14 Jan 2020 15:47
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF THAT JURISDICTION
FOR IMMEDIATE RELEASE
14 January 2020
Recommended Cash Offer
for
Consort Medical plc
by
Recipharm Holdings Limited
a directly wholly-owned subsidiary of Recipharm AB
Offer Update - German Competition Clearance
Introduction
On 6 December 2019, Recipharm published an offer document (the "Offer Document") setting out the full terms and conditions of its recommended cash offer to acquire the entire issued and to be issued share capital of Consort.
German Competition Clearance
The Offer remained subject to the condition set out in paragraph (b) of Part A of Appendix I of the Offer Document, which stated that the Offer was conditional on the prohibition on closing contained in s.41(1) sentence 1 of the German Act against Restraints and Competition ("ARC") being lifted as a result of the German Federal Cartel Office:
(i) having notified in writing the parties notifying the Acquisition that it will not prohibit the Acquisition (either unconditionally or subject to the fulfilment of certain conditions, limitations or obligations (Auflagen oder Bedingungen)); or
(ii) having failed to inform the parties notifying the Acquisition within one month of receipt of a complete notification (s.40(1) sentence 1 ARC) that it has initiated an in depth investigation of the Acquisition under s.40(2) ARC; or
(iii) having failed to issue an order pursuant to s.40(2) sentence 1 ARC within the time periods required pursuant to s.40(2) ARC.
Recipharm is pleased to announce that it has today received written notice from the German Federal Cartel Office that it will not prohibit the Acquisition, such that the condition set out in paragraph (b) of Part A of Appendix I of the Offer Document has been satisfied.
Completion of the Offer remains subject to other outstanding conditions, such as the Irish antitrust condition set out in paragraph (c) and the acceptance condition set out in paragraph (a), as set out in Part A of Appendix I of the Offer Document.
The Offer remains open for acceptance until 1.00 pm (London Time) on 23 January 2020. Consort Shareholders who have not yet accepted the Offer and who wish to do so should take action to accept the Offer as soon as possible in accordance with the instructions set out in the Offer Document by 1.00 pm (London Time) on 23 January 2020.
Further announcements will be made as necessary in due course.
Unless otherwise stated, the terms used in this announcement have the same meanings as given to them in the Offer Document.
Further information
This announcement is for information purposes only and is not intended to and does not constitute or form part of, any 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 Offer or otherwise nor shall there be any sale, issuance or transfer of securities of Consort in any jurisdiction in contravention of applicable law.
The Offer is being implemented solely by means of the Offer Document and, in respect of Consort Shares held in certificated form, the Form of Acceptance accompanying the Offer Document, which contains the full terms and conditions of the Offer including details of how to accept the Offer. Any approval, acceptance, decision or other response to the Offer should be made only on the basis of information in the Offer Document, and in respect of Consort Shares held in certificated form, the Form of Acceptance. Consort Shareholders are strongly advised to read the formal documentation in relation to the Offer and each Consort Shareholder is urged to consult its independent professional adviser immediately regarding the tax consequences to it (or its beneficial owners) of the Offer.
Overseas Shareholders
This announcement has been prepared in accordance with English law, the Takeover Code, the Market Abuse Regulation and the Disclosure Guidance and Transparency Rules and information disclosed may not be the same as that which would have been prepared in accordance with the laws of jurisdictions outside England. 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 there shall be no implication that there has been no change in the facts set forth in this announcement since such date.
The Offer is subject to the applicable rules and regulations of the FCA, the London Stock Exchange and the Takeover Code.
The release, publication or distribution of this announcement in jurisdictions other than the United Kingdom and the availability of the Offer to Consort Shareholders who are not resident in the United Kingdom may be affected by the laws of relevant jurisdictions. Therefore any persons who are subject to the laws of any jurisdiction other than the United Kingdom or Consort Shareholders who are not resident in the United Kingdom will need to inform themselves about, 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 Offer disclaim any responsibility or liability for the violation of such restriction by any person.
Unless otherwise determined by Consort or required by the Takeover Code and permitted by applicable law and regulation, the Offer is not being, and will not be, made available, directly or indirectly, in or into or by the use of the mails of, or by any other means or instrumentality (including, without limitation, by mail, telephonically or electronically by way of internet, facsimile, telex or otherwise) of interstate or foreign commerce of, or any facilities of a national state or other securities exchange of any Restricted Jurisdiction, and the Offer will not be capable of acceptance by any such use, means, instrumentality or otherwise or from within any Restricted Jurisdiction.
Accordingly, unless otherwise determined by Recipharm or required by the Takeover Code and permitted by applicable law and regulation, copies of this announcement and formal documents relating to the Offer will not be, and must not be, directly or indirectly, mailed, transmitted or otherwise forwarded, distributed or sent in, into or from any Restricted Jurisdiction and persons receiving this announcement (including, without limitation, agents, custodians, nominees and trustees) must not, directly or indirectly, mail or otherwise forward, distribute or send it in, into or from such jurisdiction. Any person (including, without limitation, any agent, custodian, nominee and trustee) who would, or otherwise intends to, or who may have a contractual or legal obligation to, forward this announcement and/or any other related document to any jurisdiction outside the United Kingdom should inform themselves of, and observe, any applicable legal or regulatory requirements of their jurisdiction.
