effectuated in such manner as set out above.
5.11 Announcements
Announcements contemplated by the foregoing paragraphs will be issued by press release or advertisement and will be published in at least Het Financieele Dagblad and the Daily Official List, as appropriate. Subject to any applicable requirements of Dutch public offer regulations and without limiting the manner in which the Offeror may choose to make any public announcement, the Offeror will have no obligation to communicate any public announcement other than as described above.
6. EXPLANATION OF THE OFFER 6.1 Introduction
On 5 January 2006, DSV and Frans Maas jointly announced that the expectation was justified that agreement could be reached in connection with an offer by DSV for the Shares, subject to fulfilment of certain conditions. Since this time, definitive agreement has been reached with respect to the Offer and certain terms of this agreement are reflected in this Offer Memorandum.
6.2 Offer Conditions
The obligation of the Offeror to declare the Offer unconditional (gestand te doen) shall be subject to the following conditions precedent (the "Offer Conditions") being satisfied or waived, as the case may be: 6.2.1 such number of Shares are tendered for acceptance that such Shares, together with the
Shares directly or indirectly held by the Offeror at the Acceptance Closing Date, represent at least 95% (ninety-five per cent.) of the Company's issued share capital (geplaatst kapitaal) as at the Acceptance Closing Date;
6.2.2 the Boards not having revoked their recommendation of the Offer as set out in this Offer Memorandum;
6.2.3 no Material Adverse Change has occurred or has become known to the Offeror on or after 24 February 2006 and prior to or on the Acceptance Closing Date;
"Material Adverse Change" shall mean any adverse change, event or circumstance affecting the Company and its subsidiaries' business, taken as a whole, which as of the date of this Offer Memorandum was not known to the Offeror and which is or would be of such a significant nature that the Offeror cannot reasonably be expected to continue with the Offer or declare the Offer unconditional.
6.2.4 on or prior to the Acceptance Closing Date, no public announcement has been made indicating for the first time that a third party is preparing or announces a bona fide public offer for all the Shares which qualifies as a competing offer and no third party (other than the KFM Protection Trust) has obtained the right to acquire or subscribe for, or has agreed to acquire or subscribe for, shares or depository receipts of shares in the capital of the Company or any of its subsidiaries or a substantial part of the assets of the Company;
6.2.5 on or prior to the Acceptance Closing Date, no order, stay, judgement or decree is issued by any court, arbitral tribunal, government, governmental authority or other regulatory or administrative authority and is in effect, or any statute, rule, regulation, governmental order or injunction is enacted, enforced or which is applicable to the Offer, any of which restrains or prohibits the Offer in any material respect;
6.2.6 on or prior to the Acceptance Closing Date, the Company has not breached the Merger Protocol, to the extent that such breach has or can reasonably be expected to have material adverse repercussions on the Offer and, if such breach has occurred, has not been remedied by the Company within 2 (two) weeks after receipt of a written notice by Offeror, provided that the Company shall not be entitled to such remedy period (i) if such breach is not capable of being remedied or (ii) when Offeror has given the Company written notice that all other Offer Conditions have been fulfilled;
6.2.7 the occurrence of one of the following events ultimately three Business Days prior to the Acceptance Closing Date:
(i) the European Commission (the "Commission") issuing a decision under article 6.1(a), 6.1(b), 6.1(c) or article 8.2 of Regulation (EC) 139/2004 (the "Regulation") in respect of the Offer and if that decision is given subject to conditions or obligations, then those conditions and obligations being satisfactory to the Offeror acting reasonably, provided that the Offeror shall be obliged to accept any condition or obligation which is not material. For the purposes of this Section, a condition or obligation shall be deemed to be material if it imposes directly or indirectly on the Offeror or its, direct or indirect, shareholders an obligation to divest business assets generating 5% or more of aggregate world-wide turnover of the Company measured by reference to the Company's accounts with respect to the six months ended 30 June 2005; or
(ii) after the referral or deemed referral by the Commission under Articles 9(1) or 9(5) of the Regulation respectively of all or part of the transaction to the competent authority of one or
more Member States the issuing by the said competent authority or authorities of a decision or decisions if applicable in conjunction with a decision of the Commission -which satisfy (or together satisfy) Section (i) above (that Clause being interpreted mutatis mutandis); and
(iii) the expiry, lapsing or termination of all applicable waiting and other time periods (including extensions thereof) under any applicable legislation or regulation of any other applicable jurisdiction.
