REG - Finsbury Food Group - Recommended Acquisition of Finsbury Food Group
20/09/2023 07:00
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RNS Number : 0046N Finsbury Food Group PLC 20 September 2023
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN WHOLE OR IN PART, DIRECTLY OR
INDIRECTLY, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE
A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF SUCH JURISDICTION.
THIS ANNOUNCEMENT IS NOT A PROSPECTUS OR A PROSPECTUS EXEMPT DOCUMENT AND
FINSBURY SHAREHOLDERS SHOULD NOT MAKE ANY DECISION IN RELATION TO THE
ACQUISITION OR ANY CONSIDERATION SHARES EXCEPT ON THE BASIS OF THE INFORMATION
TO BE CONTAINED IN THE SCHEME DOCUMENT WHICH IS PROPOSED TO BE PUBLISHED IN
DUE COURSE.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION.
20 September 2023
RECOMMENDED ACQUISITION
of
FINSBURY FOOD GROUP PLC
by
FRISBEE BIDCO LIMITED
to be effected by means of a scheme of arrangement
under Part 26 of the Companies Act 2006
Summary and Key Terms
· The boards of Frisbee Bidco Limited ("Bidco") and Finsbury Food
Group plc ("Finsbury") are pleased to announce that they have reached
agreement on the terms of a recommended offer to be made by Bidco for the
entire issued and to be issued ordinary share capital of Finsbury (other than
the Finsbury Shares held by funds managed by DBAY Advisors Limited ("DBAY"))
(the "Acquisition"). The Acquisition is to be effected by means of a scheme of
arrangement under Part 26 of the Companies Act between Finsbury and Finsbury
Shareholders.
· Under the terms of the Acquisition, each Scheme Shareholder will
be entitled to receive:
110 pence in cash per Scheme Share (the "Cash Offer")
· Based on the Cash Offer, the Acquisition values the entire issued
ordinary share capital of Finsbury at approximately £143.4 million, based on
an issued share capital of 130,383,361 Finsbury Shares.
· The Cash Offer represents a premium of approximately:
o 23.6 per cent. to the Closing Price of 89.0p on 19 September 2023;
o 54.9 per cent. to the Closing Price of 71.0p on 2 September 2022, being
the last practicable date prior to the public disclosure of DBAY's interest in
Finsbury; and
o 22.3 per cent. to the VWAP of a Finsbury Share of 89.9p during the 12
month period ended 19 September 2023.
· As an alternative to the Cash Offer, Finsbury Shareholders (other
than Finsbury Shareholders resident or located in a Restricted Jurisdiction)
may elect to receive a non-voting B ordinary share in Bidco (a "Consideration
Share") for each Scheme Share held (the "Alternative Offer"). A Finsbury
Shareholder may elect to take up the Alternative Offer in respect of some or
all of his, her or its holding of Scheme Shares. The Consideration Shares
will be issued within 14 days of the Effective Date. The terms and
conditions of the Alternative Offer are set out in paragraph 12 of this
announcement and a summary of the rights attaching to the Consideration Shares
is set out in Appendix 4 to this announcement. The Consideration Shares are
unlisted, non-transferable (except in limited circumstances) and do not carry
any voting rights.
· Bidco is a limited company registered in the Isle of Man and
incorporated on 18 August 2023. Bidco was formed for the purpose of the
Acquisition and is an entity ultimately owned by funds managed by DBAY and has
not traded since its date of incorporation, nor has it entered into any
obligations other than in connection with the Acquisition.
· DBAY is an asset management company based and regulated on the
Isle of Man. It was founded in 2011 and manages a range of funds and
co-investment vehicles for endowments, foundations and other institutional
investors. DBAY has offices in Douglas and London. DBAY invests
predominantly in listed equities, and can also hold unlisted instruments. DBAY
supports management teams and assists them in the process of growing their
businesses.
· Finsbury is a leading UK and European manufacturer of cake and
bread bakery goods, supplying a broad range of blue-chip customers within both
the grocery retail and 'out of home eating' foodservice sectors including
major multiples and leading foodservice providers. Finsbury is one of the
largest speciality bakery groups in the UK offering a comprehensive product
range that includes: (1) large premium and celebration cakes; (2) small
snacking cake formats such as cake slices and bites; (3) artisan, healthy
lifestyle and organic breads through to rolls, muffins (sweet and savoury) and
morning pastries, and (4) gluten free bread, morning goods and cake ranges.
Finsbury comprises a core UK Bakery division and an Overseas division that
together incorporate manufacturing sites in the UK and Poland, and an 85%
equity stake in a French business that supplies and distributes Finsbury's
UK-manufactured products and third-party products in Europe.
Background to and reasons for the Acquisition
· DBAY has followed Finsbury's story for some time, attracted by the business
model and strength of the management team, and began acquiring Finsbury Shares
in August 2022.
· DBAY believes strongly in the future potential of Finsbury but is firmly of
the view that, in order to fulfil the growth potential of the business in the
medium term, Finsbury needs to supplement its current organic growth with
additional growth opportunities, including a meaningful and sustainable
acquisition strategy.
· DBAY believes that Finsbury's public listing and the current turbulence in
quoted equity markets substantially inhibit its ability to pursue these growth
opportunities, in particular acquisitions.
· The limited liquidity of Finsbury Shares has led DBAY to conclude that the
future prospects of Finsbury and its employees would be better served as a
private business, with a supportive majority shareholder and access to
additional sources of both equity and debt to fund accelerated and sustainable
growth.
· DBAY is therefore eager to work with the senior management team in taking the
business private, and intends to seek to cancel trading in Finsbury's shares
on AIM as soon as possible in accordance with applicable laws.
· Whilst the Cash Offer will provide Finsbury Shareholders who elect for it with
immediate liquidity at completion of the Acquisition, DBAY recognises that
some shareholders may wish to retain an economic interest in Finsbury. As
such, DBAY has made available the Alternative Offer to allow Finsbury
Shareholders to continue to hold an equity interest in Finsbury post
completion of the Acquisition. Finsbury Shareholders should take their own
independent financial, legal and tax advice and consider carefully the
disadvantages and advantages of electing for the Alternative Offer (including,
but not limited to, those set out in paragraph 12 of this announcement) in the
light of their own financial circumstances and investment objectives.
Recommendation
· The Finsbury Directors, who have been so advised by Oppenheimer as to the
financial terms of the Cash Offer, consider the terms of the Cash Offer to be
fair and reasonable. In providing their financial advice to the Finsbury
Directors, Oppenheimer has taken into account the commercial assessments of
the Finsbury Directors.
· The Finsbury Directors have considered a number of factors in addition to
value, including that the Cash Offer represents an opportunity for Finsbury
Shareholders wanting to realise their investment in cash to do so at a premium
to the historical share price of Finsbury. Accordingly, and after careful
consideration, including taking into account the factors set out in paragraph
4 of this announcement, the Finsbury Directors intend to recommend unanimously
that Finsbury Shareholders vote or procure votes in favour of the Scheme at
the Court Meeting and the Resolutions 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 acceptance of the Takeover Offer), as the Finsbury
Directors have irrevocably undertaken to do in respect of their own beneficial
holdings of 4,364,648 Finsbury Shares (representing, in aggregate,
approximately 3.3 per cent. of the Finsbury Shares in issue on the Latest
Practicable Date).
· Oppenheimer is unable to advise the Finsbury Directors as to whether or not
the financial terms of the Alternative Offer are fair and reasonable. This is
because Oppenheimer does not have access, inter alia, to the financial
projections of Bidco and DBAY's plans for the development of Bidco necessary
to form an assessment of the value of the Alternative Offer. Oppenheimer also
note the risk factors and other investment considerations set out in paragraph
12 of this announcement.
· The Finsbury Directors cannot form an opinion as to whether or not the terms
of the Alternative Offer are fair and reasonable and are not making any
recommendation or giving any advice to Finsbury Shareholders as to whether or
not they should elect for the Alternative Offer. Finsbury Shareholders are
strongly recommended to take into account the disadvantages and advantages
highlighted in paragraph 12 of this announcement, as well as their individual
circumstances, when deciding whether or not to elect for the Alternative Offer
in respect of their holding of Scheme Shares.
· The Finsbury Directors strongly recommend that, in deciding whether or not to
elect for the Alternative Offer, the Finsbury Shareholders should take their
own independent financial, legal and tax advice and consider carefully the
disadvantages and advantages of electing for the Alternative Offer (including,
but not limited to, those set out in paragraph 12 of this announcement) in
light of their own financial circumstances and investment objectives.
· Pursuant to the irrevocable undertakings received from the Finsbury Directors
holding Finsbury Shares referred to above, each of the Finsbury Directors who
is interested in Finsbury Shares has irrevocably undertaken to vote (or
procure to vote) in favour of the Scheme at the Court Meeting and in favour of
the Resolutions 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 acceptance of the Takeover Offer) in respect of their entire
beneficial holding of Scheme Shares.
· In addition, John Duffy, Chief Executive Officer of Finsbury, has irrevocably
undertaken to elect for the Alternative Offer in respect of 1,793,401 Finsbury
Shares beneficially owned by him (representing approximately 62.5 per cent. of
his total beneficial holding of Finsbury), as he wishes to hold an investment
in Finsbury and his personal circumstances mean that he is willing to hold an
unlisted, non-transferrable investment, and these factors outweigh the other
disadvantages listed in paragraph 12 of this announcement.
Irrevocable Undertakings and Letter of Intent
· In addition to the Finsbury Directors' irrevocable undertakings noted above,
Bidco has received a letter of intent from Investec Wealth & Management
Limited to vote in favour of the Scheme at the Court Meeting and the
Resolutions 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
acceptance of the Takeover Offer) in respect of 11,704,451 Finsbury Shares,
representing approximately 10.4 per cent. of the Scheme Shares, and 9.0 per
cent. of all Finsbury Shares, in issue on the Latest Practicable Date.
· Therefore, as at the date of this announcement, Bidco has received irrevocable
undertakings and a letter of intent in respect of a total of 16,069,099
Finsbury Shares (representing approximately 14.3 per cent. of the Scheme
Shares and 12.3 per cent. of all Finsbury Shares in issue on the Latest
Practicable Date). Full details of the irrevocable undertakings and letter of
intent received by Bidco are set out in Appendix 3 to this announcement.
Acquisition Structure and Timetable
· It is intended that the Acquisition be implemented by way of a
Court-sanctioned scheme of arrangement under Part 26 of the Companies Act (or,
if Bidco so elects and with the consent of the Panel, a Takeover Offer). The
purpose of the Scheme is to provide for Bidco to become the owner of the
entire issued and to be issued ordinary share capital of Finsbury. The
Scheme will be put to Scheme Shareholders at the Court Meeting and to the
Finsbury Shareholders at the General Meeting. To become Effective, the
Scheme must be approved by a majority in number of the Scheme Shareholders
voting at the Court Meeting, either in person or by proxy, representing at
least 75 per cent. in value of the Scheme Shares voted. The implementation
of the Scheme must also be approved by Finsbury Shareholders at the General
Meeting.
· If any dividend or other distribution in respect of the Finsbury Shares is
declared, paid or made on or after the date of this announcement, Bidco
reserves the right to reduce the consideration payable for each Finsbury Share
under the terms of the Acquisition by the amount per Finsbury Share of such
dividend or distribution. If Bidco exercises this right or makes such a
reduction in respect of a dividend or distribution, Finsbury Shareholders will
be entitled to receive and retain that dividend or distribution.
· The Acquisition will be subject to the Conditions and certain further terms
set out in Appendix 1 to this announcement, including, among other things: (a)
the approval of Scheme Shareholders at the Court Meeting and the passing of
the Resolutions to be proposed at the General Meeting; (b) the sanction of the
Scheme by the Court; and (c) the Scheme becoming Effective no later than the
Long Stop Date.
· The Scheme Document will include full details of the Scheme, together with an
explanatory statement providing details of the Acquisition, and the notices
convening the Court Meeting and the General Meeting. The Scheme Document will
also contain the expected timetable of the Acquisition, full details of the
terms of the Consideration Shares and will specify the necessary actions to be
taken by Finsbury Shareholders. It is expected that the Scheme Document will
be sent to Finsbury Shareholders as soon as reasonably practicable (subject to
the availability of the Court to approve the posting of the Scheme Document)
and in any event within 28 days of this announcement (or on such later date as
may be agreed by the Panel).
· The Acquisition is currently expected to become Effective in Q4 2023, subject
to the satisfaction or waiver of the Conditions and certain further terms set
out in Appendix 1 to this announcement and to the full terms and conditions of
the Acquisition which will be set out in the Scheme Document.
· The person responsible for arranging this announcement on behalf of Finsbury
is John Duffy.
· The LEI of Finsbury is 213800NP5Y3DYJM1MF44.
Comments on the Acquisition
· Commenting on today's announcement, Peter Baker, Non-Executive
Chairman of Finsbury, said:
"Finsbury has a successful track record under the leadership of the current
management team of delivering sustainable, profitable organic growth along
with strategic, targeted acquisitions. For the next phase of the Finsbury
Group's development the business will need to pursue strategic,
transformational M&A to achieve the scale required to be successful in an
increasingly competitive and demanding market place.
I am confident that Finsbury will thrive under DBAY's stewardship in the
private market, with access to DBAY's investment and operational support to
pursue the current strategy of scaling Finsbury's buy-and-build M&A in the
future.
The Finsbury Board has carefully reviewed the terms of DBAY's Cash Offer, and
believes it provides shareholders with an accelerated, de-risked opportunity
to realise their investment in full and in cash at an attractive premium to
both the current share price and the long term weighted average share price.
As such, the Finsbury Board unanimously intends to recommend that Finsbury
Shareholders also vote in favour of the Acquisition."
· Commenting on today's announcement, Alexander Paiusco, Chief
Executive of DBAY said:
"We are pleased to have reached agreement with the Finsbury Board and that the
Acquisition has received a unanimous recommendation. The Cash Offer
represents an opportunity for Finsbury Shareholders to realise their
investment in cash at a premium to the historical share price of Finsbury and
as an alternative to the Cash Offer we have offered Finsbury Shareholders the
ability to retain a shareholding in Finsbury going forward through the
Alternative Offer.
We have been supportive shareholders of the business for over a year and have
been impressed with the management team during our ownership, but we strongly
believe Finsbury would benefit from transformational M&A including
international expansion and this would be better achieved in private ownership
without the barrier of the current listing. We look forward to working with
Finsbury's management and employees to accelerate Finsbury's strategy and
unlock the long-term value in Finsbury for all stakeholders."
Notices
This summary should be read in conjunction with, and is subject to, the
following full announcement and the Appendices. The Scheme will be subject to
the further terms and conditions set out in Appendix 1 to this announcement
and to the full terms and conditions which will be set out in the Scheme
Document. Appendix 2 contains bases and sources of certain information
contained in this announcement. Details of the irrevocable undertakings and
letter of intent received by Bidco are set out in Appendix 3. Appendix 4 to
this announcement contains further details of the Wider Bidco Group and the
rights attaching to the Consideration Shares. Certain terms used in this
announcement are defined in Appendix 5.
A copy of this announcement is available, subject to certain restrictions
relating to persons resident in Restricted Jurisdictions, for inspection on
Finsbury's website at https://finsburyfoods.co.uk/investor-relations/offer.
For the avoidance of doubt, the contents of this website and of any other
website accessible by hyperlinks on this website, are not incorporated by
reference into, and do not form part of, this announcement.
Enquiries:
Bidco/DBAY Advisors Limited Tel: +44 (0)1624 690 900
Mike Haxby
Investec Bank plc (Financial adviser to Bidco/DBAY) Tel: +44 (0)20 75975197
Gary Clarence
Harry Hargreaves
Finsbury Tel: +44 (0)29 2035 7500
John Duffy
Steve Boyd
Oppenheimer (Financial adviser under Rule 3 of the Code to Finsbury) Tel: +44 (0)20 7220 1900
James Murray
Anthony Sills
Panmure Gordon (Nomad and corporate broker to Finsbury) Tel: +44 (0)20 7886 2500
Dominic Morley
Atholl Tweedie
Rupert Dearden
Alma (PR adviser to Finsbury) Tel: +44 (0)20 3405 0205
Rebecca Sanders-Hewett E-mail: finsbury@almapr.co.uk
Sam Modlin
Addleshaw Goddard LLP is providing legal advice to DBAY and Bidco. CMS Cameron
McKenna Nabarro Olswang LLP is providing legal advice to Finsbury.
IMPORTANT NOTICES
Further information
This announcement is for information purposes only and is not intended to and
does not constitute or form part of any offer to sell or subscribe for or any
invitation to purchase or subscribe for any securities or the solicitation of
any vote or approval in any jurisdiction pursuant to the Acquisition or
otherwise. The Acquisition will be made solely pursuant to the terms of the
Scheme Document, which will contain the full terms and conditions of the
Acquisition, including details of how to vote in respect of the Acquisition,
together with the accompanying Forms of Proxy and Form of Election. Any
approval or vote in respect of the Scheme or other decision or response in
relation to the Acquisition should be made only on the basis of the
information contained in the Scheme Document.
The statements contained in this announcement are made as at the date of this
announcement, unless some other time is specified in relation to them, and
mailing 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.
This announcement does not constitute a prospectus or prospectus equivalent
document.
Overseas Shareholders
The release, publication or distribution of this announcement in or into
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 legal or regulatory requirements. In particular the ability of
persons who are not resident in the UK to vote their Finsbury Shares at the
Court Meeting or General Meeting, or to appoint another person as proxy to
vote at the Court Meeting or General Meeting 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.
This announcement has been prepared for the purpose of complying with English
law, the Market Abuse Regulation, the AIM Rules and the Code and the
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 England and Wales.
Bidco and Finsbury encourage Finsbury Shareholders to read the Scheme Document
(or any further documentation published in connection with the Acquisition)
carefully when it becomes available because it will contain important
information in relation to the Acquisition. Each Finsbury Shareholder is urged
to consult its independent professional adviser immediately regarding the tax
consequences to it (or its beneficial owners) of the Acquisition.
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 or any jurisdiction where to do so would violate the laws of that
jurisdiction and persons receiving such documents (including custodians,
nominees and trustees) must not mail or otherwise forward, distribute or send
them in or into or from any Restricted Jurisdiction. Doing so may render
invalid any related purported vote in respect of the Acquisition.
