TIDMSUH
RNS Number : 3807X
FB Investors LLP
23 November 2017
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 OF
SUCH JURISDICTION.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION.
23 November 2017
RECOMMED PARTIAL CASH OFFER
by
FB Investors LLP
for up to 67,393,960 ordinary shares, representing 70 per cent.
of the issued share capital, of
Sutton Harbour Holdings plc
and
PROPOSED SHARE SUBSCRIPTION
Summary
-- The members of the FB Investors Executive Committee and the
SHH Directors are pleased to announce that they have reached
agreement on the terms of a recommended partial cash offer to be
made by FB Investors to acquire up to 67,393,960 SHH Shares,
representing 70 per cent. of the issued ordinary shares in the
capital of SHH (the "Partial Offer") by way of a contractual offer
under the Takeover Code.
-- Under the terms of the Partial Offer, accepting SHH
Shareholders will receive 29.5 pence in cash for each SHH Share
sold by them pursuant to the Partial Offer.
-- The Offer Price represents a premium of approximately:
-- 13.46 per cent. to the Closing Price per SHH Share of 26
pence on 20 April 2016 (being the last Business Day prior to the
start of the Offer Period);
-- 12.38 per cent. to the Closing Price per SHH Share of 26.25
pence on 22 November 2017 (being the last Business Day prior to the
date of this Announcement); and
-- 6.51 per cent. to the average Closing Price per SHH Share of
approximately 27.70 pence for the period from 21 April 2016 (being
the date on which the Offer Period commenced) to 22 November 2017
(being the last Business Day prior to the date of this
Announcement).
-- The Partial Offer values (i) the entire issued ordinary share
capital of SHH at approximately GBP28.40 million and (ii) the SHH
Shares subject to the Partial Offer at approximately GBP19.88
million.
-- The Partial Offer will provide those SHH Shareholders who
accept (or procure the acceptance of) the Partial Offer the
opportunity to exit at 29.5 pence in cash in respect of 70 per
cent. of their shareholding.
-- The Partial Offer will also provide those SHH Shareholders
who accept (or procure the acceptance of) the Partial Offer the
opportunity to exit at 29.5 pence in cash in respect of more than
70 per cent. of their shareholding to the extent that other SHH
Shareholders accept for less than this amount (although acceptances
in respect of more than 70 per cent. of a SHH Shareholder's SHH
Shares may be subject to scaling down as set out in paragraph 2 of
the full text of this Announcement). Furthermore, the Partial Offer
will provide those SHH Shareholders who do not wish to accept the
Partial Offer in respect of all, some or any of their SHH Shares to
retain an ongoing equity interest in SHH.
-- In connection with the Partial Offer, FB Investors and SHH
have entered into a conditional subscription agreement pursuant to
which FB Investors has agreed to subscribe for 9,322,034 new SHH
Shares (the "Subscription Shares") at a price of 29.5 pence per
Subscription Share, being equal to the Offer Price (the "Share
Subscription"). The Share Subscription is conditional upon (i) the
Partial Offer becoming, or being declared, wholly unconditional in
accordance with its terms and (ii) SHH Shareholders approving at
the SHH General Meeting the Resolutions necessary to grant the SHH
Directors sufficient authorities to issue the Subscription Shares
pursuant to the Share Subscription Agreement.
-- The Share Subscription, assuming it is approved by SHH
Shareholders, will provide SHH with proceeds equal to GBP2.75
million. Approximately GBP2 million of such proceeds would be
applied to assist SHH in pursuing the potential development of
Sugar House directly and without contracting this to a third party
developer; the remaining proceeds would be used as additional
working capital and assist with the payment of the costs which SHH
has incurred in connection with the Formal Sale Process.
-- If valid acceptances are received in respect of all of the
67,393,960 SHH Shares which are the subject of the Partial Offer
and the Share Subscription completes in accordance with the terms
of the Share Subscription Agreement, FB Investors would hold
76,715,994 SHH Shares, representing, in aggregate, approximately
72.65 per cent. of the enlarged issued ordinary share capital of
SHH following completion of the Partial Offer and the Share
Subscription.
-- FB Investors will finance the Partial Offer and the Share
Subscription from its existing cash resources.
-- The Partial Offer is conditional upon, amongst other things:
-- FB Investors receiving valid acceptances (which have not been
validly withdrawn) in respect of, and/or having otherwise acquired,
or agreed to acquire, at least 55,840,710 SHH Shares, representing
58 per cent. of the SHH Shares in issue as at 22 November 2017
(being the last Business Day prior to the date of this
Announcement); and
-- SHH Shareholders holding shares carrying over 50 per cent. of
the voting rights of SHH approving the Partial Offer.
The acceptance condition and the approval condition are expected
to be satisfied pursuant to, and in accordance with, the terms of
the irrevocable undertakings.
-- FB Investors intends to maintain SHH's admission to trading
on AIM, and has further agreed not to vote in relation to any
resolution put to SHH Shareholders to cancel its admission to
trading on AIM pursuant to Rule 41 of the AIM Rules for a minimum
period of two years following the Partial Offer becoming, or being
declared, wholly unconditional in accordance with its terms unless
such resolution is recommended by those members of the Board not
appointed by FB Investors pursuant to the Relationship
Agreement.
-- FB Investors is an English limited liability partnership
which was incorporated on 13 November 2017. The members of FB
Investors are Beinhaker Design Services and 1895 Management
Holdings Company. Beinhaker Design Services is a family investment
company of Philip Beinhaker's family and was incorporated on 29 May
2015. Philip Beinhaker is chairman of Beinhaker Design Services and
Corey Beinhaker and Joshua Mishkin are executives of Beinhaker
Design Services. The share capital of Beinhaker Design Services is
held by Corey Beinhaker. 1895 Management Holdings Company is an
investment holding company wholly-owned by Albert Friedberg which
was incorporated on 29 September 2016 in Nova Scotia. Albert
Friedberg and Dan Scheiner are the only directors and officers of
1895 Management Holdings Company.
-- SHH is an award-winning waterfront regeneration specialist,
based in Plymouth on the South Coast of England. Plymouth promotes
itself as "Britain's Ocean City" and has a heritage going back more
than 500 years. The area of Sutton Harbour remains one of the
city's oldest quarters and a popular place to visit. The SHH Group
operates in the following four business areas: marine and
fisheries, car parking, real estate and regeneration. During the
financial year ended 31 March 2017, SHH employed an average of 33
people, had annual turnover of GBP6.7 million and made a profit
before tax of GBP53,063. SHH has been admitted to trading on AIM
since 1996.
-- The SHH Directors, who have been so advised by Rothschild as
to the financial terms of the Partial Offer, consider the terms of
the Partial Offer to be fair and reasonable. In providing its
advice to the SHH Directors, Rothschild has taken into account the
commercial assessments of the SHH Directors.
-- Accordingly, the SHH Directors intend to recommend
unanimously that SHH Shareholders accept (or procure the acceptance
of) and approve (or procure the approval of) the Partial Offer. The
SHH Directors also intend to recommend unanimously that SHH
Shareholders vote (or procure the vote) in favour of the
Resolutions to enable the Share Subscription to proceed at the SHH
General Meeting to be convened in due course.
-- The SHH Directors have entered into irrevocable undertakings
to (i) accept (or procure the acceptance of) the Partial Offer at
the Offer Price, (ii) approve (or procure the approval of) the
Partial Offer and (iii) vote (or procure the vote) in favour of the
Resolutions at the SHH General Meeting, in each case in respect of
all of the SHH Shares in which they, or members of their immediate
families, related trusts and any other persons whose interests in
securities the SHH Directors are deemed to be interested in
pursuant to Part 22 of the Companies Act 2006, have a beneficial
interest, which, in aggregate, represent approximately 0.30 per
cent. of the SHH Shares in issue on 22 November 2017 (being the
last Business Day prior to the date of this Announcement), in each
case conditional upon (amongst other things) the Offer Document
being published before midnight (London time) on 21 December
2017.
-- In addition, each of Crystal Amber Fund Limited, Rotolok
(Holdings) Limited and Dan McCauley have entered into irrevocable
undertakings to (i) accept (or procure the acceptance of) the
Partial Offer at the Offer Price, (ii) approve (or procure the
approval of) the Partial Offer and (iii) vote (or procure the vote)
in favour of the Resolutions at the SHH General Meeting, in each
case in respect of all of the SHH Shares in which they are
interested, which, in aggregate, represent approximately 58.07 per
cent. of the SHH Shares in issue on 22 November 2017 (being the
last Business Day prior to the date of this Announcement), in each
case conditional upon (amongst other things) the Offer Document
being published before midnight (London time) on 21 December
2017.
-- FB Investors has therefore received irrevocable undertakings
to (i) accept (or procure the acceptance of) the Partial Offer at
the Offer Price, (ii) approve (or procure approval of) the Partial
Offer and (iii) vote (or procure the vote) in favour of the
Resolutions at the SHH General Meeting, in each case in respect of
a total of 56,194,768 SHH Shares, representing, in aggregate,
approximately 58.37 per cent. of the issued share capital of SHH as
at 22 November 2017 (being the last Business Day prior to the date
of this Announcement).
-- Further details of these irrevocable undertakings are set out
in Appendix III to this Announcement.
-- FB Investors reserves the right to make an equivalent
reduction in the Offer Price if SHH announces, declares or pays any
dividend or makes any other distribution to SHH Shareholders on or
after the date of this Announcement although, in such
circumstances, SHH Shareholders would be entitled to retain any
such dividend or other distribution paid or made.
This summary should be read in conjunction with, and is subject
to, the following full text of this Announcement and the
Appendices.
Commenting on the Partial Offer, Graham Miller, Chairman of SHH,
said: "SHH's operating businesses have performed steadily over
recent years and the SHH Board has continued to explore
opportunities for unlocking value in our various development sites.
However, the SHH Group has been constrained by its capital
structure and, as we announced on 21 April 2016, we have been
undertaking a strategic review, incorporating a formal sale
process, to assess all options to optimise value for SHH
Shareholders including a potential sale of the Company.
"The Partial Offer proposed by FB Investors affords SHH
Shareholders the opportunity to realise in cash a significant
proportion of their investment in the Company at a premium to the
prevailing market price of the SHH Shares, while allowing SHH
Shareholders to retain a continued interest in the SHH Group which
will benefit from the members of FB Investors' longstanding track
record of value creation in the property sector. FB Investors also
intends to provide an immediate capital injection to underpin the
future prospects for the SHH Group via the Share Subscription."
Commenting on the Partial Offer, Jason Schofield, Chief
Executive Officer of SHH, said:
"SHH is leading the regeneration of Plymouth's waterfront, with
prestigious mixed-use developments created alongside the 5 Gold
Anchor Sutton Harbour Marina.
"With the assistance and investment of FB Investors, we will
seek to continue to deliver the SHH Group's vision for the area in
and around Sutton Harbour, with the aim of establishing Sutton
Harbour as a leading waterfront destination in the UK. We are
delighted that FB Investors also supports the management team's
vision for the former airport site at Plym Vale and will support
their long-term aspiration to develop it."
Commenting on the Partial Offer, Philip Beinhaker of FB
Investors, said:
"We are delighted to have received the unanimous recommendation
of the board of Sutton Harbour Holdings plc to the Partial Offer
and Share Subscription, and to have secured the full support of
SHH's major shareholders. FB Investors has acquired a good
understanding of the local housing market in Plymouth and is
enthused by the regeneration potential of SHH's inventory and the
opportunities for further enhancement of its existing operating
assets, including the marinas, fisheries and surrounding real
estate assets with potential for redevelopment. FB Investors
believes that with its track record in property development it can
enhance significantly SHH's ability to create value from its assets
and looks forward to working with SHH's existing management team to
create value for all SHH's shareholders."
The Partial Offer will be subject to the Conditions and certain
further terms of the Partial Offer set out in Appendix I to this
Announcement and the full terms and conditions to be set out in the
Offer Document. Appendix II to this Announcement sets out the
sources of information and bases of calculations used in this
Announcement. Appendix III to this Announcement contains details of
the irrevocable undertakings given by the SHH Directors and certain
other SHH Shareholders. Appendix IV to this Announcement contains
the definitions of certain terms used in this summary and in the
full text of this Announcement.
The Offer Document, together with a Form of Acceptance, a Form
of Approval and a Form of Proxy, will be posted to SHH Shareholders
as soon as practicable and in any event within 28 days from the
date of this Announcement, unless otherwise agreed with the Panel,
other than to certain Overseas SHH Shareholders in a Restricted
Jurisdiction in the circumstances permitted under the Takeover Code
or in accordance with any dispensation given by the Panel. The
Offer Document, the Form of Acceptance, the Form of Approval and
the Form of Proxy will be made available, subject to certain access
restrictions in respect of Overseas SHH Shareholders, on SHH's
website at www.suttonharbourholdings.co.uk and FB Investors'
website at www.fbllp.co.uk.
The full terms of, and conditions to, the Partial Offer will be
set out in the Offer Document and the Form of Acceptance. In
deciding whether or not to accept and/or approve the Partial Offer,
SHH Shareholders should rely solely on the information contained
in, and follow the procedures set out in, the Offer Document, the
Form of Acceptance and the Form of Approval.
Enquiries:
FB Investors LLP via WH Ireland Limited
Philip Beinhaker
WH Ireland Limited
(Financial adviser to FB
Investors)
Mike Coe / Ed Allsopp 0117 945 3472
Sutton Harbour Holdings plc
Graham Miller, Chairman
Jason Schofield, Chief Executive
Officer 01752 204 186
Rothschild
(Financial adviser to Sutton
Harbour Holdings plc)
John Byrne / Andrew Graham
/ Tom Palmer 0207 280 5000
Arden Partners plc (Nominated
Adviser to Sutton Harbour
Holdings plc)
John Llewellyn-Lloyd / Benjamin
Cryer 0207 614 5900
DCA (Financial PR to Sutton
Harbour Holdings plc)
Philip Ranger 07768 534 641
WH Ireland Limited ("WH Ireland"), which is authorised and
regulated in the United Kingdom by the Financial Conduct Authority,
is acting exclusively as financial adviser to FB Investors and
no-one else in connection with the Partial Offer and other matters
described in this Announcement, and will not be responsible to
anyone other than FB Investors for providing the protections
afforded to clients of WH Ireland or for providing advice in
relation to the Partial Offer, the contents of this Announcement or
any other matter referred to in this Announcement. WH Ireland has
given, and not withdrawn, its consent to the inclusion in the
Announcement of the references to its name in the form and context
in which it appears.
