Statement re Legal Action
DCC PLC
03 August 2004
STOCK EXCHANGE ANNOUNCEMENT
3 August 2004
DCC plc recently made an application to the High Court in Dublin with a view to
expediting the hearing of the legal action against DCC and others initiated by
Fyffes plc in January 2002. As a result, this action is now scheduled to be
heard in the High Court in Dublin on 2 December 2004.
The Board of DCC set out its views on the Fyffes legal action in a Stock
Exchange Announcement on 24 January 2002, a copy of which is attached as an
Appendix.
APPENDIX
DCC STOCK EXCHANGE ANNOUNCEMENT - 24 JANUARY 2002
FYFFES ACTION UTTERLY WITHOUT MERIT SAYS DCC
DCC plc has been informed by Fyffes plc that it is taking steps to initiate
legal proceedings under Part V of the Irish Companies Act, 1990 against DCC, its
subsidiaries S&L Investments and Lotus Green, and its Chief Executive in
connection with the sale by Lotus Green of 87% of its shareholding in Fyffes in
February 2000. Part V of the Act creates a civil liability for a party who deals
in shares on the basis of materially price sensitive insider information; DCC
understands that the amount of this liability equates to the difference between
the market price of the shares at the time of sale and the amount which would
have been the market price if the alleged price sensitive information was known
to the market at that time.
The Board of DCC plc views with incredulity this action by Fyffes. It will be
vigorously and comprehensively challenged. The Board has decided to issue a
comprehensive Stock Exchange Announcement on the matter in order to express its
clear view to the market that the action by Fyffes is wholly unjustified,
totally inconsistent and utterly without merit.
Total Inconsistency of Fyffes Position
The actions of Fyffes plc and certain of its officers at the time of the share
sale by Lotus Green clearly demonstrate that Fyffes and its directors then
believed they had no adverse price sensitive information about Fyffes. Two years
on, the board of Fyffes has totally changed its position.
1. On 25 January 2000 on the recommendation of the Executive Deputy
Chairman of Fyffes, Mr Carl McCann, Fyffes granted a substantial number of
share options to executives of the Group (share dealing under Part V of the
Companies Act, 1990).
On 25 January 2000 Mr Philip Halpenny, Company Secretary and Investor
Relations Manager of Fyffes, accepted the grant of options over 50,000
Fyffes shares (share dealing under Part V of the Companies Act, 1990).
On 26 January 2000 Mr John Ellis, then an executive director of Fyffes, sold
45,000 shares in Fyffes (share dealing under Part V of the Companies Act,
1990 which, under the Listing Rules of the Stock Exchange, would have
required the written approval of the Fyffes Executive Chairman or another
designated director).
2. In its Executive Chairman's Statement dated 31 January 2000 in the Fyffes
1999 Annual Report, Fyffes issued an upbeat assessment of its prospects
for the year 2000 as follows: 'Your Board believes that, from this position
of strength, 2000 will be another year of further growth for Fyffes'.
3. Immediately following the sale by Lotus Green on 3 February 2000 of 50%
of its shareholding in Fyffes, the Executive Chairman of Fyffes, Mr Neil
McCann, and its Chief Executive, Mr David McCann, actively encouraged the
sale of the balance of the shareholding and subsequently on 4 February 2000
Mr Neil McCann wrote to DCC stating that 'it would be helpful if the
remainder of the shares are disposed of, so that they will not be
overhanging the market'. If Fyffes believed that it was inappropriate for
Lotus Green to sell shares in Fyffes at that time, they should have sought
to discourage rather than encourage share sales.
4. Executive directors and other senior executives of Fyffes made extensive
investor presentations to institutions, both immediately before and after
the first sale by Lotus Green of shares in Fyffes on 3 February 2000, which
were a key factor in causing the unprecedented demand for Fyffes shares at
that time. In the investor presentations after 3 February 2000 there would
have been a particular duty of care on Fyffes to inform the market if it had
any adverse price sensitive information regarding Fyffes, given that Fyffes
itself was encouraging a significant sale of over 5% of Fyffes shares (the
balance of the Lotus Green shareholding in Fyffes). Furthermore, when making
the presentations, Fyffes executive directors would have been aware of any
allegedly price sensitive information. Indeed as executives they would have
had complete and up to date information on Fyffes.
