HOTC Hotel Chocolat Group Plc

TIDMHOTC

RNS Number : 6487A

Hotel Chocolat Group PLC

23 January 2024

NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF SUCH JURISDICTION

FOR IMMEDIATE RELEASE

23 January 2024

RECOMMED CASH ACQUISITION

of

HOTEL CHOCOLAT GROUP PLC ("HOTEL CHOCOLAT")

by

HIVE BIDCO, INC. ( " BIDCO ")

a wholly-owned indirect subsidiary of Mars, Incorporated ("Mars")

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

COURT SANCTION OF SCHEME OF ARRANGEMENT

On 16 November 2023, the boards of directors of Hotel Chocolat and Bidco, a wholly-owned indirect subsidiary of Mars, Incorporated, announced that they had reached agreement on the terms and conditions of a recommended cash acquisition, pursuant to which Bidco will acquire the entire issued, and to be issued, share capital of Hotel Chocolat (the "Acquisition"). The Acquisition is being implemented by way of a Court-sanctioned scheme of arrangement (the "Scheme") under Part 26 of the Companies Act 2006. The scheme document in respect of the Acquisition (the " Scheme Document ") was published and made available to Hotel Chocolat Shareholders on 14 December 2023.

On 17 January 2024, Hotel Chocolat announced that the Scheme had been approved by the requisite majority of Scheme Shareholders at the Court Meeting held on 16 January 2024 and the Special Resolution relating to the implementation of the Scheme had been approved by the requisite majority of Hotel Chocolat Shareholders at the General Meeting also held on 16 January 2024.

Hotel Chocolat is pleased to announce that the High Court of Justice in England and Wales has today sanctioned the Scheme pursuant to which the Acquisition is being implemented.

The Scheme remains conditional on the delivery to the Registrar of Companies of the Court Order made at the Court Hearing to sanction the Scheme. The Scheme is expected to become effective on 25 January 2024 (the "Effective Date") and a further announcement will be made at that time.

The last day for dealings in, and for registrations of transfers of, Hotel Chocolat Shares is expected to be 24 January 2024. The Scheme Record Time is expected to be 6.00 p.m. on 24 January 2024, at which time CREST will be disabled in respect of Hotel Chocolat Shares. Trading in Hotel Chocolat Shares on AIM is expected to be suspended with effect from 7.30 a.m. on 25 January 2024.

It is expected that, subject to the Scheme becoming effective, the admission to trading of Hotel Chocolat Shares on AIM will be cancelled and Hotel Chocolat Shares will cease to be admitted to trading on AIM at 7.00 a.m. on 26 January 2024.

On the Effective Date, share certificates in respect of Hotel Chocolat Shares will cease to be valid and entitlements to Hotel Chocolat Shares held within the CREST system will be cancelled.

Capitalised terms used in this announcement (unless otherwise defined) have the same meanings as set out in the Scheme Document. All references to times in this announcement are to London, United Kingdom times unless otherwise stated.

Full details of the Acquisition are set out in the Scheme Document published on 14 December 2023.

Enquiries

 
 Bidco and Mars                                          +1 (312) 794 6200 
 Fabiano Lima, Global VP of Corporate Affairs, 
  Mars Snacking 
 Denise Young, Global VP of Corporate Communications, 
  Mars 
 
 Morgan Stanley (Financial Adviser to 
  Bidco and Mars)                                        +44 (0)20 7425 8000 
 Laurence Hopkins 
 Imran Ansari 
 Mae Wang 
 Stuart Wright 
 
 Brunswick (Public Relations Adviser to 
  Bidco and Mars)                                        +44 (0)20 7404 5959 
 Max McGahan 
 Rosie Oddy 
 James Baker 
 
 Hotel Chocolat                                          +44 (0)1763 257 746 
 Stephen Alexander, Non-Executive Chairman 
 Angus Thirlwell, Co-Founder and CEO 
 Jonathan Akehurst, Chief Financial Officer 
 
 Lazard (Lead Financial Adviser and Rule 
  3 Adviser to Hotel Chocolat)                           +44 (0)20 7187 2000 
 William Lawes 
 Davin Staats 
  Fariza Steel 
 Adam Blin 
 
 Liberum (Co-Financial Adviser, Nominated 
  Adviser and Corporate Broker to Hotel 
  Chocolat)                                              +44 (0)20 3100 2000 
 Dru Danford 
 Tim Medak 
 Ed Thomas 
 Matt Hogg 
 
 Citigate Dewe Rogerson (Financial Communications 
  Adviser to Hotel Chocolat)                             +44 (0)20 7638 9571 
 Angharad Couch 
 Ellen Wilton 
 Alex Winch 
 

Freshfields Bruckhaus Deringer LLP is acting as legal adviser to Bidco and Mars in connection with the Acquisition. Herbert Smith Freehills LLP is acting as legal adviser to Hotel Chocolat in connection with the Acquisition.