N. M. Rothschild & Sons Limited ("Rothschild"), which is
authorised and regulated in the United Kingdom by the Financial
Conduct Authority, is acting exclusively as financial adviser to
SHH and no-one else in connection with the Partial Offer and other
matters described in this Announcement, and will not be responsible
to anyone other than SHH for providing the protections afforded to
clients of Rothschild or for providing advice in relation to the
Partial Offer, the contents of this Announcement or any other
matter referred to herein. Rothschild has given, and not withdrawn,
its consent to the inclusion in the Announcement of the references
to its name and the advice it has given to SHH in the form and
context in which they appear.
Arden Partners plc ("Arden Partners"), which is authorised and
regulated in the United Kingdom by the Financial Conduct Authority,
is acting exclusively as nominated adviser to SHH and no-one else
in connection with the Partial Offer and other matters described in
this Announcement, and will not be responsible to anyone other than
SHH for providing the protections afforded to clients of Arden
Partners or for providing advice in relation to the Partial Offer,
the contents of this Announcement or any other matter referred to
herein. Arden Partners has given, and not withdrawn, its consent to
the inclusion in the Announcement of the references to its name in
the form and context in which it appears.
Further information
THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND IS NOT
INTED TO, AND DOES NOT, CONSTITUTE OR FORM ANY PART OF, AN OFFER TO
SELL OR AN INVITATION TO SUBSCRIBE FOR OR PURCHASE ANY SECURITIES
OR THE SOLICITATION OF ANY VOTE OR APPROVAL IN ANY JURISDICTION,
NOR SHALL THERE BE ANY SALE, ISSUANCE OR TRANSFER OF THE SECURITIES
REFERRED TO IN THIS ANNOUNCEMENT IN ANY JURISDICTION IN
CONTRAVENTION OF APPLICABLE LAW. THE PARTIAL OFFER WILL BE MADE
SOLELY BY MEANS OF THE OFFER DOCUMENT, WHICH WILL CONTAIN THE FULL
TERMS AND CONDITIONS OF THE PARTIAL OFFER, AND, IN THE CASE OF SHH
SHARES HELD IN CERTIFICATED FORM, THE FORM OF ACCEPTANCE. ANY
DECISION, ACCEPTANCE OR APPROVAL IN RELATION TO THE PARTIAL OFFER
SHOULD BE MADE ONLY ON THE BASIS OF THE INFORMATION CONTAINED IN
THE OFFER DOCUMENT AND THE FORM OF ACCEPTANCE (IF APPLICABLE). SHH
SHAREHOLDERS ARE ADVISED TO READ CAREFULLY THE OFFER DOCUMENT AND
THE FORM OF ACCEPTANCE (IF APPLICABLE), ONCE THEY HAVE BEEN
DISPATCHED.
Forward looking statements
This Announcement contains certain statements that are, or may
be deemed to be, forward looking with respect to the financial
condition, results of operation(s) and business of FB Investors or
SHH and certain plans and objectives of the SHH Directors and the
FB Investors Executive Committee with respect thereto. These
forward looking statements can be identified by the fact that they
are prospective in nature and do not relate to historical or
current facts. Forward looking statements often, but not always,
use words such as "anticipate", "target", "expect", "estimate",
"budget", "scheduled", "forecasts", "intend", "plan", "goal",
"believe", "will", "may", "should", "would", "could" or other words
of a similar meaning. These estimates are based on assumptions and
assessments made by the SHH Directors and/or the FB Investors
Executive Committee in light of their experience and their
perception of historical trends, current conditions, expected
future developments and other factors they believe appropriate.
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 publication of this Announcement shall not
give rise to any implication that there has been no change in the
facts set forth in this Announcement since such date. 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 or developments to differ materially from those
expressed or implied by such forward looking statements. Although
the SHH Directors and the FB Investors Executive Committee believe
that the expectations reflected in such forward looking statements
are reasonable, neither FB Investors nor SHH, nor any of their
respective associates or directors, executive committee members,
officers or advisers, or any person acting on the behalf of FB
Investors or SHH provides any representation, assurance or
guarantee that the occurrence of the events expressed or implied in
any forward looking statements in this Announcement will actually
occur. Other than in accordance with their legal or regulatory
obligations (including under the AIM Rules, the Disclosure Guidance
and Transparency Rules and MAR), none of FB Investors, SHH, any
member of the FB Investors Group, any member of the SHH Group, nor
any member of the FB Investors Executive Committee nor any SHH
Director, nor any of their respective advisers, associates,
directors, executive committee members or officers is under any
obligation, and such persons expressly disclaim any intention or
obligation, to update or revise any forward looking statements,
whether as a result of new information, future events or otherwise.
No undue reliance should therefore be placed on these forward
looking statements which speak only as at the date of this
Announcement.
Disclosure requirements of the Takeover Code
Under Rule 8.3(a) of the Takeover Code, any person who is
interested in one per cent. or more of any class of relevant
securities of an offeree company or of any securities exchange
offeror (being any offeror other than an offeror in respect of
which it has been announced that its offer is, or is likely to be,
solely in cash) must make an Opening Position Disclosure following
the commencement of the offer period and, if later, following the
announcement in which any securities exchange offeror is first
identified.
An Opening Position Disclosure must contain details of the
person's interests and short positions in, and rights to subscribe
for, any relevant securities of each of: (i) the offeree company;
and (ii) any securities exchange offeror(s). An Opening Position
Disclosure by a person to whom Rule 8.3(a) of the Takeover Code
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 and, if appropriate, by no later than 3.30 p.m. (London
time) on the 10th Business Day following the announcement in which
any securities exchange offeror is first identified. Relevant
persons who deal in the relevant securities of the offeree company
or of a securities exchange offeror prior to the deadline for
making an Opening Position Disclosure must instead make a Dealing
Disclosure.
Under Rule 8.3(b) of the Takeover Code, any person who is, or
becomes, interested in one per cent. or more of any class of
relevant securities of the offeree company or of any securities
exchange offeror must make a Dealing Disclosure if the person deals
in any relevant securities of the offeree company or of any
securities exchange offeror. A Dealing Disclosure must contain
details of the dealing concerned and of the person's interests and
short positions in, and rights to subscribe for, any relevant
securities of each of: (i) the offeree company; and (ii) any
securities exchange offeror(s), except to the extent that these
details have previously been disclosed under Rule 8 of the Takeover
Code. A Dealing Disclosure by a person to whom Rule 8.3(b) of the
Takeover Code 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 or a
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3 of the Takeover Code.
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 Takeover 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.
Information relating to SHH Shareholders
Please be aware that addresses, electronic addresses and certain
information provided by SHH Shareholders, persons with information
rights and other relevant persons in connection with the receipt of
communications from SHH may be provided to FB Investors during the
Offer Period as required under Section 4 of Appendix 4 of the
Takeover Code.
Rule 2.9 Disclosure
In accordance with Rule 2.9 of the Takeover Code, SHH confirms
that, as at the date of this Announcement, it has 96,277,086
ordinary shares of 1p each in issue and admitted to trading on AIM,
a market operated by the London Stock Exchange under ISIN
GB0008659202.
Publication of this Announcement and availability of hard
copies
A copy of this Announcement and the display documents required
to be published pursuant to Rule 26.1 and Rule 26.2 of the Takeover
Code will be available, subject to certain restrictions relating to
persons resident in Restricted Jurisdictions, on SHH's website at
www.suttonharbourholdings.co.uk and on FB Investors' website at
www.fbllp.co.uk by no later than 12 noon on the Business Day
following the date of this Announcement until the end of the Offer
Period.
Neither the content of FB Investors' nor SHH's websites nor the
content of any websites accessible from hyperlinks on such websites
(or any other websites) are incorporated into, or form part of,
this Announcement nor, unless previously published by means of a
Regulatory Information Service, should any such content be relied
upon in reaching a decision regarding the matters referred to in
this Announcement.
In addition, a hard copy of this Announcement and any
information incorporated by reference in this Announcement may be
requested free of charge by contacting the Receiving Agent, Neville
Registrars Limited on +44 (0)121 585 1131.
SHH Shareholders may also request that all future documents,
announcements and information to be sent to them in relation to the
Partial Offer should be in hard copy form.
The Partial Offer is subject to the provisions of the Takeover
Code.
Profit forecasts or estimates
No statement in this Announcement is intended as a profit
forecast, projection or estimate for any period and no statement in
this Announcement should be interpreted to mean that earnings or
earnings per share for SHH for the current or future financial
years would necessarily match or exceed the historical published
earnings or earnings per share for SHH.
SHH Shareholders outside the United Kingdom
The availability of the Partial Offer and the release,
publication and distribution of this Announcement in jurisdictions
other than the United Kingdom may be restricted by the laws of
those jurisdictions and therefore persons who are not resident in
the United Kingdom into whose possession this Announcement comes
should inform themselves about and observe any such
restrictions.
Failure to comply with any such 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 Partial Offer disclaim any responsibility
or liability for the violation of such restrictions by any person.
Accordingly, copies of this Announcement, the Offer Document, the
Form of Acceptance, the Form of Approval, the Form of Proxy and/or
any other related document will not be, and must not be, directly
or indirectly, mailed or otherwise distributed or sent in or into
any Restricted Jurisdiction and persons in such Restricted
Jurisdictions receiving such documents (including custodians,
nominees and trustees) must not distribute or send them in, into or
from such jurisdictions as doing so may violate the laws of such
jurisdictions and may make invalid any purported acceptance or
approval of the Partial Offer by persons in any such Restricted
Jurisdiction.
The receipt of cash pursuant to the Partial Offer by SHH
Shareholders may be a taxable transaction under applicable
national, state or local, as well as foreign and other, tax laws.
Each SHH Shareholder is urged to consult its independent
professional adviser regarding the tax consequences of accepting
the Partial Offer.
This Announcement has been prepared for the purpose of complying
with English law, the rules of the London Stock Exchange, the AIM
Rules and the Takeover 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.
The Partial Offer will not be made, directly or indirectly, in
or into, or by use of the mails, or by any means or instrumentality
(including, without limitation, by means of telephone, facsimile,
telex, internet or other forms of electronic communication) of
interstate or foreign commerce of, or any facilities of a
securities exchange of the United States, Canada, Australia, New
Zealand, Japan, the Republic of South Africa or any other
Restricted Jurisdiction and the Partial Offer will not be capable
of acceptance by any such use, means, instrumentality or facility
or from within any Restricted Jurisdiction. Accordingly, copies of
this Announcement and any other related document will not be, and
must not be, directly or indirectly, mailed or otherwise
distributed or sent in or into the United States, Canada,
Australia, New Zealand, Japan, South Africa or any other Restricted
Jurisdiction and persons receiving such documents (including
custodians, nominees and trustees) must not distribute or send them
in, into or from such jurisdictions as doing so may violate the
laws of such jurisdictions and may make invalid any purported
acceptance of the Partial Offer by persons in any such
jurisdiction.
No representations
No person has been authorised to make any representations on
behalf of FB Investors or SHH concerning the Partial Offer or SHH
General Meeting which are inconsistent with the statements
contained in this Announcement and any such representations, if
made, may not be relied upon as having been so authorised. No
person should construe the contents of this Announcement as legal,
financial or tax advice and recipients of this Announcement should
consult their own advisers in connection with the matters contained
herein.
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.
Inside information and Market Abuse Regulation ("MAR")
Certain SHH Shareholders were, with the consent of the Panel,
formally brought inside in order to discuss entering into
irrevocable undertakings. That inside information is set out in
this Announcement and has been disclosed as soon as possible in
accordance with paragraph 7 of article 17 of MAR. Therefore, those
persons that received inside information are no longer in
possession of inside information relating to SHH and its
securities.
The person responsible for arranging release of this
Announcement on behalf of FB Investors is Philip Beinhaker. The
persons responsible for arranging release of this Announcement on
behalf of SHH are Jason Schofield and Natasha Gadsdon.
Status of Announcement
This Announcement does not constitute a prospectus or prospectus
equivalent document.
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 OF
SUCH JURISDICTION.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION.
23 November 2017
RECOMMED PARTIAL CASH OFFER
by
FB Investors LLP
for up to 67,393,960 ordinary shares, representing 70 per cent.
of the issued ordinary share capital, of
Sutton Harbour Holdings plc
and
PROPOSED SHARE SUBSCRIPTION
1. Introduction
The members of the FB Investors Executive Committee and the SHH
Directors are pleased to announce that they have reached agreement
on the terms of a recommended partial cash offer to be made by FB
Investors to acquire up to 67,393,960 SHH Shares, representing 70
per cent. of the issued ordinary share capital of SHH (the "Partial
Offer").
In addition, the FB Investors Executive Committee and SHH
Directors have agreed the terms on which FB Investors will make a
conditional subscription for 9,322,034 new SHH Shares (the
"Subscription Shares"), representing 8.83 per cent. of the enlarged
issued ordinary share capital of SHH following completion of the
Share Subscription and the Partial Offer, at a price of 29.5 pence
per Subscription Share, being the Offer Price (the "Share
Subscription").
The Offer Document, the Form of Acceptance and the Form of
Approval in connection with the Partial Offer, and the Form of
Proxy for use at the SHH General Meeting to be convened in
connection with the passing of the Resolutions required in
connection with the Share Subscription, will be posted to SHH
Shareholders as soon as reasonably practicable and, in any event,
within 28 days after the date of this Announcement, other than to
Overseas SHH Shareholders in the circumstances permitted under the
Takeover Code or in accordance with any dispensation given by the
Panel.
2. The Partial Offer
It is intended that the Partial Offer be implemented by means of
a contractual offer under the Takeover Code.
The Partial Offer, which will be subject to the terms and
conditions set out in Appendix I to this Announcement and to the
full terms and conditions to be set out in the Offer Document and
the Form of Acceptance (if applicable), will be made on the
following basis:
29.5 pence in cash
for each SHH Share to be sold pursuant to the Partial Offer
The Partial Offer values (i) the entire issued share capital of
SHH at approximately GBP28.40 million and (ii) the SHH Shares
subject to the Partial Offer at approximately GBP19.88 million.
