DISCLOSURE UNDER RULE 2.10(C) OF THE TAKEOVER CODE
01/03/2023 07:00
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RNS Number : 4177R Nucleus Financial Platforms Limited 28 February 2023
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE
OR IN PART, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE
A VIOLATION OF THE RELEVANT LAWS OF THAT JURISDICTION
FOR IMMEDIATE RELEASE
1 March 2023
Disclosure under Rule 2.10(c) of the Takeover Code in respect of the
RECOMMENDED CASH ACQUISITION
of
CURTIS BANKS GROUP PLC
by
NUCLEUS CLYDE ACQUISITION LIMITED
(a newly formed company wholly-owned by Nucleus Financial Platforms Limited)
Update on irrevocable undertaking given by Odyssean Capital LLP
On 6 January 2023 the boards of directors of Nucleus Clyde Acquisition Limited
("Bidco"), a newly formed company wholly-owned by Nucleus Financial Platforms
Limited ("Nucleus"), and Curtis Banks Group PLC ("Curtis Banks"), made an
announcement pursuant to Rule 2.7 of the Takeover Code (the "2.7
Announcement") that they had reached agreement on the terms of a recommended
cash acquisition by Bidco of the entire issued and to be issued share capital
of Curtis Banks (the "Acquisition"), intended to be implemented by way of a
court sanctioned scheme of arrangement under Part 26 of the Companies Act 2006
(the "Scheme"). A circular in relation to the Scheme (the "Scheme Document")
was published on 31 January 2023.
On 27 February 2023, the requisite majority of Scheme Shareholders voted to
approve the Scheme at the Court Meeting and the requisite majority of Curtis
Banks Shareholders voted to pass the Resolution to implement the Scheme at the
General Meeting.
As set out in Appendix 3 of the 2.7 Announcement and paragraph 9 of Part VI of
the Scheme Document, Bidco had received an irrevocable undertaking to vote in
favour (or procure the voting in favour, as applicable) of the Scheme at the
Court Meeting and the Resolution to be proposed at the General Meeting (or in
the event that the Acquisition is implemented by way of a Takeover Offer, to
accept or procure the acceptance of such Takeover Offer) from Odyssean Capital
LLP as portfolio manager of Odyssean Investment Trust plc ("Odyssean") in
respect of an aggregate number of 5,130,000 Curtis Banks Shares, representing
approximately 7.67% of the issued share capital of Curtis Banks as at the
close of business on 27 January 2023 (being the last practicable date prior to
the publication of the Scheme Document) (the "Odyssean Irrevocable
Undertaking"). As described in the 2.7 Announcement and the Scheme Document,
the Odyssean Irrevocable Undertaking does not contain any restriction on
disposals of Curtis Banks Shares by Odyssean.
On 8 February 2023 Odyssean announced that it had sold, in aggregate,
2,630,000 Curtis Banks Shares (the "Previously Sold Shares"), reducing the
total number of Curtis Banks Shares subject to the Odyssean Irrevocable
Undertaking to 2,500,000.
On 28 February 2023, Odyssean announced that it had sold its remaining
2,500,000 Curtis Banks Shares (the "Sold Shares"). Odyssean has informed Bidco
that the Sold Shares comprised Curtis Banks Shares that were subject to the
Odyssean Irrevocable Undertaking.
As a result, following completion of the sale of the Sold Shares:
· the total number of Curtis Banks Shares which are subject to the
Odyssean Irrevocable Undertaking has reduced to zero Curtis Banks Shares; and
· the total number of Curtis Banks Shares which are subject to
irrevocable undertakings or letters of intent received by Bidco from Curtis
Banks Shareholders has reduced to 30,958,109 Curtis Banks Shares, representing
approximately 46.29% of the issued share capital of Curtis Banks as at the
close of business on 28 February 2023 (being the date prior to this
announcement).