Important notices

This announcement is for information purposes only and is not intended to, and does not, constitute, or form part of, an offer, invitation or the solicitation of an offer to purchase, otherwise acquire, subscribe for, sell or otherwise dispose of, any securities or the solicitation of any vote or approval in any jurisdiction pursuant to the Acquisition or otherwise, nor shall there be any sale, issuance or transfer of securities of Hotel Chocolat in any jurisdiction in contravention of applicable law. The Acquisition will be implemented solely pursuant to the terms of the Scheme Document (or, if the Acquisition is implemented by way of a Takeover Offer, the offer document), which will contain the full terms and conditions of the Acquisition, including details of how to vote in respect of the Acquisition. Any vote in respect of the Scheme or other response in relation to the Acquisition should be made only on the basis of the information contained in the Scheme Document (or, if the Acquisition is implemented by way of a Takeover Offer, the offer document).

This announcement does not constitute a prospectus or a prospectus-equivalent document.

If you are in any doubt about the contents of this announcement or the action you should take, you are recommended to seek your own financial advice immediately from your stockbroker, bank manager, solicitor, accountant or other independent financial adviser duly authorised under the Financial Services and Markets Act 2000 (as amended) if you are resident in the United Kingdom or from another appropriately authorised independent financial adviser if you are taking advice in a territory outside the United Kingdom.

Notices related to financial advisers

Morgan Stanley, which is authorised by the Prudential Regulation Authority and regulated in the United Kingdom by the Financial Conduct Authority and the Prudential Regulation Authority, is acting exclusively as financial adviser to Bidco and Mars and no one else in connection with the matters contained in this announcement and Morgan Stanley, its affiliates and their respective directors, officers, employees and agents will not regard any other person as their client, nor will they be responsible to anyone other than Bidco and Mars for providing the protections afforded to clients of Morgan Stanley nor for providing advice in connection with the matters contained in this announcement or any other matter referred to herein.

Lazard & Co., Limited, which is authorised and regulated in the United Kingdom by the Financial Conduct Authority ("FCA"), is acting exclusively as lead financial adviser and Rule 3 adviser to Hotel Chocolat and no one else in connection with the matters described in this announcement and will not be responsible to anyone other than Hotel Chocolat for providing the protections afforded to clients of Lazard nor for providing advice in relation to the contents of this announcement or any other matter or arrangement referred to herein. Neither Lazard nor any of its affiliates (nor their respective directors, officers, employees or agents) owes or accepts any duty, liability or responsibility whatsoever (whether direct or indirect, whether in contract, in tort, under statute or otherwise) to any person who is not a client of Lazard in connection with this announcement, any matter, arrangement or statement contained or referred to herein or otherwise.

Liberum, which is authorised and regulated by the Financial Conduct Authority in the United Kingdom, is acting exclusively for Hotel Chocolat and for no one else in connection with the subject matter of this announcement and will not be responsible to anyone other than Hotel Chocolat for providing the protections afforded to its clients or for providing advice in connection with the subject matter of this announcement. Neither Liberum nor any of its affiliates (nor their respective directors, officers, employees or agents) owes or accepts any duty, liability or responsibility whatsoever (whether direct or indirect, whether in contract, in tort, under statute or otherwise) to any person who is not a client of Liberum in connection with the Acquisition, this announcement, any statement contained herein or otherwise. No representation or warranty, express or implied, is made by Liberum as to the contents of this announcement.

Overseas shareholders

The release, publication or distribution of this announcement in or into jurisdictions other than the UK may be restricted by law and therefore any persons who are subject to the law of any jurisdiction other than the UK should inform themselves of, and observe, any applicable legal or regulatory requirements. Any failure to comply with such requirements may constitute a violation of the securities laws of any such jurisdiction. To the fullest extent permitted by applicable law, the companies and persons involved in the Acquisition disclaim any responsibility or liability for the violation of such restrictions by any person. This announcement has been prepared for the purposes of complying with English law, the AIM Rules and the Code and the information disclosed may not be the same as that which would have been disclosed if this announcement had been prepared in accordance with the laws of jurisdictions outside of England.