The Offer Price represents a premium of approximately:
-- 13.46 per cent. to the Closing Price per SHH Share of 26
pence on 20 April 2016 (being the last Business Day prior to the
start of the Offer Period);
-- 12.38 per cent. to the Closing Price per SHH Share of 26.25
pence on 22 November 2017 (being the last Business Day prior to the
date of this Announcement); and
-- 6.51 per cent. to the average Closing Price per SHH Share of
approximately 27.70 pence for the period from 21 April 2016 (being
the date on which the Offer Period commenced) to 22 November 2017
(being the last Business Day prior to the date of this
Announcement).
SHH Shareholders may accept (or procure the acceptance of) the
Partial Offer in respect of any number of the SHH Shares held by
them on the Record Date or none at all. Subject to the Partial
Offer becoming, or being declared, unconditional in all
respects:
i) if SHH Shareholders accept (or procure the acceptance of) the
Partial Offer in respect of 70 per cent. or less of their
registered holdings, then their acceptances will be met in
full;
ii) if SHH Shareholders accept (or procure the acceptance of)
the Partial Offer in respect of more than 70 per cent. of their
registered holdings and the total acceptances received from all SHH
Shareholders are in respect of 67,393,960 or fewer SHH Shares, then
their acceptances will be met in full; and
iii) if SHH Shareholders accept (or procure the acceptance of)
the Partial Offer in respect of more than 70 per cent. of their
registered holdings and the total acceptances received from all SHH
Shareholders are in respect of more than 67,393,960 SHH Shares,
each such SHH Shareholder would have their acceptances in excess of
70 per cent. scaled down in the same proportion to the total number
of SHH Shares tendered to the extent necessary to enable FB
Investors to acquire 67,393,960 SHH Shares.
In the event that scaling down, as described above, is required
in respect of any accepting SHH Shareholders, FB Investors will
make an announcement stating the basis of such scaling down by 9.00
a.m. on the second Business Day following the closing of the
Partial Offer.
In the event that the Partial Offer becomes, or is declared,
unconditional in all respects, FB Investors will hold SHH Shares
carrying more than 50 per cent. of the voting rights of SHH and FB
Investors will be free (subject to Rule 36.3 of the Takeover Code
as described immediately below) to acquire further SHH Shares
without incurring any obligation under Rule 9 of the Takeover Code
to make a general offer.
Following a successful partial offer, Rule 36.3 of the Takeover
Code prevents the Offeror and any person acting in concert with it
from acquiring any interest in the shares of SHH during a period of
12 months after the end of the Offer Period without the consent of
the Panel.
The Partial Offer will extend to all SHH Shares unconditionally
allotted or issued and fully paid on the date of the Partial Offer
and any additional SHH Shares which are unconditionally allotted or
issued and fully paid whilst the Partial Offer remains open for
acceptance or by such earlier date as FB Investors may decide,
subject to the Takeover Code.
The SHH Shares will be acquired pursuant to the Partial Offer
fully paid and free from all liens, charges, equitable interests,
encumbrances, rights of pre-emption and any other interests of any
nature whatsoever and together with all rights attaching to
them.
FB Investors reserves the right to make an equivalent reduction
in the Offer Price if SHH announces, declares or pays any dividend
or makes any other distribution to SHH Shareholders on or after the
date of this Announcement although, in such circumstances, SHH
Shareholders would be entitled to retain any such dividend or other
distribution made or paid.
The Partial Offer is conditional upon, amongst other things:
-- FB Investors receiving valid acceptances (which have not been
validly withdrawn) in respect of, and/or having otherwise acquired,
or agreed to acquire, at least 55,840,710 SHH Shares (representing
58 per cent. of the SHH Shares in issue as at 22 November 2017
(being the last Business Day prior to the date of this
Announcement)); and
-- SHH Shareholders holding shares carrying over 50 per cent. of
the voting rights of SHH approving the Partial Offer.
The acceptance condition and the approval condition are both
expected to be satisfied pursuant to, and in accordance with, the
terms of the irrevocable undertakings, as described in paragraph 7
below.
Under Rule 36.5 of the Takeover Code, approval of the Partial
Offer by SHH Shareholders is required and the Partial Offer will
therefore be conditional upon such approval being obtained. For
this condition to be satisfied, SHH Shareholders, who are
independent of FB Investors and persons acting in concert with FB
Investors, and represent more than 50 per cent. of the voting
rights in SHH must give their approval (via the Form of Approval)
to the Partial Offer. If such approval is not obtained, the Partial
Offer will lapse. All SHH Shareholders who approve the Partial
Offer (whether or not they wish to accept the Partial Offer and
whether they hold their SHH Shares in certificated or
uncertificated form) should therefore complete and return the Form
of Approval (once received by them) in accordance with the
procedures set out in the Offer Document and paragraph 16
below.
3. The Share Subscription
In connection with the Partial Offer, FB Investors and SHH have
entered into a conditional subscription agreement pursuant to which
FB Investors has agreed to subscribe for 9,322,034 new SHH Shares
(the "Subscription Shares") at a price of 29.5 pence per
Subscription Share, being the Offer Price. If valid acceptances are
received in respect of all of the 67,393,960 SHH Shares which are
the subject of the Partial Offer and the Share Subscription
completes in accordance with the terms of the Share Subscription
Agreement, FB Investors would hold 76,715,994 SHH Shares,
representing, in aggregate, approximately 72.65 per cent. of the
enlarged issued ordinary share capital of SHH following completion
of the Share Subscription and the Partial Offer.
The Share Subscription is conditional upon (i) the Partial Offer
becoming, or being declared, wholly unconditional in accordance
with its terms and (ii) SHH Shareholders approving at the SHH
General Meeting the Resolutions necessary to grant the SHH
Directors sufficient authorities to issue the Subscription
Shares.
The Share Subscription will provide SHH with proceeds equal to
GBP2.75 million. Please see paragraph 4 below for further details
regarding the Share Subscription, including how the subscription
proceeds would be used by the Company.
In the event that the Share Subscription is not approved, the
Partial Offer will be unaffected. In such circumstances, however,
the SHH Board would need to consider whether and how SHH could
undertake the potential development of Sugar House itself.
4. Background to and reasons for the Partial Offer and the Share Subscription
Partial Offer
FB Investors is very attracted by SHH's existing real estate
asset portfolio and inventory with potential for re-development. FB
Investors has acquired a good understanding of the local housing
market in Plymouth and is enthused by the regeneration potential of
SHH's inventory and the opportunity for further enhancement of the
existing operating assets, including the marinas, fisheries and
surrounding real estate assets. In particular, FB Investors sees
significant value potential in the redevelopment of Sugar House and
shares SHH's vision in relation to redeveloping the former site of
Plymouth City Airport into non-airport, mixed use redevelopment for
the commercial benefit of SHH and its shareholders (subject to
planning approval), with the added benefit to the local community.
FB Investors believes that its members' proven track-record of
delivering high-quality redevelopment projects, coupled with SHH's
talented management team, would deliver compelling benefits to all
of SHH's stakeholders and the wider Plymouth area.
As highly experienced international property developers, FB
Investors' members recognise that SHH's ability to fulfil its
vision of delivering an ambitious, mixed-use development plan will
require the support of the local community and other policy
makers.
FB Investors' offer has been structured as a partial offer under
the Takeover Code to enable SHH Shareholders to:
-- maintain a meaningful stake in SHH of 30 per cent. of their
current shareholding and potentially more than this should they
wish to do so (subject, amongst other things, to sufficient
acceptances being received in aggregate to satisfy the acceptance
condition set out in paragraph (a) of Part A of Appendix I below)
and in either scenario, therefore, share in any future value
creation for SHH under the new majority ownership of FB Investors;
and
-- to exit SHH for cash via the Partial Offer (for at least 70
per cent. of their shareholdings) and/or, subject to market
liquidity at the relevant time, to continue to be able to do so
through subsequent sales of any retained interests in SHH Shares
following completion of the Partial Offer, as FB Investors has
agreed not to vote in relation to any resolution put to SHH
Shareholders to cancel its admission to trading on AIM pursuant to
Rule 41 of the AIM Rules for a minimum period of two years
following the Partial Offer becoming, or being declared, wholly
unconditional in accordance with its terms unless such resolution
is recommended by those members of the Board not appointed by FB
Investors.
Share Subscription
A key part of FB Investors' strategy for fulfilling the
development potential of SHH's core inventory assets will be for
SHH itself to manage the development of Sugar House directly,
rather than pursue SHH's current strategy of engaging a third party
developer to carry out the development opportunity and construction
of the site, which would involve the relevant developer sharing in
the profit arising from the development. Undertaking the
development of Sugar House directly itself would allow SHH to
retain the full amount of additional value created from the
development without sharing the profit with a third party
developer, which FB Investors and the SHH Directors believe will be
to the benefit of all SHH Shareholders.
As part of its assessment of the development potential of Sugar
House, FB Investors has prepared detailed estimates of the
construction values, soft costs and assumed building programme and
revenues which it has discussed and shared with SHH. The soft costs
involved in progressing the development of Sugar House are
estimated to total approximately GBP2 million. In order to provide
SHH with funding for these costs, FB Investors has agreed to
subscribe for additional ordinary share capital pursuant to the
Share Subscription.
FB Investors has also agreed to invest an additional GBP750,000
in SHH to be used as additional working capital and assist with the
payment of the costs which SHH has incurred in connection with the
Formal Sale Process. Again this funding is proposed to be provided
by FB Investors to SHH by way of additional ordinary share capital
pursuant to the Share Subscription.
Therefore, pursuant to the Share Subscription, FB Investors is
proposing to invest GBP2,750,000 in aggregate in SHH in
consideration for the issue of the Subscription Shares at a
subscription price of 29.5 pence per Subscription Share, equal to
the Offer Price.
The Company does not currently have sufficient shareholder
authorities in place to enable the Share Subscription to be
implemented. Therefore, in order to implement the Share
Subscription, the Company intends to convene the SHH General
Meeting to obtain the requisite authorities. The Notice of SHH
General Meeting will be included in the Offer Document, which will
be accompanied by a Form of Proxy and posted to SHH Shareholders
within 28 days of this Announcement.
The Share Subscription is conditional upon (i) the Partial Offer
becoming, or being declared, wholly unconditional in accordance
with its terms and (ii) SHH Shareholders approving at the SHH
General Meeting the Resolutions necessary to grant the SHH
Directors sufficient authorities to issue the Subscription
Shares.
On the assumption that FB Investors acquires 70 per cent. of
SHH's existing issued share capital pursuant to the Partial Offer,
following completion of the Share Subscription, FB Investors will
hold approximately 72.65 per cent. of the enlarged issued share
capital of SHH.
In the event that the Share Subscription is not approved, the
Partial Offer will be unaffected. In such circumstances, however,
the SHH Board would need to consider whether and how SHH could
undertake the potential development of Sugar House itself.
5. Background to and reasons for the recommendation of the SHH Directors
SHH has a vision to create a major waterfront destination where
people can live, work and play, centred around the historic asset
of Sutton Harbour. It is also ideally placed to benefit from the
upcoming festivities in 2020 that will commemorate the 400th
anniversary of the Mayflower setting sail from Plymouth.
The business has made significant operational improvements over
recent years, including capital investments in the operational
businesses to improve financial performance within the current
capital structure of SHH. The SHH Board believes in the long term
vision for Sutton Harbour and the long term value of the various
other development sites such as Sugar House and the former airport
site ("Plym Vale").
However, given the uncertainty surrounding the ability of the
development sites to deliver an economic return over the longer
term and the existing capital structure constraining investment and
dividends, the SHH Board announced a strategic review and formal
sale process on 21 April 2016 to assess all options to generate
value for SHH Shareholders including a potential sale of the
Company.
The Formal Sale Process has been ongoing for more than 18
months, during which time the SHH Board has considered a number of
strategic options. The outcome of this strategic review has
resulted in the SHH Board's announcement today of SHH Directors'
intention to recommend unanimously that SHH Shareholders accept and
approve the Partial Offer and vote in favour of the Resolutions to
enable the Share Subscription to proceed, the details of which are
set out in this Announcement.
The SHH Board believes that FB Investors brings significant
experience in generating value through development projects across
the globe and the Share Subscription will also provide capital to
invest in new and existing development opportunities.
The SHH Directors have carefully considered the Partial Offer,
taking into account the interests of SHH, its shareholders,
employees, customers and other stakeholders. The SHH Directors have
considered, amongst other things, SHH's future prospects, the
commercial benefits of the Partial Offer and the terms of the
Partial Offer as well as the fact that FB Investors has agreed
under the Relationship Agreement not to vote in relation to any
resolution put to SHH Shareholders to cancel its admission to
trading on AIM for a minimum period of two years following the
Partial Offer becoming, or being declared, wholly unconditional in
accordance with its terms unless such resolution is recommended by
those members of the Board not appointed by FB Investors.
The SHH Directors believe that the Partial Offer, which values
each SHH Share at 29.5 pence, represents an opportunity for SHH
Shareholders to realise in cash a significant proportion of their
investment in SHH at an attractive premium, while at the same time
maintaining a substantial economic interest through their residual
shareholding in SHH whose position, the SHH Directors believe,
should be strengthened by the Partial Offer and the Share
Subscription.
6. Recommendation of the Partial Offer and the Share Subscription by SHH Directors
The SHH Directors, who have been so advised by Rothschild as to
the financial terms of the Partial Offer, consider the terms of the
Partial Offer to be fair and reasonable.
In providing advice to the SHH Directors, Rothschild has taken
into account the commercial assessments of the SHH Directors.
Accordingly, the SHH Directors unanimously intend to recommend
that SHH Shareholders:
-- approve (or procure the approval of) the Partial Offer in
respect of their entire holding;
-- accept (or procure the acceptance of) the Partial Offer;
and
-- vote (or procure the vote) in favour of the Resolutions at
the SHH General Meeting,
which each SHH Director has irrevocably undertaken to do (or
procure to be done) in respect of all of the SHH Shares in which
they, or members of their immediate families, related trusts and
any other persons whose interests in securities the SHH Directors
are deemed to be interested in pursuant to Part 22 of the Companies
Act 2006, have a beneficial interest amounting, in aggregate, to
288,620 SHH Shares, representing approximately 0.30 per cent. of
the issued ordinary share capital of SHH.