6.2.8 on or prior to the Acceptance Closing Date, the KFM Protection Trust, subject only to the Offer becoming unconditional, having irrevocably and otherwise unconditionally renounced its rights under any option agreement(s) or any other similar arrangement with the Company in this respect and not having exercised its options;
6.2.9 on or prior to the Acceptance Closing Date, no notification has been received from the AFM that the Offer has been made in conflict with Chapter IIA of the Act on the Supervision of the Securities Trade 1995, in which case the securities institutions pursuant to section 32a of the Bte 1995 would not be allowed to co-operate with the settlement of the offer;
6.2.10 on or prior to the Acceptance Closing Date, trading in the Shares on Eurolist by Euronext has not been permanently suspended as a result of a listing measure (noteringsmaatregel) taken by Euronext in accordance with Article 2706/1 of Euronext Rulebook II;
6.2.11 on or prior to the Acceptance Closing Date, the Offeror has not breached the Merger Protocol, to the extent that such breach has or can reasonably be expected to have material adverse repercussions on the Offer and, if such breach has occurred, has not been remedied by the Offeror within 2 (two) weeks after receipt of a written notice by the Company, provided that the Offeror shall not be entitled to such remedy period (i) if such breach is not capable of being remedied or (ii) when the Company has given the Offeror written notice that all other Offer Conditions have been fulfilled.
The Offer Conditions in Clause 6.2.1 up to and including 6.2.8 are for the benefit of the Offeror and may be waived by the Offeror (either in whole or in part) at any time by written notice to the Company. The Offer Condition in Clause 6.2.9 is for the benefit of the Offeror and may be waived by the Offeror if, following receipt of a notification as referred to in Offer Condition 6.2.9, such notification has been or will be revoked by AFM, if such notification is overruled by a court decision or after consultation with AFM. The Offer Condition in Clause 6.2.10 is for the benefit of both the Company and the Offeror and may be waived by the Company together with the Offeror (either in whole or in part) by written notice, provided, however, that either party may only waive the fulfilment of such Offer Condition if the non-fulfilment of such a condition is not caused by such party. The Offer Condition in Clause 6.2.11 is for the benefit of the Company and may not be waived in the Offer by the Offeror without the prior written consent of the Company. The Offeror and Frans Maas will notify each other forthwith of any facts or circumstances which may cause them to invoke any of the conditions set forth in Clause 6.2 of this Offer Memorandum.
6.3 Irrevocables
Delta Lloyd Asset Management N.V., Het Hidden Value Fund, Orange Deelnemingen Fund N.V., Orange Fund N.V., Marsala B.V. and NPM Capital N.V. have irrevocably undertaken to tender Shares held by them under the Offer as described in this Offer Memorandum including the Offer Conditions set out in Section 6.2 (Offer Conditions). Such undertakings represent 58.55% of the issued and outstanding share capital of Frans Maas at the date of this Offer Memorandum. A detailed breakdown of these undertakings is provided in the table below:
Stake (as percentage of total issued and Shareholder Number of Shares outstanding share capital)
Delta Lloyd Asset Management N.V 310,000 5.24% Het Hidden Value Fund 1,049,849 17.76% Orange Deelnemingen Fund N.V 298,355 5.05% Orange Fund N.V 183,856 3.11% Marsala B.V 395,000 6.68% NPM Capital N.V 1,224,937 20.72% Total 3,461,997 58.55%
Other than information contained in this Offer Memorandum the Offeror did not disclose to the above Shareholders any material information regarding the Offer which would be relevant for Shareholders when considering to tender their Shares under the Offer.
6.4 Overview of Shares held directly or indirectly by members of the Boards
At the date of this Offer Memorandum, no Shares are held by directly or indirectly by members of the Boards.
6.5 Substantiation of the Offer Price
DSV and Frans Maas have reached agreement on the Offer and the Offer Price following negotiations between DSV and Frans Maas, assisted by their respective advisers. DSV has taken into account a number of factors in determining the Offer Price, including, amongst others:
(i) the historic Share price performance of Frans Maas, also compared with certain other comparable European publicly traded transport and logistics companies compromising DSV, Deutsche Post, Geodis, Kühne & Nagel, Norbert Dentressangle, and TDG (jointly the "Peers") and with the MSCI Europe Transport index;
(ii) the historic developments and DSV's view on potential future developments in the profitability of Frans Maas;
(iii) an analysis of trading multiples based on financial terms (Enterprise Value/Sales, Enterprise Value/EBITDA and Enterprise Value/EBIT), to the extent available from public sources, of the Peers and multiples based on financial terms (Enterprise Value/Sales and Enterprise Value/ EBIT), to the extent available from public sources in certain comparable transactions compromising Deutsche Post's acquisition of Danzas, Stinnes' acquisition of BTL, Deutsche Post's acquisition of ASG, DFDS' acquisition of DanTransport, DSV's acquisition of DFDS DanTransport, Deutsche Bahn's acquisition of Stinnes, Exel's acquisition of Tibbet & Britten and TNT Logistics' acquisition of Wilson Logistics; and
(iv) an analysis of bid premiums in recent recommended public cash offers for companies listed on Euronext Amsterdam.