Unless otherwise determined by Bidco or required by the Code, and permitted by
applicable law or regulation, the Acquisition will not be made available,
directly or indirectly, in or into or from a Restricted Jurisdiction where to
do so would violate the laws in that jurisdiction and no person may vote in
favour of the Acquisition by use of mail or any other means or instrumentality
(including, without limitation, facsimile, email or other electronic
transmission, telex or telephone) of interstate or foreign commerce of, or any
facility of a national, state or other securities exchange of any Restricted
Jurisdiction and if the Acquisition is implemented by way of a Takeover Offer,
the Takeover Offer will not be capable of acceptance by any such use, means,
instrumentality or facilities or from within any Restricted Jurisdiction.
Additional information for US investors
The Acquisition relates to the shares of a UK company and is being made by
means of a scheme of arrangement provided for under the laws of England and
Wales. A transaction effected by means of a scheme of arrangement is not
subject to the proxy solicitation or tender offer rules under the Exchange Act
of 1934, as amended (the "Exchange Act") and is exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act").
Accordingly, the Acquisition will be subject to disclosure requirements and
practices applicable in the UK to schemes of arrangement under the laws of
England and Wales, which are different from the disclosure and other
requirements applicable to a US tender offer.
Neither the SEC, nor any US state securities commission has approved or
disapproved of any offer of securities referred to in, or commented upon the
adequacy or completeness of any of the information contained in, this
announcement. Any representation to the contrary is a criminal offence in the
United States.
Financial information relating to Finsbury included in this announcement has
been prepared in accordance with accounting standards applicable in the United
Kingdom. As a result, such financial information 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 Consideration Shares to be issued pursuant to the Scheme under the
Alternative Offer may not be offered or sold in the United States absent
registration or an exemption from registration. No offer of such Consideration
Shares will be made to Finsbury Shareholders located or resident in the United
States or who are otherwise US Persons (as such term is defined in Rule 902(k)
under the Securities Act, each a "US Person"). The Consideration Shares have
not been and will not be registered under the Securities Act or under the
relevant securities laws of any state or territory or other jurisdiction of
the United States and will not be listed on any stock exchange in the United
States, and may not be offered, sold or delivered, directly or indirectly, in,
into or from the United States absent registration or an exemption from the
registration requirements of the Securities Act.
Finsbury Shareholders located or resident in the United States or who are
otherwise US Persons will not be permitted to elect to receive the
Consideration Shares pursuant to the Alternative Offer, and any purported
election to receive Consideration Shares pursuant to the Alternative Offer by
Finsbury Shareholders from the United States, or which, at the sole discretion
of Bidco, appear to be made in respect of Finsbury Shares beneficially held by
persons located or resident in the United States or who otherwise appear to be
US Persons will not be accepted. Accordingly, Finsbury Shareholders located or
resident in the United States or who are otherwise US Persons will receive
cash pursuant to the Scheme, and no Consideration Shares will be issued to any
such Finsbury Shareholder.
By electing receipt of the Consideration Shares pursuant to the Alternative
Offer, Finsbury Shareholders will be deemed to represent and warrant, on
behalf of themselves and any person on whose behalf they beneficially hold
their Finsbury Shares, that they: (i) are not located or resident in the
United States or otherwise a US Person; and (ii) are not electing receipt of
Consideration Shares pursuant to the Alternative Offer with a view to, or for
the offer or sale of Consideration Shares in connection with, any distribution
thereof (within the meaning of the Securities Act) in the United States or to
US Persons.
The receipt of cash consideration pursuant to the Cash Offer by a US holder of
Finsbury 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 US holder is urged to consult his independent
professional adviser immediately regarding the tax consequences of the
Acquisition applicable to him, her or it.
It may be difficult for US holders of Finsbury Shares to enforce their rights
and any claims they may have arising under US Federal securities laws in
connection with the Acquisition, since Finsbury is organised under the laws of
a country other than the United States, and some or all of its officers and
directors may be residents of countries other than the United States, and most
of the assets of Finsbury are located outside of the United States. US holders
of Finsbury Shares may not be able to sue a non-US company or its officers or
directors in a non-US court for violations of US Federal 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 judgment.
The Acquisition may, in the circumstances provided for in this announcement,
instead be carried out by way of a Takeover Offer under the laws of England
and Wales. If Bidco exercises, with the consent of the Takeover Panel and
subject to the terms of the Co-operation Agreement, its right to implement the
Acquisition by way of a Takeover Offer, such Takeover Offer will be made in
compliance with applicable US tender offer and US Federal securities laws and
regulations, including the exemptions therefrom.
In accordance with normal UK practice and pursuant to rule 14e-5(b) of the
Exchange Act, Bidco or its nominees, or its brokers (acting as agents), may,
from time to time, make certain purchases of, or arrangements to purchase,
Finsbury Shares outside of the United States, other than pursuant to the
Acquisition, until the date on which the Acquisition becomes effective, lapses
or is otherwise withdrawn, in compliance with applicable law, including the
Exchange Act. These purchases may occur either in the open market at
prevailing prices or in private transactions at negotiated prices. Any
information about such purchases will be disclosed, as required in the UK,
will be reported to a Regulatory Information Service and will be available on
the London Stock Exchange website at www.londonstockexchange.com
(http://www.londonstockexchange.com) .
Rule 26.1 Disclosure
In accordance with Rule 26.1 of the Code, a copy of this announcement will be
available (subject to certain restrictions relating to persons resident in
Restricted Jurisdictions), free of charge, at
https://finsburyfoods.co.uk/investor-relations/offer by no later than 12 noon
(London time) on 21 September 2023 (being the Business Day following the date
of this announcement). The content of the website referred to in this
announcement and the content of any other website accessible from hyperlinks
on such website is not incorporated into and does not form part of this
announcement.
Requesting Hard Copy Documents
In accordance with Rule 30.3 of the Code, Finsbury Shareholders and persons
with information rights may request a hard copy of this announcement free of
charge by contacting Finsbury's registrars, Link Group during business hours
on +44 (0)371 664 0300 or by submitting a request in writing at Link Group,
Corporate Actions, Central Square, 29 Wellington Street, Leeds, LS1 4DL. For
persons who receive a copy of this announcement in electronic form or via a
website notification, a hard copy of this announcement will not be sent unless
so requested. Such persons may also request that all future documents,
announcements and information to be sent to them in relation to the
Acquisition should be in hard copy form.
Information relating to Finsbury Shareholders
Please be aware that addresses, electronic addresses and certain information
provided by Finsbury Shareholders, persons with information rights and other
relevant persons for the receipt of communications from Finsbury may be
provided to Bidco during the offer period as required under section 4 of
Appendix 4 of the Code.
Rule 2.9 Disclosure
In accordance with Rule 2.9 of the Code, as at the close of business on 19
September 2023 (being the Latest Practicable Date), there were, excluding
shares held in treasury, 130,383,361 Finsbury Shares in issue and admitted to
trading on AIM. The International Securities Identification Number (ISIN) of
the Finsbury Shares is GB0009186429.
No Profit Forecasts or Estimates
No statement in this announcement is intended, or is to be construed, as a
profit forecast, profit estimate, or quantified financial benefits statement
or estimate for any period and no statement in this announcement should be
interpreted to mean that earnings or earnings per share for Finsbury or Bidco
for the current or future financial years would necessarily match or exceed
the historical published earnings or earnings per share for Finsbury or Bidco.
Other Disclosure Requirements of the Code
Under Rule 8.3(a) of the Code, any person who is interested in 1% 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. 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 the offeree company. An Opening Position Disclosure by
a person to whom Rule 8.3(a) applies must be made by no later than 3.30 p.m.
(London time) on the 10th Business Day following the commencement of the offer
period. Relevant persons who deal in the relevant securities of the offeree
company prior to the deadline for making an Opening Position Disclosure must
instead make a Dealing Disclosure.
Under Rule 8.3(b) of the 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. 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
the offeree company, 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 p.m. (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, 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 of the Code).
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.
Disclaimers
Investec Bank plc ("Investec"), which is authorised by the Prudential
Regulation Authority (the "PRA") and regulated by the Financial Conduct
Authority and PRA in the United Kingdom, is acting exclusively as financial
adviser to Bidco and DBAY and for no one else in connection with the
Acquisition and will not be responsible to any person other than Bidco and
DBAY for providing the protections afforded to clients of Investec, nor for
providing advice in relation to the Acquisition, the content of this
announcement or any matter referred to in this announcement. Neither Investec
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 Investec in connection with this announcement, any statement
contained herein or otherwise.
Oppenheimer Europe Limited ("Oppenheimer"), which is authorised and regulated
by the UK Financial Conduct Authority, is acting exclusively as Financial
Advisor under Rule 3 of the Code to Finsbury in connection with the matters
set out in this announcement and for no one else and will not be responsible
to anyone other than Finsbury for providing the protections afforded to its
clients or for providing advice in relation to the matters referred to in this
announcement. Neither Oppenheimer, nor any of its 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 Oppenheimer in connection with this announcement, any
statement contained herein, the Acquisition or otherwise.
Panmure Gordon (UK) Limited ("Panmure Gordon"), which is authorised and
regulated by the UK Financial Conduct Authority, is acting exclusively as
Nominated Adviser and Broker to Finsbury and for no one else in connection
with the subject matter of this announcement and will not be responsible to
anyone other than Finsbury for providing the protections afforded to its
clients or for providing advice in relation to the matters referred to in this
announcement. Neither Panmure Gordon, nor any of its 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 Panmure Gordon in connection with this
announcement, any statement contained herein or otherwise.
Rounding
Certain figures included in this announcement have been subjected to rounding
adjustments. Accordingly, figures shown for the same category presented in
different tables may vary slightly and figures shown as totals in certain
tables may not be an arithmetic aggregation of the figures that precede them.
Forward-Looking Statements
This announcement may contain certain forward-looking statements with respect
to the financial condition, results of operations and business of Bidco and/or
Finsbury and certain plans and objectives of Bidco and/or Finsbury with
respect thereto. These forward-looking statements can be identified by the
fact that they do not relate only to historical or current facts.
Forward-looking statements often use words such as "anticipate", "target",
"expect", "estimate", "intend", "plan", "goal", "believe", "hope", "aims",
"continue", "will", "may", "should", "would", "could", or other words of
similar meaning. These statements are based on assumptions and assessments
made by Bidco and/or Finsbury in the light of their experience and their
perception of historical trends, current conditions, future developments and
other factors they believe appropriate. By their nature, forward-looking
statements involve risk and uncertainty, because they relate to events and
depend on circumstances that will occur in the future and the factors
described in the context of such forward-looking statements in this
announcement could cause actual results and developments to differ materially
from those expressed in or implied by such forward-looking statements.
Although it is believed that the expectations reflected in such
forward-looking statements are reasonable, no assurance can be given that such
expectations will prove to have been correct and you are therefore cautioned
not to place undue reliance on these forward-looking statements which speak
only as at the date of this announcement. Neither Bidco nor Finsbury assumes
any obligation to update or correct the information contained in this
announcement (whether as a result of new information, future events or
otherwise), except as required by applicable law.
There are several factors which could cause actual results to differ
materially from those expressed or implied in forward-looking statements.
Among the factors that could cause actual results to differ materially from
those described in the forward-looking statements are changes in the global,
political, economic, business, competitive, market and regulatory forces,
future exchange and interest rates, changes in tax rates and future business
combinations or dispositions.
General
If you are in any doubt about the contents of this announcement or the action
you should take, you are recommended to seek your own independent financial
advice immediately from your stockbroker, bank manager, solicitor, accountant
or independent financial adviser duly authorised under FSMA if you are
resident in the United Kingdom or, if not, from another appropriately
authorised independent financial adviser.
24.2. (d)(i)
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF SUCH JURISDICTION.
THIS ANNOUNCEMENT IS NOT A PROSPECTUS OR A PROSPECTUS EXEMPT DOCUMENT AND
FINSBURY SHAREHOLDERS SHOULD NOT MAKE ANY DECISION IN RELATION TO THE THE
ACQUISITION OR ANY CONSIDERATION SHARES EXCEPT ON THE BASIS OF THE INFORMATION
TO BE CONTAINED IN THE SCHEME DOCUMENT WHICH IS PROPOSED TO BE PUBLISHED IN
DUE COURSE.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION.
20 September 2023
RECOMMENDED ACQUISITION
of
FINSBURY FOOD GROUP PLC
by
FRISBEE BIDCO LIMITED
to be effected by means of a scheme of arrangement
under Part 26 of the Companies Act 2006
1. Introduction
The boards of Frisbee Bidco Limited ("Bidco") and Finsbury Food Group plc
("Finsbury") are pleased to announce that they have reached agreement on the
terms of a recommended offer to be made by Bidco for the entire issued and to
be issued ordinary share capital of Finsbury other than the Finsbury Shares
held by funds managed by DBAY (the "Acquisition").
It is intended that the Acquisition be implemented by means of a
Court-sanctioned scheme of arrangement under Part 26 of the Companies Act.
Bidco reserves the right to elect, with the consent of the Panel, to implement
the Acquisition by way of a Takeover Offer as an alternative to the Scheme.
2. The Acquisition
Under the terms of the Acquisition, which will be subject to the Conditions
and further terms set out in Appendix 1 to this announcement and to be set out
in the Scheme Document, Forms of Proxy and Forms of Election, Scheme
Shareholders will be entitled to receive:
110 pence in cash per Scheme Share (the "Cash Offer")
Based on the Cash Offer, the Acquisition values the entire issued share
capital of Finsbury at approximately £143.4 million, based on an issued share
capital of 130,383,361 Finsbury Shares.
The Cash Offer represents a premium of approximately:
· 23.6 per cent. to the Closing Price of 89.0p on 19 September
2023;
· 54.9 per cent. to the Closing Price of 71.0p on 2 September 2022,
being the last practicable date prior to the public disclosure of DBAY's
interest in Finsbury; and
· 22.3 per cent. to the VWAP of a Finsbury Share of 89.9p during
the 12 month period ended 19 September 2023.
As an alternative to the Cash Offer, eligible Finsbury Shareholders may elect
to receive one non-voting B share in Bidco (a "Consideration Share") for
each Scheme Share held (the "Alternative Offer"). A Finsbury Shareholder may
elect to take up the Alternative Offer in respect of some or all of his, her
or its holding of Scheme Shares. The Consideration Shares will be issued
within 14 days of the Effective Date. The terms and conditions of the
Alternative Offer are set out in paragraph 12 of this announcement and a
summary of the rights attaching to the Consideration Shares is set out in
Appendix 4 to this announcement. The Consideration Shares are unlisted,
non-transferable (except in limited circumstances) and do not carry any voting
rights.
The Acquisition will be subject to the Conditions and certain further terms
set out in Appendix 1 to this announcement, including, among other things: (a)
the approval of Scheme Shareholders at the Court Meeting and the passing of
the Resolutions to be proposed at the General Meeting; (b) the sanction of the
Scheme by the Court; and (c) the Scheme becoming Effective no later than the
Long Stop Date. In order to become Effective, the Scheme must be approved by a
majority in number of Scheme Shareholders present and voting (and entitled to
vote), either in person or by proxy, at the Court Meeting representing at
least 75 per cent. in value of the Scheme Shares voted by such holders.
If any dividend or other distribution in respect of the Finsbury Shares is
declared, paid or made on or after the date of this announcement, Bidco
reserves the right to reduce the consideration payable for each Finsbury Share
under the terms of the Acquisition by the amount per Finsbury Share of such
dividend or distribution. To the extent that any such dividend or other
distribution and/or other return of capital announced, declared, paid or made
is: (a) transferred pursuant to the Acquisition on a basis which entitles
Bidco to receive the dividend or other distribution and to retain it; or (b)
cancelled, then in either case the consideration payable in respect of the
Acquisition will not be subject to change in accordance with this paragraph.
If Bidco exercises this right or makes such a reduction in respect of a
dividend or distribution, Finsbury Shareholders will be entitled to receive
and retain that dividend or distribution. Any exercise by Bidco of its rights
referred to in this paragraph shall be the subject of an announcement and, for
the avoidance of doubt, shall not be regarded as constituting any revision of
variation of the terms of the Acquisition.
The Scheme Document will include full details of the Scheme, together with an
explanatory statement providing details of the Acquisition, and the notices
convening the Court Meeting and the General Meeting. The Scheme Document will
also contain the expected timetable of the Acquisition and will specify the
necessary actions to be taken by Finsbury Shareholders. The Scheme Document
will be sent to Finsbury Shareholders as soon as reasonably practicable
(subject to the availability of the Court to approve the posting of the Scheme
Document) and in any event within 28 days of this announcement (or on such
later date as may be agreed by the Panel).
3. Background to and reasons for the Acquisition
DBAY has followed Finsbury's story for some time, attracted by the business
model and strength of the management team, and began acquiring Finsbury Shares
in August 2022.
DBAY believes strongly in the future potential of Finsbury but is firmly of
the view that, in order to fulfil the growth potential of the business in the
medium term, Finsbury needs to supplement its current organic growth with
additional growth opportunities, including a meaningful and sustainable
acquisition strategy.
DBAY believes that Finsbury's public listing and the current turbulence in
quoted equity markets, including the limited liquidity of Finsbury Shares,
substantially inhibit its ability to pursue these growth opportunities, in
particular acquisitions.
This has led DBAY to conclude that the future prospects of Finsbury and its
employees would be better served as a private business, with a supportive
majority shareholder and access to additional sources of both equity and debt
to fund accelerated and sustainable growth.
DBAY is therefore eager to work with the senior management team in taking the
business private, and intends to seek to cancel trading in Finsbury's shares
on AIM as soon as possible in accordance with applicable laws.
Whilst the Cash Offer will provide Finsbury Shareholders who elect for it with
immediate liquidity at completion of the Acquisition, DBAY recognise that some
shareholders may wish to retain an economic interest in Finsbury. As such,
DBAY has made available the Alternative Offer to allow Finsbury Shareholders
to continue to hold an equity interest in Finsbury post completion of the
Acquisition. Finsbury Shareholders should take their own independent
financial, legal and tax advice and consider carefully the disadvantages and
advantages of electing for the Alternative Offer (including, but not limited
to, those set out in paragraph 12 of this announcement) in the light of their
own financial circumstances and investment objectives.
4. Background to and reasons for the Recommendation of the Acquisition
Finsbury is a leading UK speciality bakery manufacturer of cake, and bread and
morning goods, supplying a broad range of customers within both the grocery
retail and 'out of home eating' foodservice channels including major multiples
and leading foodservice providers. Finsbury had sales in the financial year
ended 2 July 2023 exceeding £413 million.
