Rule 2.10(c) Announcement

DBAY Advisors Limited

11 October 2023

 

DISCLOSURE UNDER RULE 2.10(c) OF THE CITY CODE ON TAKEOVERS AND MERGERS (THE "CODE")

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.

11 October 2023

RECOMMENDED ACQUISITION

of

FINSBURY FOOD GROUP PLC

by

FRISBEE BIDCO LIMITED

to be effected by means of a scheme of arrangement
under Part 26 of the Companies Act 2006

Update on the letter of intent given by Investec Wealth & Investment Limited

DISCLOSURE UNDER RULE 2.10(C) OF THE CODE 

On 20 September 2023, the boards of Frisbee Bidco Limited ("Bidco") and Finsbury Food Group plc ("Finsbury") announced pursuant to Rule 2.7 of the Takeover Code (the "Rule 2.7 Announcement") that they had 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")) which would be effected by means of a scheme of arrangement under Part 26 of the Companies Act between Finsbury and Finsbury Shareholders. The Scheme Document was published on 2 October 2023.

Capitalised terms used in this announcement, unless otherwise defined, shall have the meanings given to them in the Rule 2.7 Announcement.

As set out in the Rule 2.7 Announcement, Bidco received a letter of intent (the "Investec Wealth Letter of Intent") from Investec Wealth & Management Limited ("Investec Wealth") 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 was 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.

As notified by Rathbones Group plc (being the ultimate controlling person of Investec Wealth) on 6 October 2023 pursuant to Rule 8.3 of the Code, on 5 October 2023 Investec Wealth disposed of 7,470,357 Finsbury Shares, representing approximately 5.7 per cent of the issued share capital of Finsbury as at the close of business on 5 October 2023.  In view of Investec Wealth's stated intentions set out in the Investec Wealth Letter of Intent, Investec Wealth ensured that the 7,470,357 Finsbury shares were sold to DBAY.

Investec Wealth has advised Bidco that it subsequently disposed of a further 18,844 Finsbury Shares on 6 October 2023 and that, on 11 October 2023, Investec Wealth sold to DBAY the remaining 4,215,250 Finsbury Shares subject to the Investec Wealth Letter of Intent (being, together with the 7,470,357 and 18,844 Finsbury Shares previously sold by Investec Wealth, the "Sold Shares").

Accordingly, the Investec Wealth Letter of Intent has ceased to apply in respect of the Sold Shares. Investec Wealth has indicated that the disposal of the Sold Shares was in order to ensure ongoing inheritance tax (IHT) relief for its underlying investors.

On this basis, the total number of Finsbury Shares which are subject to irrevocable undertakings received by Bidco from Finsbury Shareholders has reduced to 4,364,648 Finsbury Shares, representing approximately 3.3 per cent of the issued share capital of Finsbury.

This announcement has been made with the consent of Investec Wealth.

Enquiries:

Bidco/DBAY Advisors Limited	Tel: [phone]
Mike Haxby
Investec Bank plc (Financial adviser to Bidco/DBAY)	Tel: [phone]
Gary Clarence Harry Hargreaves

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 12 October 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.

 

END