The availability of the Acquisition to Hotel Chocolat Shareholders who are not resident in and citizens of the UK 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 the UK should inform themselves of, and observe, any applicable legal or regulatory requirements of their jurisdictions. In particular, the ability of persons who are not resident in the UK to vote their Scheme Shares with respect to the Scheme at the Court Meeting, or to appoint another person as proxy to vote at the Court Meeting on their behalf, may be affected by the laws of the relevant jurisdictions in which they are located. Any failure to comply with the applicable restrictions may constitute a violation of the securities laws of any such jurisdiction. To the fullest extent permitted by applicable law, the companies and persons involved in the Acquisition disclaim any responsibility or liability for the violation of such restrictions by any person.

Unless otherwise determined by Bidco or required by the Code, and permitted by applicable law and regulation, the Acquisition will not be made available, directly or indirectly, in, into or from a Restricted Jurisdiction where to do so would violate the laws in that jurisdiction and no person may vote in favour of the Scheme by any such use, means, instrumentality or from within a Restricted Jurisdiction or any other jurisdiction if to do so would constitute a violation of the laws of that jurisdiction. Copies of this announcement and any formal documentation relating to the Acquisition are not being, and must not be, directly or indirectly, mailed or otherwise forwarded, distributed or sent in or into or from any Restricted Jurisdiction and persons receiving such documents relating to the Acquisition (including, without limitation, agents, custodians, nominees and trustees) must not mail or otherwise forward, distribute or send it in or into or from any Restricted Jurisdiction. Doing so may render invalid any related purported vote in respect of the Acquisition. If the Acquisition is implemented by way of an Takeover Offer (unless otherwise permitted by applicable law and regulation), the Takeover Offer may not be made directly or indirectly, in or into, or by the use of mails or any means or instrumentality (including, but not limited to, facsimile, e-mail or other electronic transmission, telex or telephone) of interstate or foreign commerce of, or of any facility of a national, state or other securities exchange of any Restricted Jurisdiction and the Takeover Offer may not be capable of acceptance by any such use, means, instrumentality or facilities or from or within any Restricted Jurisdiction.

The availability of the Acquisition (including the Partial Share Alternative) to Hotel Chocolat Shareholders who are not resident in the UK may be affected by the laws of the relevant jurisdictions in which they are resident. Persons who are not resident in the UK should inform themselves of, and observe, any applicable requirements.

The Acquisition shall be subject to the applicable requirements of the Code, the Panel, the London Stock Exchange, the FCA and the AIM Rules.

Additional information for US investors

The Acquisition is being made to acquire the shares of an English company by means of a scheme of arrangement provided for under English law. A transaction effected by means of a scheme of arrangement is not subject to the tender offer rules or the proxy solicitation rules under the US Exchange Act. Accordingly, the Scheme will be subject to disclosure requirements and practices applicable in the UK to schemes of arrangement, which are different from the disclosure requirements of the US tender offer and proxy solicitation rules. The financial information included in this announcement and the Scheme documentation has been or will have been prepared in accordance with accounting standards applicable in the United Kingdom and thus may not be comparable to financial information of US companies or companies whose financial statements are prepared in accordance with generally accepted accounting principles in the US. If Bidco exercises its right to implement the acquisition of the Hotel Chocolat Shares by way of a Takeover Offer, such offer will be made in compliance with applicable US laws and regulations.

The receipt of cash pursuant to the Acquisition by a US holder as consideration for the transfer of its Hotel Chocolat Shares pursuant to the Scheme will likely be a taxable transaction for United States federal income tax purposes and under applicable United States state and local, as well as foreign and other, tax laws. Each Hotel Chocolat Shareholder is urged to consult their independent professional adviser immediately regarding the tax consequences of the Acquisition applicable to them.

The Rollover Shares issued under the Partial Share Alternative have not been and will not be registered under the US Securities Act of 1933 (the "Securities Act") or under the relevant securities laws of any state or territory or other jurisdiction of the US and will not be listed on any stock exchange. Accordingly, the Rollover Shares may not be offered or sold in the US, except in a transaction not subject to, or in reliance on an applicable exemption from, the registration requirements of the Securities Act and any applicable state securities laws. Bidco expects to issue the Rollover Shares in reliance upon the exemption from the registration requirements of the Securities Act provided by Section 3(a)(10) thereof ("Section 3(a)(10)"). Section 3(a)(10) exempts securities issued in specified exchange transactions from the registration requirement under the Securities Act where, among other things, the fairness of the terms and conditions of the issuance and exchange of such securities have been approved by a court or governmental authority expressly authorised by law to grant such approval, after a hearing upon the fairness of the terms and conditions of the exchange at which all persons to whom the Rollover Shares are proposed to be issued have the right to appear and receive adequate and timely notice thereof. If Bidco exercises its right to implement the acquisition of the Hotel Chocolat Shares by way of a Takeover Offer, the Rollover Shares will not be offered in the United States except pursuant to an exemption from or in a transaction not subject to registration under the Securities Act.