The Finsbury Group has pursued a focused and well-developed strategy under the
current management team. This disciplined approach has resulted in a long and
successful track record of delivering profitable organic growth alongside
expansion and evolution through targeted acquisitions. Revenue has grown
31.2% from £315.3m to £413.7m between FY19 to FY23. This performance has
also been delivered over a sustained period of time with the Finsbury Group's
EBITDA increasing by almost threefold over the last 10 years. This has been
achieved in spite of the many headwinds that the Finsbury Group has faced,
certainly in recent years. The Board has every confidence that good progress
can continue to be made with the current team.
Finsbury has been clear about its ambition to pursue transformational M&A
in order to achieve the scale needed to provide both the product and
operational diversity, along with the inherent synergistic benefits.
Unfortunately, this has not been possible so far, as the Finsbury Group's
valuation rating has made it hard to pursue such a growth strategy as a
publicly listed company. In addition, the requirements of the public markets
in relation to capital raising, reporting and the M&A approval process
will make it increasingly difficult for Finsbury to be as competitive in the
future.
The Finsbury Board therefore believes that under Bidco's ownership in a
private environment, with access to larger and more flexible capital sources,
and DBAY's investment and operational support, Finsbury will be able to
accelerate and increase the scale of its buy-and-build M&A strategy.
This will be to the benefit of a broader range of stakeholders including
Finsbury's customers, suppliers, employees and defined benefit pension scheme
members.
Finsbury has continued to execute on its stated strategy, within the
constraints stated above, which has been achieved whilst managing broader
macroeconomic challenges (e.g. Brexit, Covid-19, Russia's invasion of Ukraine,
significant cost inflation and a severe cost of living crisis in the UK). The
Finsbury Board's view is that this has not been appropriately reflected in
Finsbury's share price and valuation rating, which have underperformed their
expectations for an extended period of time.
Finsbury has been successful in completing acquisitions over the last few
years, including:
· In June 2015, the Finsbury Group further expanded its foodservice offering
with the acquisition of Johnstone's, a leading supplier of single-serve
traybake cake products - including a renowned caramel shortbread product - to
foodservice customers.
· In September 2018, Finsbury acquired Ultrapharm, a Free From bread bakery
manufacturer with sites in the UK and Poland supplying the UK and European
retail and foodservice markets with Free From artisan breads, sandwich loaves,
morning goods and seasonal lines.
· In February 2022, the Finsbury Group increased its stake in Lightbody-Stretz
Ltd, the operator of the European distribution business known as Lightbody
Europe, from 50% to 85%, and also entered into an option agreement to acquire
the remaining 15% after two years.
· In January 2023, Finsbury acquired Lees of Scotland, a specialist producer of
sweet treats in the form of snowballs, tea cakes and meringues for the retail,
foodservice and independent retail markets under both the Lees brand and
retailer own-label.
However, these have all been bolt-on acquisitions and financed from existing
Finsbury facilities. The last transformational deal was in October 2014,
when Finsbury completed the acquisition of the Fletchers group of bakeries.
Fletchers is a leading producer of buns and rolls for the UK market. Fletchers
group also included the Kara foodservice brand, producing a wide range of
quality sweet and savoury bakery products, including both gourmet butter and
vegan brioche buns, traditional sliced bread, doughballs, muffins, doughnuts
and artisan bakery products.
The Finsbury Board did not solicit an offer for Finsbury. However, the
Finsbury Board regularly considers all options for driving and improving
shareholder value. Earlier unsolicited proposals from DBAY were rejected as
these indicative proposals were at a level at which the Finsbury Board felt
did not adequately reflect an appropriate value of Finsbury and its future
prospects. After DBAY's third proposal of 110p per Finsbury Share in cash, the
Finsbury Board felt the proposal required more detailed consideration.
In considering the financial terms of the Cash Offer, and determining whether
they reflect an appropriate valuation of Finsbury and its future prospects,
the Finsbury Directors have taken into account a number of factors, including:
· the Cash Offer reflects the strength of the Finsbury business and
its medium-term future prospects, and provides an opportunity for Finsbury
Shareholders to crystallise, in cash, the value of their investments at a
significant premium to the undisturbed share price which the Finsbury Board
believes represents attractive value at this time;
· that the terms of the Cash Offer represent an attractive premium
of:
o 23.6 per cent. to the Closing Price of 89.0p on 19 September 2023;
o 54.9 per cent. to the Closing Price of 71.0 p on 2 September 2022, being
the last practicable date prior to the public disclosure of DBAY's interest in
Finsbury; and
o 22.3 per cent. to the VWAP of a Finsbury Share of 89.9p during the 12
month period ended 19 September 2023.
· the Cash Offer price of 110 pence per share was last achieved by
Finsbury in regular market trading almost five years ago (on 14 December
2018);
· DBAY has been a shareholder of Finsbury since August 2022, and is
now the Group's largest shareholder with a stake of 13.6%. DBAY's share
purchases have supported Finsbury's share price relative to the wider
market; and
· furthermore, the Alternative Offer also enables eligible Finsbury
Shareholders who wish to continue to benefit from having exposure to the
Finsbury Group to do so via the Alternative Offer.
In addition to the financial terms of the Cash Offer, the Finsbury Directors
have also considered the suitability of Bidco as an owner of Finsbury from the
perspective of all stakeholders, taking into account Bidco's intentions for
the business, management, employees, defined benefit pension scheme members,
and other stakeholders of Finsbury. The Finsbury Directors are pleased that
Bidco recognises the strength of Finsbury's management team and employees who
have performed exceptionally during an extended period of unprecedented
challenge. The Finsbury Directors believe that Bidco is strongly positioned to
support Finsbury in its next phase of growth and will continue to invest in
the business to improve the sustainable long-term value of the Finsbury
business.
DBAY has constructively engaged with the trustees of the Memory Lane Cakes
Pension Scheme (the "DB Scheme") in relation to the impact of the Acquisition
on the DB Scheme. The trustees are supportive of the Acquisition and DBAY has
entered into an agreement with the trustees of the DB Scheme, as described in
paragraph 13 of this announcement.
Accordingly, and after careful consideration, including taking into account
the factors set out in paragraph 5 of this announcement, the Finsbury
Directors intend to recommend unanimously that Finsbury Shareholders vote or
procure votes in favour of the Scheme at the Court Meeting and the Resolutions
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 acceptance of
the Takeover Offer), as the Finsbury Directors have irrevocably undertaken to
do in respect of their own beneficial holdings of 4,364,648 Finsbury Shares
(representing, in aggregate, approximately 3.3 per cent. of the Finsbury
Shares in issue on the Latest Practicable Date).
5. Current Trading / FY23 Results
As announced in Finsbury's pre-close trading statement on 19 July 2023:
"The Group delivered a resilient full year performance despite the challenges
of persistent significant cost inflation and macroeconomic uncertainty. Total
Group sales of £413.7m, which includes the acquisition of Lees Foods Limited,
increased by 16.0% versus the previous year, and 12.6% excluding Lees. The
Group delivered a strong second half performance, with revenues in the second
half of the year up 17.1% versus the corresponding period in the prior year.
The growth in sales has been driven primarily by price and the incremental
volume from Lees.
The Group's core division, UK Bakery, which includes Lees, delivered a robust
performance with a 14.5% sales increase versus the prior year, this includes a
continuation of the recovery in foodservice, up 25.1%, whilst the Group's
Overseas division again performed strongly, delivering a 25.0% increase versus
the prior year.
The Group's strategic acquisition of Lees further consolidated its position in
the sweet treats sector and grew its manufacturing presence in Scotland. Lees
has a well-established number one position in the UK meringue category and
strong relationships across a high quality and diverse customer base. This
provides Finsbury with the opportunity to build upon both businesses' existing
retail relationships and unlock further commercial opportunities, including
out of home eating. Since the acquisition, the performance of the Lees
business has been in line with management's expectations.
The Company has continued to operate in an incredibly challenging environment
as significant cost inflation and macroeconomic uncertainty has persisted
throughout the period. However, the Company has, once again, successfully
focused on managing these challenges through commercial terms, operational
improvements and other supply chain and overhead initiatives. This focus will
remain as further challenges are expected in the new financial year."
Further to the above trading update, and ahead of the publication of
Finsbury's preliminary results on 26 September 2023, the Finsbury Group notes
that:
· as a consequence of a slight decline in like-for-like volumes, ongoing cost
inflation and the timing lag between cost inflation and price recovery,
Finsbury expects margin pressure to be reflected in the results for the
financial year ended 1 July 2023 and that this will continue into FY24.
Finsbury has already embarked on mitigating this margin pressure through the
usual tools of operational efficiency improvement, capital investment and
product re-engineering;
· net bank debt (excluding IFRS 16 debt) is expected to be £21.4 million (2022:
£20.6 million) as at 1 July 2023, which does not include a new invoice
financing facility of which £4.9m was drawn at year end; and
· the Finsbury Group expects to report increased non-recurring costs of £3.1m
in the financial year ended 1 July 2023, including estimated litigation costs
of £2.0m of which £1.8m has been paid.
Further details in respect of Finsbury's trading performance will be provided
in the Finsbury Group's preliminary results announcement due to be published
on 26 September 2023.
6. Recommendation
Acquisition and Cash Offer
The Finsbury Directors, who have been so advised by Oppenheimer as to the
financial terms of the Cash Offer, consider the terms of the Cash Offer to be
fair and reasonable. In providing advice to the Finsbury Directors,
Oppenheimer has taken into account the commercial assessments of the Finsbury
Directors. Oppenheimer is providing independent financial advice to the
Finsbury Directors for the purpose of Rule 3 of the Code.
Accordingly and after careful consideration, the Finsbury Directors believe
that the Acquisition is in the best interests of Finsbury Shareholders as a
whole and unanimously intend to recommend that the Finsbury Shareholders vote
in favour of the Scheme at the Court Meeting and the Resolutions 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 acceptance of the
Takeover Offer).
Alternative Offer
Oppenheimer is unable to advise the Finsbury Directors as to whether or not
the financial terms of the Alternative Offer are fair and reasonable. This
is because Oppenheimer does not have access, inter alia, to the financial
projections of Bidco and DBAY's plans for the development of Bidco necessary
to form an assessment of the value of the Alternative Offer. Oppenheimer
also note the risk factors and other investment considerations set out in
paragraph 12 of this announcement.
In relation to the Alternative Offer and for the reasons set out above
together with risk factors and other investment considerations set out in
paragraph 12 of this Announcement, the Finsbury Directors cannot form an
opinion as to whether or not the terms of the Alternative Offer are fair and
reasonable and are not making any recommendation or giving any advice to
Scheme Shareholders as to whether or not they should elect for the Alternative
Offer.
The Finsbury Directors strongly recommend that, in deciding whether or not to
elect for the Alternative Offer, the Finsbury Shareholders should take their
own independent financial, legal and tax advice and consider carefully the
disadvantages and advantages of electing for the Alternative Offer (including,
but not limited to, those set out in paragraph 12 of this announcement) in
light of their own financial circumstances and investment objectives.
Finsbury Shareholders should also ascertain whether acquiring or holding the
Consideration Shares is affected by the laws of the relevant jurisdiction in
which they reside and consider whether the Consideration Shares are a suitable
investment in light of their own personal circumstances. Finsbury Shareholders
are, therefore, strongly recommended to seek their own independent financial,
tax and legal advice in the light of their own particular circumstances and
investment objectives before deciding whether to elect for the Alternative
Offer. Any decision to elect for the Alternative Offer should be based on
independent financial, tax and legal advice and, to the extent available in
such Scheme Shareholder's jurisdiction, consideration of the Scheme Document
(once published).
Directors' own investment decisions
The Finsbury Directors have irrevocably undertaken to vote or procure votes in
favour of the Scheme at the Court Meeting and the Resolutions 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 acceptance of the Takeover
Offer) in respect of their own beneficial holdings of 4,364,648 Finsbury
Shares (representing, in aggregate, approximately 3.3 per cent. of the
Finsbury Shares in issue on the Latest Practicable Date).
In addition, John Duffy, Chief Executive Officer of Finsbury, has irrevocably
undertaken to elect for the Alternative Offer in respect of 1,793,401 Finsbury
Shares beneficially owned by him (representing approximately 62.5 per cent. of
his total beneficial holding of Finsbury), as he wishes to hold an investment
in Finsbury and his personal circumstances mean that he is willing to hold an
unlisted, non-transferrable investment, and these factors outweigh the other
disadvantages listed in paragraph 12 below.
7. Irrevocable undertakings and letter of intent
In addition to the irrevocable undertakings from the Finsbury Directors
referred to in paragraph 6 above, Bidco has received a letter of intent from
Investec Wealth & Investment Limited to vote in favour of the Scheme at
the Court Meeting and the Resolutions 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 acceptance of the Takeover Offer) in respect of
11,704,451 Finsbury Shares, representing approximately 10.4 per cent. of the
Scheme Shares, and 9.0 per cent. of all Finsbury Shares, in issue as at the
Latest Practicable Date. Further details of this letter of intent is set out
in Appendix 3 to this announcement.
Consequently, Bidco has received irrevocable undertakings and a letter of
intent in respect of approximately 16,069,099 Finsbury Shares, representing
approximately 14.3 per cent. of the Scheme Shares, and 12.3 per cent. of all
Finsbury Shares, in issue as at the Latest Practicable Date.
Full details of the irrevocable undertakings and letter of intent received by Bidco are set out in Appendix 3 to this announcement.
8. Information on DBAY and Bidco
DBAY
DBAY is an asset management company based and regulated on the Isle of Man. It
was founded in 2011 and manages a range of funds and co-investment vehicles
for endowments, foundations and other institutional investors. DBAY has
offices in Douglas and London. DBAY invests predominantly in listed equities,
and can also hold unlisted instruments. DBAY supports management teams and
assists them in the process of growing their businesses.
Bidco
Bidco is a limited company registered in the Isle of Man and incorporated on
18 August 2023. Bidco was formed for the purposes of the Acquisition and is
an entity owned by funds managed by DBAY and has not traded since its date of
incorporation, nor has it entered into any obligations other than in
connection with the Acquisition.
The current directors of Bidco are Timothy Hassett, Michael Haxby and Iltay
Sensagir. Further details in relation to Bidco will be contained in the
Scheme Document.
9. Information on Finsbury
Finsbury is a leading UK and European manufacturer of cake and bread bakery
goods, supplying a broad range of blue-chip customers within both the grocery
retail and 'out of home eating' foodservice sectors including major multiples
and leading foodservice providers. Finsbury is one of the largest speciality
bakery groups in the UK offering a comprehensive product range that includes:
(1) large premium and celebration cakes; (2) small snacking cake formats such
as cake slices and bites; (3) artisan, healthy lifestyle and organic breads
through to rolls, muffins (sweet and savoury) and morning pastries, and (4)
gluten free bread, morning goods and cake ranges. Finsbury comprises a core
UK Bakery division and an Overseas division that together incorporate
manufacturing sites in the UK and Poland, and an 85% equity stake in a French
business that supplies and distributes Finsbury's UK-manufactured products and
third-party products in Europe.
10. Finsbury Share Plan
Participants in the Finsbury Share Plan will be contacted regarding the effect
of the Acquisition on their rights under the Finsbury Share Plan and
appropriate proposals in accordance with Rule 15 of the Code will be made to
such participants in due course.
As part of these proposals, those participants in the Finsbury Share Plan
holding awards which are in the form of nil cost options will be invited to
either (a) conditionally exercise such awards to the greatest extent possible
conditional on the Scheme being sanctioned by the Court; or (b) exchange each
of their awards for nil-cost options over Bidco B Shares (the "Option
Rollover").
Full details of the proposals will be set out in the Scheme Document and
separate Rule 15 proposal documentation.
11. Financing
The cash consideration payable to the Finsbury Shareholders under the terms of
the Cash Offer will be financed by a combination of equity to be invested by
funds managed by DBAY and debt to be provided under the Facilities Agreement.
The debt proceeds will be made available to Bidco pursuant to an intercompany
loan between Debtco and Bidco.
Investec, as financial adviser to Bidco, is satisfied that sufficient cash
resources are available to Bidco to enable it to satisfy in full the cash
consideration payable to Finsbury Shareholders under the terms of the
Acquisition.
Further information on the financing of the Acquisition will be set out in the
Scheme Document
12. Alternative Offer
Under the Alternative Offer, Scheme Shareholders (other than Scheme
Shareholders resident or located in a Restricted Jurisdiction) may elect, in
respect of some or all of their Scheme Shares, to receive one Consideration
Share for each Scheme Share in lieu of the Cash Offer to which they are
otherwise entitled.
The current share capital of Bidco consists of 1 ordinary share. Prior to
completion of the Acquisition, this share will be reclassified as a Bidco A
Share. On or around completion of the Acquisition, Bidco will issue Bidco A
Shares and Bidco B Shares. These shares comprise the aggregate of: (a) the
Consideration Shares (which shall be Bidco B Shares) to be issued to Finsbury
Shareholders pursuant to the Alternative Offer; (b) the Bidco A Shares that
will be subscribed for by funds managed by DBAY in respect of their funding of
the cash consideration payable under the Acquisition; and (c) the Bidco A
Shares to be issued to funds managed by DBAY in connection with the
acquisition by Bidco of the Finsbury Shares currently held by them. These
Finsbury Shares will be transferred to Bidco by funds managed by DBAY
conditional upon the Acquisition becoming Effective. The number of Bidco A
Shares and Bidco B Shares issued is primarily dependent on the number of
elections made for the Alternative Offer as this will affect the number of
Consideration Shares to be issued and the amount required to be subscribed by
funds managed by DBAY in respect of their funding of the cash consideration
payable under the Acquisition.
The Alternative Offer is not being offered, sold or delivered, directly or
indirectly, in or into any Restricted Jurisdiction. Further details in
relation to Scheme Shareholders resident, or located, in overseas
jurisdictions will be contained in the Scheme Document.
In addition, as described below, Finsbury Shareholders should note that
additional shares, loan notes or other securities may be issued by Bidco or
its subsidiaries from time to time following the Effective Date and that the
holders of Bidco B Shares will not always be entitled to participate in any
such issue, so that their percentage interests in Bidco may be diluted over
time, potentially significantly.
Risk factors and other investment considerations
Disadvantages of electing for the Alternative Offer
· The Consideration Shares will be unlisted and will not be
admitted to trading on any stock exchange and will therefore, be illiquid.
· The Consideration Shares will be of uncertain value and there can
be no assurance that they will be capable of being sold in the future.
· The Consideration Shares will be non-transferable (with limited
exceptions), non-voting shares. Only the Bidco A Shares carry voting rights.
· The holders of the Consideration Shares will only have customary
pre-emption rights on new issues of securities by Bidco if any such issue is
for cash.
· The right of holders of Consideration Shares to participate in
future issues of securities by Bidco will also be subject to other important
exceptions. These exceptions may be particularly relevant in practice.