7. Irrevocable undertakings
The SHH Directors have entered into irrevocable undertakings to
(i) accept (or procure the acceptance of) the Partial Offer at the
Offer Price, (ii) approve (or procure the approval of) the Partial
Offer and (iii) vote (or procure the vote) in favour of the
Resolutions at the SHH General Meeting, in each case in respect of
all of the SHH Shares in which they, or members of their immediate
families, related trusts and any other persons whose interests in
securities the SHH Directors are deemed to be interested in
pursuant to Part 22 of the Companies Act 2006, have a beneficial
interest, which, in aggregate, represent approximately 0.30 per
cent. of the SHH Shares in issue on 22 November 2017 (being the
last Business Day prior to the date of this Announcement),
conditional (amongst other things) upon the Offer Document being
published before midnight (London time) on 21 December 2017.
In addition, each of Crystal Amber Fund Limited, Rotolok
(Holdings) Limited and Dan McCauley have entered into irrevocable
undertakings to (i) accept (or procure the acceptance of) the
Partial Offer at the Offer Price, (ii) approve (or procure the
approval of) the Partial Offer and (iii) vote (or procure the vote)
in favour of the Resolutions at the SHH General Meeting, in each
case in respect of all of the SHH Shares in which they are
interested, which, in aggregate, represent approximately 58.07 per
cent. of the SHH Shares in issue on 22 November 2017 (being the
last Business Day prior to the date of this Announcement), in each
case conditional (amongst other things) upon the Offer Document
being published before midnight (London time) on 21 December
2017.
FB Investors has therefore received irrevocable undertakings to
(i) accept (or procure the acceptance of) the Partial Offer at the
Offer Price, (ii) approve (or procure the approval of) the Partial
Offer and (iii) vote (or procure the vote) in favour of the
Resolutions at the SHH General Meeting in respect of a total of
56,194,768 SHH Shares, representing, in aggregate, approximately
58.37 per cent. of the issued share capital of SHH as at 22
November 2017 (being the last Business Day prior to the date of
this Announcement).
Further details of these irrevocable undertakings are set out in
Appendix III to this Announcement.
8. Information on FB Investors
FB Investors is an English limited liability partnership and was
incorporated on 13 November 2017.
The members of FB Investors are Beinhaker Design Services and
1895 Management Holdings Company. The FB Investors Executive
Committee comprises Philip Beinhaker and Albert Friedberg.
Beinhaker Design Services
Beinhaker Design Services is an investment company of Philip
Beinhaker's family and was incorporated on 29 May 2015. Philip
Beinhaker is chairman of Beinhaker Design Services and Corey
Beinhaker and Joshua Mishkin are executives of Beinhaker Design
Services. The share capital of Beinhaker Design Services is held by
Corey Beinhaker. The directors of Beinhaker Design Services are
Philip Beinhaker, Corey Beinhaker and Constance Beinhaker.
Beinhaker Design Services accounts as at 31 May 2016 reported net
assets of GBP19,224. These accounts are available on
www.fbllp.co.uk.
Philip Beinhaker served as co-founding partner and CEO of IBI
Group, a world-leading firm in architecture, engineering and
project management from its formation in 1974 until 2004. In 2004,
Philip Beinhaker led the company's flotation on the Toronto Stock
Exchange and became the sole CEO and Chairman Director. Thereafter,
Philip Beinhaker had a leading role in the growth of the practice
both functionally and geographically from its initial base in
Toronto of some 30 people to over 2,500 active professional staff
worldwide today. In 2013, Philip Beinhaker retired from the
position of CEO and currently continues to serve as a senior
director of the IBI Group Management Partnership.
Philip Beinhaker, through the Beinhaker group of companies has
led numerous real estate developments as development manager,
developer and principal throughout Canada, the United States,
Israel, Germany and other locations. Philip Beinhaker has taken up
residence in the United Kingdom where he has founded Beinhaker
Design Services which serves as a base for his activities in
Europe.
Major urban real estate development projects led by Philip
Beinhaker include:
-- King Business Center, Toronto: - approximately 1,500 housing
units and employment space; from 1985 to 1990.
-- Liberty Village, Toronto: - 5 million sq. ft. including over
5,000 residential uses; office employment space and retail; all in
the context of a new network of streets and parks and urban
infrastructure. This development transformed an industrial
under-utilized brown land area (within 2 km from the Toronto City
Center) into a mixed use residential, retail, and workplace as a
new community within the city. The land assembly was completed by
2000; the approvals by 2003; the principal infrastructure and
decontamination of soil by 2005. As of today, 4,000 units of
residential accommodation, the retail space and work space have
been completed and the last stages of the project are underway.
-- City Place, Toronto: - over 8,000 housing units; the Sky Dome
baseball Stadium and other uses; the realisation of the first phase
of land development and of building development that included the
SkyDome baseball stadium, commencing in 1981 the project extended
in subsequent phases through to 2015. This development transformed
the unutilised railway yards of some 200 acres into a mixed use
residential, office, hotel and entertainment area and provided
linkages between the City Center to the north and the amenity of
the waterfront of Lake Ontario to the south, thereby enhancing the
entire urban environment.
-- Montreal Canadiens Hockey Arena and Entertainment Centre: -
included the programming and Design and construction of the
facility for the hockey team franchise. The project also included a
material real estate component for housing and office on the site
which are now being completed and the redevelopment of the historic
rail terminal of the Windsor Station.
-- Project Marienhain, Berlin, Germany: - in 2011,
Beinhaker/Friedberg acquired undeveloped land of some 15.5 hectare
within the Berlin municipal district of Treptow-Koepenick. A vision
was created, approvals obtained (in 2015), and the business
arrangements recently concluded for implementation of a residential
community of some 1,100 housing units along with a waterfront
recreation area, restaurant, retail and community facilities, along
with the required permits for infrastructure (road design,
rainwater drainage, drinking water and sewers).
Corey Beinhaker worked for IBIB Group Consultants (Israel)
Limited from 2000 to 2017, latterly as its Chief Executive Officer
where he, amongst other things, was the contract manager for a
number of significant projects including the Tel Aviv Red 10 Line
Underground Station Design, and the design and technical
specification for the traffic management system for the inter-urban
highway network in Israel. Since April 2017, Corey Beinhaker has
been engaged in project management and real estate development
services for companies within the Beinhaker group of companies.
Joshua Mishkin has served in a managerial capacity for major
estate developments and business ventures over the last 12 years,
including several led by the Beinhaker and Friedberg families. In
addition, Mr Mishkin has advised on real estate planning and
feasibility on projects in Europe, the United States and Israel
during his employment in the IBI Group, a leading firm in
architecture, engineering and project management. He also served in
the mergers and acquisitions department of the IBI Group. He now
works full-time as an executive in the Beinhaker group of companies
and is focussed on large scale urban development projects.
1895 Management Holdings Company
1895 Management Holdings Company is an investment holding
company wholly-owned by Albert Friedberg which was incorporated on
29 September 2016 in Nova Scotia. Albert Friedberg and Dan Scheiner
are the only directors and officers of 1895 Management Holdings
Company. As at the date of this Announcement, 1895 Management
Holdings Company holds one investment and is yet to file
accounts.
Albert Friedberg has over 40 years' experience in the investment
industry. He is president of FCMI Parent Co. ("FCMI"), a family
holding company which was incorporated on 29 September 1998 as a
Nova Scotia unlimited liability corporation. FCMI holds investments
in bonds as well as shares, debentures and warrants of publicly
traded entities as well as other private companies and limited
partnerships. FCMI has direct subsidiaries located in Canada with a
significant focus being liquid marketable securities. FCMI also has
numerous indirect subsidiaries in Barbados, Canada, Cayman Islands,
Chile, New Zealand and the United States. FCMI's most recent
financial statements show total assets of over US$100,000,000.
Mr Friedberg is also chief executive officer of Friedberg
Mercantile Group Limited ("FMG"), a Toronto-based commodities and
investment management firm that is a member of IIROC, CIPF and all
Canadian exchanges. FMG provides a wide range of financial and
investment services to retail and institutional clients. FMG was
founded in 1971 by Mr Friedberg and it is owned by FCMI.
Mr Friedberg served as Chairman of the Toronto Futures Exchange
from March 1985 to June 1988. He is also Chairman of the Board at
Vaccinex, Inc., a role he has held since April 2001.
9. Information on SHH
SHH is an award-winning waterfront regeneration specialist,
based in Plymouth on the South Coast of England. Plymouth promotes
itself as "Britain's Ocean City" and has a heritage going back more
than 500 years with the area of Sutton Harbour remaining one of the
city's oldest quarters and a popular place to visit.
During the financial year ended 31 March 2017, SHH employed an
average of 33 people, had annual turnover of GBP6.7 million and
made a profit before tax of GBP53,063. The Company has been
admitted to trading on AIM since 1996.
SHH expects to announce its interim results for the six months
ended 30 September 2017 on or around 5 December 2017. These
accounts will include an asset valuation in respect of SHH's real
estate and operating assets which will be included in the Offer
Document in compliance with Rule 29 of the Takeover Code.
The SHH Group operates in the following four business areas:
Marine
SHH's marine businesses comprise two well-located marinas and
Plymouth Fisheries. The marina at Sutton Harbour is a
well-established and fully serviced, 5 Gold Anchor award-winning
facility with berthing for 523 vessels, subject to berthing
configuration, located in the heart of the historical city. King
Point Marina, built in 2013, situated at the heart of a major
regeneration project in the Millbay area of Plymouth, operates with
berthing capacity for up to 171 vessels, subject to configuration.
Plymouth Fisheries is the second largest fresh fish market in
England.
Car parking
The SHH Group owns two major city car parks: Lambhay Hill and
Harbour Car Park. Both are in close proximity to Sutton Harbour
with a total of 391 public car parking spaces and both are
well-located to benefit from visitors to the numerous local
attractions, as well as servicing the users of the marinas and
fisheries complex.
Real estate
SHH oversees a high-profile portfolio of property investments
based principally around Sutton Harbour and also at the new coastal
quarter by King Point Marina. The estate has a strong mix of
national, regional and independent tenants, as well as strong
occupancy levels, generating strong and stable revenue streams.
Regeneration
SHH's management has a collective vision to create a major
waterfront destination where people can live, work and play,
centred around the historic asset of Sutton Harbour. They have
already delivered various sites and have identified numerous assets
for potential development to achieve this vision. These
regeneration opportunities include Sugar House, Eastern Gateway,
Harbour Arch Quay and the proposed Boardwalk at Vauxhall Quay.
In addition to its regeneration sites around Sutton Harbour, SHH
controls and manages the major brownfield regeneration site known
as Plym Vale, which was formerly the Plymouth City Airport site.
This site totals approximately 113 acres and plans have been drawn
up for a major housing-led, garden suburb-style development with
the capacity for more than 1,600 new homes upon planning permission
being received. Plymouth City Council currently seeks to safeguard
this site for general aviation operations; however, the current
approach to the former airport site may be affected by the outcome
of the ongoing examination into the soundness of the Plymouth and
South West Devon Joint Local Plan, for which an independent
government inspectorate has been appointed.
Further information on SHH can be found on its website at
www.suttonharbourholdings.co.uk.
10. Financing of the Partial Offer and Share Subscription
The cash consideration payable by FB Investors under the terms
of the Partial Offer and the Share Subscription will be financed
from its existing cash resources.
In accordance with Rule 2.7(d) of the Takeover Code, WH Ireland,
as financial adviser to FB Investors, is satisfied that sufficient
resources are available to FB Investors to satisfy in full the cash
consideration payable to SHH Shareholders pursuant to the terms of
the Partial Offer and the cash consideration payable to SHH
pursuant to the Share Subscription.
11. Ongoing business and operation
Save as described below, FB Investors does not intend to make
any changes to the locations of the SHH Group's places of business
or the manner in which its assets are deployed, and SHH will
continue to be operated, managed and headquartered from Plymouth.
In particular, FB Investors does not intend to change the nature of
SHH's current business activities in relation to Plymouth
Fisheries, the marinas at Sutton Harbour and King Point, the
businesses engaged in waterfront property investment and/or the
various car parking facilities.
FB Investors does, however, intend to make available to SHH the
property development expertise of Philip Beinhaker and of Beinhaker
Design Services Limited (in particular, two of its executives,
Corey Beinhaker and Joshua Mishkin) and the financial expertise of
Albert Friedberg and his associated companies, to enable the SHH
Group to undertake more direct development work in relation to its
existing property interests and without contracting this out to a
third party developer. FB Investors believes this approach will
enable SHH to secure more of the potential profits arising from
these assets for the benefit of SHH Shareholders.
In particular, in relation to Sugar House, FB Investors intends
to review with the Company the current plans for the site and
revise them such that the Company can take on the development of
the site and thus retain more of the profits of the development for
its own account, to the benefit of all SHH Shareholders who retain
an interest in SHH Shares at the relevant time. A key purpose of
the extension of the Company's current loan facilities, details of
which are set out in paragraph 14 below, and the Share Subscription
is to ensure that the Company has the time and financial resources
to plan and execute this strategy properly. This effort will be led
by Philip Beinhaker with the assistance of Corey Beinhaker, Joshua
Mishkin and the Company's existing management team.
FB Investors also intends to lend its considerable experience of
planning large scale real estate projects to assist and support
SHH's current strategy and objectives in relation to SHH's other
principal development asset, being the former site of Plymouth City
Airport.
12. SHH's management and employees
FB Investors attaches great importance to the skills, expertise
and knowledge of the existing management and employees of the SHH
Group and believes that they will be a key factor in maximising
opportunities.
(i) Staff terms and conditions
FB Investors confirms that it has no intention to make changes
to the continued employment of SHH Group employees or to make
material changes to the conditions of employment of any of the SHH
Group employees. Further, FB Investors confirms that the existing
contractual and employment rights of employees of the SHH Group,
including accrued pension rights under applicable law, will be
safeguarded following completion of the Partial Offer.
(ii) Current SHH Directors
FB Investors will have the right under the Relationship
Agreement, amongst other things, to appoint up to two directors to
the SHH Board (one of whom may be Chairman of the SHH Board) for so
long as it holds, directly or indirectly, 50 per cent. or more of
the issued voting share capital of SHH. However, FB Investors has
confirmed that its initial intention is that it will only appoint
Philip Beinhaker to the SHH Board and that Philip Beinhaker will be
appointed Chairman of the SHH Board (replacing Graham Miller).
