Disclosure under Rule 2.10(c) of the Takeover Code
19/12/2023 07:00
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RNS Number : 2194X Hive Bidco, Inc 18 December 2023
DISCLOSURE UNDER RULE 2.10(C) OF THE TAKEOVER CODE
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR
INDIRECTLY, IN OR INTO ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A
VIOLATION OF THE RELEVANT LAWS OF SUCH JURISDICTION.
FOR IMMEDIATE RELEASE
18 December 2023
RECOMMENDED CASH ACQUISITION
of
HOTEL CHOCOLAT GROUP PLC
by
HIVE BIDCO, INC.
a wholly-owned indirect subsidiary of Mars, Incorporated,
to be implemented by means of a scheme of arrangement under Part 26 of the
Companies Act 2006
Update on letter of intent
On 16 November 2023, the boards of directors of Hive Bidco, Inc. ("Bidco") and
Hotel Chocolat Group plc ("Hotel Chocolat") announced that they had reached
agreement on the terms of a recommended cash acquisition (the "Announcement"),
pursuant to which Bidco, a wholly-owned indirect subsidiary of Mars,
Incorporated ("Mars"), will acquire the entire issued and to be issued
ordinary share capital of Hotel Chocolat (the "Acquisition"). It is intended
that the Acquisition will be implemented by means of a Court-sanctioned scheme
of arrangement under Part 26 of the Companies Act. A scheme document in
connection with the Acquisition (the "Scheme Document") was published by Hotel
Chocolat on 14 December 2023.
The terms and conditions of the Acquisition are set out in the Announcement
and are set out in full in the Scheme Document.
Capitalised terms used in this announcement, unless otherwise defined, shall
have the meanings given to them in the Announcement.
As set out in the Announcement, on 16 November 2023 Bidco received a
non-binding letter of intent (the "Letter of Intent") from Phoenix Asset
Management Partners Limited ("Phoenix") to vote (or procure the voting) in
favour of the Scheme at the Court Meeting and the Resolutions at the General
Meeting (or, in the event that the Acquisition is implemented by way of the
Takeover Offer, to accept the Takeover Offer) in respect of 6,878,383 Hotel
Chocolat Shares representing approximately 5.0 per cent. of the existing
issued ordinary share capital of Hotel Chocolat as at 15 November 2023, being
the last Business Day prior to the Announcement. Bidco subsequently announced,
on 27 November 2023, that Phoenix had since disposed of 15,400 Hotel Chocolat
Shares on 27 November 2023 and, as a result, with effect from such date, the
Letter of Intent ceased to apply in respect of such Hotel Chocolat Shares and,
as of 27 November 2023, represented 6,862,983 Hotel Chocolat Shares.
Bidco hereby announces that it was informed by Phoenix on 18 December 2023
that Phoenix has now disposed of the remaining 6,862,983 Hotel Chocolat Shares
in respect of which the Letter of Intent applied. As such, there are no
longer any Hotel Chocolat Shares to which the Letter of Intent applies.
As set out in the announcement dated 27 November 2023, the disposal by Phoenix
of the Hotel Chocolat Shares which were subject to the Letter of Intent does
not affect the number of Hotel Chocolat Shares which are subject to the
Phoenix Irrevocable Undertaking dated 16 November 2023, pursuant to which
Phoenix has irrevocably undertaken to vote (or procure the voting) in favour
of the Scheme at the Court Meeting and the Resolutions at the General Meeting
(or, in the event that the Acquisition is implemented by way of the Takeover
Offer, to accept, or procure the acceptance of, the Takeover Offer) in respect
of 14,349,649 Hotel Chocolat Shares representing approximately 10.4 per cent.
of the existing issued ordinary share capital of Hotel Chocolat, which remains
in full force and effect.
Therefore, Bidco has received commitments and indications of support for the
Acquisition from Hotel Chocolat Shareholders in respect of 88,875,376 Hotel
Chocolat Shares representing, in aggregate, approximately 64.6 per cent. of
the existing issued ordinary share capital of Hotel Chocolat as at the date of
this announcement.