Holders of Consideration Shares may well suffer dilution, not only in their
percentage ownership but also in the value of their Consideration Shares since
such further issues may reduce any net return derived by the Consideration
Shares when compared to any such net return that might otherwise have been
derived had Bidco not issued those securities. This dilution and reduction
may be significant. For example:
o Holders of Consideration Shares will not be entitled to participate in any
issues of securities to actual or potential employees, directors, officers or
consultants of Bidco (whether of the same or different classes to the
Consideration Shares). This is important since, common to many private
equity acquisitions, DBAY may introduce one or more management incentive plans
for actual or potential employees, directors, officers and consultants of the
Enlarged Group after the Effective Date.
o Management incentive plans generally provide participants with a
significant interest in securities in Bidco, and, if one is introduced, it may
result in a significant dilution of the Consideration Shares. In addition,
Bidco may not receive material cash sums on the issue of such securities and
the returns on those securities may potentially be structured to increase
their proportionate interest in the value of the Enlarged Group as it
increases in value (whether pursuant to a ratchet mechanism or otherwise).
These issues of securities may occur initially following the Acquisition, but
further issues are likely in the future as the Enlarged Group expands (whether
as a result of further acquisitions or organic growth or otherwise).
o Similarly, holders of Consideration Shares will not be entitled to
participate in issues of securities by Bidco in consideration for, or in
connection with, its acquisition of other assets, companies or all or part of
any other businesses or undertakings (for example, if the Enlarged Group
expands).
· In relation to those issues of securities in which holders of
Consideration Shares are entitled to participate, if they wish to avoid their
percentage interest in Bidco being reduced by any such issue, they will need
to invest further cash sums in Bidco.
· The precise numbers of securities that may be issued by Bidco
from time to time cannot be ascertained at the date of this announcement and
will depend on a variety of factors including those described above.
· The Finsbury Shares are currently admitted to trading on AIM.
Certain standards and protections afforded to shareholders in a company
admitted to trading on AIM will be substantially different to a shareholding
in an unlisted private company which a Scheme Shareholder would receive as a
result of electing for the Alternative Offer.
Advantages of electing for the Alternative Offer
· The Alternative Offer allows Scheme Shareholders to invest
directly in the Enlarged Group, providing continued economic exposure to
Finsbury under private ownership.
· The Consideration Shares will rank economically pari passu with
the Bidco A Shares in issue at the time the Consideration Shares are allotted
and issued, including the right to receive and retain dividends and other
distributions declared, made or paid by reference to a record date falling
after the Effective Date.
Upon the Scheme becoming Effective, Scheme Shareholders who have not validly
elected for the Alternative Offer in respect of all of their holding of Scheme
Shares will automatically receive the Cash Offer in respect of their entire
holding of Scheme Shares.
The issue of Consideration Shares pursuant to the Alternative Offer will be
subject to the Conditions and further terms set out in Appendix 1 to this
announcement and further details of the Alternative Offer, the Wider Bidco
Group and the rights attaching to the Consideration Shares are set out in
Appendix 4 to this announcement.
The Consideration Shares will be allotted and issued credited as fully paid
and, other than voting rights, will rank pari passu in all respects with the
Bidco A Shares in issue at the time the Consideration Shares are issued,
including the right to receive and retain dividends and other distributions
declared, made or paid by reference to a record date falling after the
Effective Date.
For the purposes of Rule 24.11 of the Code, Investec will provide an estimate
of the value of a Consideration Share in the Scheme Document.
13. Governance, management, employees and locations of business
DBAY 's strategic plans for Finsbury
DBAY has spent a significant amount of time with Finsbury's senior management
team both through initial engagement as a shareholder, and more recently
through a due diligence exercise. This has enabled DBAY to evaluate the
strategic and operational plans that the senior management team has for
Finsbury and DBAY is supportive of the Finsbury management team's strategy,
which comprises the following key pillars:
· invest in Finsbury's people, operating sites, and the creation of innovative
high-quality bakery products, with a focus on customer needs;
· drive growth both organically and through acquisition, targeting the retail
grocery and out-of-home channels in the UK and Europe; and
· build a sustainable operating model based on a holistic framework with a focus
on Finsbury's people's development, engagement and health and wellbeing.
DBAY has also identified a number of initiatives that it believes would help
Finsbury accelerate its existing strategy, including:
· sourcing and executing financially and strategically accretive
incremental M&A opportunities;
· continued operational and financial improvement initiatives; and
· continued investment in the management and employee team, with
focus on depth of talent and succession planning.
Employees and management
DBAY attributes significant importance to the skills, experience and continued
commitment of Finsbury's management and employees, and views Finsbury's senior
management team and employees as a key factor in driving future growth in the
business.
Accordingly, DBAY intends to safeguard the existing statutory and contractual
employment rights, including pension rights, of the employees and management
of the Finsbury Group. DBAY also does not envisage making any material
reduction to Finsbury's overall headcount, or any material change to the
conditions of employment or to the balance of skills and functions, of the
employees and management of the Finsbury Group.
As is customary in such circumstances, Bidco expects that the current
non-executive directors of Finsbury will resign from Finsbury upon completion
of the Acquisition and anticipates the termination of certain third-party
corporate and support services which are only required due to Finsbury's
current admission to trading on AIM. This will not result in a material
reduction to Finsbury's headcount.
Management incentives
DBAY has not entered into, and has not had any discussions on proposals to
enter into, any form of incentive arrangements with members of Finsbury's
management. DBAY intends to put in place appropriate long term incentive
arrangements for Finsbury's management following the completion of the
Acquisition.
Pensions
The Finsbury Group, through Memory Lane Cakes Limited, participates in a
defined benefit pension scheme (the "DB Scheme"). The DB Scheme is closed to
new entrants and to the future accrual of benefits for existing members. Bidco
does not intend to re-open the DB Scheme to new members or future accrual.
Other than the DB Scheme, the Finsbury Group does not operate any other
defined benefit pension schemes in the UK.
Bidco fully appreciates the importance of upholding the Finsbury Group's
pension obligations in relation to the DB Scheme and the roles of its members
and trustee (the "Trustee") as key stakeholders within the Finsbury Group. It
does not intend to make any change to the benefits provided under the DB
Scheme, and Bidco's intention is for employer contributions to the DB Scheme
to continue in line with current arrangements and applicable law.
The Finsbury Board places the highest importance on ensuring that all pension
benefits are fully paid and responsibly funded. The Trustee and members of the
DB Scheme must have confidence in Finsbury's future ability to fund its
pension commitments. Bidco has confirmed that it also endorses such an
approach.
Recognising the significance of the DB Scheme, DBAY has held constructive
discussions with the Trustee and has entered into a legally binding agreement
between DBAY, Memory Lane Cakes Limited and the Trustee dated 15 September
2023 relating to the mitigation to be provided to the Trustee in return for
the detriment which the Acquisition may cause to the DB Scheme ("DB Scheme
Detriment").
Key features of the agreement include:
· a commitment by Memory Lane Cakes Limited to procure that certain
companies within the Finsbury Group will grant a first ranking secured charge
over certain properties in favour of the Trustee as mitigation for any DB
Scheme Detriment; and
· a provision allowing the properties subject to the charge to be
sold under a sale-and-leaseback arrangement, with the cash proceeds of the
sale to be held in an escrow account for the benefit of the Trustee and
applied to fund a buy-out of the DB Scheme, or otherwise released in
accordance with the terms of the agreement.
If, in the future, adverse experience creates additional funding deficits in
the DB Scheme, for example due to poor investment returns, changes in
mortality assumptions or inflation experience, these deficits must be funded
by Memory Lane Cakes Limited.
Locations of business, fixed assets, headquarters and research and development
Finsbury currently operates in locations across the UK and Europe. Following
completion of the Acquisition, it is envisaged that the headquarter location
and functions will continue to operate from Finsbury's existing locations.
DBAY does not envisage any change in the locations of Finsbury's operations.
Finsbury has an existing research and development function. DBAY has no plans
to change this.
Fixed assets
DBAY does not envisage any redeployment of Finsbury's fixed asset base, above
and beyond any ordinary course development required for Finsbury to execute
its strategy (as outlined above).
Trading facilities
Finsbury Shares are currently traded on AIM and, as set out in paragraph 17 of
this announcement, a request will be made to the London Stock Exchange to
cancel trading in Finsbury's shares on AIM, to take effect from or shortly
after the Effective Date. As stated in paragraph 17 of this announcement,
dealings in Finsbury Shares will be suspended shortly prior to the Effective
Date and thereafter there will be no trading facilities in relation to
Finsbury Shares from that time.
No statements in this section are "post-offer undertakings" for the purposes
of Rule 19.5 of the Code.
14. Offer-related arrangements
Confidentiality Agreement
Pursuant to the Confidentiality Agreement, DBAY undertook to keep, and to
procure that certain of its representatives keep, confidential information
relating to Wider Finsbury Group and to the Acquisition confidential, to use
such information solely for the agreed purposes in relation to the Acquisition
and not to disclose it to third parties (with certain exceptions). These
confidentiality obligations will remain in force until the earlier of: (a)
completion of the Acquisition by DBAY or a member of the Bidco Group; or (b) 6
December 2024.
Under the Confidentiality Agreement, neither DBAY nor certain of its
affiliates will, during the period of 12 months from the date of the
Confidentiality Agreement: (a) induce or attempt to induce any person who is a
director of, or an employee holding an executive or managerial position with,
any member of the Finsbury Group who comes into contact with DBAY or another
member of the Bidco Group (or their respective representatives) in connection
with the Acquisition (a "Restricted Person"), to leave the employment of any
member of the Finsbury Group; (b) employ or offer to employ or attempt to
employ any Restricted Person; (c) canvass or solicit or otherwise seek the
custom of any person who is at the date of the Confidentiality Agreement, or
has been in the period of 12 months immediately prior to the date of the
Confidentiality Agreement, a client or customer of any member of the Finsbury
Group (a "Restricted Customer/Client"); or (d) induce or attempt to induce any
Restricted Customer/Client to change adversely the terms, frequency or volume
of its dealings with any member of the Finsbury Group, in each case subject to
customary exclusions.
Co-operation Agreement
Pursuant to a co-operation agreement dated 20 September 2023 (the
"Co-operation Agreement"): (a) Bidco and Finsbury have agreed to co-operate to
assist with the satisfaction of certain regulatory conditions; (b) Bidco has
agreed to provide Finsbury with certain information for the purposes of the
Scheme Document and to otherwise assist with the preparation of the Scheme
Document; and (c) Bidco and Finsbury have agreed certain arrangements in
respect of the Finsbury Share Plan.
The Co-operation Agreement will terminate, inter alia: (a) if agreed in
writing between Bidco and Finsbury; (b) if prior to the Long Stop Date any
Condition becomes incapable of satisfaction; (c) if the Finsbury Directors
withdraw their recommendation of the Offer or if the Finsbury Directors
recommend a competing proposal; (d) if the Acquisition is withdrawn or lapses;
or (e) if the Scheme does not become Effective in accordance with its terms by
the Long Stop Date.
15. Structure of and conditions to the Acquisition
Subject to the Conditions and further terms set out in Appendix 1 to this
announcement and to be set out in full in the Scheme Document, the Scheme
Shares will be acquired by Bidco fully paid and free from all liens, equitable
interests, charges, encumbrances, rights of pre-emption and any other third
party rights or interests whatsoever and together with all rights existing at
the date of this announcement or thereafter attaching thereto, including
(without limitation) the right to receive and retain, in full, all dividends
and other distributions (if any) declared, made or paid or any other return of
capital (whether by way of reduction of share capital or share premium account
or otherwise) made on or after the date of this announcement in respect of the
Finsbury Shares.
It is intended that the Acquisition will be effected by means of a
Court-sanctioned scheme of arrangement between Finsbury and the Scheme
Shareholders under Part 26 of the Companies Act, although Bidco reserves the
right to elect (with the consent of the Panel) to implement the Acquisition by
way of a Takeover Offer as an alternative to the Scheme.
The effect of the Scheme is to provide for Bidco to become the holder of the
entire issued and to be issued ordinary share capital of Finsbury (save for
the Finsbury Shares already owned by funds managed by DBAY). This is to be
achieved by the transfer of the Scheme Shares to Bidco, in consideration for
which the Scheme Shareholders will receive the cash consideration payable
under the Cash Offer or the Consideration Shares on the basis set out in
paragraph 2 of this announcement.
To become Effective, the Scheme must be approved at the Court Meeting by a
majority in number of Scheme Shareholders present and voting (and are entitled
to vote), either in person or by proxy, at the Court Meeting and who represent
75 per cent or more in value of the Scheme Shares voted by those Scheme
Shareholders. In respect of the approval of the Scheme, Scheme Shareholders
will be entitled to cast one vote for each Scheme Share held. The Scheme also
requires the Resolutions to be approved by the requisite majority of Finsbury
Shareholders at the General Meeting. It is expected that the General Meeting
will be held immediately after the Court Meeting. In respect of the
Resolutions to be proposed at the General Meeting, Finsbury Shareholders will
be entitled to cast one vote for each Finsbury Share held.
Once the necessary approvals have been obtained at the Court Meeting and the
General Meeting, and the other Conditions (save for the Conditions set out at
paragraphs 1 and 4(i) of Part A of Appendix 1) have been satisfied or, if
applicable, waived) the Scheme must be sanctioned by the Court (with or
without modification but subject to any modification being on terms reasonably
acceptable to Bidco and Finsbury). The Scheme will only become Effective once
a copy of the Scheme Court Order is delivered to the Registrar of Companies
for registration.
The Acquisition is subject to the Conditions and further terms set out in
Appendix 1 to this announcement and to the full terms and conditions that will
be set out in the Scheme Document, including, among other things:
a) the Scheme becoming Effective by the Long Stop Date;
b) the approval of the Scheme by a majority in number of Scheme Shareholders
present and voting (and entitled to vote), either in person or by proxy, at
the Court Meeting and who represent at least 75 per cent. in value of the
Scheme Shares voted by such holders;
c) the passing of the Resolutions by the requisite majority at the General
Meeting;
d) the sanction of the Scheme by the Court (without modification or with
modification on terms acceptable to Bidco and Finsbury); and
e) a copy of the Scheme Court Order having been delivered to the Registrar of
Companies.
The Scheme Document will include full details of the Scheme, together with
notices of the Court Meeting, the General Meeting and the expected timetable.
It will also specify the action to be taken by Scheme Shareholders.
Subject to the satisfaction of the Conditions, the Scheme is expected to
become effective in Q4 2023.
Upon the Scheme becoming Effective, it will be binding on all Scheme
Shareholders, irrespective of whether or not they attended or voted at the
Court Meeting or the General Meeting (and if they attended and voted, whether
or not they voted in favour) and the Consideration Shares and cash
consideration payable under the Scheme will be issued and despatched to Scheme
Shareholders no later than 14 days after the Effective Date.
Any Finsbury Shares issued before the Scheme Record Time will be subject to
the terms of the Scheme. The Resolutions to be proposed at the General Meeting
will, among other matters, provide that the Finsbury Articles be amended to
incorporate provisions requiring any Finsbury Shares issued after the Scheme
Record Time (other than to Bidco or its nominee(s)) to be automatically
transferred to Bidco on the same terms as the Acquisition (other than terms as
to timings and formalities). The provisions of the Finsbury Articles (as
amended) will avoid any person (other than Bidco or its nominee(s)) holding
Finsbury Shares after the Effective Date. Share certificates in respect of
Finsbury Shares will cease to be valid and entitlements to Finsbury Shares
held within the CREST system will be cancelled.
The Finsbury Shares currently held by funds managed by DBAY will be
transferred to Bidco in exchange for the issue of Bidco A Shares conditional
upon the Scheme becoming Effective.
If the Scheme does not become Effective on or before the Long Stop Date, it
will lapse and the Acquisition will not proceed (unless the Panel otherwise
consents). The deadlines for the timing of the Court Meeting, the General
Meeting and the Court hearing to approve the Scheme may be waived by Bidco,
and the Long Stop Date may be extended by agreement between Bidco and
Finsbury.
The Scheme will be governed by English law and will be subject to the
jurisdiction of the Court and the applicable requirements of the Code, the
Panel, the London Stock Exchange, and the FCA.
16. Right to switch to a Takeover Offer
Bidco reserves the right to elect (with the consent of the Panel) to implement
the Acquisition by way of a Takeover Offer for the entire issued and to be
issued ordinary share capital of Finsbury as an alternative to the Scheme. In
such event, the Acquisition will be implemented on substantially the same
terms, so far as applicable, as those which would apply to the Scheme, subject
to appropriate amendments to reflect the change in method of effecting the
Acquisition.
Further, in such circumstances, if sufficient acceptances of the Takeover
Offer are received and/or sufficient Finsbury Shares are otherwise acquired,
it is the intention of Bidco to apply the provisions of Chapter 3 of Part 28
of the Companies Act to acquire compulsorily the remaining Finsbury Shares in
respect of which the Takeover Offer has not been accepted.
17. Cancellation of admission to trading on AIM and re-registration
It is intended that dealings in Finsbury Shares will be suspended on or
shortly before the Effective Date at a time to be set out in the Scheme
Document. It is further intended that an application will be made to the
London Stock Exchange for the cancellation of admission to trading of Finsbury
Shares on AIM, with effect from or shortly after the Effective Date.
The last day of dealings in, and for registration of transfers of, Finsbury
Shares on AIM is currently expected to be the close of business on the
Business Day immediately prior to the Effective Date and it is currently
intended that no transfers will be registered after 6.00 p.m. on that date. No
dealings in Finsbury Shares will be registered after that date.
On the Effective Date, Finsbury will become a wholly-owned subsidiary of Bidco
and share certificates in respect of Finsbury Shares will cease to be valid
and should be destroyed. In addition, entitlements held within CREST to
Finsbury Shares will be cancelled on the Effective Date.
It is Bidco's intention that, in due course and following the cancellation of
admission to trading on AIM, Finsbury will be re-registered as a private
limited company.
18. Disclosure of Interests
The interests, rights to subscribe for, and short positions in respect of the
Finsbury Shares held by Bidco, its directors and any person acting in concert
(within the meaning of the Code) with Bidco, as at the close of business on
the Latest Practicable Date are set out below:
· Funds managed by DBAY beneficially own, in aggregate, 17,714,800
Finsbury Shares, representing approximately 13.6 per cent. of the voting
rights attributable to Finsbury's issued share capital as at the Latest
Practicable Date.