Further information regarding Philip Beinhaker is set out in
paragraph 8 above.
FB Investors wishes to retain the services of the current
executive directors, Jason Schofield and Natasha Gadsdon, and two
of the three current non-executive directors, being Graham Miller
and Sean Swales, following completion of the Partial Offer. Robert
De Barr has confirmed that he will resign from the SHH Board,
subject to and with effect from the Partial Offer becoming, or
being declared, wholly unconditional. However, to enable the SHH
Group to continue to benefit from Robert De Barr's considerable
property experience, it is envisaged that he will perform
consultancy services in relation to the development of Sugar House
and certain other major real estate projects following completion
of the Partial Offer. FB Investors has noted that the current
executive directors of SHH do not have any share incentive
arrangements to align their interests with the interests of the SHH
Shareholders. FB Investors therefore intends to discuss with SHH
the implementation of appropriate incentive arrangements following
completion of the Partial Offer. As at date of this document, no
discussions have taken place as to any terms of any such future
incentive arrangements.
Accordingly, following completion of the Partial Offer, the SHH
Board will comprise:
-- Philip Beinhaker (Chairman);
-- Jason Schofield (Chief Executive Officer);
-- Natasha Gadsdon (Chief Financial Officer);
-- Graham Miller (Non-Executive Director); and
-- Sean Swales (Non-Executive Director).
13. Retention of SHH's admission to trading on AIM and the Relationship Agreement
Following the Partial Offer becoming, or being declared, wholly
unconditional, SHH will remain an independently managed public
company quoted on AIM.
FB Investors and SHH have entered into the Relationship
Agreement, which is conditional upon the Partial Offer becoming, or
being declared, wholly unconditional in accordance with its terms,
in order to regulate their relationship on an ongoing basis
following completion of the Partial Offer. The principal purpose of
the Relationship Agreement is to provide that the relationship
between FB Investors and the SHH Group will be conducted
independently and on an arm's length basis. The Relationship
Agreement addresses, amongst other things, the composition of the
SHH Board (providing FB Investors with the ability to appoint up to
two directors to the SHH Board (one of whom may be the Chairman)
for so long as it holds, directly or indirectly, 50 per cent. or
more of the issued voting share capital of SHH) and contains
certain restrictions in relation to directors appointed by FB
Investors voting at meetings of the SHH Board on matters in which
FB Investors is interested. Under the Relationship Agreement, FB
Investors has agreed not to vote in relation to any resolution put
to SHH Shareholders to cancel its admission to trading on AIM
pursuant to Rule 41 of the AIM Rules for a minimum period of two
years following the Partial Offer becoming, or being declared,
wholly unconditional in accordance with its terms unless such
resolution is recommended by those members of the Board not
appointed by FB Investors.
14. Overview of RBS Amended and Restatement Facility Agreement
In connection with the Partial Offer, SHH (and its subsidiaries)
entered into a conditional amendment and restatement agreement with
RBS on 22 November 2017 (the "RBS Conditional Amendment and
Restatement Agreement"), in relation to the existing facilities
agreement dated 3 March 2016 between RBS (as agent for National
Westminster Bank plc) and, among others, SHH and Sutton Harbour
Company, as borrowers (the "Existing RBS Facilities Agreement"),
pursuant to which, amongst other things, the term of the Existing
RBS Facilities Agreement will be extended from 3 March 2019 to 31
March 2021 and a waiver will be granted in respect of the change of
control provision under the Existing RBS Facilities Agreement which
would have otherwise become effective as a result of the Partial
Offer.
The RBS Conditional Amendment and Restatement Agreement will
only become effective in the event that the Partial Offer becomes,
or is declared, wholly unconditional in accordance with its
terms.
Further details of the RBS Conditional Amendment and Restatement
Agreement will be provided in the Offer Document to be published in
due course and the RBS Conditional Amendment and Restatement
Agreement will be made available, subject to certain restrictions
relating to persons resident in Restricted Jurisdictions, on SHH's
website at www.suttonharbourholdings.co.uk and FB Investors'
website at www.fbllp.co.uk in due course.
15. Other offer related documents
In addition to the Share Subscription Agreement described in
paragraph 3 and the Relationship Agreement described in paragraph
13, the following other documents have been entered into pursuant
to the Partial Offer:
Confidentiality Agreement
On 9 August 2017, Philip Beinhaker and Albert Friedberg entered
into a confidentiality agreement with the Company (the
"Confidentiality Agreement") pursuant to which they and their
related parties have undertaken to keep confidential information
relating to the Company and not to disclose it to third parties
(other than those to which disclosure is permitted in accordance
with the terms of the Confidentiality Agreement) unless required by
law or regulation. These confidentiality obligations will remain in
force until 9 August 2019 (or, if earlier, such date that the
confidential information ceases to be of a confidential
nature).
Costs side letter
On 22 November 2017, SHH and FB Investors entered into a side
letter (the "Side Letter") to confirm, amongst other things, that
SHH will (a) subject to the Partial Offer becoming, or being
declared, unconditional in accordance with its terms, reimburse FB
Investors GBP20,250 in respect of the amount which FB Investors has
previously paid to RBS in partial satisfaction of the arrangement
fee to be paid by SHH to RBS in connection with the RBS Conditional
Amendment and Restatement Agreement and (b) subject to the Partial
Offer becoming, or being declared, unconditional in accordance with
its terms and Burges Salmon LLP engaging SHH as its client on
substantially the same terms and conditions as it has engaged FB
Investors as its client so that SHH may rely fully on the legal
advice that it has provided in relation to the RBS Conditional
Amendment and Restatement Agreement and SHH's strategy in relation
to the Plymouth and South West Joint Local Plan, pay an amount up
to GBP21,490 (exclusive of VAT and any disbursements) in respect of
such advice.
16. Offer Document, Form of Approval, Form of Acceptance and Form of Proxy
The Partial Offer will be subject to the Conditions and the
further terms set out or referred to in Appendix I to this
Announcement and in the Offer Document together with, for SHH
Shares held in certificated form, the Form of Acceptance, when
issued.
It is expected that the Offer Document, the Form of Acceptance,
the Form of Approval and the Form of Proxy will be posted as soon
as practicable and, in any event, (except with the consent of the
Panel) within 28 days from the date of this Announcement. The Offer
Document, the Form of Acceptance, the Form of Approval and the Form
of Proxy will be made available to all SHH Shareholders, subject to
certain restrictions relating to persons resident in Restricted
Jurisdictions, at no charge to them on SHH's website at
www.suttonharbourholdings.co.uk and FB Investors' website at
www.fbllp.co.uk.
The Offer Document will contain important information on the
Partial Offer and on how SHH Shareholders may accept and approve it
and, accordingly, all SHH Shareholders are urged to read the Offer
Document and the Form of Approval and (in the case of SHH
Shareholders holding SHH Shares in certificated form) the
accompanying Form of Acceptance when published and/or received. The
Offer Document will also contain notice of the SHH General Meeting
to be convened in due course to propose the Resolutions required to
be passed to effect the Share Subscription, as well as information
as to how SHH Shareholders may attend and vote, in person or by
proxy, at the SHH General Meeting.
17. SHH Shareholders outside the United Kingdom
The availability of the Partial Offer to persons not resident
in, and not citizens of, the United Kingdom may be affected by the
laws of the relevant jurisdictions in which they are located or of
which they are citizens.
Persons who are not resident in, or not citizens of, the United
Kingdom should inform themselves about, and observe, any applicable
legal or regulatory requirements of their jurisdictions. Overseas
SHH Shareholders who are in any doubt regarding such matters should
consult an appropriate independent professional adviser in the
relevant jurisdiction without delay.
Further details in relation to Overseas SHH Shareholders will be
contained in the Offer Document.
18. Disclosures of interests
FB Investors does not hold any SHH Shares. FB Investors confirms
that no other holding of SHH Shares is required to be disclosed by
it under Rule 8.1(a) of the Takeover Code, other than pursuant to
the irrevocable undertakings referred to in paragraph 7 above.
As at the close of business on 22 November 2017, being the last
practicable date prior to the publication of this Announcement,
except for the irrevocable undertakings mentioned in paragraph 7
above, neither FB Investors nor any of its officers nor, so far as
the FB Investors Executive Committee is aware, any person acting,
or deemed to be acting, in concert with FB Investors:
-- had an interest in, or right to subscribe for, relevant securities of SHH;
-- had any short position in (whether conditional or absolute
and whether in the money or otherwise), including any short
position under a derivative, any agreement to sell or any delivery
obligation or right to require another person to purchase or take
delivery of, relevant securities of SHH;
-- had procured an irrevocable commitment or letter of intent to
accept the Partial Offer in respect of relevant securities of SHH;
or
-- had borrowed or lent any SHH Shares.
Save for the Subscription Agreement and as disclosed above, no
arrangement exists with FB Investors or any person acting in
concert with FB Investors in relation to SHH Shares. For these
purposes, an "arrangement" includes any indemnity or option
arrangement, any agreement or any understanding, formal or
informal, of whatever nature, relating to SHH Shares which may be
an inducement to deal or refrain from dealing in such
securities.
19. Deferred Shares
SHH has in issue 62,943,752 fully paid deferred shares of 24
pence each. The Deferred Shares are not listed on any exchange and
effectively have no rights. In particular, they do not confer on
their holders any right to any dividend or other distribution nor
the right to receive notice of, attend, speak or vote at general
meetings of SHH.
The Deferred Shares will not form part of, and will be
unaffected by, the Partial Offer as the Panel has confirmed that
the Offeror does not need to make a comparable offer for the
Deferred Shares under Rule 14 of the Takeover Code.
20. Documents published on a website
The following documents will promptly and, in any event, by no
later than 12 noon on the Business Day following the date of this
Announcement, be made available, subject to certain restrictions
relating to persons resident in Restricted Jurisdictions, on SHH's
website at www.suttonharbourholdings.co.uk and FB Investors'
website at www.fbllp.co.uk until the end of the Offer Period:
-- this Announcement;
-- the irrevocable undertakings referred to in paragraph 7 above
and described in Appendix III to this Announcement;
-- the Share Subscription Agreement in connection with the Share
Subscription referred to in paragraph 1 above;
-- the Relationship Agreement referred to in paragraph 13 above;
-- the Confidentiality Agreement referred to in paragraph 15 above; and
-- the Side Letter referred to in paragraph 15 above.
Enquiries:
FB Investors LLP via WH Ireland Limited
Philip Beinhaker
WH Ireland Limited
(Financial adviser to FB
Investors)
Mike Coe / Ed Allsopp 0117 945 3472
Sutton Harbour Holdings plc
Graham Miller, Chairman
Jason Schofield, Chief Executive
Officer 01752 204 186
Rothschild
(Financial adviser to Sutton
Harbour Holdings plc)
John Byrne / Andrew Graham
/ Tom Palmer 0207 280 5000
Arden Partners plc (Nominated
Adviser to Sutton Harbour
Holdings plc)
John Llewellyn-Lloyd / Benjamin
Cryer 0207 614 5900
DCA (Financial PR to Sutton
Harbour Holdings plc)
Philip Ranger 07768 534 641
WH Ireland Limited ("WH Ireland"), which is authorised and
regulated in the United Kingdom by the Financial Conduct Authority,
is acting exclusively as financial adviser to FB Investors and
no-one else in connection with the Partial Offer and other matters
described in this Announcement, and will not be responsible to
anyone other than FB Investors for providing the protections
afforded to clients of WH Ireland or for providing advice in
relation to the Partial Offer, the contents of this Announcement or
any other matter referred to in this Announcement. WH Ireland has
given, and not withdrawn, its consent to the inclusion in the
Announcement of the references to its name in the form and context
in which it appears.
N. M. Rothschild & Sons Limited ("Rothschild"), which is
authorised and regulated in the United Kingdom by the Financial
Conduct Authority, is acting exclusively as financial adviser to
SHH and no-one else in connection with the Partial Offer and other
matters described in this Announcement, and will not be responsible
to anyone other than SHH for providing the protections afforded to
clients of Rothschild or for providing advice in relation to the
Partial Offer, the contents of this Announcement or any other
matter referred to herein. Rothschild has given, and not withdrawn,
its consent to the inclusion in the Announcement of the references
to its name and the advice it has given to SHH in the form and
context in which they appear.
Arden Partners plc ("Arden Partners"), which is authorised and
regulated in the United Kingdom by the Financial Conduct Authority,
is acting exclusively as nominated adviser to SHH and no-one else
in connection with the Partial Offer and other matters described in
this Announcement, and will not be responsible to anyone other than
SHH for providing the protections afforded to clients of Arden
Partners or for providing advice in relation to the Partial Offer,
the contents of this Announcement or any other matter referred to
herein. Arden Partners has given, and not withdrawn, its consent to
the inclusion in the Announcement of the references to its name in
the form and context in which it appears.
Further information
THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND IS NOT
INTED TO, AND DOES NOT, CONSTITUTE OR FORM ANY PART OF, AN OFFER TO
SELL OR AN INVITATION TO SUBSCRIBE FOR OR PURCHASE ANY SECURITIES
OR THE SOLICITATION OF ANY VOTE OR APPROVAL IN ANY JURISDICTION,
NOR SHALL THERE BE ANY SALE, ISSUANCE OR TRANSFER OF THE SECURITIES
REFERRED TO IN THIS ANNOUNCEMENT IN ANY JURISDICTION IN
CONTRAVENTION OF APPLICABLE LAW. THE PARTIAL OFFER WILL BE MADE
SOLELY BY MEANS OF THE OFFER DOCUMENT, WHICH WILL CONTAIN THE FULL
TERMS AND CONDITIONS OF THE PARTIAL OFFER, AND, IN THE CASE OF SHH
SHARES HELD IN CERTIFICATED FORM, THE FORM OF ACCEPTANCE. ANY
DECISION, ACCEPTANCE OR APPROVAL IN RELATION TO THE PARTIAL OFFER
SHOULD BE MADE ONLY ON THE BASIS OF THE INFORMATION CONTAINED IN
THE OFFER DOCUMENT AND THE FORM OF ACCEPTANCE (IF APPLICABLE). SHH
SHAREHOLDERS ARE ADVISED TO READ CAREFULLY THE OFFER DOCUMENT AND
THE FORM OF ACCEPTANCE (IF APPLICABLE), ONCE THEY HAVE BEEN
DISPATCHED.