Enquiries
Morgan Stanley (Financial Adviser to Bidco and Mars) +44 (0)20 7425 8000
Laurence Hopkins
Imran Ansari
Mae Wang
Stuart Wright
Brunswick (Public Relations Adviser to Bidco and Mars) +44 (0)20 7404 5959
Max McGahan
Rosie Oddy
James Baker
Further information
This announcement is for information purposes and is not intended to and does
not constitute, or form part of, an offer, invitation or the solicitation of
an offer to purchase, otherwise acquire, subscribe for, sell or otherwise
dispose of any securities, or the solicitation of any vote or approval in any
jurisdiction, pursuant to the Acquisition or otherwise, nor shall there be any
sale, issuance or transfer of securities of Hotel Chocolat in any jurisdiction
in contravention of applicable law. The Acquisition will be made solely by
means of the Scheme Document (or, if the Acquisition is implemented by way of
a Takeover Offer, the Offer Document), which will contain the full terms and
conditions of the Acquisition including details of how to vote in respect of
the Acquisition. Any vote in respect of the Scheme or other response in
relation to the Acquisition should be made only on the basis on the
information contained in the Scheme Document (or, if the Acquisition is
implemented by way of a Takeover Offer, the Offer Document). Hotel Chocolat
Shareholders are urged to read the Scheme Document because it contains
important information relating to the Acquisition.
This announcement does not constitute a prospectus or prospectus equivalent.
Morgan Stanley, which is authorised by the Prudential Regulation Authority and
regulated in the United Kingdom by the Financial Conduct Authority and the
Prudential Regulation Authority, is acting exclusively as financial adviser to
Bidco and Mars and no one else in connection with the matters contained in
this announcement and Morgan Stanley, its affiliates and their respective
directors, officers, employees and agents will not regard any other person as
their client, nor will they be responsible to anyone other than Bidco and Mars
for providing the protections afforded to clients of Morgan Stanley nor for
providing advice in connection with the matters contained in this announcement
or any other matter referred to herein.
Overseas jurisdictions
The release, publication or distribution of this announcement in or into
jurisdictions other than the UK may be restricted by law and therefore any
persons who are subject to the law of any jurisdiction other than the UK
should inform themselves about, and observe, any applicable legal or
regulatory requirements. In particular the ability of persons who are not
resident in the United Kingdom, to vote their Hotel Chocolat Shares with
respect to the Scheme at the Court Meeting, or to appoint another person as
proxy to vote at the Court 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 purposes of complying with
English law, 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.
Copies of this announcement and formal documentation relating to the
Acquisition will not be and must not be, mailed or otherwise forwarded,
distributed or sent in, 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. If the Acquisition is implemented by way
of Takeover Offer (unless otherwise permitted by applicable law or
regulation), the Takeover Offer may not be made, directly or indirectly, in or
into or by use of the mails 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 the Takeover Offer will not be capable of acceptance by any such use,
means, instrumentality or facilities or from within any Restricted
Jurisdiction.
The availability of the Acquisition (including the Partial Share Alternative)
to Hotel Chocolat Shareholders who are not resident in the United Kingdom may
be affected by the laws of the relevant jurisdictions in which they are
resident. Persons who are not resident in the United Kingdom should inform
themselves of, and observe, any applicable requirements.
Further details in relation to Overseas Shareholders are contained in the
Scheme Document.
The Acquisition shall be subject to the applicable requirements of the Code,
the Panel, the London Stock Exchange, the FCA and the AIM Rules.
Additional information for US investors
The Acquisition is being made to acquire the shares of an English company by
means of a scheme of arrangement provided for under English law. A transaction
effected by means of a scheme of arrangement is not subject to the tender
offer rules or the proxy solicitation rules under the US Exchange Act.
Accordingly, the Scheme will be subject to disclosure requirements and
practices applicable in the UK to schemes of arrangement, which are different
from the disclosure requirements of the US tender offer and proxy solicitation
rules. The financial information included in this announcement and the Scheme
documentation has been or will have been prepared in accordance with
accounting standards applicable in the United Kingdom and thus 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 US. If Bidco exercises its right to implement the
acquisition of the Hotel Chocolat Shares by way of a Takeover Offer, such
offer will be made in compliance with applicable US laws and regulations.
