TIDMFIF
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
RECOMMED 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 GBP143.4
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 .
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
RECOMMED 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 GBP143.4 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 GBP413 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 GBP315.3m to GBP413.7m 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 89.0 p 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 89.9 p
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 GBP413.7m, 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 GBP21.4 million (2022: GBP20.6 million)
as at 1 July 2023, which does not include a new invoice financing facility of which GBP4.9m
was drawn at year end; and
-- the Finsbury Group expects to report increased non-recurring costs of GBP3.1m in the financial
year ended 1 July 2023, including estimated litigation costs of GBP2.0m of which GBP1.8m 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 p articipants 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 .
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.
APPIX 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.
APPIX 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.
APPIX 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 Number of Finsbury Percentage of the Percentage of all Election for Cash
Shareholder Shares issued Scheme Shares issued Finsbury Offer or Alternative
Shares 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 Percentage of all issued
Scheme Shares 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.
APPIX 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 GBP0.01 each ("Bidco A Shares") and
one class of B ordinary shares with a nominal value of GBP0.01 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.
APPIX 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 the board of directors of Bidco
Directors" 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 GBP0.01 each
in the capital of Bidco
"Bidco B Shares" B ordinary shares of GBP0.01 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
"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 the board of Finsbury as at the
Directors" 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)
"GBP" 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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END
OUPPPUUPBUPWUUU
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