Forward looking statements
This Announcement contains certain statements that are, or may
be deemed to be, forward looking with respect to the financial
condition, results of operation(s) and business of SHH and certain
plans and objectives of the SHH Directors and FB Investors
Executive Committee with respect thereto. These forward looking
statements can be identified by the fact that they are prospective
in nature and do not relate to historical or current facts. Forward
looking statements often, but not always, use words such as
"anticipate", "target", "expect", "estimate", "budget",
"scheduled", "forecasts", "intend", "plan", "goal", "believe",
"will", "may", "should", "would", "could" or other words of a
similar meaning. These estimates are based on assumptions and
assessments made by the SHH Directors and/or the FB Investors
Executive Committee in light of their experience and their
perception of historical trends, current conditions, expected
future developments and other factors they believe appropriate.
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 publication of this Announcement shall not
give rise to any implication that there has been no change in the
facts set forth in this Announcement since such date. 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 or developments to differ materially from those
expressed or implied by such forward looking statements. Although
the SHH Directors and the FB Investors Executive Committee believe
that the expectations reflected in such forward looking statements
are reasonable, neither FB Investors nor SHH, nor any of their
respective associates or directors, executive committee members,
officers or advisers, or any person acting on the behalf of FB
Investors or SHH provides any representation, assurance or
guarantee that the occurrence of the events expressed or implied in
any forward looking statements in this Announcement will actually
occur. Other than in accordance with their legal or regulatory
obligations (including under the AIM Rules, the Disclosure Guidance
and Transparency Rules and MAR), none of FB Investors, SHH, any
member of the FB Investors Group, any member of the SHH Group, nor
any officer of FB Investors or SHH, nor any of their respective
advisers, associates, directors, executive committee members or
officers is under any obligation, and such persons expressly
disclaim any intention or obligation, to update or revise any
forward looking statements, whether as a result of new information,
future events or otherwise. No undue reliance should therefore be
placed on these forward looking statements which speak only as at
the date of this Announcement.
Disclosure requirements of the Takeover Code
Under Rule 8.3(a) of the Takeover Code, any person who is
interested in one per cent. or more of any class of relevant
securities of an offeree company or of any securities exchange
offeror (being any offeror other than an offeror in respect of
which it has been announced that its offer is, or is likely to be,
solely in cash) must make an Opening Position Disclosure following
the commencement of the offer period and, if later, following the
announcement in which any securities exchange offeror is first
identified.
An Opening Position Disclosure must contain details of the
person's interests and short positions in, and rights to subscribe
for, any relevant securities of each of: (i) the offeree company;
and (ii) any securities exchange offeror(s). An Opening Position
Disclosure by a person to whom Rule 8.3(a) of the Takeover Code
applies must be made by no later than 3.30 p.m. (London time) on
the 10(th) Business Day following the commencement of the offer
period and, if appropriate, by no later than 3.30 p.m. (London
time) on the 10(th) Business Day following the announcement in
which any securities exchange offeror is first identified. Relevant
persons who deal in the relevant securities of the offeree company
or of a securities exchange offeror prior to the deadline for
making an Opening Position Disclosure must instead make a Dealing
Disclosure.
Under Rule 8.3(b) of the Takeover Code, any person who is, or
becomes, interested in one per cent. or more of any class of
relevant securities of the offeree company or of any securities
exchange offeror must make a Dealing Disclosure if the person deals
in any relevant securities of the offeree company or of any
securities exchange offeror. A Dealing Disclosure must contain
details of the dealing concerned and of the person's interests and
short positions in, and rights to subscribe for, any relevant
securities of each of: (i) the offeree company; and (ii) any
securities exchange offeror(s), except to the extent that these
details have previously been disclosed under Rule 8 of the Takeover
Code. A Dealing Disclosure by a person to whom Rule 8.3(b) of the
Takeover Code 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 or a
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3 of the Takeover Code.
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 Takeover 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.
Information relating to SHH Shareholders
Please be aware that addresses, electronic addresses and certain
information provided by SHH Shareholders, persons with information
rights and other relevant persons in connection with the receipt of
communications from SHH may be provided to FB Investors during the
Offer Period as required under Section 4 of Appendix 4 of the
Takeover Code.
Rule 2.9 Disclosure
In accordance with Rule 2.9 of the Takeover Code, SHH confirms
that, as at the date of this Announcement, it has 96,277,086
ordinary shares of 1p each in issue and admitted to trading on AIM,
a market operated by the London Stock Exchange under ISIN
GB0008659202.
Publication of this Announcement and availability of hard
copies
A copy of this Announcement and the display documents required
to be published pursuant to Rule 26.1 and Rule 26.2 of the Takeover
Code will be available, subject to certain restrictions relating to
persons resident in Restricted Jurisdictions, on SHH's website at
www.suttonharbourholdings.co.uk and on FB Investors' website at
www.fbllp.co.uk by no later than 12 noon on the Business Day
following the date of this Announcement until the end of the Offer
Period.
Neither the content of FB Investors' nor SHH's websites nor the
content of any websites accessible from hyperlinks on such websites
(or any other websites) are incorporated into, or form part of,
this Announcement nor, unless previously published by means of a
Regulatory Information Service, should any such content be relied
upon in reaching a decision regarding the matters referred to in
this Announcement.
In addition, a hard copy of this Announcement and any
information incorporated by reference in this Announcement may be
requested free of charge by contacting the Receiving Agent, Neville
Registrars Limited. On +44 (0)121 585 1131 or by writing to them at
Neville House, 18 Laurel Lane, Halesowen, West Midlands B63
3DA.
SHH Shareholders may also request that all future documents,
announcements and information to be sent to them in relation to the
Partial Offer should be in hard copy form.
The Partial Offer is subject to the provisions of the Takeover
Code.
Profit forecasts or estimates
No statement in this Announcement is intended as a profit
forecast, projection or estimate for any period and no statement in
this Announcement should be interpreted to mean that earnings or
earnings per share for SHH for the current or future financial
years would necessarily match or exceed the historical published
earnings or earnings per share for SHH.
SHH Shareholders outside the United Kingdom
The availability of the Partial Offer and the release,
publication and distribution of this Announcement in jurisdictions
other than the United Kingdom may be restricted by the laws of
those jurisdictions and therefore persons who are not resident in
the United Kingdom into whose possession this Announcement comes
should inform themselves about and observe any such
restrictions.
Failure to comply with any such 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 Partial Offer disclaim any responsibility
or liability for the violation of such restrictions by any person.
Accordingly, copies of this Announcement, the Offer Document, the
Form of Acceptance, the Form of Approval, the Form of Proxy and/or
any other related document will not be, and must not be, directly
or indirectly, mailed or otherwise distributed or sent in or into
any Restricted Jurisdiction and persons in such Restricted
Jurisdictions receiving such documents (including custodians,
nominees and trustees) must not distribute or send them in, into or
from such jurisdictions as doing so may violate the laws of such
jurisdictions and may make invalid any purported acceptance or
approval of the Partial Offer by persons in any such Restricted
Jurisdiction.
The receipt of cash pursuant to the Partial Offer by SHH
Shareholders may be a taxable transaction under applicable
national, state or local, as well as foreign and other, tax laws.
Each SHH Shareholder is urged to consult its independent
professional adviser regarding the tax consequences of accepting
the Partial Offer.
This Announcement has been prepared for the purpose of complying
with English law, the rules of the London Stock Exchange, the AIM
Rules and the Takeover 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.
The Partial Offer will not be made, directly or indirectly, in
or into, or by use of the mails, or by any means or instrumentality
(including, without limitation, by means of telephone, facsimile,
telex, internet or other forms of electronic communication) of
interstate or foreign commerce of, or any facilities of a
securities exchange of the United States, Canada, Australia, New
Zealand, Japan, the Republic of South Africa or any other
Restricted Jurisdiction and the Partial Offer will not be capable
of acceptance by any such use, means, instrumentality or facility
or from within any Restricted Jurisdiction. Accordingly, copies of
this Announcement and any other related document will not be, and
must not be, directly or indirectly, mailed or otherwise
distributed or sent in or into the United States, Canada,
Australia, New Zealand, Japan, South Africa or any other Restricted
Jurisdiction and persons receiving such documents (including
custodians, nominees and trustees) must not distribute or send them
in, into or from such jurisdictions as doing so may violate the
laws of such jurisdictions and may make invalid any purported
acceptance of the Partial Offer by persons in any such
jurisdiction.
No representations
No person has been authorised to make any representations on
behalf of FB Investors or SHH concerning the Partial Offer or SHH
General Meeting which are inconsistent with the statements
contained in this Announcement and any such representations, if
made, may not be relied upon as having been so authorised. No
person should construe the contents of this Announcement as legal,
financial or tax advice and recipients of this Announcement should
consult their own advisers in connection with the matters contained
herein.
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.
Inside information and Market Abuse Regulation ("MAR")
Certain SHH Shareholders were, with the consent of the Panel,
formally brought inside in order to discuss entering into
irrevocable undertakings. That inside information is set out in
this Announcement and has been disclosed as soon as possible in
accordance with paragraph 7 of article 17 of MAR. Therefore, those
persons that received inside information are no longer in
possession of inside information relating to SHH and its
securities.
The person responsible for arranging release of this
Announcement on behalf of FB Investors is Philip Beinhaker. The
persons responsible for arranging release of this Announcement on
behalf of SHH are Jason Schofield and Natasha Gadsdon.
Status of Announcement
This Announcement does not constitute a prospectus or prospectus
equivalent document.
APPIX I
CONDITIONS AND CERTAIN FURTHER TERMS OF THE PARTIAL OFFER
The Partial Offer will be made on the terms and conditions set
out in this Appendix and to be set out in the Offer Document and
the Form of Acceptance.
PART A: Conditions of the Partial Offer
The Partial Offer will be subject to the following
Conditions:
Acceptance condition and approval condition
(a) valid acceptances of the Partial Offer being received (and
not, where permitted, withdrawn) by no later than 1.00 p.m. (London
time) on the First Closing Date of the Partial Offer (or such later
time(s) and/or date(s) as FB Investors may, subject to the rules of
the Takeover Code or with the consent of the Panel, decide) in
respect of not less than 55,840,710 SHH Shares; and
(b) SHH Shareholders holding SHH Shares carrying over 50 per
cent. of the voting rights of SHH not held by FB Investors (and any
persons acting in concert with it) approving the Partial Offer.