The receipt of cash pursuant to the Acquisition by a US holder as
consideration for the transfer of its Hotel Chocolat Shares pursuant to the
Scheme will likely be a taxable transaction for United States federal income
tax purposes and under applicable United States state and local, as well as
foreign and other, tax laws. Each Hotel Chocolat Shareholder is urged to
consult their independent professional adviser immediately regarding the tax
consequences of the Acquisition applicable to them.
The Rollover Shares issued under the Partial Share Alternative will not be
registered under the US Securities Act of 1933 (the "Securities Act"). Bidco
expects to issue the Rollover Shares in reliance upon the exemption from the
registration requirements of the Securities Act provided by Section 3(a)(10)
thereof ("Section 3(a)(10)"). Section 3(a)(10) exempts securities issued in
specified exchange transactions from the registration requirement under the
Securities Act where, among other things, the fairness of the terms and
conditions of the issuance and exchange of such securities have been approved
by a court or governmental authority expressly authorised by law to grant such
approval, after a hearing upon the fairness of the terms and conditions of the
exchange at which all persons to whom the Rollover Shares are proposed to be
issued have the right to appear and receive adequate and timely notice
thereof. If Bidco exercises its right to implement the acquisition of the
Hotel Chocolat Shares by way of a Takeover Offer, the Rollover Shares will not
be offered in the United States except pursuant to an exemption from or in a
transaction not subject to registration under the Securities Act.
The Rollover Shares that may be issued pursuant to the Acquisition 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. Neither the US Securities
and Exchange Commission nor any US state securities commission has approved or
disapproved of the Partial Share Alternative or determined if the Scheme
Document is accurate or complete. Any representation to the contrary is a
criminal offence.
In accordance with normal UK practice and pursuant to Rule 14e-5(b) of the US
Exchange Act (to the extent applicable), Bidco or its nominees, or its brokers
(acting as agents), may from time to time make certain purchases of, or
arrangements to purchase, Hotel Chocolat Shares outside of the US, other than
pursuant to the Acquisition, until the date on which the Acquisition and/or
Scheme becomes effective, lapses or is otherwise withdrawn. If such purchases
or arrangements to purchase were to be made, they would be made outside of the
US and would be in accordance with applicable law, including the US Exchange
Act and the Code. 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/) .
Forward looking statements
This announcement (including information incorporated by reference in this
announcement), oral statements made regarding the Acquisition, and other
information published by Bidco and Mars contain statements which are, or may
be deemed to be, "forward-looking statements". Forward-looking statements are
prospective in nature and are not based on historical facts, but rather on
current expectations and projections of the management of Bidco and Mars about
future events, and are therefore subject to risks and uncertainties which
could cause actual results to differ materially from the future results
expressed or implied by the forward-looking statements. The forward-looking
statements contained in this announcement include statements other than
historical facts. Often, but not always, forward-looking statements can be
identified by the use of forward-looking words such as "plans", "expects" or
"does not expect", "is expected", "is subject to", "budget", "scheduled",
"estimates", "forecasts", "intends", "goal", "anticipates" or "does not
anticipate", or "believes", or variations of such words and phrases or
statements that certain actions, events or results "may", "could", "should",
"would", "might" or "will" be taken, occur or be achieved. Although Bidco and
Mars believe that the expectations reflected in such forward-looking
statements are reasonable, Bidco and Mars can give no assurance that such
expectations will prove to be correct. 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. There are a number of
factors that could cause actual results and developments to differ materially
from those expressed or implied by such 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, and any epidemic, pandemic or disease outbreak.
Other unknown or unpredictable factors could cause actual results to differ
materially from those in the forward-looking statements. Such forward-looking
statements should therefore be construed in the light of such factors. Neither
Bidco nor Mars, nor any of their respective associates or directors, members,
managers, partners, officers or advisers, provides any representation,
assurance or guarantee that the occurrence of the events expressed or implied
in any forward-looking statements in this announcement will actually occur.