In addition, certain publicly available financial information as derived from annual accounts, analysts reports, market reports, press releases and additional financial information provided by the Company regarding the Financial Year 2005 up to and including November 2005 have been reviewed. Section 13 contains Frans Maas financial information relating to the Financial Year 2005.
The Offer Price of EUR 38.00 per Share represents an attractive price to the Shareholders and a: (i) premium of 36% to the average Share price in the 12 months (excluding non-trading days) prior to
21 December 2005, the day DSV and Frans Maas issued a press release confirming the discussions between DSV and Frans Maas;
(ii) premium of 40% to the average Share price in the 6 months (excluding non-trading days) prior to 21 December 2005, the day DSV and Frans Maas issued a press release confirming the discussions between DSV and Frans Maas;
(iii) premium of 39% to the average Share price over the last 90 trading days prior to 21 December 2005, the day DSV and Frans Maas issued a press release confirming the discussions between DSV and Frans Maas;
(iv) premium of 25% to the average Share price over the last 30 trading days prior to 21 December 2005, the day DSV and Frans Maas issued a press release confirming the discussions between DSV and Frans Maas.
The Share price development since 1 January 2005 until the announcement of this Offer is depicted in Section 10 (Capital and Shares).
On 24 February 2006, Rabo Securities has rendered its fairness opinion in writing to the Supervisory Board and Management Board. This fairness opinion is included in Section 8. As at the date of this opinion, and based upon and subject to the factors and assumptions referred to in this opinion, Rabo Securities considers the Offer Price to be fair, from a financial point of view, to the holders of Shares.
6.6 Rationale for the Offer
DSV and Frans Maas have discussed their combined business strategy upon successful completion of the Offer. DSV respects the successful business strategy of the Company and wishes to ensure the continued benefit thereof in the interest of the combined business, which also encompasses the Logistics, Air & Ocean and Road business lines of Frans Maas.
DSV and Frans Maas are of the firm opinion that the Company's business and DSV's businesses are highly complementary and provide the growth and platform necessary for the combined business to remain competitive in their businesses in Europe and elsewhere, taking advantage of synergies and economies of scale, and fully utilising their combined networks. The combined business will benefit from each of DSV's and Frans Maas' vast know-how and experience, excellence in service delivery to its customers and brand names.
The proposed merger will have a number of advantages for Frans Maas, its Shareholders, employees, customers and other stakeholders and for the Offeror:
(i) The new company will be better positioned for Road, Air&Sea and Logistics operations to face increasing competition;
(ii) The combination will enable Frans Maas to fully utilise its excellent network through increased volumes;
(iii) The proposed transaction will give Frans Maas the necessary financial flexibility to pursue future investment opportunities;
(iv) Clients will have improved services at competitive terms and access to the extensive combined international network; and
(v) Employees will be part of a much larger and more profitable group, with high growth expected in the years ahead thereby creating more jobs.
In the coming months, DSV and Frans Maas together will investigate the implications on the employment level of the combined workforce and the effect of the synergies of the proposed merger. 6.7 Consequences of the Offer
6.7.1 Strategy
DSV and Frans Maas have discussed the parties' joint business strategy upon successful completion of the Offer. DSV respects the long history and successful business strategy of Frans Maas and wishes to ensure the continued benefit thereof in the interest of the combined business which also encompasses the Logistics, Air & Ocean and Road Business lines of Frans Maas. As DSV's and Frans Maas' businesses are highly complementary the combination will aim to realise, among other, operational and fiscal synergies and the growth and platform necessary to remain competitive in their business in Europe and elsewhere. The combination will be able to take benefit of economies of scale, pursue growth at attractive yet sustainable margins and fully utilise their combined network. DSV therefore intends to initiate the integration process of both companies in the months after the Offer is declared unconditional (gestand is gedaan).
6.7.2 Liquidity and delisting
The purchase of Shares by the Offeror pursuant to the Offer, among other things, will reduce the number of Shareholders and the number of Shares that might otherwise trade publicly and could adversely affect the liquidity and market value of the remaining Shares not tendered.
Should the Offer be declared unconditional (gestanddoening), it is intended that Frans Maas' listing on Euronext Amsterdam will be terminated as soon as possible. This would further adversely affect the liquidity of any Shares not tendered. In addition, the Offeror may initiate any of the procedures as set out in Section 6.7.3 (Legal Structure of Frans Maas following the Offer), including procedures which would result in termination of the listing of the Shares (including Shares not being tendered).