SHH has agreed that, except as stated below and subject to the
requirements of the Panel, the Partial Offer will also be subject
to the following conditions:
Third party clearances and authorisations
(c) no central bank, government or governmental,
quasi-governmental, supranational, statutory, regulatory,
environmental or investigative body, court, trade agency,
professional association, institution, employee representative
body, or any other such body or person whatsoever in any
jurisdiction (each a "Third Party" and all collectively "Third
Parties") having decided or given notice of a decision to take,
institute or threaten any action, proceeding, suit, investigation,
enquiry or reference, or having required any action to be taken, or
otherwise having done anything, or having enacted, made or proposed
and there not continuing to be outstanding any statute, regulation,
decision or order which would or might reasonably be expected
to:
(i) make the Partial Offer or its implementation or the
acquisition or proposed acquisition by FB Investors of all or any
SHH Shares, or the acquisition or proposed acquisition of control
of SHH, by FB Investors, void, illegal or unenforceable under the
laws of any relevant jurisdiction, or otherwise, directly or
indirectly, restrain, restrict, prohibit, challenge, delay, hinder
or otherwise interfere with the same, or impose additional
materially adverse conditions or obligations with respect thereto,
or otherwise challenge or require amendment to the terms of the
Partial Offer or any such acquisition to an extent in any such case
which is material in the context of the Partial Offer;
(ii) require, prevent or delay the divestiture, or materially
alter the terms envisaged for any proposed divestiture, by any
member of the Wider SHH Group of all or any portion of their
respective businesses, assets or properties or impose any
limitation on the ability of any of them to conduct their
respective businesses (or any part of them) or to own or manage
their respective assets or properties or any part of them to an
extent in any such case which is material in the context of the
Wider SHH Group, taken as a whole, or the Partial Offer;
(iii) impose any limitation on, or result in a delay in, the
ability of FB Investors, directly or indirectly, to acquire or to
hold or to exercise effectively all or any rights of ownership in
respect of shares, loans or other securities (or the equivalent) in
any member of the Wider SHH Group or to exercise management control
over any such member to an extent which is material in the context
of the Wider SHH Group, taken as a whole;
(iv) otherwise adversely affect any or all of the businesses,
assets, liabilities, profits or prospects of any member of the FB
Investors Group or the Wider SHH Group to an extent which is
material in the context of the FB Investors Group or the Wider SHH
Group, taken as a whole;
(v) except pursuant to the Partial Offer, require FB Investors
or the Wider SHH Group to acquire, or offer to acquire, any shares
or other securities (or the equivalent) in, or any asset owned by,
any member of the Wider SHH Group;
(vi) result in a delay in the ability of FB Investors, or render
it unable, to acquire some or all of the SHH Shares to which the
Partial Offer relates;
(vii) require a divestiture by FB Investors of any shares or
other securities (or the equivalent) in SHH to any extent; or
(viii) result in any member of the Wider SHH Group or the FB
Investors Group ceasing to be able to carry on business under any
name which it presently does so to an extent which is material in
the context of the Wider SHH Group, taken as a whole, or the FB
Investors Group,
and all applicable waiting and other time periods during which
any such Third Party could decide to take, institute, implement or
threaten any such action, proceeding, suit, investigation, enquiry
or reference under the laws of any relevant jurisdiction having
expired, lapsed or been terminated;
No transactions, claims or changes in the conduct of the
business of SHH
(d) except as Disclosed, there being no provision of any
agreement, authorisation, arrangement, lease, licence, permit or
other instrument to which any member of the Wider SHH Group is a
party or by or to which any such member or any of its assets may be
bound, entitled or subject, which, in consequence of the Partial
Offer or the proposed acquisition by FB Investors of any shares or
other securities in SHH or because of a change in the control or
management of SHH or any member of the Wider SHH Group, would or
might reasonably be expected to result in:
(i) any monies borrowed by or any other indebtedness (actual or
contingent) of, or grant available to, any member of the Wider SHH
Group, being or becoming repayable or being capable of being
declared repayable immediately or prior to their or its stated
maturity date or repayment date or the ability of any such member
to borrow monies or incur any indebtedness being withdrawn,
prohibited or inhibited or becoming capable of being withdrawn,
prohibited or inhibited;
(ii) any such agreement, authorisation, arrangement, licence,
permit or other instrument or the rights, liabilities, obligations
or interests of any member of the Wider SHH Group thereunder being
terminated or adversely modified or affected or any obligation or
liability arising or any adverse action being taken or arising
thereunder;
(iii) any assets or interests of any member of the Wider SHH
Group being or falling 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 otherwise than, in any such case, in the ordinary course of
business;
(iv) the creation or enforcement of any mortgage, charge or
other security interest over the whole or any material part of the
business, property or assets of any member of the Wider SHH Group,
or any such mortgage, charge or other security interest (whenever
arising or having arisen) becoming enforceable or being
enforced;
(v) the rights, liabilities, obligations or interests of any
member of the Wider SHH Group in, or the business of any such
member with, any person, company, firm or body (or any agreements
relating to any such interest or business) being terminated, or
adversely modified or adversely affected;
(vi) the value of any member of the Wider SHH Group or its
financial or trading position or profits or prospects being
prejudiced or adversely affected; or
(vii) the creation or assumption of any material liability,
actual or contingent, by any member of the Wider SHH Group,
in each case which is material in the context of the Wider SHH
Group, taken as a whole, and no event having occurred which, under
any provision of any agreement, authorisation, arrangement, lease,
licence, permit or other instrument to which any member of the
Wider SHH Group is a party or by or to which any such member or any
of its assets are bound, entitled or subject, would be reasonably
likely to result in any of the events referred to in subparagraphs
(i) to (vii) of this paragraph (d);
No changes in share capital
(e) except as Disclosed, no member of the SHH Group having, since 31 March 2017:
(i) except as between SHH and wholly-owned subsidiaries of SHH,
or in connection with the Share Subscription, issued or agreed to
issue or authorised or proposed or announced its intention to
authorise or propose the issue of additional shares of any class or
securities convertible into or exchangeable for shares of any class
or rights, warrants or options to subscribe for, or acquire, any
such shares or convertible securities;
(ii) sold or transferred or agreed to sell or transfer any SHH Shares held in treasury;
(iii) recommended, declared, paid or made or proposed to
recommend, declare, pay or make any bonus issue, dividend or other
distribution whether payable in cash or otherwise other than
dividends (or other distributions whether payable in cash or
otherwise) lawfully paid or made by any wholly-owned subsidiary of
SHH to SHH or any of its wholly-owned subsidiaries;
(iv) other than pursuant to the Partial Offer or as agreed by FB
Investors (and except for transactions between SHH and its
wholly-owned subsidiaries or in the ordinary course of business)
implemented, effected, authorised or proposed or announced its
intention to implement, effect, authorise or propose any merger,
partnership, joint venture, asset or profit sharing arrangement,
partnership demerger, reconstruction, amalgamation, scheme,
commitment or acquisition or disposal of assets or shares or loan
capital (or the equivalent thereof) in any undertaking or
undertakings in any such case;
(v) (except for transactions between SHH and its wholly-owned
subsidiaries or in the ordinary course of business) disposed of, or
transferred, mortgaged or created any security interest over any
asset or any right, title or interest in any asset or authorised,
proposed or announced any intention to do so;
(vi) (except as between SHH and its wholly-owned subsidiaries)
made or authorised or proposed or announced an intention to propose
any change in its loan capital;
(vii) (except as between SHH and its wholly-owned subsidiaries)
issued, authorised, or proposed or announced an intention to
authorise or propose, the issue of or made any change in or to the
terms of any debenture or become subject to any contingent
liability or incurred or increased any indebtedness other than in
the ordinary course of business;
(viii) (except as between SHH and its wholly-owned subsidiaries)
purchased, redeemed or repaid, or announced any proposal to
purchase, redeem or repay, any of its own shares or other
securities or reduced or made any other change to or proposed the
reduction or other change to any part of its share capital;
(ix) entered into or varied or terminated or authorised,
proposed or announced its intention to enter into or vary any
material contract, arrangement, agreement, transaction or
commitment (whether in respect of capital expenditure or otherwise)
which is not in the ordinary course of business or is of a long
term, onerous or unusual nature or magnitude or which involves or
which might be reasonably expected to involve an obligation of such
a nature or magnitude or which is restrictive on the business of
any member of the Wider SHH Group;
(x) entered into or materially varied the terms of, or made any
offer (which remains open for acceptance) to enter into or
materially vary the terms of, any contract, service agreement or
arrangement with any director or senior executive of any member of
the Wider SHH Group;
(xi) been unable, or admitted in writing that it is unable, to
pay its debts or having stopped or suspended (or threatened to stop
or suspend) payment of its debts generally or ceased or threatened
to cease to carry on all or a substantial part of its business;
(xii) (other than in respect of a member of the Wider SHH Group
which is dormant and was solvent at the relevant time) taken or
proposed any corporate action, or had any legal proceedings
threatened or instituted against it for its winding-up (voluntarily
or otherwise), dissolution or reorganisation or for the appointment
of a liquidator, provisional liquidator, receiver, administrative
receiver, administrator, trustee or similar officer of all or any
part of its assets or revenues or any analogous or equivalent steps
or proceedings in any relevant jurisdiction having been taken or
had any such person appointed;
(xiii) waived, compromised, settled, abandoned or admitted any
dispute, claim or counterclaim whether made or potential and
whether by or against any member of the SHH Group (in each case
otherwise than in the ordinary course of business);
(xiv) made any material alteration to its memorandum or articles
of association or other constitutional documents;
(xv) entered into any contract, agreement, commitment or
arrangement or passed any resolution or made any offer (which
remains open for acceptance) with respect to or announced any
intention to, or to propose to, effect any of the transactions,
matters or events referred to in this Condition (e),
in each case, to the extent material in the context of the Wider
SHH Group, taken as a whole;
No adverse change, litigation, contingent liabilities or
cessation of licences
(f) except as Disclosed, since 31 March 2017:
(i) no change having occurred, and no circumstances having
arisen which would or might reasonably be expected to result in any
material adverse change in the business, assets, financial or
trading position or profits or prospects of any member of the Wider
SHH Group, including the termination of any material customer
contract or notice of termination from any material customer;
(ii) no litigation, arbitration proceedings, prosecution or
other legal proceedings or investigations having been threatened in
writing, announced, instituted or remaining outstanding by, against
or in respect of any member of the Wider SHH Group or to which any
member of the Wider SHH Group is or may become a party (whether as
a claimant, defendant or otherwise) and no enquiry or investigation
by any Third Party against or in respect of any member of the Wider
SHH Group having been commenced, announced or threatened in writing
by or against or remaining outstanding in respect of any member of
the Wider SHH Group, which, in any such case, has had, or might
reasonably be expected to have, a material adverse effect on the
Wider SHH Group, taken as a whole;
(iii) no contingent or other liability having arisen or become
apparent to FB Investors outside the ordinary course of business
which would or might reasonably be expected to adversely affect any
member of the Wider SHH Group to an extent which is material in the
context of the Wider SHH Group, taken as a whole; or
(iv) no steps having been taken and no omissions having been
made which are likely to result in the withdrawal, cancellation,
termination or modification of any material licence held by any
member of the Wider SHH Group which is necessary for the proper
carrying on of its business;
No discovery of certain matters
(g) except as Disclosed, FB Investors not having discovered:
(i) that any financial, business or other information concerning
the Wider SHH Group publicly announced or disclosed at any time by
or on behalf of any member of the Wider SHH Group to FB Investors,
is misleading, contains a misrepresentation of any 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 by, or on behalf of, the Wider SHH Group
through the publication of an announcement via a Regulatory
Information Service, in each case to an extent which is material in
the context of the Wider SHH Group, taken as a whole;
(ii) that any member of the Wider SHH Group or any partnership,
company or other entity in which any member of the Wider SHH Group
has a significant economic interest and which is not a subsidiary
undertaking of SHH, is subject to any material liability,
contingent or otherwise; or
(iii) that there is or is likely to be any material liability
(whether actual or contingent) on the part of any member of the
Wider SHH Group to make good, repair, reinstate or clean up any
property of any description or other asset now or previously owned,
occupied or made use of by any past or present member of the Wider
SHH Group, under any environmental legislation, regulation, notice,
circular or order of any Third Party.
Anti-corruption and sanctions
(h) except as Disclosed, FB Investors not having discovered that:
(i) any past or present member of the Wider SHH Group or any
person that performs or has performed services for or on behalf of
any such company is or has at any time engaged in any activity,
practice or conduct (or omitted to take any action) in
contravention of the UK Bribery Act 2010, the US Foreign Corrupt
Practices Act of 1977, as amended or any other applicable
anti-corruption or bribery legislation; or
(ii) any past or present member of the Wider SHH Group has
engaged in any activity or business with, or made any investments
in, or made any payments to any government, entity or individual
covered by any of the economic sanctions administered by the United
Nations or the European Union (or any of their respective member
states) or the United States Office of Foreign Assets Control or
any other governmental or supranational body or authority in any
jurisdiction; and
(i) except as Disclosed, FB Investors not having discovered that
any asset of any member of the SHH Group constitutes criminal
property as defined by section 340(3) of the Proceeds of Crime Act
2002 (but disregarding paragraph (b) of that definition).
PART B: Further terms of the Partial Offer
a) If the Partial Offer lapses, it will cease to be capable of
further acceptance. SHH Shareholders who have already accepted the
Partial Offer shall then cease to be bound by acceptances delivered
on or before the date on which the Partial Offer lapses.
b) The Partial Offer will be governed by English law and be
subject to the exclusive jurisdiction of the English courts, to the
Conditions set out above and the further terms set out in this
Announcement and to be set out in the Offer Document and the Form
of Acceptance. The Partial Offer will be subject to applicable
requirements of the Financial Conduct Authority, the Takeover Code,
the Panel and the London Stock Exchange (including, without
limitation, the AIM Rules).
c) The Conditions are inserted for the benefit of FB Investors
and no SHH Shareholder shall be entitled to waive any of the
Conditions without the prior written consent of FB Investors.
d) SHH Shares that are subject to the Partial Offer will be
acquired by FB Investors pursuant to the Partial Offer fully paid
and free from all liens, charges, encumbrances, equitable
interests, pre-emption rights and other interests and rights of
whatsoever nature and together with all rights now or hereafter
attaching thereto, including the right to receive and retain in
full all dividends and other distributions (if any) declared, paid
or made after the date of this Announcement.
e) FB Investors reserves the right to make an equivalent
reduction in the Offer Price if SHH announces, declares or pays any
dividend or makes any other distribution to SHH Shareholders on or
after the date of this Announcement although, in such
circumstances, SHH Shareholders would be entitled to retain any
such dividend or other distribution made or paid.
f) Subject to the requirements of the Panel, FB Investors
reserves the right to waive, in whole or in part, all or any of
Conditions I to (i) (inclusive) of Part A above. Each of Conditions
I to (i) of Part A shall be regarded as a separate condition and
shall not be limited by reference to any other condition.
g) Except with the consent of the Panel, the Partial Offer will
lapse unless all of the Conditions are fulfilled or (if capable of
waiver) waived or, where appropriate, have been determined by FB
Investors to be or to remain satisfied no later than midnight on
the twenty first day after the later of the First Closing Date of
the Partial Offer and the date on which the Partial Offer becomes,
or is declared, unconditional as to acceptances, or such later date
as the Panel may agree.
h) FB Investors shall be under no obligation to waive (if
capable of waiver) or treat as fulfilled any of Conditions I to (i)
(inclusive) of Part A by a date earlier than the latest date
specified above for the fulfilment thereof, notwithstanding that
the other Conditions of the Partial Offer may at such earlier date
have been fulfilled and that there are, at such earlier date, no
circumstances indicating that any of such Conditions may be
incapable of fulfilment.
i) If FB Investors is required by the Panel to make an offer for
SHH Shares under the provisions of Rule 9 of the Takeover Code, FB
Investors may make such alterations to the above Conditions of the
Partial Offer as are necessary to comply with the provisions of
that Rule.
j) Under Rule 13.5 of the Takeover Code, except with the Panel's
consent, FB Investors may not invoke any of the above Conditions so
as to cause the Partial Offer not to proceed, to lapse or to be
withdrawn unless the circumstances which give rise to the right to
invoke the relevant condition are of material significance to FB
Investors in the context of the Partial Offer. Conditions (a) and
(b) of Part A are not subject to this provision of the Takeover
Code.
k) If:
i) in so far as the Partial Offer or any matter arising from or
relating to the Partial Offer constitutes a concentration with a
Community dimension within the scope of the Regulation, the
European Commission either initiates proceedings under Article
6(1)I of the Regulation or makes a referral to a competent
authority of the United Kingdom under Article 9(1) of the
Regulation and there is then a CMA Phase 2 Reference; or
ii) in so far as the Partial Offer or any matter arising from or
relating to the Partial Offer does not constitute a concentration
with a Community dimension within the scope of the Regulation, the
Partial Offer or any matter arising from or relating to it becomes
subject to a CMA Phase 2 Reference,
in each case, before the later of midnight on the First Closing
Date and the date on which the Partial Offer becomes, or is
declared, unconditional as to acceptances, the Partial Offer will
lapse. If the Partial Offer does so lapse, not only will the
Partial Offer cease to be capable of further acceptance but also
SHH Shareholders and FB Investors will thereafter cease to be bound
by prior acceptances.
l) The availability of the Partial Offer to persons not resident
in the United Kingdom may be affected by the laws of the
jurisdictions in which such persons are resident. Persons who are
not resident in the United Kingdom should inform themselves about
and observe any applicable requirements.
m) The Partial Offer will not be made, directly or indirectly,
in or into, or by use of the mails of, or by any means or
instrumentality (including, without limitation, facsimile
transmission, telex, telephone, internet or email) of interstate or
foreign commerce of, or of any facility of a national securities
exchange of, any Restricted Jurisdiction and the Partial Offer will
not be capable of acceptance by any such use, means,
instrumentality or facility or from within any Restricted
Jurisdiction.