You are cautioned not to place any reliance on these forward-looking
statements. The forward-looking statements speak only at the date of this
announcement. All subsequent oral or written forward-looking statements
attributable to Bidco or any member of the Wider Bidco Group, or any of their
respective associates, directors, officers, employees or advisers, are
expressly qualified in their entirety by the cautionary statement above. Other
than in accordance with their legal or regulatory obligations, neither Bidco
or Mars is under any obligation, and Bidco and Mars expressly disclaim any
intention or obligation, to update or revise any forward-looking statements,
whether as a result of new information, future events or otherwise.
Dealing disclosure requirements
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 and, if later, following the announcement in which any securities
exchange offeror is first identified. An Opening Position Disclosure must
contain details of the person's interests and short positions in, and rights
to subscribe for, any relevant securities of each of (i) the offeree company
and (ii) any securities exchange offeror(s). An Opening Position Disclosure by
a person to whom Rule 8.3(a) applies must be made by no later than 3.30 pm
(London time) on the 10(th) business day following the commencement of the
offer period and, if appropriate, by no later than 3.30 pm (London time) on
the 10(th) business day following the announcement in which any securities
exchange offeror is first identified. Relevant persons who deal in the
relevant securities of the offeree company or of a securities exchange offeror
prior to the deadline for making an Opening Position Disclosure must instead
make a Dealing Disclosure.
Under Rule 8.3(b) of the Code, any person who is, or becomes, interested in 1%
or more of any class of relevant securities of the offeree company or of any
securities exchange offeror must make a Dealing Disclosure if the person deals
in any relevant securities of the offeree company or of any securities
exchange offeror. A Dealing Disclosure must contain details of the dealing
concerned and of the person's interests and short positions in, and rights to
subscribe for, any relevant securities of each of (i) the offeree company and
(ii) any securities exchange offeror(s), save to the extent that these details
have previously been disclosed under Rule 8. A Dealing Disclosure by a person
to whom Rule 8.3(b) applies must be made by no later than 3.30 pm (London
time) on the business day following the date of the relevant dealing.
If two or more persons act together pursuant to an agreement or understanding,
whether formal or informal, to acquire or control an interest in relevant
securities of an offeree company or a securities exchange offeror, they will
be deemed to be a single person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree company and by
any offeror and Dealing Disclosures must also be made by the offeree company,
by any offeror and by any persons acting in concert with any of them (see
Rules 8.1, 8.2 and 8.4).
Details of the offeree and offeror companies in respect of whose relevant
securities Opening Position Disclosures and Dealing Disclosures must be made
can be found in the Disclosure Table on the Takeover Panel's website at
www.thetakeoverpanel.org.uk (http://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.
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 figures that precede them.
General
Bidco reserves the right to elect, with the consent of the Panel and subject
to the terms of the Cooperation Agreement, to implement the Acquisition by way
of a Takeover Offer as an alternative to the Scheme. If the Acquisition is
effected by way of a Takeover Offer, and such offer becomes or is declared
unconditional and sufficient acceptances are received, Bidco intends to
exercise its rights to apply the provisions of Chapter 3 of Part 28 of the
Companies Act so as to acquire compulsorily the remaining Hotel Chocolat
Shares in respect of which the Takeover Offer has not been accepted.
Investors should be aware that Bidco may purchase Hotel Chocolat Shares
otherwise than under any Takeover Offer or the Scheme, including pursuant to
privately negotiated purchases.
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 or
independent financial adviser duly authorised under FSMA if you are resident
in the United Kingdom or, if not, from another appropriate authorised
independent financial adviser.
Publication on website
A copy of this announcement and the documents required to be published by Rule
26 of the Code will be made available, subject to certain restrictions
relating to persons resident in Restricted Jurisdictions, on Bidco's website
at
https://www.mars.com/news-and-stories/press-releases-statements/recommended-acquisition-of-hotel-chocolat-group-plc
(https://www.mars.com/news-and-stories/press-releases-statements/recommended-acquisition-of-hotel-chocolat-group-plc)
by no later than 12 noon (London time) on the Business Day following
publication of this announcement. For the avoidance of doubt, the contents of
any websites referred to in this announcement are not incorporated into and do
not form part of this announcement.
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