Notice to US holders of Consort Shares
The Offer relates to shares of a UK company and is being effected by means of a contractual takeover offer under the Takeover Code and under the laws of England and Wales. The Offer will be made in the United States pursuant to all applicable laws and regulations, including, to the extent applicable, Section 14(e) and Regulation 14E under the US Exchange Act of 1934 (the "US Exchange Act") and otherwise in accordance with the requirements of the Takeover Code. Accordingly, the Offer will be subject to disclosure and other procedural requirements, including with respect to withdrawal rights, offer timetable, settlement procedures and timing of payments that are different from those applicable under US domestic tender offer procedures and law. The Offer is being made in the United States by Recipharm and no one else.
Furthermore, the payment and settlement procedure with respect to the Offer will comply with the relevant United Kingdom rules, which differ from US payment and settlement procedures, particularly with regard to the date of payment of consideration.
In accordance with, and to the extent permitted by, the Takeover Code and normal UK market practice, Lazard & Co., Limited, Peel Hunt LLP and their respective affiliates may continue to act as exempt fund managers, exempt principal traders or exempt market makers in relation to Consort Shares on the London Stock Exchange and will engage in certain other purchasing activities consistent with their respective normal and usual practice and applicable law, as permitted by Rule 14e-5(b)(9) under the US Exchange Act. In addition, in compliance with the Takeover Code and to the extent permitted under Rule 14e-5(b) under the US Exchange Act, Recipharm, certain affiliated companies or their respective nominees, or brokers (acting as agents) may from time to time make certain purchases of, or arrangements to purchase, Consort securities other than pursuant to any such Offer, either in the open market at prevailing prices or through privately negotiated purchases at negotiated prices outside the United States before or during the period in which the Offer remains open for acceptance (or, if the Acquisition is implemented by way of a scheme, until the date on which the scheme becomes effective, lapses or is otherwise withdrawn). To the extent required by Rule 14e 5(b)(12), such purchases, or arrangements to purchase, must comply with English law, the Takeover Code and the Listing Rules. Any information about such purchases will be disclosed to the Takeover Panel and, to the extent that such information is required to be publicly disclosed in the United Kingdom in accordance with applicable regulatory requirements, will be made available to all investors (including US investors) via the Regulatory Information Service on the London Stock Exchanges website, www.londonstockexchange.com.
Financial information included in the Offer Document has been or will be prepared in accordance with accounting standards applicable in the United Kingdom and may not be comparable to financial information of US companies or companies whose financial statements are prepared in accordance with generally accepted accounting principles in the United States.
Neither the United States Securities and Exchange Commission nor any United States state securities commission has approved or disapproved of the Offer, or passed comment upon the adequacy or completeness of this announcement or the Offer Document. Any representation to the contrary is a criminal offence in the United States.
The receipt of cash pursuant to the Offer by a US holder as consideration for the transfer of its Consort Shares pursuant to the Offer 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 Consort Shareholder is urged to consult his or her independent professional adviser immediately regarding the tax consequences of the Offer applicable to him or her.
It may be difficult for US holders of Consort securities to enforce their rights and any claim arising out of the US federal securities laws, since Recipharm and Consort are located outside of the United States, and some or all of their officers and directors may be resident outside of the United States. US holders of Consort securities may not be able to sue a foreign company or its officers or directors in a foreign court for violations of the US securities laws. Further, it may be difficult to compel a foreign company and its affiliates to subject themselves to a US court's judgment. There is substantial doubt as to the enforceability in the United Kingdom of original actions, or of actions for enforcement of judgments of US courts, based on civil liability provisions of US federal securities laws and judgment of a US court.
No offer to acquire securities or to exchange securities for other securities has been made, or will be made, directly or indirectly, in or into, or by the use of the mails of, or by any means or instrumentality of interstate or foreign commerce or any facilities of a national securities exchange of, the United States or any other country in which such offer may not be made other than: (i) in accordance with the tender offer requirements under the US Exchange Act, or the securities laws of such other country, as the case may be: or (ii) pursuant to an available exemption from such requirements.
Disclosure requirements of the Takeover Code
Under Rule 8.3(a) of the Takeover Code, any person who is interested in 1 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) applies must be made by no later than 3.30 pm on the 10th Business Day following the commencement of the Offer Period and, if appropriate, by no later than 3.30 pm 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 1 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), save to the extent that these details have previously been disclosed under Rule 8. A Dealing Disclosure by a person to whom Rule 8.3(b) applies must be made by no later than 3.30 pm on the Business Day following the date of the relevant dealing.
If two or more persons act together pursuant to an agreement or understanding, whether formal or informal, to acquire or control an interest in relevant securities of an offeree company or a securities exchange offeror, they will be deemed to be a single person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree company and by any offeror and Dealing Disclosures must also be made by the offeree company, by any offeror and by any persons acting in concert with any of them (see Rules 8.1, 8.2 and 8.4).
Details of the offeree and offeror companies in respect of whose relevant securities Opening Position Disclosures and Dealing Disclosures must be made can be found in the Disclosure Table on the Takeover Panel's website at www.thetakeoverpanel.org.uk, 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 Takeover 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.
Publication on Website
A copy of this announcement and the documents required to be published by Rule 26 of the Takeover Code will be available, subject to certain restrictions relating to persons resident in Restricted Jurisdictions, on Recipharm's website at www.recipharm.com/investor-relations and Consort's website at (www.consortmedical.com/investor-centre/) by no later than 12 noon (London time) on the Business Day following this announcement. For the avoidance of doubt, the content of the websites referred to in this announcement is not incorporated into and does not for part of this announcement.