As at the Latest Practicable Date, and other than as set out above in this
paragraph 18 and the irrevocable undertakings and letter of intent referred to
in paragraph 7 above, neither Bidco, nor any of its directors, nor, so far as
Bidco is aware, any person acting in concert (within the meaning of the Code)
with Bidco has:
· any interest in, or right to subscribe for, any Finsbury Shares
nor does any such person have any short position in any Finsbury Shares
(whether conditional or absolute and whether in the money or otherwise),
including any short positions under a derivative, any agreement to sell, any
delivery obligation or right to require another person to purchase or take
delivery of any Finsbury Shares;
· had procured an irrevocable commitment or letter of intent to
accept the terms of the Acquisition in respect of Finsbury Shares;
· borrowed or lent any Finsbury Shares or entered into any
financial collateral arrangements of the kind referred to in Note 4 on Rule
4.6 of the Code relating to any Finsbury Shares; or
· been or is party to any dealing arrangement of the kind referred
to in Note 11 on the definition of acting in concert in the Code in relation
to any Finsbury Shares.
19. Documents available for inspection
Copies of the following documents are available, or will be made available
promptly and by no later than 12 noon (London time) on the Business Day
following the date of this announcement, on
https://finsburyfoods.co.uk/investor-relations/offer subject to certain
restrictions relating to persons resident in Restricted Jurisdictions:
a) this announcement;
b) the irrevocable undertakings and letter of intent listed in Appendix 3;
c) the consent letters from each of Investec, Oppenheimer and Panmure Gordon referred to in paragraph 21 below;
d) the Confidentiality Agreement;
e) the Co-operation Agreement; and
f) the Facilities Agreement.
For the avoidance of doubt, the contents of any website referred to in this
announcement and the contents of any other website accessible from hyperlinks
on such websites are not incorporated into and do not form part of this
announcement.
20. Overseas shareholders
The availability of the Acquisition and the distribution of this announcement
to Finsbury Shareholders who are not resident in the UK may be affected by the
laws of the relevant jurisdiction in which they are located. Such persons
should inform themselves of, and observe, any applicable legal or regulatory
requirements of their jurisdiction. Finsbury Shareholders who are in any
doubt regarding such matters should consult an appropriate independent
professional adviser in the relevant jurisdiction without delay.
This announcement does not constitute an offer for sale of any securities or
an offer or an invitation to purchase any securities. Finsbury Shareholders
are advised to read carefully the Scheme Document and related Forms of Proxy
and Form of Election once they have been despatched.
The Alternative Offer is not being made available in any Restricted
Jurisdiction.
Finsbury Shareholders located or resident in the United States or who are
otherwise US Persons will not be permitted to elect to receive the
Consideration Shares pursuant to the Alternative Offer, and any purported
election to receive Consideration Shares pursuant to the Alternative Offer by
Finsbury Shareholders from the United States, or which, at the sole discretion
of Bidco, appear to be made in respect of Finsbury Shares beneficially held by
persons located or resident in the United States or who otherwise appear to be
US Persons will not be accepted. Accordingly, Finsbury Shareholders located
or resident in the United States or who are otherwise US Persons will receive
the Cash Offer pursuant to the Scheme, and no Consideration Shares will be
issued to any such Finsbury Shareholder.
Where Bidco believes that an election for the Alternative Offer by any Scheme
Shareholder may infringe applicable legal or regulatory requirements, or may
result in a requirement for a registration under the securities laws of any
Restricted Jurisdiction, Bidco will have the right to deem that such Scheme
Shareholder has not validly elected for the Alternative Offer and such Scheme
Shareholder will instead receive the Cash Offer in respect of the Scheme
Shares which were subject to such an election in accordance with the terms of
the Acquisition.
Further information for Finsbury Shareholders resident, or located, in
overseas jurisdictions will be set out in the Scheme Document.
21. General
In deciding whether or not to vote or procure votes to approve the Scheme at
the Court Meeting or to vote or procure votes in favour of the Resolutions to
be proposed at the General Meeting in respect of their Finsbury Shares,
Finsbury Shareholders should rely solely on the information contained, and
follow the procedures described, in the Scheme Document.
It has not been practicable for Bidco to make enquiries of all of their
concert parties in advance of the release of this announcement. Therefore, if
Bidco becomes aware, following the making of such enquiries, that any of its
concert parties have any additional interests in the relevant securities of
Finsbury, all relevant details in respect of Bidco's concert parties will be
included in their opening position disclosure in accordance with Rule 8 of the
Takeover Code, which shall be made on or before 12 noon (London time) on the
10th Business Day following the date of this announcement.
The Acquisition will be made on the terms and subject to the Conditions and
further terms set out in Appendix 1 to this announcement and the full terms
and conditions to be set out in the Scheme Document, Forms of Proxy and Form
of Election. The bases and sources of certain information contained in this
announcement are set out in Appendix 2. Appendix 3 contains the details of the
irrevocable undertakings and letter of intent received by Bidco in relation to
the Acquisition. Appendix 4 to this announcement contains further details of
the Wider Bidco Group and the rights attaching to the Consideration Shares.
Certain terms used in this announcement are defined in Appendix 5.
The Scheme Document will include full details of the Scheme, together with an
explanatory statement providing details of the Acquisition, and the notices
convening the Court Meeting and the General Meeting. The Scheme Document will
also contain the expected timetable of the Acquisition and will specify the
necessary actions to be taken by Finsbury Shareholders. The Scheme Document,
along with the notice of the Court Meeting and the General Meeting and the
Forms of Proxy and Form of Election will be sent to Finsbury Shareholders as
soon as reasonably practicable (subject to the availability of the Court to
approve the posting of the Scheme Document) and in any event within 28 days of
this announcement (or on such later date as may be agreed by the Panel).
Each of Investec, Oppenheimer and Panmure Gordon has given and not withdrawn
its consent to the inclusion in this announcement of references to its name in
the form and context in which they appear.
Enquiries
Bidco/DBAY Advisors Limited Tel: +44 (0)1624 690 900
Mike Haxby
Investec Bank plc (Financial adviser to Bidco/DBAY) Tel: +44 (0)20 75975197
Gary Clarence
Harry Hargreaves
Finsbury Tel: +44 (0)29 2035 7500
John Duffy
Steve Boyd
Oppenheimer (Financial adviser under Rule 3 of the Code to Finsbury) Tel: +44 (0)20 7220 1900
James Murray
Anthony Sills
Panmure Gordon (Nomad and corporate broker to Finsbury) Tel: +44 (0)20 7886 2500
Dominic Morley
Atholl Tweedie
Rupert Dearden
Alma (PR adviser to Finsbury) Tel: +44 (0)20 3405 0205
Rebecca Sanders-Hewett E-mail: finsbury@almapr.co.uk
Sam Modlin
The person responsible for arranging this announcement on behalf of Finsbury
is John Duffy. The LEI of Finsbury is 213800NP5Y3DYJM1MF44.
Addleshaw Goddard LLP is providing legal advice to DBAY and Bidco. CMS Cameron
McKenna Nabarro Olswang LLP is providing legal advice to Finsbury.
Further information
This announcement is for information purposes only and is not intended to and
does not constitute or form part of any offer to sell or subscribe for or any
invitation to purchase or subscribe for any securities or the solicitation of
any vote or approval in any jurisdiction pursuant to the Acquisition or
otherwise. The Acquisition will be made solely pursuant to the terms of the
Scheme Document, which will contain the full terms and conditions of the
Acquisition, including details of how to vote in respect of the Acquisition,
together with the accompanying Forms of Proxy and Form of Election. Any
approval or vote in respect of the Scheme or other decision or response in
relation to the Acquisition should be made only on the basis of the
information contained in the Scheme Document.
The statements contained in this announcement are made as at the date of this
announcement, unless some other time is specified in relation to them, and
posting 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.
This announcement does not constitute a prospectus or prospectus equivalent
document.
Overseas Shareholders
The release, publication or distribution of this announcement in or into
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 legal or regulatory requirements. In particular the ability of
persons who are not resident in the UK to vote their Finsbury Shares at the
Court Meeting or General Meeting, or to appoint another person as proxy to
vote at the Court Meeting or General Meeting 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.
This announcement has been prepared for the purpose of complying with English
law, the Market Abuse Regulation, the AIM Rules and the Code and the
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 and Wales.
Bidco and Finsbury encourage Finsbury Shareholders to read the Scheme Document
(or any further documentation published in connection with the Acquisition)
carefully when it becomes available because it will contain important
information in relation to the Acquisition. Each Finsbury Shareholder is urged
to consult its independent professional adviser immediately regarding the tax
consequences to it (or its beneficial owners) of the Acquisition.
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 or any jurisdiction where to do so would violate the laws of that
jurisdiction and persons receiving such documents (including custodians,
nominees and trustees) must not mail or otherwise forward, distribute or send
them in or into or from any Restricted Jurisdiction. Doing so may render
invalid any related purported vote in respect of the Acquisition.
Unless otherwise determined by Bidco or required by the Code, and permitted by
applicable law or regulation, the Acquisition will not be made available,
directly or indirectly, in or into or from a Restricted Jurisdiction where to
do so would violate the laws in that jurisdiction and no person may vote in
favour of the Acquisition by use of mail or any other means or instrumentality
(including, without limitation, facsimile, email or other electronic
transmission, telex or telephone) of interstate or foreign commerce of, or any
facility of a national, state or other securities exchange of any Restricted
Jurisdiction and if the Acquisition is implemented by way of a Takeover Offer,
the Takeover Offer will not be capable of acceptance by any such use, means,
instrumentality or facilities or from within any Restricted Jurisdiction.
Additional information for US investors
The Acquisition relates to the shares of a UK company and is being made by
means of a scheme of arrangement provided for under the laws of England and
Wales. A transaction effected by means of a scheme of arrangement is not
subject to the proxy solicitation or tender offer rules under the Exchange Act
of 1934, as amended (the "Exchange Act") and is exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act").
Accordingly, the Acquisition will be subject to disclosure requirements and
practices applicable in the UK to schemes of arrangement under the laws of
England and Wales, which are different from the disclosure and other
requirements applicable to a US tender offer.
Neither the SEC, nor any US state securities commission has approved or
disapproved of any offer of securities referred to in, or commented upon the
adequacy or completeness of any of the information contained in, this
announcement. Any representation to the contrary is a criminal offence in the
United States.
Financial information relating to Finsbury included in this announcement has
been prepared in accordance with accounting standards applicable in the United
Kingdom. As a result, such financial information 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 Consideration Shares to be issued pursuant to the Scheme under the
Alternative Offer may not be offered or sold in the United States absent
registration or an exemption from registration. No offer of such Consideration
Shares will be made to Finsbury Shareholders located or resident in the United
States or who are otherwise US Persons (as such term is defined in Rule 902(k)
under the Securities Act, each a "US Person"). The Consideration Shares have
not been and will not be registered under the Securities Act or under the
relevant securities laws of any state or territory or other jurisdiction of
the United States and will not be listed on any stock exchange in the United
States, and may not be offered, sold or delivered, directly or indirectly, in,
into or from the United States absent registration or an exemption from the
registration requirements of the Securities Act.
Finsbury Shareholders located or resident in the United States or who are
otherwise US Persons will not be permitted to elect to receive the
Consideration Shares pursuant to the Alternative Offer, and any purported
election to receive Consideration Shares pursuant to the Alternative Offer by
Finsbury Shareholders from the United States, or which, at the sole discretion
of Bidco, appear to be made in respect of Finsbury Shares beneficially held by
persons located or resident in the United States or who otherwise appear to be
US Persons will not be accepted. Accordingly, Finsbury Shareholders located or
resident in the United States or who are otherwise US Persons will receive
cash pursuant to the Scheme, and no Consideration Shares will be issued to any
such Finsbury Shareholder.
By electing receipt of the Consideration Shares pursuant to the Alternative
Offer, Finsbury Shareholders will be deemed to represent and warrant, on
behalf of themselves and any person on whose behalf they beneficially hold
their Finsbury Shares, that they: (i) are not located or resident in the
United States or otherwise a US Person; and (ii) are not electing receipt of
Consideration Shares pursuant to the Alternative Offer with a view to, or for
the offer or sale of Consideration Shares in connection with, any distribution
thereof (within the meaning of the Securities Act) in the United States or to
US Persons.
The receipt of cash consideration pursuant to the Cash Offer by a US holder of
Finsbury 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 US holder is urged to consult his independent
professional adviser immediately regarding the tax consequences of the
Acquisition applicable to him, her or it.
It may be difficult for US holders of Finsbury Shares to enforce their rights
and any claims they may have arising under US Federal securities laws in
connection with the Acquisition, since Finsbury is organised under the laws of
a country other than the United States, and some or all of its officers and
directors may be residents of countries other than the United States, and most
of the assets of Finsbury are located outside of the United States. US holders
of Finsbury Shares may not be able to sue a non-US company or its officers or
directors in a non-US court for violations of US Federal 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 judgment.
The Acquisition may, in the circumstances provided for in this announcement,
instead be carried out by way of a Takeover Offer under the laws of England
and Wales. If Bidco exercises, with the consent of the Takeover Panel and
subject to the terms of the Co-operation Agreement, its right to implement the
Acquisition by way of a Takeover Offer, such Takeover Offer will be made in
compliance with applicable US tender offer and US Federal securities laws and
regulations, including the exemptions therefrom.
In accordance with normal UK practice and pursuant to rule 14e-5(b) of the
Exchange Act, Bidco or its nominees, or its brokers (acting as agents), may,
from time to time, make certain purchases of, or arrangements to purchase,
Finsbury Shares outside of the United States, other than pursuant to the
Acquisition, until the date on which the Acquisition becomes effective, lapses
or is otherwise withdrawn, in compliance with applicable law, including the
Exchange Act. These purchases may occur either in the open market at
prevailing prices or in private transactions at negotiated prices. Any
information about such purchases will be disclosed, as required in the UK,
will be reported to a Regulatory Information Service and will be available on
the London Stock Exchange website at www.londonstockexchange.com
(http://www.londonstockexchange.com) .
Rule 26.1 Disclosure
In accordance with Rule 26.1 of the Code, a copy of this announcement will be
available (subject to certain restrictions relating to persons resident in
Restricted Jurisdictions), free of charge, at
https://finsburyfoods.co.uk/investor-relations/offer by no later than 12 noon
(London time) on 21 September 2023 (being the Business Day following the date
of this announcement). The content of the website referred to in this
announcement and the content of any other website accessible from hyperlinks
on such websites is not incorporated into and does not form part of this
announcement.
Requesting Hard Copy Documents
In accordance with Rule 30.3 of the Code, Finsbury Shareholders and persons
with information rights may request a hard copy of this announcement free of
charge, by contacting Finsbury's registrars, Link Group during business
hours on +44 (0)371 664 0300 or by submitting a request in writing at Link
Group, Corporate Actions, Central Square, 29 Wellington Street, Leeds, LS1
4DL. For persons who receive a copy of this announcement in electronic form or
via a website notification, a hard copy of this announcement will not be sent
unless so requested. Such persons may also request that all future documents,
announcements and information to be sent to them in relation to the
Acquisition should be in hard copy form.
Information relating to Finsbury Shareholders
Please be aware that addresses, electronic addresses and certain information
provided by Finsbury Shareholders, persons with information rights and other
relevant persons for the receipt of communications from Finsbury may be
provided to Bidco during the offer period as required under section 4 of
Appendix 4 of the Code.
Rule 2.9 Disclosure
In accordance with Rule 2.9 of the Code, as at the close of business on 19
September 2023 (being the Latest Practicable Date), there were, excluding
shares held in treasury, 130,383,361 Finsbury Shares in issue and admitted to
trading on AIM. The International Securities Identification Number (ISIN) of
the Finsbury Shares is GB0009186429 .
No Profit Forecasts or Estimates
No statement in this announcement is intended, or is to be construed, as a
profit forecast, profit estimate, or quantified financial benefits statement
or estimate for any period and no statement in this announcement should be
interpreted to mean that earnings or earnings per share for Finsbury or Bidco
for the current or future financial years would necessarily match or exceed
the historical published earnings or earnings per share for Finsbury or Bidco.
Other Disclosure Requirements of the Code
Under Rule 8.3(a) of the Code, any person who is interested in 1% 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. 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 the offeree company. An Opening Position Disclosure by
a person to whom Rule 8.3(a) applies must be made by no later than 3.30 p.m.
(London time) on the 10th Business Day following the commencement of the offer
period. Relevant persons who deal in the relevant securities of the offeree
company prior to the deadline for making an Opening Position Disclosure must
instead make a Dealing Disclosure.
Under Rule 8.3(b) of the 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. 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
the offeree company, 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 p.m. (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, 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 of the Code).
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.
Disclaimers
Investec Bank plc ("Investec"), which is authorised by the Prudential
Regulation Authority (the "PRA") and regulated by the Financial Conduct
Authority and PRA in the United Kingdom, is acting exclusively as financial
adviser to Bidco and for no one else in connection with the Acquisition and
will not be responsible to any person other than Bidco for providing the
protections afforded to clients of Investec, nor for providing advice in
relation to the Acquisition, the content of this announcement or any matter
referred to in this announcement. Neither Investec 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
Investec in connection with this announcement, any statement contained herein
or otherwise.
Oppenheimer Europe Limited ("Oppenheimer"), which is authorised and regulated
by the UK Financial Conduct Authority, is acting exclusively as Financial
Advisor under Rule 3 of the Code to Finsbury in connection with the matters
set out in this announcement and for no one else and will not be responsible
to anyone other than Finsbury for providing the protections afforded to its
clients or for providing advice in relation to the matters referred to in this
announcement. Neither Oppenheimer, nor any of its 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 Oppenheimer in connection with this announcement, any
statement contained herein, the Acquisition or otherwise.
Panmure Gordon (UK) Limited ("Panmure Gordon"), which is authorised and
regulated by the UK Financial Conduct Authority, is acting exclusively as
Nominated Adviser and Broker to Finsbury and for no one else in connection
with the subject matter of this announcement and will not be responsible to
anyone other than Finsbury for providing the protections afforded to its
clients or for providing advice in relation to the matters referred to in this
announcement. Neither Panmure Gordon, nor any of its 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 Panmure Gordon in connection with this
announcement, any statement contained herein or otherwise.
Rounding
Certain figures included in this announcement have been subjected to rounding
adjustments. Accordingly, figures shown for the same category presented in
different tables may vary slightly and figures shown as totals in certain
tables may not be an arithmetic aggregation of the figures that precede them.
Forward-Looking Statements
This announcement may contain certain forward-looking statements with respect
to the financial condition, results of operations and business of Bidco and/or
Finsbury and certain plans and objectives of Bidco and/or Finsbury with
respect thereto. These forward-looking statements can be identified by the
fact that they do not relate only to historical or current facts.