Unless otherwise defined in this announcement, capitalised words and phrases
used in this announcement shall have the same meanings given to them in the
2.7 Announcement.
Enquiries
Evercore (financial adviser to Nucleus and Bidco) +44 (0)20 7653 6000
Ollie Clayton
Ed Banks
Demetris Efthymiou
Harrison George
TB Cardew (public relations adviser to Nucleus and Bidco)
Tom Allison +44 (0)77 8999 8020
Shan Shan Willenbrock +44 (0)77 7584 8537
Olivia Rosser +44 (0)7552 864 250
nucleus@tbcardew.com
Further information
This announcement is for information purposes only and is not intended to and
does not constitute, or form any part of any offer, invitation or the
solicitation of an offer to purchase, otherwise acquire, subscribe for, sell
or otherwise dispose of any securities, or the solicitation of any vote or
approval in any jurisdiction, pursuant to the Acquisition or otherwise, nor
shall there be any sale, issuance or transfer of securities of Curtis Banks in
any jurisdiction in contravention of applicable law. The Acquisition will be
made and implemented solely pursuant to the terms of the Scheme Document (or
if the Acquisition is implemented by way of a Takeover Offer, the Offer
Document), which will contain the full terms and conditions of the
Acquisition, including details of how to vote in respect of the Acquisition.
Any vote in respect of, or other response to, the Acquisition should be made
only on the basis of the information contained in the Scheme Document (or if
the Acquisition is implemented by way of a Takeover Offer, the Offer
Document).
This announcement does not constitute a prospectus, prospectus equivalent
document or an exempted document.
The statements contained in this announcement are made as at the date of this
announcement, unless some other times is specified in relation to them, and
publication of this announcement shall not give rise to any implication that
there has been no change in the facts set forth in this announcement since
such date.
Disclaimer
Evercore Partners International LLP ("Evercore"), which is authorised and
regulated by the Financial Conduct Authority in the UK, is acting exclusively
as financial adviser to Nucleus and Bidco and no one else in connection with
the matters described in this announcement and will not be responsible to
anyone other than Nucleus and Bidco for providing the protections afforded to
clients of Evercore nor for providing advice in connection with the matters
referred to herein. Neither Evercore nor any of its subsidiaries, branches or
affiliates owes or accepts any duty, liability or responsibility whatsoever
(whether direct or indirect, whether in contract, in tort, under statute or
otherwise) to any person who is not a client of Evercore in connection with
this announcement, any statement contained herein, any offer or otherwise.
Apart from the responsibilities and liabilities, if any, which may be imposed
on Evercore by the Financial Services and Markets Act 2000 and successor
legislation, or the regulatory regime established thereunder, or under the
regulatory regime of any jurisdiction where exclusion of liability under the
relevant regulatory regime would be illegal, void or unenforceable, neither
Evercore nor any of its affiliates accepts any responsibility or liability
whatsoever for the contents of this announcement, and no representation,
express or implied, is made by it, or purported to be made on its behalf, in
relation to the contents of this announcement, including its accuracy,
completeness or verification of any other statement made or purported to be
made by it, or on its behalf, in connection with Nucleus, Bidco or the matters
described in this announcement. To the fullest extent permitted by applicable
law, Evercore and its affiliates accordingly disclaim all and any
responsibility or liability whether arising in tort, contract or otherwise
(save as referred to above) which they might otherwise have in respect of this
announcement or any statement contained herein.
Overseas jurisdictions
This announcement has been prepared in accordance with, and for the purposes
of complying with, English law, the Takeover Code, the Market Abuse Regulation
and the AIM Rules, and information disclosed may not be the same as that which
would have been disclosed if this announcement had been prepared in accordance
with the laws of jurisdictions outside of England.
The release, publication or distribution of this announcement in, into or from
jurisdictions other than the United Kingdom may be restricted by law and
therefore any persons who are subject to the laws of any jurisdiction other
than the United Kingdom should inform themselves about, and observe any
applicable requirements.
The availability of the Acquisition to Curtis Banks Shareholders who are not
resident in and citizens of the United Kingdom may be affected by the laws of
the relevant jurisdictions in which they are located or of which they are
citizen. Persons who are not resident in the United Kingdom should inform
themselves of, and observe any applicable legal or regulatory requirements of
their jurisdictions. In particular, the ability of persons who are not
resident in the United Kingdom to vote their Curtis Banks Shares with respect
to the Scheme at the Meetings, or to execute and deliver Forms of Proxy (or
other proxy instructions) appointing another to vote at the Meetings on their
behalf, may be affected by the laws of the relevant jurisdictions in which
they are located. Any failure to comply with the applicable restrictions may
constitute a violation of the securities laws of any such jurisdiction. To the
fullest extent permitted by applicable law, the companies and persons involved
in the Acquisition disclaim any responsibility or liability for the violation
of such restrictions by any person. Further details in relation to Overseas
Shareholders are contained in the Scheme Document.