US holders who are or will be affiliates of Bidco Group or Hotel Chocolat prior to, or of Bidco Group after, the Effective Date will be subject to certain US transfer restrictions relating to the Rollover Shares received pursuant to the Scheme.

For the purposes of qualifying for the exemption from the registration requirements of the Securities Act in respect of the Rollover Shares issued pursuant to the Partial Share Alternative afforded by Section 3(a)(10), Bidco Group advised the Court that its sanctioning of the Scheme will be relied upon by Bidco Group as an approval of the Scheme following a hearing on its fairness to Hotel Chocolat Shareholders.

Neither the US Securities and Exchange Commission nor any US state securities commission has approved or disapproved of the Partial Share Alternative nor the securities to which it relates or determined if the Scheme Document is accurate or complete or adequate. Any representation to the contrary is a criminal offence.

In accordance with normal UK practice and pursuant to Rule 14e-5(b) of the US Exchange Act (to the extent applicable), Bidco or its nominees, or its brokers (acting as agents), may from time to time make certain purchases of, or arrangements to purchase, Hotel Chocolat Shares outside of the US, other than pursuant to the Acquisition, until the date on which the Acquisition and/or Scheme becomes effective, lapses or is otherwise withdrawn. If such purchases or arrangements to purchase were to be made, they would be made outside of the US and would be in accordance with applicable law, including the US Exchange Act and the Code. These purchases may occur either in the open market at prevailing prices or in private transactions at negotiated prices. Any information about such purchases will be disclosed as required in the UK, will be reported to a Regulatory Information Service and will be available on the London Stock Exchange website at www.londonstockexchange.com .

Cautionary note regarding forward-looking statements

This announcement (including information incorporated by reference in this announcement), oral statements made regarding the Acquisition, and other information published by Bidco, Mars and Hotel Chocolat contain statements which are, or may be deemed to be, "forward-looking statements". Forward-looking statements are prospective in nature and are not based on historical facts, but rather on current expectations and projections of the management of Bidco, Mars and Hotel Chocolat about future events, and are therefore subject to risks and uncertainties which could cause actual results to differ materially from the future results expressed or implied by the forward-looking statements.

The forward-looking statements contained in this announcement include statements relating to the expected effects of the Acquisition on Bidco, Mars and Hotel Chocolat (including their future prospects, developments and strategies), the expected timing and scope of the Acquisition and other statements other than historical facts. Often, but not always, forward-looking statements can be identified by the use of forward-looking words such as "prepares", "plans", "expects" or "does not expect", "is expected", "is subject to", "budget", "projects", "synergy", "strategy", "scheduled", "goal", "estimates", "forecasts", "cost-saving", "intends", "anticipates" or "does not anticipate", or "believes", or variations of such words and phrases or statements that certain actions, events or results "may", "could", "should", "would", "might" or "will" be taken, occur or be achieved. Forward looking statements may include statements relating to the following: (i) future capital expenditures, expenses, revenues, earnings, synergies, economic performance, indebtedness, financial condition, dividend policy, losses and future prospects; (ii) business and management strategies and the expansion and growth of Bidco's, Hotel Chocolat's, any member of the Bidco Group's or any member of the Hotel Chocolat Group's operations and potential synergies resulting from the Acquisition; and (iii) the effects of global economic conditions and governmental regulation on Bidco's, Hotel Chocolat's, any member of the Bidco Group's or any member of the Hotel Chocolat Group's business.

Although Bidco, Mars and Hotel Chocolat believe that the expectations reflected in such forward-looking statements are reasonable, Bidco, Mars and Hotel Chocolat can give no assurance that such expectations will prove to be correct. By their nature, forward-looking statements involve risk and uncertainty because they relate to events and depend on circumstances that will occur in the future. There are a number of factors that could cause actual results and developments to differ materially from those expressed or implied by such forward-looking statements.