These actions are totally inconsistent with Fyffes new found view that all of
its board possessed information that would have had a material adverse impact on
the Fyffes share price at the time of the Lotus Green share sale. If Fyffes had
really believed at that time that it was in possession of price sensitive
information, it would be difficult to avoid the conclusion that it had knowingly
misled the market.
Sale of Fyffes Shares Undertaken with Absolute Propriety
The Board of DCC plc believes that neither DCC nor any of its officers has any
case to answer in the proposed litigation by Fyffes alleging insider dealing.
Arising from DCC's evolution from a venture capital company to an industrial
group it had been the strategy of Lotus Green for a number of years to realise
its investment in Fyffes. Unsolicited approaches from stockbrokers in late
January / early February 2000 allowed that strategy to be implemented.
The Board of DCC plc is completely satisfied that none of its officers was in
possession of price sensitive information on Fyffes in February 2000, when Lotus
Green accepted offers from the market for 87% of its shareholding in Fyffes, and
believes that the sales were undertaken with absolute propriety.
Furthermore, Lotus Green is a wholly owned Dutch resident subsidiary of DCC,
which since 1995 has exercised management and control over the DCC Group's
shareholding in Fyffes. At the time of the Fyffes share disposal this company
had four directors, of which three were independent non-executive Dutch
directors. No member of the Lotus Green board had any connection with Fyffes plc
nor was any member in possession of any unpublished information on Fyffes plc.
The board of Lotus Green made a wholly independent judgment in its decision to
accept offers made to it in February 2000 for 87% of its shareholding in Fyffes
and no other person or company caused or procured Lotus Green to effect such
disposals.
The Board of DCC plc believes that unforeseen events subsequent to the Lotus
Green sale of Fyffes shares caused the decline in the Fyffes share price
including:-
1. The failure of Fyffes' much heralded worldoffruit.com venture.
On 31 January 2000 in his Executive Chairman's Statement, Mr Neil McCann
confidently stated that 'worldoffruit.com .... looks set to dramatically
change the way in which fresh fruit and vegetables are traded across the
globe. We can expect to see significant developments in this company
throughout the coming year.'
2. The dramatic collapse from March 2000 onwards in the share prices of
companies like Fyffes with high profile dot.com activities.
Undoubtedly the main driver of the Fyffes share price in the early months of
2000 was the euphoria and enthusiasm that existed within Fyffes and within
the market for worldoffruit.com as a major business opportunity for Fyffes.
At the time Fyffes had become a dot.com momentum stock for which the
perceived upside from 'new economy' activities completely outweighed short
term 'old economy' trading considerations.
3. The poor performance in 2000 of the Fyffes and Capespan joint venture,
Capespan Europe.
On 31 January 2000 in his Executive Chairman's Statement, Mr Neil McCann
confidently described the Capespan alliance as 'an industry changing event'.
4. The absence of consolidation in the produce industry in which Fyffes was
expected to be a significant beneficiary due to its strong financial
position.
Such consolidation had been the subject of considerable market and media
speculation in early 2000.
5. The difficult banana market, which was anticipated in the early part of
Fyffes' financial period to 31 December 2000, did not improve as the
financial period progressed, contrary to expectations.
Through its preliminary results announcement dated 14 December 1999, Fyffes
brought to the attention of the market the negative impact of a weak Euro on
the cost of banana purchases and cautioned on the need for Fyffes, in common
with several other companies in the industry, to reduce banana supplies into
Europe. The Fyffes preliminary results announcement dated 14 December 1999
stated 'in line with the publicly stated intentions of several other
companies in the industry, Fyffes will be reducing its overall banana import
volumes in Europe by 10% for calendar 2000 the benefit of which will be
weighted towards the second half of the year'.
6. The profit warnings issued by Fyffes on 20 March and 19 June 2000.
Neither the DCC Group nor any of its officers had any prior knowledge of
these profit warnings.
The Board of DCC plc reiterates that it is completely satisfied that none of its
officers was in possession of price sensitive information on Fyffes in February
2000 when Lotus Green accepted offers from the market for 87% of its
shareholding in Fyffes and believes that the sales were undertaken with absolute
propriety.
This information is provided by RNS
The company news service from the London Stock Exchange