Unless otherwise determined by Bidco or required by the Takeover Code, and
permitted by applicable law and regulation, the Acquisition will not be made
available, in whole or in part, directly or indirectly, in, into or from a
Restricted Jurisdiction where to do so would constitute a violation of the
relevant laws or regulations of such jurisdiction and no person may vote in
favour of the Acquisition by any such use, means, instrumentality or from
within a Restricted Jurisdiction or any other jurisdiction if to do so would
constitute a violation of the laws of that jurisdiction. Copies of this
announcement and any formal documentation relating to the Acquisition are not
being, and must not be, directly or indirectly, mailed or otherwise forwarded,
distributed or sent in or into or from any Restricted Jurisdiction and persons
receiving such documents (including custodians, nominees and trustees) must
not mail or otherwise forward, distribute or send it in or into or from any
Restricted Jurisdiction. Doing so may render invalid any related purported
vote in respect of the Acquisition. If the Acquisition is implemented by way
of a Takeover Offer (unless otherwise permitted by applicable law and
regulation), the Takeover Offer may not be made directly or indirectly, in or
into, or by the use of mails or any means or instrumentality (including, but
not limited to, facsimile, e-mail or other electronic transmission, telex or
telephone) of interstate or foreign commerce of, or of any facility of a
national, state or other securities exchange of any Restricted Jurisdiction
and the Takeover Offer may not be capable of acceptance by any such use,
means, instrumentality or facilities.
The Acquisition will be subject to English law and the jurisdiction of the
Court, and the applicable requirements of the Takeover Code, the Panel, the
FCA, the London Stock Exchange (including pursuant to the AIM Rules) and the
Registrar of Companies.
Notice to US investors in Curtis Banks
The Acquisition relates to the shares of an English company with a quotation
on AIM and is being made by means of a scheme of arrangement provided for
under English company law. A transaction effected by means of a scheme of
arrangement is not subject to the tender offer rules or the proxy solicitation
rules under the US Exchange Act of 1934. Accordingly, the Acquisition is
subject to the disclosure requirements and practices applicable in the United
Kingdom to schemes of arrangement which differ from the disclosure
requirements of United States tender offer and proxy solicitation rules.
Neither the United States Securities and Exchange Commission, nor any
securities commission of any state of the United States, has approved or
disapproved any offer, or passed comment upon the adequacy or completeness of
any of the information contained in this announcement. Any representation to
the contrary may be a criminal offence.
If, in the future, Bidco exercises the right, with the consent of the Panel
(where necessary), to implement the Acquisition by way of a Takeover Offer and
determines to extend the offer into the United States, the Acquisition will be
made in compliance with applicable United States laws and regulations,
including Section 14(e) of the US Securities Exchange Act 1934 and Regulation
14E thereunder.
Financial information included in this announcement and the Scheme Document
(or, if the Acquisition is implemented by way of a Takeover Offer, the Offer
Document) has been or will have been prepared in accordance with accounting
standards applicable in the United Kingdom that may not be comparable to
financial information of US companies or companies whose financial statements
are prepared in accordance with generally accepted accounting principles in
the United States.
The receipt of cash pursuant to the Acquisition by a US holder of Curtis Banks
Shares as consideration for the transfer of its Scheme Shares pursuant to the
Scheme may be a taxable transaction for US federal income tax purposes and
under applicable US state and local, as well as foreign and other, tax laws.
Each Curtis Banks Shareholder is therefore urged to consult with independent
legal, tax and financial advisers in connection with making a decision
regarding the Acquisition.
It may be difficult for US holders of Curtis Banks Shares to enforce their
rights and any claim arising out of the US federal laws in connection with the
Acquisition, since Bidco and Curtis Banks are located in, and organised under
the laws of, a non-US jurisdiction, and some or all of their officers and
directors may be residents of a non-US jurisdiction. US holders of Curtis
Banks Shares may not be able to sue a non-US company or its officers or
directors in a non-US court for violations of the US securities laws. Further,
it may be difficult to compel a non-US company and its affiliates to subject
themselves to a US court's jurisdiction or judgement.