Forward-looking statements often use words such as "anticipate", "target",
"expect", "estimate", "intend", "plan", "goal", "believe", "hope", "aims",
"continue", "will", "may", "should", "would", "could", or other words of
similar meaning. These statements are based on assumptions and assessments
made by Bidco and/or Finsbury in the light of their experience and their
perception of historical trends, current conditions, future developments and
other factors they believe appropriate. By their nature, forward-looking
statements involve risk and uncertainty, because they relate to events and
depend on circumstances that will occur in the future and the factors
described in the context of such forward-looking statements in this
announcement could cause actual results and developments to differ materially
from those expressed in or implied by such forward-looking statements.
Although it is believed that the expectations reflected in such
forward-looking statements are reasonable, no assurance can be given that such
expectations will prove to have been correct and you are therefore cautioned
not to place undue reliance on these forward-looking statements which speak
only as at the date of this announcement. Neither Bidco nor Finsbury assumes
any obligation to update or correct the information contained in this
announcement (whether as a result of new information, future events or
otherwise), except as required by applicable law.
There are several factors which could cause actual results to differ
materially from those expressed or implied in forward-looking statements.
Among the factors that could cause actual results to differ materially from
those described in the forward-looking statements are changes in the global,
political, economic, business, competitive, market and regulatory forces,
future exchange and interest rates, changes in tax rates and future business
combinations or dispositions.
General
If you are in any doubt about the contents of this announcement or the action
you should take, you are recommended to seek your own independent financial
advice immediately from your stockbroker, bank manager, solicitor, accountant
or independent financial adviser duly authorised under FSMA if you are
resident in the United Kingdom or, if not, from another appropriately
authorised independent financial adviser.
APPENDIX 1
CONDITIONS TO AND CERTAIN FURTHER TERMS OF THE SCHEME AND THE ACQUISITION
Part A
Conditions to the Scheme and the Acquisition
1. The Acquisition will be conditional upon the Scheme becoming unconditional and becoming Effective, subject to the provisions of the Code, on or before the Long Stop Date or such later date (if any) as Bidco and Finsbury may, with the consent of the Panel, agree and (if required) the Court may approve.
Scheme approval
The Scheme will be conditional upon:
2. (i) approval of the Scheme by a majority in number representing not less than 75 per cent. of the voting rights attaching to the Scheme Shares held by those Scheme Shareholders (or the relevant class or classes thereof) who are on the register of members of Finsbury at the Voting Record Time, present and voting, either in person or by proxy, at the Court Meeting and at any separate class meeting which may be required by the Court or at any adjournment of any such meetings; and (ii) the Court Meeting being held on or before the 22nd day after the expected date of the Court Meeting to be set out in the Scheme Document in due course (or such later date (if any) as Bidco and Finsbury may agree with the consent of the Panel and the Court may allow);
3. (i) all Resolutions necessary to approve and implement the Scheme being duly passed by the requisite majority at the General Meeting or at any adjournment thereof; and (ii) the General Meeting being held on or before the 22nd day after the expected date of the General Meeting to be set out in the Scheme Document in due course (or such later date (if any) as Bidco and Finsbury may agree with the consent of the Panel and the Court may allow); and
4. (i) the sanction of the Scheme by the Court (without modification, or with modification on terms acceptable to Bidco and Finsbury) and the delivery of the Scheme Court Order to the Registrar of Companies for registration; and (ii) the Scheme Court Hearing being held on or before the 22nd day after the expected date of the Scheme Court Hearing to be set out in the Scheme Document in due course (or such later date (if any) as Bidco and Finsbury may agree with the consent of the Panel and the Court may allow).
In addition, subject as stated in Part B below and to the requirements of the
Panel, the Acquisition will be conditional upon the following matters set out
in this Part A of Appendix 1 and, accordingly, the necessary actions to make
the Scheme Effective will not be taken unless such conditions (as amended if
appropriate) have been satisfied or, where relevant, waived:
Merger control: France
5. a merger notification to the Autorité de la Concurrence (the "French Competition Authority") for the acquisition of control of Finsbury by Bidco having been made and the approval of the French Competition Authority has been obtained (or is deemed to have been obtained) under Article L 430-5 of the French Commercial Code either unconditionally or subject to such conditions as are reasonably acceptable to Bidco;
Official authorisations, regulatory clearances and third party clearances
6. the waiver (or non-exercise within any applicable time limits) by any Third Party of any termination right, right of pre-emption, first refusal or similar right (which is material in the context of the Wider Finsbury Group taken as a whole) arising as a result of or in connection with the Acquisition including, without limitation, its implementation and financing or the proposed direct or indirect acquisition of any shares or other securities in, or control or management of, Finsbury by Bidco or any member of the Wider Bidco Group;
7. all necessary filings or applications having been made in connection with the Acquisition and all statutory or regulatory obligations in any jurisdiction having been complied with in connection with the Acquisition or the acquisition by any member of the Wider Bidco Group of any shares or other securities in, or control of, Finsbury and all authorisations, orders, grants, recognitions, determinations, confirmations, consents, licences, clearances, permissions, exemptions and approvals reasonably deemed necessary or appropriate by Bidco or any member of the Wider Bidco Group for or in respect of the Acquisition including without limitation, its implementation and financing or the proposed direct or indirect acquisition of any shares or other securities in, or control of, Finsbury or any member of the Wider Finsbury Group by any member of the Wider Bidco Group having been obtained in terms and in a form satisfactory to Bidco from all appropriate Third Parties or persons with whom any member of the Wider Finsbury Group has entered into contractual arrangements and all such material authorisations, orders, grants, recognitions, determinations, confirmations, consents, licences, clearances, permissions, exemptions and approvals necessary or appropriate to carry on the business of any member of the Wider Finsbury Group which is material in the context of the Bidco Group or the Finsbury Group as a whole or of the financing of the Acquisition remaining in full force and effect and all filings necessary for such purpose having been made and there being no notice or intimation of any intention to revoke or not to renew any of the same at the time at which the Acquisition becomes otherwise unconditional and all necessary statutory or regulatory obligations in any jurisdiction having been complied with;
8. no Third Party having given notice of a decision to take, institute, implement or threaten any action, proceeding, suit, investigation, enquiry or reference (and, in each case, not having withdrawn the same), or having enacted, made or proposed any statute, regulation, decision or order, or change to published practice or having taken any other steps, and there not continuing to be outstanding any statute, regulation, decision or order, which in each case would or might reasonably be expected to (in any case to an extent or in a manner which is material in the context of the Wider Finsbury Group or the Wider Bidco Group, as the case may be, in each case, taken as a whole):
(i) require, prevent or delay the divestiture, or materially alter the terms envisaged for any proposed divestiture by any member of the Wider Bidco Group or any member of the Wider Finsbury Group of all or any portion of their respective businesses, assets or property or impose any limitation on the ability of any of them to conduct their respective businesses (or any of them) or to own any of their respective assets or properties or any part thereof;
(ii) require, prevent or delay the divestiture by any member of the Wider Bidco Group of any shares or other securities in Finsbury;
(iii) impose any material limitation on, or result in a delay in, the ability of any member of the Wider Bidco Group directly or indirectly to acquire or to hold or to exercise effectively any rights of ownership in respect of shares or loans or securities convertible into shares or any other securities (or the equivalent) in any member of the Wider Finsbury Group or the Wider Bidco Group or to exercise voting or management control over any such member;
(iv) otherwise adversely affect the business, assets, profits or prospects of any member of the Wider Bidco Group or of any member of the Wider Finsbury Group to an extent which is material in the context of the Wider Bidco Group or the Wider Finsbury Group in either case taken as a whole;
(v) make the Acquisition, its implementation or the acquisition or proposed acquisition by Bidco or any member of the Wider Bidco Group of any shares or other securities in, or control of Finsbury void, illegal, and/or unenforceable under the laws of any jurisdiction, or otherwise, directly or indirectly, restrain, restrict, prohibit, delay or otherwise interfere with the same, or impose additional conditions or obligations with respect thereto;
(vi) except pursuant to Chapter 3 of Part 28 of the Companies Act, in the event that Bidco elects to implement the Acquisition by way of a Takeover Offer, require any member of the Wider Bidco Group or the Wider Finsbury Group to offer to acquire any shares or other securities (or the equivalent) or interest in any member of the Wider Finsbury Group or the Wider Bidco Group owned by any third party;
(vii) impose any limitation on the ability of any member of the Wider Finsbury Group to co-ordinate its business, or any part of it, with the businesses of any other members which is adverse to and material in the context of the Wider Finsbury Group taken as a whole or in the context of the Acquisition; or
(viii) result in any member of the Wider Finsbury Group ceasing to be able to carry on business under any name under which it presently does so,
and all applicable waiting and other time periods (including any extensions thereof) during which any such Third Party could institute, implement or threaten any action, proceeding, suit, investigation, enquiry or reference or any other step under the laws of any jurisdiction in respect of the Acquisition or the acquisition or proposed acquisition of any Finsbury Shares having expired, lapsed or been terminated;
Certain matters arising as a result of any arrangement, agreement etc.
9. save as Disclosed, there being no provision of any agreement, arrangement, licence, permit or other instrument to which any member of the Wider Finsbury Group is a party or by or to which any such member or any of its assets may be bound, entitled or subject, or any circumstance which in consequence of the Acquisition or the proposed acquisition of any shares or other securities (or equivalent) in Finsbury or because of a change in the control or management of Finsbury or otherwise, would or might reasonably be expected to result in any of the following, in each case to an extent or in a manner which is material and adverse in the context of the Wider Finsbury Group, or the Wider Bidco Group, in either case taken as a whole, or in the context of the Acquisition:
(i) any moneys borrowed by or any other indebtedness or liabilities (actual or contingent) of, or grant available to any such member, being or becoming repayable or capable of being declared repayable immediately or earlier than their or its stated maturity date or repayment date or the ability of any such member to borrow moneys or incur any indebtedness being withdrawn or inhibited or being capable of becoming or being withdrawn or inhibited;
(ii) any such agreement, arrangement, licence, permit or instrument or the rights, liabilities, obligations or interests of any such member thereunder being terminated or adversely modified or affected or any onerous obligation or liability arising or any adverse action being taken or arising thereunder;
(iii) any asset or interest of any such member being or failing to be disposed of or charged or ceasing to be available to any such member or any right arising under which any such asset or interest could be required to be disposed of or charged or could cease to be available to any such member otherwise than in the ordinary course of business;
(iv) the creation, save in the ordinary and usual course of business, or enforcement of any mortgage, charge or other security interest over the whole or any part of the business, property, assets or interest of any such member;
(v) the rights, liabilities, obligations or interests of any such member, or the business of any such member with, any person, firm, company or body (or any arrangement or arrangements relating to any such interest or business) being terminated, adversely modified or affected;
(vi) the financial or trading position or prospects being prejudiced or adversely affected;
(vii) any such member ceasing to be able to carry on business under any name under which it presently does so; or
(viii) the creation or acceleration of any liability, actual or contingent, by any such member (including any material tax liability or any obligation to obtain or acquire any material Authorisation, notice, waiver, concession, agreement or exemption from any Third Party or any person) other than trade creditors or other liabilities incurred in the ordinary course of business or in connection with the Acquisition.
and no event having occurred which, under any provision of any agreement,
arrangement, licence, permit or other instrument to which any member of the
Wider Finsbury Group is a party or by or to which any such member or any of
its assets may be bound, entitled or subject, would or might reasonably be
expected to result in any of the events or circumstances as are referred to in
sub-paragraphs (i) to (viii) of this Condition;
Certain events occurring since Last Accounts Date
10. save as Disclosed, and except, where relevant between Finsbury and/or wholly owned subsidiaries of Finsbury, no member of the Wider Finsbury Group having, since the Last Accounts Date:
(i) save for Finsbury Shares issued under or pursuant to the exercise of options and vesting of awards granted under the Finsbury Share Plan, issued or agreed to issue, authorised or proposed the issue of additional shares of any class;
(ii) save for the grant of options and awards and other rights under the Finsbury Share Plan, issued or agreed to issue, authorised or proposed the issue of securities convertible into shares of any class or rights, warrants or options to subscribe for, or acquire, any such shares or convertible securities;
(iii) other than to another member of the Finsbury Group, prior to completion of the Acquisition, recommended, declared, paid or made any dividend or other distribution payable in cash or otherwise or made any bonus issue;
(iv) save for intra-Finsbury Group transactions, merged or demerged with any body corporate or acquired or disposed of or transferred, mortgaged or charged or created any security interest over any assets or any right, title or interest in any asset (including shares and trade investments) or authorised or proposed or announced any intention to propose any merger, demerger, disposal, transfer, mortgage, charge or security interest, in each case, other than in the ordinary course of business and, in each case, to the extent which is material in the context of the Wider Finsbury Group taken as a whole;
(v) save for intra-Finsbury Group transactions, made or authorised or proposed or announced an intention to propose any change in its loan capital in each case, to the extent which is material in the context of the Wider Finsbury Group taken as a whole;
(vi) issued, authorised or proposed the issue of, or made any change in or to, any debentures or (save for intra-Finsbury Group transactions), save in the ordinary course of business, incurred or increased any indebtedness or become subject to any contingent liability which in any such case is material in the context of the Wider Finsbury Group taken as a whole;
(vii) purchased, redeemed or repaid or announced any proposal to purchase, redeem or repay any of its own shares or other securities or reduced or, save in respect to the matters mentioned in sub-paragraphs (i) or (ii) above, made any other change to any part of its share capital in each case, to the extent which is material in the context of the Wider Finsbury Group taken as a whole;
(viii) other than pursuant to the Acquisition and save for intra-Finsbury Group transactions, implemented, or authorised, proposed or announced its intention to implement, any reconstruction, merger, demerger, amalgamation, scheme, commitment or other transaction or arrangement otherwise than in the ordinary course of business and in any case to an extent which is material in the context of the Wider Finsbury Group taken as a whole;
(ix) entered into or varied or authorised, proposed or announced its intention to enter into or vary any material contract, transaction or commitment (whether in respect of capital expenditure or otherwise) which is of a long term, onerous or unusual nature or magnitude or which involves or would reasonably be expected to involve an obligation of such a nature or magnitude other than in the ordinary course of business, in each case, to the extent which is material in the context of the Wider Finsbury Group taken as a whole;
(x) (other than in respect of a member which is dormant and was solvent at the relevant time) taken any corporate action or steps or had any legal proceedings started or threatened against it in relation to the suspension of payments, a moratorium of any indebtedness, its winding-up, dissolution or reorganisation or for the appointment of a receiver, administrative receiver, administrator, manager, trustee or similar officer of all or any part of its assets or revenues or any analogous proceedings in any jurisdiction or appointed any analogous person in any jurisdiction or had any such person appointed, in each case, to the extent which is material in the context of the Wider Finsbury Group taken as a whole;
(xi) entered into any material contract, transaction or arrangement which would be restrictive on the business of any member of the Wider Finsbury Group or the Wider Bidco Group other than of a nature and extent which is normal in the context of the business concerned to the extent which is material in the context of the Wider Finsbury Group taken as a whole;
(xii) waived or compromised any claim otherwise than in the ordinary course of business which is material in the context of the Wider Finsbury Group taken as a whole;
(xiii) made any material alteration to its memorandum or articles of association or other incorporation documents (other than in connection with the Acquisition);
(xiv) been unable, or admitted in writing that it is unable, to pay its debts or commenced negotiations with one or more of its creditors with a view to rescheduling or restructuring any of its indebtedness, or having stopped or suspended (or threatened to stop or suspend) payment of its debts generally or ceased or threatened to cease carrying on all or a substantial part of its business which is material in the context of the Wider Finsbury Group;
(xv) entered into any contract, commitment, arrangement or agreement otherwise than in the ordinary course of business or passed any resolution or made any offer (which remains open for acceptance) with respect to or announced any intention to, or proposed to, effect any of the transactions, matters or events referred to in this Condition 10;
(xvi) made or agreed or consented to any material change to:
(a) the terms of the trust deeds constituting the pension scheme(s) established by any member of the Wider Finsbury Group for its directors, employees or their dependents;
(b) the contributions payable to any such scheme(s) or to the benefits which accrue or to the pensions which are payable thereunder;
(c) the basis on which qualification for, or accrual or entitlement to, such benefits or pensions are calculated or determined; or
(d) the basis upon which the liabilities (including pensions) of such pension schemes are funded, valued or made,
in each case, to the extent which is material in the context of the Wider Finsbury Group taken as a whole;
(xvii) otherwise than in the ordinary course of business and other than in accordance with the terms of the Co-operation Agreement or the Acquisition, proposed, agreed to provide or modified the terms of any of the Finsbury Share Plans or other benefit constituting a material change relating to the employment or termination of employment of a material category of persons employed by the Wider Finsbury Group or which constitutes a material change to the terms or conditions of employment of any senior employee of the Wider Finsbury Group, save as agreed by the Panel (if required) and by Bidco;
(xviii) except with the consent or the agreement of Bidco, taken (or agreed or proposed to take) any action which requires, or would require, the consent of the Panel or the approval of Finsbury Shareholders in general meeting in accordance with, or as contemplated by, Rule 21.1 of the Code; or
(xix) entered into or varied in a material way the terms of, any contracts, agreement or arrangement with any of the directors or senior executives of any members of the Wider Finsbury Group otherwise than in the ordinary course of business;
No adverse change, litigation or regulatory enquiry
11. save as Disclosed, since the Last Accounts Date:
(i) no adverse change or deterioration having occurred in the business, assets, financial or trading position or profits or prospects or operational performance of any member of the Wider Finsbury Group which, in any such case, is material in the context of the Wider Finsbury Group taken as a whole and no circumstances have arisen which would or might reasonably be expected to result in such adverse change or deterioration;