APPIX II
SOURCES OF INFORMATION AND BASES OF CALCULATION
In this Announcement, unless otherwise stated, or the context
otherwise requires, the following bases and sources have been
used:
(a) the financial information relating to SHH has been extracted
or derived, without material adjustment, from SHH's audited
consolidated financial statements for the financial year ended 31
March 2017;
(b) the financial information relating to Beinhaker Design
Services has been extracted or derived, without material
adjustment, from its accounts for the financial year ended 31 May
2016;
(c) the value attributed to the existing issued share capital of
SHH is based upon the Offer Price of 29.5 pence for each SHH Share
and 96,277,086 SHH Shares being in issue on 22 November 2017 (being
the last Business Day prior to the date of this Announcement);
(d) the value attributed to the Partial Offer is based upon the
Offer Price of 29.5 pence for each SHH Share and 67,393,960 SHH
Shares (being the number of SHH Shares subject to the Partial
Offer); and
(e) prices quoted for SHH Shares are closing middle market
prices on the relevant date, derived from the Daily Official List
of the London Stock Exchange.
APPIX III
DETAILS OF IRREVOCABLE UNDERTAKINGS
Part A: SHH Directors
The following SHH Directors have entered into irrevocable
undertakings in respect of their beneficial holdings of SHH
Shares:
Name Number of SHH Percentage of
Shares issued share capital
----------------- -------------- ----------------------
Graham Miller 147,000 0.15%
----------------- -------------- ----------------------
Jason Schofield 14,194 0.01%
----------------- -------------- ----------------------
Natasha Gadsdon 104,026 0.11%
----------------- -------------- ----------------------
Robert De Barr 10,000 0.01%
----------------- -------------- ----------------------
Sean Swales 13,400 0.01%
----------------- -------------- ----------------------
Total 288,620 0.30%
----------------- -------------- ----------------------
These irrevocable undertakings include undertakings to:
(a) to accept, or procure the acceptance of, the Partial
Offer;
(b) to approve, or procure the approval of, the Partial Offer;
and
(c) to vote, or procure the vote, in favour (or to submit, or
procure the submission of, Forms of Proxy, voting in favour) of the
Resolutions at the SHH General Meeting.
The irrevocable undertakings given by each of the SHH Directors
provide that they will cease to be binding if:
(a) the Offer Document is not published before midnight (London
time) on 21 December 2017; or
(b) the Partial Offer lapses or is withdrawn.
Part B: Other SHH Shareholders
The following SHH Shareholders have entered into irrevocable
undertakings:
Name Number of SHH Percentage of
Shares issued share capital
-------------------- -------------- ----------------------
Crystal Amber
Fund Limited 28,184,178 29.27%
-------------------- -------------- ----------------------
Rotolok (Holdings)
Limited 27,549,571 28.61%
-------------------- -------------- ----------------------
Dan McCauley 172,399 0.18%
-------------------- -------------- ----------------------
Total 55,906,148 58.07%
-------------------- -------------- ----------------------
These irrevocable undertakings include undertakings to:
(a) to accept, or procure the acceptance of, the Partial
Offer;
(b) to approve, or procure the approval of, the Partial Offer;
and
(c) to vote, or procure the vote, in favour (or to submit, or
procure the submission of, Forms of Proxy, voting in favour) of the
Resolutions at the SHH General Meeting.
The irrevocable undertaking given by such SHH Shareholders
provides that it will cease to be binding if:
(a) the Offer Document is not published before midnight (London
time) on 21 December 2017; or
(b) the Partial Offer lapses or is withdrawn.
APPIX IV
DEFINITIONS
The following definitions apply throughout this Announcement,
unless the context requires otherwise:
"AIM" a market established
by the London Stock Exchange
plc;
"AIM Rules" the AIM Rules for Companies
published by the London
Stock Exchange, as amended
from time to time;
"Announcement" this announcement of
the Partial Offer made
in accordance with Rule
2.7 of the Takeover Code;
"Articles" the articles of association
of SHH currently adopted
and filed with Companies
House;
"Australia" the Commonwealth of Australia,
its states, possessions
and territories and all
areas subject to its
jurisdiction or any political
subdivision thereof;
"Beinhaker Design Services" Beinhaker Design Services
Limited (company no.
09613864) whose registered
office is at 6(th) Floor
Cardinal House, 20 St
Mary's Parsonage, Manchester,
Lancashire M3 2LG;
"Business Day" any day (other than a
Saturday, Sunday or public
holiday) during which
banks in London are open
for normal business;
"Canada" Canada, its possessions
and territories and all
areas subject to its
jurisdiction and any
political subdivision
thereof;
"Chairman" the chairman of the SHH
Board from time to time;
"Closing Price" the middle market price
of a SHH Share at the
close of business on
the day to which such
price relates, as derived
from the Daily Official
List of the London Stock
Exchange;
"Companies Act 2006" the Companies Act 2006
(as amended from time
to time);
"Conditions" the conditions to the
Partial Offer which will
be set out in the Offer
Document, and which are
also set out in Part
A of Appendix I to this
Announcement;
"Daily Official List" the AIM appendix to the
Daily Official List of
the London Stock Exchange;
"Dealing Disclosure" has the same meaning
as in Rule 8 of the Takeover
Code;
"Deferred Shares" deferred shares of 24
pence each in the capital
of SHH;
"Disclosed" the information which
has been fairly disclosed
by SHH: (i) in its published
annual report and accounts
for the year ended 31
March 2017; (ii)
in any public announcement
on or before 5 p.m. on
the Business Day prior
to the date of this Announcement;
(iii) otherwise in writing
to FB Investors prior
to the date of this Announcement;
or (iv) in this Announcement;
"Disclosure Guidance the disclosure guidance
and Transparency Rules" and transparency rules
published by the Financial
Conduct Authority;
"FB Investors" FB Investors LLP, a limited
liability partnership
incorporated in England
and Wales with partnership
number OC419889 and whose
registered office is
at Lopian Gross Barnett
& Co., 6(th) Floor, Cardinal
House, 20 St. Mary's
Parsonage, Manchester,
Lancashire, M3 2LG;
"FB Investors Executive the members of the executive
Committee" committee of FB Investors,
being Philip Beinhaker
and Albert Friedberg;
"FB Investors Group" FB Investors and its
direct and indirect subsidiaries
or subsidiary undertakings
from time to time;
"FCMI" has the meaning given
to it in paragraph 8
of this Announcement;
"Financial Conduct Authority" the Financial Conduct
or "FCA" Authority in its capacity
as the competent authority
for the purposes of Part
VI of FSMA, including
its successor(s) from
time to time;
"First Closing Date" the date which falls
28 days after the posting
of the Offer Document;
"Form of Acceptance" the form of acceptance
and authority relating
to the Partial Offer
which (in the case of
SHH Shareholders who
hold their SHH Shares
in certificated form)
will accompany the Offer
Document;
"Form of Approval" the form of approval
relating to the Partial
Offer which will accompany
the Offer Document;
"Form of Proxy" the form of proxy for
use in connection with
the SHH General Meeting
which will accompany
the Offer Document;
"Formal Sale Process" the formal sale process
announced by SHH on 21
April 2016;
"FSMA" the Financial Services
and Markets Act 2000
(as amended from time
to time);
"IBI Group" IBI Group Inc., a public
corporation established
under the federal laws
of Canada, and its subsidiary
undertakings from time
to time;
"Japan" Japan, its cities, prefectures,
territories and possessions
and all areas subject
to its jurisdiction or
any political subdivision
thereof;
"London Stock Exchange" London Stock Exchange
plc together with any
successors thereto;
"MAR" the European Union Market
Abuse Regulation (Regulation
596/2014);
"New Zealand" the Commonwealth of New
Zealand, its states,
possessions and territories
and all areas subject
to its jurisdiction or
any political subdivision
thereof;
"Offer Document" the formal document setting
out the full terms and
conditions of the Partial
Offer to be posted to
SHH Shareholders (other
than certain Overseas
SHH Shareholders);
"Offer Period" the offer period (as
defined in the Takeover
Code) relating to SHH
which commenced on 21
April 2016 and shall
end on the earlier of
the date on which the
Partial Offer becomes,
or is declared, unconditional
as to acceptances and/or
the date on which the
Partial Offer lapses
or is withdrawn (or such
other date as the Panel
may decide);
"Offer Price" the consideration for
the Partial Offer, being
29.5 pence in cash for
each SHH Share to be
sold pursuant to the
Partial Offer;
"Offeror" FB Investors;
"Opening Position Disclosure" has the same meaning
as in Rule 8 of the Takeover
Code;
"Overseas SHH Shareholders" SHH Shareholders who
are resident in, or nationals
or citizens of, jurisdictions
outside the UK or who
are nominees of, or custodians,
or trustees for, SHH
Shareholders who are
citizens, residents or
nationals of countries
other than the UK;
"Panel" the Panel on Takeovers
and Mergers;
"Partial Offer" the recommended partial
cash offer being made
by FB Investors at the
Offer Price to acquire
up to 67,393,960 SHH
Shares on the terms,
and subject to the Conditions,
set out in this Announcement
and which will be set
out in the Offer Document
and (where applicable)
the Form of Acceptance
and including, where
the context so requires,
any subsequent revision,
variation, extension
or renewal of, or election
available under, such
offer;
"Plymouth and South West the joint plan between
Devon Joint Local Plan" Plymouth City Council,
South Hams District Counsel
and West Devon Borough
Council that was submitted
to the Planning Inspectorate
for examination on 31
July 2017;
"RBS" The Royal Bank of Scotland
plc, bankers to SHH;
"Record Date" the date to be set out
in the Offer Document,
which is expected to
be the close of business
on the Business Day immediately
preceding the date on
which the Partial Offer
becomes, or is declared,
wholly unconditional
or such other date as
FB Investors may, with
the consent of the Panel,
decide;
"Regulatory Information any information service
Service" authorised from time
to time by the FCA for
the purpose of disseminating
regulatory announcements;
"Relationship Agreement" the relationship agreement
entered into on or about
the date hereof between
FB Investors and SHH
to govern their relationship
following the Partial
Offer becoming, or being
declared, wholly unconditional
in accordance with its
terms;
"Resolutions" the ordinary resolution
and the special resolution
to be proposed at the
SHH General Meeting in
connection with the Partial
Offer and the Share Subscription
for the purposes of enabling
the SHH Directors to
allot the Subscription
Shares to FB Investors
at a subscription price
of 29.5 pence per Subscription
Share on a non pre-emptive
basis;
"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 Partial Offer is
sent or made available
in that jurisdiction,
including the United
States, Canada, Australia,
New Zealand, Japan, or
the Republic of South
Africa;
"Rothschild" N. M. Rothschild & Sons
Limited, the financial
adviser to SHH;
"Share Subscription" the proposed subscription
by FB Investors for the
Subscription Shares at
a price of 29.5 pence
per Subscription Share
in accordance with the
terms of the Share Subscription
Agreement;
"Share Subscription Agreement" the share subscription
agreement entered into
between FB Investors
and SHH on or about the
date hereof in respect
of the Share Subscription;
"SHH" or the "Company" Sutton Harbour Holdings
plc, a public company
incorporated in England
and Wales with registered
number 02425189 and whose
registered office is
at Tin Quay House, Sutton
Harbour, Plymouth, Devon,
PL4 0RA;
"SHH Directors" or "SHH the board of directors
Board" of SHH;
"SHH General Meeting" the general meeting to
be convened by SHH (including
any adjournment thereof)
in connection with the
Share Subscription for
the purposes of passing
the Resolutions;
"SHH Group" SHH and its subsidiary
undertakings from time
to time, and "member
of the SHH Group" shall
be construed accordingly;
"SHH Shareholders" registered holders of
SHH Shares from time
to time;
"SHH Shares" ordinary shares of 1p
each in the capital of
SHH;
"South Africa" the Republic of South
Africa and its respective
territories or possessions;
"Subscription Shares" the 9,322,034 new SHH
Shares to be allotted
and issued to FB Investors
pursuant to the terms
of the Share Subscription
Agreement;
"Substantial Interest" a direct or indirect
interest in 20 per cent.
or more of the voting
equity capital of an
undertaking;
"Sugar House" the property of SHH at
Sutton Harbour, Plymouth
PL4 0RA;
"Sutton Harbour Company" Sutton Harbour Company
Limited (company no.
ZC000187) whose registered
office is at Tin Quay
House, Sutton Harbour,
Plymouth, Devon, PL4
0RA;
"Takeover Code" the City Code on Takeovers
and Mergers;
"United Kingdom" or "UK" the United Kingdom of
Great Britain and Northern
Ireland;
"United States", "USA" the United States of
or "US" America, the territories
and possessions, any
state of the United States
of America, the District
of Columbia and all areas
subject to its jurisdiction
or any political subdivision
thereof;
"WH Ireland" WH Ireland Limited, the
financial adviser to
FB Investors; and
"Wider SHH Group" SHH and its subsidiaries,
subsidiary undertakings,
any joint venture, partnership,
firm or company in which
any member of the SHH
Group has a significant
interest or any undertaking
in which SHH and such
member or undertakings
(aggregating their interests)
have a Substantial Interest.
In this Announcement:
-- "subsidiary", "subsidiary undertaking" and "undertaking" have
the meanings given to them by the Companies Act 2006 and
"associated undertaking" has the meaning given to it by paragraph
19 of Schedule 6 of the Large and Medium-sized Companies and Groups
(Accounts and Reports) Regulations 2008, other than paragraph 1(b)
thereof which shall be excluded for this purpose;
-- all references to "GBP", "pounds", "GBP","penny" "pence" or
"p" are to the lawful currency of the United Kingdom;
-- the singular shall include the plural and vice versa, and
words importing the masculine gender shall include the feminine or
neutral gender;
-- all references to legislation are to English legislation
unless the contrary is indicated, and any reference to any
provision of any legislation includes any amendment, modification,
re-enactment or extension thereof; and
-- all times referred to are London time unless otherwise stated.
This information is provided by RNS
The company news service from the London Stock Exchange
END
OFBUORORBWAAUAA
(END) Dow Jones Newswires
November 23, 2017 08:11 ET (13:11 GMT)
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