In accordance with normal UK practice and pursuant to Rule 14e-5(b) of the US
Securities Exchange Act of 1934, Bidco, certain affiliated companies and their
nominees or brokers (acting as agents), may from time to time make certain
purchases of, or arrangements to purchase, Curtis Banks Shares outside of the
US, other than pursuant to the Acquisition, until the date on which the
Acquisition and/or Scheme becomes Effective, lapses or is otherwise withdrawn.
Also, in accordance with Rule 14e-5(b) of the US Securities Exchange Act of
1934, each of Evercore, Fenchurch, Peel Hunt and Singer Capital Markets
Securities will continue to act as an exempt principal trader in Curtis Banks
Shares on the London Stock Exchange. If such purchases or arrangements to
purchase were to be made, they would occur either in the open market at
prevailing prices or in private transactions at negotiated prices and comply
with applicable law, including the US Securities Exchange Act of 1934. Any
information about such purchases will be disclosed as required in the UK, will
be reported to the Regulatory News Service of the London Stock Exchange and
will be available on the London Stock Exchange website at
www.londonstockexchange.com.
Dealing and Opening Position Disclosure Requirements
Under Rule 8.3(a) of the Takeover Code, any person who is interested in one
per cent. or more of any class of relevant securities of an offeree company or
of any securities exchange offeror (being any offeror other than an offeror in
respect of which it has been announced that its offer is, or is likely to be,
solely in cash) must make an Opening Position Disclosure following the
commencement of the Offer Period and, if later, following the announcement in
which any securities exchange offeror is first identified.
An Opening Position Disclosure must contain details of the person's interests
and short positions in, and rights to subscribe for, any relevant securities
of each of (i) the offeree company and (ii) any securities exchange
offeror(s). An Opening Position Disclosure by a person to whom Rule 8.3(a)
applies must be made by no later than 3.30 pm (London time) on the 10th
business day following the commencement of the Offer Period and, if
appropriate, by no later than 3.30 pm (London time) on the 10th business day
following the announcement in which any securities exchange offeror is first
identified. Relevant persons who deal in the relevant securities of the
offeree company or of a securities exchange offeror prior to the deadline for
making an Opening Position Disclosure must instead make a Dealing Disclosure.
Under Rule 8.3(b) of the Takeover Code, any person who is, or becomes,
interested in 1% or more of any class of relevant securities of the offeree
company or of any securities exchange offeror must make a Dealing Disclosure
if the person deals in any relevant securities of the offeree company or of
any securities exchange offeror. A Dealing Disclosure must contain details of
the dealing concerned and of the person's interests and short positions in,
and rights to subscribe for, any relevant securities of each of (i) the
offeree company and (ii) any securities exchange offeror, save to the extent
that these details have previously been disclosed under Rule 8. A Dealing
Disclosure by a person to whom Rule 8.3(b) applies must be made by no later
than 3.30 pm (London time) on the business day following the date of the
relevant dealing.
If two or more persons act together pursuant to an agreement or understanding,
whether formal or informal, to acquire or control an interest in relevant
securities of an offeree company or a securities exchange offeror, they will
be deemed to be a single person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree company and by
any offeror and Dealing Disclosures must also be made by the offeree company,
by any offeror and by any persons acting in concert with any of them (see
Rules 8.1, 8.2 and 8.4).
Details of the offeree and offeror companies in respect of whose relevant
securities Opening Position Disclosures and Dealing Disclosures must be made
can be found in the Disclosure Table on the Panel's website at
www.thetakeoverpanel.org.uk, including details of the number of relevant
securities in issue, when the Offer Period commenced and when any offeror was
first identified. You should contact the Panel's Market Surveillance Unit on
+44 (0)20 7638 0129 if you are in any doubt as to whether you are required to
make an Opening Position Disclosure or a Dealing Disclosure.
Publication on a website
In accordance with Rule 26.1 of the Takeover Code, a copy of this announcement
will be made available, subject to certain restrictions relating to persons
resident in restricted jurisdictions, on Nucleus' website at
www.nucleusfinancialplatforms.com no later than 12 noon (London time) on the
business day following the date of this announcement. The content of the
website referred to above is not incorporated into and does not form part of
this announcement.
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