(ii) no litigation, arbitration proceedings, prosecution or other legal proceedings to which any member of the Wider Finsbury Group is or may become a party (whether as a claimant, defendant or otherwise) and no enquiry, review or investigation by, or complaint or reference to, any Third Party or other investigative body against or in respect of any member of the Wider Finsbury Group having been instituted, announced, implemented or threatened by or against or remaining outstanding in respect of any member of the Wider Finsbury Group which in any such case has had or would reasonably be expected to have a material adverse effect on the Wider Finsbury Group taken as a whole or in the context of the Acquisition;
(iii) no contingent or other liability of any member of the Wider Finsbury Group having arisen or become apparent to Bidco or increased other than in the ordinary course of business which has had or would reasonably be expected to have a material adverse effect on the Wider Finsbury Group taken as a whole, or in the context of the Acquisition;
(iv) no member of the Wider Finsbury Group having conducted its business in breach of any applicable laws and regulations and which is material in the context of the Wider Finsbury Group as a whole or material in the context of the Acquisition; and
(v) no steps having been taken which are likely to result in the withdrawal, cancellation, termination or modification of any licence or permit held by any member of the Wider Finsbury Group which is necessary for the proper carrying on of its business and the withdrawal, cancellation, termination or modification of which has had, or would reasonably be expected to have, a material adverse effect on the Wider Finsbury Group taken as a whole;
No discovery of certain matters
12. save as Disclosed, Bidco not having discovered:
(i) that any financial, business or other information concerning the Wider Finsbury Group as contained in the information publicly disclosed prior to the date of this announcement by or on behalf of any member of the Wider Finsbury Group is materially misleading, contains a material misrepresentation of fact or omits to state a fact necessary to make that information not misleading and which was not subsequently corrected before the date of this announcement by disclosure either publicly or otherwise to Bidco or its professional advisers, in each case, to the extent which is material in the context of the Wider Finsbury Group taken as a whole;
(ii) that any member of the Wider Finsbury Group or partnership, company or other entity in which any member of the Wider Finsbury Group has a significant economic interest and which is not a subsidiary undertaking of Finsbury, is subject to any material liability (contingent or otherwise) which is not disclosed in the annual report and accounts of Finsbury for the financial year ended 2 July 2022, in each case, to the extent which is material in the context of the Wider Finsbury Group taken as a whole; or
(iii) any information which affects the import of any information disclosed prior to the date of this announcement by or on behalf of any member of the Wider Finsbury Group and which is material in the context of the Wider Finsbury Group taken as a whole;
13. save as Disclosed, Bidco not having discovered that:
(i) any past or present member of the Wider Finsbury Group has failed to comply in any material respect with all applicable legislation or regulation, of any jurisdiction with regard to the use, treatment, handling, storage, carriage, disposal, spillage, release, discharge, leak or emission of any waste or hazardous substance or any substance likely to impair the environment or harm human health or animal health or otherwise relating to environmental matters or the health and safety of humans, or that there has otherwise been any such use, treatment, handling, storage, carriage, disposal, spillage, release, discharge, leak or emission (whether or not the same constituted a non-compliance by any person with any such legislation or regulations, and wherever the same may have taken place) any of which storage, carriage, disposal, spillage, release, discharge, leak or emission would be reasonably likely to give rise to any material liability (actual or contingent) or cost on the part of any member of the Wider Finsbury Group and which is material in the context of the Wider Finsbury Group taken as a whole;
(ii) there is, or is likely to be, for any reason whatsoever, any material liability (actual or contingent) of any past or present member of the Wider Finsbury Group to make good, remediate, repair, reinstate or clean up any property or any controlled waters now or previously owned, occupied, operated or made use of or controlled by any such past or present member of the Wider Finsbury Group (or on its behalf) or by any person for which a member of the Wider Finsbury Group is or has been responsible, or in which any such member may have or previously have had or be deemed to have had an interest, under any environmental legislation, regulation, notice, circular or order of any Third Party and which is material in the context of the Wider Finsbury Group taken as a whole or the Acquisition;
(iii) circumstances exist (whether as a result of the making of the Acquisition or otherwise) which would be reasonably likely to lead to any Third Party instituting, or whereby any member of the Wider Bidco Group or any present or past member of the Wider Finsbury Group would be reasonably likely to be required to institute, an environmental audit or take any other steps which would in any such case be reasonably likely to result in any material liability (whether actual or contingent) to improve, modify existing or install new plant, machinery or equipment or carry out changes in the processes currently carried out or make good, remediate, repair, re-instate or clean up any land or other asset currently or previously owned, occupied or made use of by any past or present member of the Wider Finsbury Group (or on its behalf) or by any person for which a member of the Wider Finsbury Group is or has been responsible, or in which any such member may have or previously have had or be deemed to have had an interest which is material in the context of the Wider Finsbury Group taken as a whole or the Acquisition; or
(iv) circumstances exist whereby a person or class of persons would be reasonably likely to have any claim or claims in respect of any product or process of manufacture or materials used therein currently or previously manufactured, sold or carried out by any past or present member of the Wider Finsbury Group which claim or claims would be reasonably likely, materially and adversely, to affect any member of the Wider Finsbury Group and which is material in the context of the Wider Finsbury Group taken as a whole or the Acquisition;
Anti-corruption, economic sanctions, criminal property and money laundering
14. save as Disclosed, Bidco not having discovered that:
(i) (A) any past or present member, director, officer or employee of the Wider Finsbury Group is or has at any time engaged in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010, the US Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption or anti-bribery law, rule or regulation or any other applicable law, rule, or regulation concerning improper payments or kickbacks or (B) any person that performs or has performed services for or on behalf of the Wider Finsbury Group is or has at any time engaged in any activity, practice or conduct in connection with the performance of such services which would constitute an offence under the Bribery Act 2010, the US Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption or anti-bribery law, rule or regulation or any other applicable law, rule, or regulation concerning improper payments or kickbacks;
(ii) any asset of any member of the Wider Finsbury Group constitutes criminal property as defined by section 340(3) of the Proceeds of Crime Act 2002 (but disregarding paragraph (b) of that definition) or proceeds of crime under any other applicable law, rule, or regulation concerning money laundering or proceeds of crime or any member of the Wider Finsbury Group is found to have engaged in activities constituting money laundering under any applicable law, rule, or regulation concerning money laundering;
(iii) any past or present member, director, officer or employee of the Wider Finsbury Group, or any other person for whom any such person may be liable or responsible, is or has engaged in any conduct which would violate applicable economic sanctions or dealt with, made any investments in, made any funds or assets available to or received any funds or assets from:
(a) any government, entity or individual in respect of which US, UK or European Union persons, or persons operating in those territories, are prohibited from engaging in activities or doing business, or from receiving or making available funds or economic resources, by US, UK or European Union laws or regulations, including the economic sanctions administered by the United States Office of Foreign Assets Control, or HMRC; or
(b) any government, entity or individual targeted by any of the economic sanctions of the United Nations, the United States, the United Kingdom, the European Union or any of its member states, save that this shall not apply if and to the extent that it is or would be unenforceable by reason of breach of any applicable blocking law;
(iv) any past or present member, director, officer or employee of the Wider Finsbury Group, or any other person for whom any such person may be liable or responsible:
(a) has engaged in conduct which would violate any relevant anti-terrorism laws, rules, or regulations;
(b) has engaged in conduct which would violate any relevant anti-boycott law, rule, or regulation or any applicable export controls, including but not limited to the Export Administration Regulations administered and enforced by the U.S. Department of Commerce or the International Traffic in Arms Regulations administered and enforced by the U.S. Department of State;
(c) has engaged in conduct which would violate any relevant laws, rules, or regulations concerning human rights, including but not limited to any law, rule, or regulation concerning false imprisonment, torture or other cruel and unusual punishment, or child labour; or
(d) is debarred or otherwise rendered ineligible to bid for or to perform contracts for or with any government, governmental instrumentality, or international organization or found to have violated any applicable law, rule, or regulation concerning government contracting or public procurement;
(v) any member of the Wider Finsbury Group is or has been engaged in any transaction which would cause Bidco to be in breach of any law or regulation upon its Acquisition of Finsbury, including but not limited to the economic sanctions of the United States Office of Foreign Assets Control, or HMRC, or any other relevant government authority.
(vi)
Part B
Waiver and Invocation of the Conditions
1. Subject to the requirements of the Panel or, if required, by the Court, Bidco reserves the right in its sole discretion to waive in whole or in part, all or any of the Conditions set out in Part A above, except Conditions 2(i), 3(i) and 4(i) which cannot be waived. If any of the Conditions 2(ii), 3(ii) or 4(ii) is not satisfied by the relevant deadline specified in the relevant Condition, Bidco shall make an announcement by 8.00 a.m. on the Business Day following such deadline confirming whether it has invoked the relevant Condition, waived the relevant deadline or agreed with Finsbury to extend the relevant deadline.
2. Under Rule 13.5(a) of the Code, Bidco may only invoke a Condition so as to cause the Acquisition not to proceed, to lapse or to be withdrawn with the consent of the Panel. The Panel will normally only give its consent if the circumstances which give rise to the right to invoke the Condition are of material significance to Bidco in the context of the Acquisition. Conditions 1, 2, 3 and 4, and, if applicable, any acceptance condition if the Acquisition is implemented by means of a Takeover Offer, are not subject to this provision of the Code. Any Condition that is subject to Rule 13.5(a) of the Code may be waived by Bidco.
3. If the Panel requires Bidco to make an offer for Finsbury Shares under the provisions of Rule 9 of the Code, Bidco may make such alterations to the Conditions as are necessary to comply with the provisions of that Rule.
Implementation by way of Takeover Offer
4. Subject to obtaining the consent of the Panel,
Bidco reserves the right to elect to implement the Acquisition by way of a
Takeover Offer as an alternative to the Scheme.
5. In such event, such Takeover Offer will be
implemented on substantially the same terms and conditions (subject to
appropriate amendments, as far as applicable, as those which would apply to
the Scheme, and an acceptance condition set at up to 90 per cent. of the
Finsbury Shares to which the Takeover Offer relates (or such lower percentage
as the Panel may agree provided that if the Takeover Offer became or was
declared unconditional, it would result in Bidco holding Finsbury Shares
carrying greater than 50 per cent. of the voting rights in Finsbury)).
Certain further terms of the Acquisition
6. Finsbury Shares will be acquired by Bidco fully
paid and free from all liens, charges, encumbrances and other third party
rights of any nature whatsoever and together with all rights attaching to
them, including the right to receive and retain all dividends and
distributions (if any) declared, made or paid after the Acquisition becomes
Effective.
7. If, on or after the date of this announcement and
prior to the Acquisition becoming Effective, any dividend, distribution or
other return of value is declared, made or paid by Finsbury or becomes payable
in respect of the Finsbury Shares, Bidco reserves the right to reduce the
consideration payable for each Finsbury Share under the terms of the
Acquisition by the amount per Finsbury Share of such dividend or distribution,
or other return of value, in which case any reference in this announcement or
in the Scheme Document to the consideration payable under the terms of the
Acquisition will be deemed to be a reference to the consideration as so
reduced. In such circumstances, Finsbury Shareholders would be entitled to
retain any such dividend, distribution or return of value. Any exercise by
Bidco of its rights referred to in this paragraph 7 shall be the subject of an
announcement and, for the avoidance of doubt, shall not be regarded as
constituting any revision or variation of the Acquisition.
8. To the extent that any such dividend or other
distribution and/or other return of capital announced, declared, paid or made
is: (a) transferred pursuant to the Acquisition on a basis which entitles
Bidco to receive the dividend or other distribution and to retain it; or (b)
cancelled, then in either case the consideration payable in respect of the
Acquisition will not be subject to change and shall not be reduced in
accordance with paragraph 7.
9. The Acquisition will be subject, inter alia, to the
Conditions and certain further terms which are set out in this Appendix 1 and
to the full terms and conditions which will be set out in the Scheme Document
and such further terms as may be required to comply with the AIM Rules and the
provisions of the Code.
10. Each of the Conditions shall be regarded as a separate
Condition and shall not be limited by reference to any other Condition.
11. The Scheme will not become Effective unless the
Conditions have been fulfilled or (if capable of waiver) waived or, where
appropriate determined by Bidco to be or remain satisfied by 11.59 p.m.
(London time) on the Long Stop Date.
12. Bidco reserves the right for any other entity directly
or indirectly owned by funds managed by DBAY from time to time (other than
Bidco) to implement the Acquisition. In such an event, the terms of the
Alternative Offer and, in particular, the rights of the Consideration Shares,
will be the same, other than in respect of the issuing entity.
13. The availability of the Acquisition to persons not
resident in the United Kingdom may be affected by the laws of the relevant
jurisdictions. Therefore any persons who are subject to the laws of any
jurisdiction other than the United Kingdom and any Finsbury Shareholders who
are not resident in the United Kingdom will need to inform themselves about
and observe any applicable requirements.
14. Unless otherwise determined by Bidco or required by
the Code and permitted by applicable law and regulations, the Acquisition is
not being, and will not be, made, directly or indirectly, in, into or by the
use of mail of, or by any other means or instrumentality (including, without
limitation, facsimile, email 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 will not be capable of acceptance by any such use, means, instrumentality
or facility or from within any Restricted Jurisdiction.
15. This announcement and any rights or liabilities
arising hereunder are, and the Acquisition, the Scheme, and the Forms of Proxy
and Form of Election will be, governed by English law and will be subject to
the jurisdiction of the courts of England and Wales. The Acquisition will be
subject to the applicable requirements of the Code, the Panel, the London
Stock Exchange, the FCA and the AIM Rules.
APPENDIX 2
BASES AND SOURCES
In this announcement:
1. As at the close of business on 19 September 2023, being the Latest Practicable Date, Finsbury had in issue 130,383,361 Finsbury Shares.
2. Unless otherwise stated, all prices and Closing Prices of Finsbury Shares are closing middle market quotations derived from Bloomberg.
3. Certain figures contained in this announcement have been subject to rounding adjustments.
APPENDIX 3
DETAILS OF IRREVOCABLE UNDERTAKINGS AND LETTER OF INTENT
Irrevocable undertakings
The following Finsbury Shareholders have given irrevocable undertakings to
vote in favour of the Scheme at the Court Meeting and the Resolutions to be
proposed at the General Meeting (and, if the Acquisition is subsequently
structured as a Takeover Offer, to accept the Takeover Offer):
Name of Finsbury Shareholder Number of Finsbury Shares Percentage of the issued Scheme Shares Percentage of all issued Finsbury Shares Election for Cash Offer or Alternative Offer
John Duffy * 2,870,198 2.547 2.201 Partial election for Cash Offer and partial election for Alternative Offer**
Steve Boyd *** 1,372,487 1.218 1.053 Cash Offer
Marnie Millard 9,701 0.009 0.007 No election made
Peter Baker 96,817 0.086 0.074 No election made
Robert Beveridge 15,445 0.014 0.012 No election made
Total 4,364,648 3.874 3.348
*John Duffy's irrevocable undertaking is in relation to shares held by him and
those closely connected to him. He has also irrevocably undertaken that he
will accept the Option Rollover in respect of his awards under the Finsbury
Share Plan over 1,323,774 Finsbury Shares.
**John Duffy has irrevocably undertaken to elect for the Alternative Offer in
respect of 1,793,401 Finsbury Shares beneficially owned by him (representing
approximately 62.5 per cent. of his total beneficial holding of Finsbury).
*** Steve Boyd's irrevocable undertaking is in relation to shares held by him
and those closely connected to him. Steve Boyd has also irrevocably undertaken
that he will accept the Option Rollover in respect of his awards under the
Finsbury Share Plan over 936,529 Finsbury Shares.
These irrevocable undertakings all cease to be binding:
1. if Bidco announces (with the consent of the Panel) that it does not intend to proceed with the Acquisition;
2. immediately upon any competing offer for Finsbury becoming or being declared unconditional in all respects (if implemented by way of a Takeover Offer) or otherwise becoming effective (if implemented by way of a Scheme); and
3. on and from the earlier of:
(i) the Long Stop Date; and
(ii) the time and date on which the Acquisition is withdrawn, lapses or otherwise terminates in accordance with its terms (provided that the reason is not because Bidco has elected to proceed by way of a Takeover Offer rather than by way of a Scheme or vice versa).
Letter of intent
The following Finsbury Shareholders have signalled their intent to vote in
favour of the Scheme at the Court Meeting and the Resolutions to be proposed
at the General Meeting (and, if the Acquisition is subsequently structured as
a Takeover Offer, to accept the Takeover Offer):
Name of Finsbury Shareholder Number of Finsbury Shares Percentage of the issued Scheme Shares Percentage of all issued Finsbury Shares
Investec Wealth and Management 11,704,451 10.388 8.977
Total 11,704,451 10.388 8.977
Copies of these irrevocable undertakings and letters of intent will be made
available promptly and by no later than 12 noon (London time) on the Business
Day following this announcement, on
https://finsburyfoods.co.uk/investor-relations/offer , subject to certain
restrictions relating to persons resident in Restricted Jurisdictions, until
the end of the Acquisition.
APPENDIX 4
THE WIDER BIDCO GROUP AND CONSIDERATION SHARES
1. Additional information in respect of the Wider Bidco Group
The Wider Bidco Group is owned and controlled by funds managed by DBAY and was
formed for the purpose of implementing the Acquisition. As at the date of
this announcement, the Wider Bidco Group comprises Topco, Bidco and Debtco.
None of the members of the Wider Bidco Group has traded since the date of its
incorporation nor entered into any obligations other than in connection with
the Acquisition and its financing.
The holding company in the Wider Bidco Group is Topco, a private limited
company incorporated in the Isle of Man on 18 August 2023 under the Isle of
Man Companies Act 2006 with registered number 021088V. Topco is the sole
shareholder of Bidco, a private limited company which was also incorporated in
the Isle of Man on 18 August 2023 under the Isle of Man Companies Act 2006
with registered number 021089V. Bidco is the sole shareholder of Debtco, a
private limited company which was incorporated in England and Wales on 23
August 2023 under the Companies Act with registered number 15091858.
2. Bidco share capital
The Consideration Shares will be ordinary B shares in Bidco allotted and
issued credited as fully paid. The Consideration Shares will hold no voting
rights in Bidco (except in certain very limited circumstances including
where required pursuant to the articles of association of Bidco or the Isle of
Man Companies Act 2006) but will otherwise rank pari passu in all respects
with the Bidco A Shares in issue at the time that the Consideration Shares are
allotted and issued, including the right to receive and retain dividends and
other distributions declared, made or paid by reference to a record date
falling after the Effective Date, and on any return of capital or exit.
For the purposes of Rule 24.11 of the Code, Investec will provide an estimate
of the value of a Consideration Share in the Scheme Document.
As at the date of this announcement, the issued share capital of Bidco is 1
ordinary share, which is held by Topco, a subsidiary of funds managed by DBAY.