These factors include, but are not limited to: the ability to complete the Acquisition; the ability to obtain requisite regulatory and shareholder approvals and the satisfaction of other Conditions on the proposed terms and schedule; changes in the global political, economic, business and competitive environments and in market and regulatory forces; changes in future exchange and interest rates; changes in tax rates; future business combinations or disposals; changes in general economic and business conditions; changes in the behaviour of other market participants; and changes in the anticipated benefits from the proposed transaction not being realised as a result of: changes in general economic and market conditions in the countries in which Bidco and Hotel Chocolat operate, weak, volatile or illiquid capital and/or credit markets, changes in tax rates, interest rate and currency value fluctuations, the degree of competition in the geographic and business areas in which Bidco and Hotel Chocolat operate and changes in laws or in supervisory expectations or requirements. Other unknown or unpredictable factors could cause actual results to differ materially from those expected, estimated or projected in the forward-looking statements. If any one or more of these risks or uncertainties materialises or if any one or more of the assumptions proves incorrect, actual results may differ materially from those expected, estimated or projected. Such forward-looking statements should therefore be construed in the light of such factors. Neither Bidco, Mars nor Hotel Chocolat, nor any of their respective associates or directors, members, managers, partners, officers or advisers, provides any representation, assurance or guarantee that the occurrence of the events expressed or implied in any forward-looking statements in this announcement will actually occur. You are cautioned not to place any reliance on these forward-looking statements. The forward-looking statements speak only at the date of this announcement.

Other than in accordance with their legal or regulatory obligations, neither Bidco, Mars nor Hotel Chocolat is under any obligation, and Bidco, Mars and Hotel Chocolat 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.

Disclosure requirements of the Code

Under Rule 8.3(a) of the Code, any person who is interested in 1% or more of any class of relevant securities of an offeree company or of any securities exchange offeror (being any offeror other than an offeror in respect of which it has been announced that its offer is, or is likely to be, solely in cash) must make an Opening Position Disclosure following the commencement of the offer period 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 Code applies must be made by no later than 3.30 pm (London time) on the 10th business day following the commencement of the offer period and, if appropriate, by no later than 3.30 pm (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 Code, any person who is, or becomes, interested in 1% or more of any class of relevant securities of the offeree company or of any securities exchange offeror must make a Dealing Disclosure if the person deals in any relevant securities of the offeree company or of any securities exchange offeror. A Dealing Disclosure must contain details of the dealing concerned and of the person's interests and short positions in, and rights to subscribe for, any relevant securities of each of (i) the offeree company and (ii) any securities exchange offeror(s), save to the extent that these details have previously been disclosed under Rule 8 of the Code. A Dealing Disclosure by a person to whom Rule 8.3(b) of the Code applies must be made by no later than 3.30 pm (London time) on the business day following the date of the relevant dealing.

If two or more persons act together pursuant to an agreement or understanding, whether formal or informal, to acquire or control an interest in relevant securities of an offeree company or a securities exchange offeror, they will be deemed to be a single person for the purpose of Rule 8.3 of the 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 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 Takeover 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.

Rule 26.1 disclosure

In accordance with Rule 26.1 of the Code, a copy of this announcement will be available (subject to certain restrictions relating to persons resident in Restricted Jurisdictions) on Hotel Chocolat's website at https://www.hotelchocolat.com/uk/investor-relations-offer.html , and Bidco's website, at https://www.mars.com/news-and-stories/press-releases-statements/recommended-acquisition-of-hotel-chocolat-group-plc by no later than 12 noon (London time) on the business day following the date of this announcement. For the avoidance of doubt, the contents of these websites are not incorporated by reference and do not form part of this announcement.

No profit forecasts, estimates or quantified financial benefits statements

No statement in this announcement is intended as a profit forecast, profit estimate or quantified benefits statement for any period and no statement in this announcement should be interpreted to mean that earnings or earnings per share for Bidco or Hotel Chocolat for the current or future financial years would necessarily match or exceed the historical published earnings or earnings per share for Bidco or Hotel Chocolat, as appropriate.

Requesting hard copy documents

In accordance with Rule 30.3 of the Code, Hotel Chocolat Shareholders, persons with information rights and participants in Hotel Chocolat Share Schemes may request a hard copy of this announcement by: (i) telephoning Equiniti on +44 (0) 371 384 2030. If calling from outside of the UK, please ensure the country code is used. Lines will be open from 8.30 a.m. to 5.30 p.m., Monday to Friday (excluding public holidays in England and Wales); or (ii) submitting a request in writing to Equiniti Limited, Aspect House, Spencer Road, Lancing, West Sussex BN99 6DA, United Kingdom. For persons who receive a copy of this announcement in electronic form or via a website notification, a hard copy of this announcement will not be sent unless so requested.

Such persons may also request that all future documents, announcements and information to be sent to you in relation to the Acquisition should be in hard copy form.

Electronic Communications

Please be aware that addresses, electronic addresses and certain other information provided by Hotel Chocolat Shareholders, persons with information rights and other relevant persons for the receipt of communications from Hotel Chocolat may be provided to Bidco during the offer period as required under Section 4 of Appendix 4 of the Code to comply with Rule 2.11(c) of the Code.

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January 23, 2024 07:54 ET (12:54 GMT)