Upon the Scheme becoming Effective, Bidco will issue Consideration Shares to
the Finsbury Shareholders who have elected for the Alternative Offer pursuant
to the terms of the Alternative Offer. Bidco Shares will also be issued to
funds managed by DBAY in respect of their funding of the cash consideration
payable under the Acquisition, and to acquire the Finsbury Shares currently
held by funds managed by DBAY. The number of Bidco Shares issued is
primarily dependent on the number of elections made for the Alternative Offer,
as this will affect the number of Consideration Shares to be issued and the
amount required to be subscribed by funds managed by DBAY in respect of their
funding of the cash consideration payable under the Acquisition
As set out in paragraph 4 of this Appendix 4 below, it is anticipated that,
following the Scheme becoming Effective, any further new issues of Bidco
Shares will be on a pre-emptive basis. There may, however, be some
circumstances in which the directors of Bidco consider that it would be
appropriate to issue further Bidco Shares on a non-pre-emptive basis. In such
circumstances, the appropriate Bidco shareholder approvals and consents shall
be sought, as required; however, this may result in the interests of Finsbury
Shareholders who elected to take up the Alternative Offer in Bidco becoming
diluted over time.
4. Rights attaching to Bidco Shares
The share capital of Bidco will comprise one class of A ordinary shares with a
nominal value of £0.01 each ("Bidco A Shares") and one class of B ordinary
shares with a nominal value of £0.01 each ("Bidco B Shares" and together with
the Bidco A Shares, the "Bidco Shares").
Voting rights
On a poll, holders of Bidco A Shares will have one vote per Bidco A Share.
Bidco B Shares will not entitle holders of those shares to voting rights in
Bidco (except in certain very limited circumstances including where required
pursuant to the articles of association of Bidco or the Isle of Man Companies
Act 2006).
New share issues
New issues of equity securities in Bidco will be made on a pro-rata,
pre-emptive basis. There may, however, be some circumstances in which the
directors of Bidco consider that it would be appropriate to issue further
equity securities in Bidco on a non-pre-emptive basis (including, without
limitation, in connection with an employee incentive plan). Pre-emption
rights may be disapplied by special resolution and with the consent of the
holders of 50% or more of the Bidco A Shares, but this cannot be used to treat
the holders of Bidco B Shares disproportionately compared to the holders of
Bidco A Shares.
New shareholder debt issues
In the event that any fund managed by DBAY advances a shareholder loan or
subscribes for loan notes in any member of the Bidco Group, each holder of
Bidco B Shares shall be given the opportunity to advance shareholder loans or
subscribe for loan notes on a pro-rata, pre-emptive basis and on the same
terms. This will not apply to intra-group issues by wholly-owned
subsidiaries or any third party debt finance.
Share transfers
Bidco Shares will not be transferable except for certain categories of
permitted transfer, compulsory transfers or transfers on exercise of the
drag-along or tag-along (each as described below).
Drag-along
If the holders of more than 50 per cent. of the Bidco A Shares (the "Selling
Shareholders") agree a sale on arm's length terms of their shares to a bona
fide third party or any holder of Bidco A Shares or their affiliates or
connected parties (the "Proposed Buyer"), then the Selling Shareholders may
require all other shareholders to sell their shares to the Proposed Buyer on
the same terms.
Tag-along
If any person (the "Buyer") proposes to acquire more than 50 per cent. of
Bidco Shares carrying voting rights, from any person who holds Bidco A Shares
(the "Seller(s)") then the Seller(s) shall procure that, before effecting the
proposed acquisition, the Buyer makes an offer (the "Offer") to acquire the
Bidco Shares held by the other shareholders (holding both Bidco A Shares and
Bidco B Shares) at a price per share equal to the highest price per share paid
by the Buyer in the 12 months prior to and including the sale/purchase which
triggered the obligation to make the Offer and including any supplemental
consideration offered to the Sellers.
Board appointment rights
The holders of Bidco B Shares (the "Bidco B Shareholders") may collectively
appoint or remove one director to the board of Bidco for as long as the Bidco
B Shareholders collectively hold 20% or more of the Bidco Shares. The director
appointed by the Bidco B Shareholders shall not have any veto rights at board
level.
Any other appointment or removal of a director shall require the written
consent of the holders of not less than 50 per cent. of the Bidco A Shares or
an ordinary resolution of Bidco.
The holders of Bidco A Shares may collectively appoint or remove any number of
directors to the Board of Bidco.
Conduct of the Wider Bidco Group
The directors of Bidco are responsible for its management. There are a number
of matters set out in the articles of association of Bidco which will require
the passing of a resolution by the holders of not less than 50 per cent. of
the Bidco A Shares.
APPENDIX 5
DEFINITIONS
"Acquisition" the recommended offer to be made by Bidco to acquire the entire issued and to
be issued ordinary share capital of Finsbury other than the Finsbury Shares
held by funds managed by DBAY, to be effected by means of the Scheme (or, if
Bidco so elects and subject to the consent of the Panel, a Takeover Offer) on
the terms and subject to the conditions set out in this announcement and to be
set out in the Scheme Document
"AIM" the market of that name operated by the London Stock Exchange
"AIM Rules" the AIM Rules for Companies published by the London Stock Exchange (as amended
from time to time)
"Alternative Offer" the alternative offer under which Finsbury Shareholders (other than Finsbury
Shareholders resident or located in a Restricted Jurisdiction) may elect to
receive Consideration Shares, in lieu of cash under the Cash Offer, on the
basis of one Consideration Share for each Scheme Share held
"Appendices" the appendices to this announcement
"Bidco" Frisbee Bidco Limited, a company incorporated in the Isle of Man with
registered number 021089V
"Bidco Board" or "Bidco Directors" the board of directors of Bidco as at the date of this announcement or, where
the context so requires, the board of directors of Bidco from time to time
"Bidco Group" Bidco and its direct and indirect subsidiaries
"Bidco Options" options over Bidco Shares granted pursuant to the Option Rollover
"Bidco Shares" the Bidco A Shares and the Bidco B Shares
"Bidco A Shares" A ordinary shares of £0.01 each in the capital of Bidco
"Bidco B Shares" B ordinary shares of £0.01 each in the capital of Bidco, holding no voting
rights in Bidco
"Business Day" a day (other than a Saturday, Sunday, public or bank holiday) on which banks
are generally open for business in London
"Cash Offer" the offer to Finsbury Shareholders of 110 pence in cash per Scheme Share;
"Closing Price" the closing middle market quotation for a Finsbury Share at the close of
business on the day to which such price relates, as derived from the AIM
appendix to the Daily Official List
"Code" the City Code on Takeovers and Mergers
"Companies Act" the Companies Act 2006, as amended from time to time
"Confidentiality Agreement" the confidentiality agreement dated 6 December 2022 between DBAY Advisors
Limited and Finsbury, as described in paragraph 14 of this announcement
"Consideration Shares" has the meaning given in paragraph 2 of this announcement
"Co-operation Agreement" the agreement dated 20 September 2023 between Bidco and Finsbury, as described
in paragraph 14 of this announcement
"Conditions" the conditions to the implementation of the Acquisition (including the Scheme)
as set out in Appendix 1 of this announcement and to be set out in the Scheme
Document
"Court" the High Court of Justice of England and Wales
"Court Meeting" the meeting or meetings of the Scheme Shareholders (or of any class or classes
thereof) to be convened by order of the Court pursuant to section 896 of the
Companies Act, notice of which will be set out in the Scheme Document, for the
purpose of considering and, if thought fit, approving the Scheme (with or
without amendment), including any adjournment, postponement or reconvening
thereof
"CREST" the relevant system (as defined in the Regulations) in respect of which
Euroclear UK & International is the Operator (as defined in the
Regulations) in accordance with which securities may be held and transferred
in uncertificated form
"Daily Official List" the daily record setting out the prices of all trades in shares and other
securities conducted on the London Stock Exchange
"DBAY" DBAY Advisors Limited
"Dealing Disclosure" has the meaning given to it in Rule 8 of the Code
"Debtco" UK Frisbee Debtco Limited, a company incorporated in England and Wales with
registered number 15091858
"Disclosed" (i) matters fairly disclosed in the information made available to DBAY or
Bidco (or their respective officers, employees, agents or advisers in their
capacity as such) in the data room established by Finsbury for the purposes of
the Acquisition;
(ii) information fairly disclosed in writing by or on behalf of Finsbury to
DBAY or Bidco (or their respective officers, employees, agents or advisers in
their capacity as such) prior to the date of this announcement;
(iii) information included in the annual report and accounts of the Finsbury
Group for the financial year ended 2 July 2022 and in the unaudited interim
results for the six months ended 31 December 2022;
(iv) information disclosed in a public announcement to an RIS made by
Finsbury prior to the date of this announcement; or
(v) information disclosed in this announcement
"Disclosure Table" the disclosure table on the Panel's website at www.thetakeoverpanel.org.uk
(http://www.thetakeoverpanel.org.uk)
"Effective" in the context of the Acquisition:
(i) if the Acquisition is implemented by way of the Scheme, the Scheme having
become effective in accordance with its terms, upon the delivery of the Scheme
Court Order to the Registrar of Companies for registration; or
(ii) if the Acquisition is implemented by way of a Takeover Offer, the
Takeover Offer having been declared or become unconditional in accordance with
the requirements of the Code
"Effective Date" the date upon which: (i) the Scheme becomes Effective; or (ii) if Bidco
elects, with the consent of the Panel, to implement the Acquisition by way of
a Takeover Offer, the Takeover Offer becomes or is declared Effective
"Enlarged Group" the Bidco Group and the Finsbury Group following the Acquisition becoming
Effective
"Excluded Shares" any Finsbury Shares (i) legally or beneficially held by funds managed by DBAY
or any member of the Wider Bidco Group; and (ii) held in treasury by Finsbury
in each case, immediately prior to the Scheme Record Time
"Facilities Agreement" the facilities agreement between, among others, UK Frisbee Debtco Limited,
Barclays Bank PLC, Coöperatieve Rabobank U.A. trading as Rabobank London,
HSBC UK Bank PLC and funds managed by Hayfin Tactical Solutions Luxco SCA,
Hayfin Chief Luxco SARL, Hayfin Hamilton Luxco 2 SARL, Hayfin Opal 2020 (A)
Ukco 2 Limited, Hayfin Opal 2020 (B) LP and Hayfin Sapphire IV Co-Invest Luxco
S.C.A.dated 20 September 2023
"FCA" the Financial Conduct Authority or its successor from time to time
"Finsbury" Finsbury Food Group plc, a company incorporated in England and Wales with
registered number 00204368
"Finsbury Articles" the articles of association of Finsbury currently adopted and filed with
Companies House as at the date of this announcement
"Finsbury Board" or "Finsbury Directors" the board of Finsbury as at the date of this announcement or, where the
context so requires, the board of directors of Finsbury from time to time
"Finsbury Group" Finsbury and its subsidiary undertakings and, where the context permits, each
of them
"Finsbury Shareholders" all holders of Finsbury Shares from time to time
"Finsbury Shares" the ordinary shares of 1 penny each in the capital of Finsbury (including any
Finsbury Shares held as treasury shares)
"Finsbury Share Plan" the Finsbury 2015 Performance Share Plan
"Form of Election" the form of election for use by an eligible Scheme Shareholder who holds
Scheme Shares in certificated form in relation to the Alternative Offer, which
shall accompany the Scheme Document
"Forms of Proxy" the forms of proxy in connection with each of the Court Meeting and the
General Meeting, which shall accompany the Scheme Document
"FSMA" the Financial Services and Markets Act 2000, as amended
"General Meeting" the general meeting of Finsbury to be convened in connection with the Scheme
to consider and, if thought fit, approve the Resolutions (with or without
amendment), notice of which will be set out in the Scheme Document, including
any adjournment, postponement or reconvening thereof
"Investec" Investec Bank plc
"Last Accounts Date" 2 July 2022
"Latest Practicable Date" 19 September 2023 (being the last Business Day prior to the date of this
announcement)
"London Stock Exchange" London Stock Exchange plc
"Long Stop Date" 31 January 2024 or such later date (if any) as Bidco and Finsbury may, with
the consent of the Panel, agree and (if required) the Court may allow
"Market Abuse Regulation" the UK version of Regulation (EU) No 596/2014 which forms part of the UK
domestic law by virtue of the European Union (Withdrawal) Act 2018
"Opening Position Disclosure" an announcement in accordance with Rule 8 of the Code containing details of
interests or short positions in, or rights to subscribe for, any relevant
securities of a party to the offer if the person concerned has such a position
"Oppenheimer" Oppenheimer Europe Limited
"Option Rollover" the exchange of awards under the Finsbury Share Plan for Bidco Options, as
further detailed in paragraph 10 of this announcement
"Panel" the UK Panel on Takeovers and Offers
"Panmure Gordon" Panmure Gordon (UK) Limited
"PRA" the Prudential Regulation Authority or its successor from time to time
"Registrar of Companies" the Registrar of Companies in England and Wales
"Regulations" the Uncertificated Securities Regulations 2001 (SI 2001/3755) (including as it
forms part of domestic law of the United Kingdom by virtue of the European
Union (Withdrawal) Act 2018)
"Resolutions" the resolution(s) necessary to implement the Scheme to be proposed by Finsbury
at the General Meeting, including, amongst other things, a resolution to amend
the Finsbury Articles (including, without limitation, the adoption and
inclusion of a new article under which any Finsbury Shares issued or
transferred after the General Meeting shall either be subject to the Scheme or
(after the Effective Date) be immediately transferred to Bidco (or as it may
direct) in exchange for the same consideration as is due under the Scheme)
and such other matters as may be necessary to implement the Acquisition
"Restricted Jurisdiction" any jurisdiction where local laws or regulations may result in a significant
risk of civil, regulatory or criminal exposure if information concerning the
Acquisition is sent or made available to Finsbury Shareholders in that
jurisdiction
"RIS" a service approved by the London Stock Exchange for the distribution to the
public of announcements and included within the list maintained on the London
Stock Exchange's website
"Scheme" the scheme of arrangement proposed to be made under Part 26 of the Companies
Act between Finsbury and the Scheme Shareholders (the full terms of which will
be set out in the Scheme Document), with or subject to any modification,
addition or condition approved or imposed by the Court and agreed to by
Finsbury and Bidco
"Scheme Court Hearing" the hearing by the Court to sanction the Scheme pursuant to Section 899 of the
Companies Act and any adjournment, postponement or reconvening thereof
"Scheme Court Order" the order of the Court sanctioning the Scheme under section 899 of Part 26 of
the Companies Act
"Scheme Document" the document to be sent to (amongst others) Finsbury Shareholders containing
and setting out, among other things, the full terms and conditions of the
Scheme and containing the notices convening the Court Meeting and General
Meeting
"Scheme Record Time" the time and date specified in the Scheme Document expected to be 6.00 p.m. on
the Business Day immediately after the Court Hearing
"Scheme Shareholders" the holders of Scheme Shares
"Scheme Shares" Finsbury Shares:
(a) in issue at the date of the Scheme Document;
(b) (if any) issued after the date of the Scheme Document and prior to the
Voting Record Time; and
(c) (if any) issued on or after the Voting Record Time but at or before the
Scheme Record Time, either on terms that the original or any subsequent
holders thereof shall be bound by the Scheme or in respect of which the
holders thereof shall have agreed in writing to be bound by the Scheme,
in each case, and where the context requires, which remain in issue at the
Scheme Record Time, but excluding the Excluded Shares
"SEC" the US Securities Exchange Commission
"Takeover Offer" if (subject to the consent of the Panel) Bidco elects to effect the
Acquisition by way of a takeover offer (as defined in Chapter 3 of Part 28 of
the Companies Act), the offer to be made by or on behalf of Bidco to acquire
the entire issued and to be issued ordinary share capital of Finsbury other
than the Finsbury Shares already held by funds managed by DBAY on the terms
and subject to the conditions to be set out in the related offer document
(and, where the context admits, any subsequent revision, variation, extension
or renewal of such offer)
"Third Party" any relevant government or governmental, quasi-governmental, supranational,
statutory, regulatory, environmental or investigative body, court, trade
agency, association, institution, any entity owned or controlled by any
relevant government or state, or any other body or person whatsoever in any
jurisdiction
"Topco" Frisbee Topco Limited, a company incorporated in the Isle of Man with
registered number 021088V
"UK" or "United Kingdom" the United Kingdom of Great Britain and Northern Ireland
"US" or "United States" the United States of America, its territories and possessions, all areas
subject to its jurisdiction or any subdivision thereof, any state of the
United States of America and the District of Columbia
"US Exchange Act" the United States Securities Exchange Act of 1934, as amended
"US Person" a US Person as defined in rule 902(o) under the US Securities Act
"US Securities Act" the United States Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder
"Voting Record Time" 6.30 p.m. on the day which is two days (excluding any part of a day that is
not a Business Day) before the date of the Court Meeting or, if the Court
Meeting is adjourned, 6.30 p.m. on the day which is two days (excluding any
part of a day that is not a Business Day) before the date of such adjourned
meeting
"Wider Bidco Group" Bidco, Topco, Debtco and their subsidiary undertakings, associated
undertakings and any other undertaking in which Bidco and/or such undertakings
(aggregating their interests) have a significant interest and for these
purposes "subsidiary undertaking" and "undertaking" have the meanings given by
the Companies Act 2006, or (where relevant) section 220 of the Isle of Man
Companies Act 2006, "associated undertaking" has the meaning given by
paragraph 19 of Schedule 6 to the Large and Medium-sized Companies and Groups
(Accounts and Reports) Regulations 2008, other than paragraph 19(1)(b) of
Schedule 6 to those regulations which shall be excluded for this purpose, and
"significant interest" means a direct or indirect interest in 20 per cent. or
more of the total voting rights conferred by the equity share capital (as
defined in section 548 of the Companies Act 2006)
"Wider Finsbury Group" Finsbury and its subsidiary undertakings, associated undertakings and any
other undertaking in which Finsbury and/or such undertakings (aggregating
their interests) have a significant interest and for these purposes
"subsidiary undertaking" and "undertaking" have the meanings given by the
Companies Act 2006, "associated undertaking" has the meaning given by
paragraph 19 of Schedule 6 to the Large and Medium-sized Companies and Groups
(Accounts and Reports) Regulations 2008, other than paragraph 19(1)(b) of
Schedule 6 to those regulations which shall be excluded for this purpose, and
"significant interest" means a direct or indirect interest in 20 per cent. or
more of the total voting rights conferred by the equity share capital (as
defined in section 548 of the Companies Act 2006)
"£" or "GBP" or "pence" pounds sterling or pence, the lawful currency of the United Kingdom
For the purposes of this announcement, associated undertaking, parent
undertaking, subsidiary undertaking and undertaking have the respective
meanings given thereto by the Companies Act.
References to an enactment include references to that enactment as amended,
replaced, consolidated or re-enacted by or under any other enactment before or
after the date of this announcement.
All the times referred to in this announcement are London times unless
otherwise stated.
References to the singular include the plural and vice versa.
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