TIDMTRS TIDMCGN
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, IN OR INTO
OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE
RELEVANT LAWS OF SUCH JURISDICTION
London, 9 June 2009
RECOMMENDED ACQUISITION
by
Tarsus Group PLC ("Tarsus")
of
CapRegen PLC ("CapRegen")
(TO BE EFFECTED BY MEANS OF A SCHEME OF ARRANGEMENT)
Summary
The board of Tarsus and the Independent CapRegen Director are pleased to
announce that they have today reached agreement on the terms of a recommended
acquisition by Tarsus of the entire issued and to be issued share capital of
CapRegen which is not already owned by Tarsus.
It is proposed that the Proposal be implemented by way of a scheme of
arrangement under section 899 of the 2006 Act involving a reduction of capital
under section 135 of the 1985 Act.
Under the terms of the Proposal, Scheme Shareholders will receive:
1 New Tarsus Share for every 24 CapRegen Shares
held at the Scheme Record Time and so in proportion for any other number of
CapRegen Shares held at that time.
Based upon the Closing Price of 102.0 pence per Tarsus Share on 9 June 2009
(being today's Closing Price), the Proposal values each CapRegen Share at 4.25
pence and CapRegen's Existing Share Capital at approximately GBP3.78 million.
On this agreed basis, the Proposal represents a premium of 3.03 per cent. to
the Closing Price of a CapRegen Share of 4.125 pence on 9 June 2009 (being
today's Closing Price).
Assuming no further Tarsus Shares or CapRegen Shares are issued in the period
between the date of this announcement and the Effective Date, immediately
following the Effective Date approximately 4.69 per cent. of the enlarged
issued ordinary share capital of Tarsus will be held by existing CapRegen
Shareholders and approximately 95.31 per cent. will be held by existing Tarsus
Shareholders.
The Scheme will be conditional on, amongst other things, the approval by a
majority in number representing three fourths in value of the holders of both
the Independent Shares and the Director Shares at the Court Meetings.
The Independent CapRegen Director, who has been so advised by Blue Oar,
considers the terms of the Proposal to be fair and reasonable. In providing its
advice, Blue Oar has taken into account the commercial assessment of the
Independent CapRegen Director.
The Independent CapRegen Director intends to recommend that Scheme Shareholders
vote in favour of the resolutions to approve the Scheme to be proposed at the
Court Meetings and that CapRegen Shareholders vote in favour of the Special
Resolution to be proposed at the General Meeting.
Tarsus has received irrevocable undertakings to vote in favour of the
resolutions to be proposed at the First Court Meeting and the General Meeting
from Independent Shareholders who, in aggregate, hold 15,830,000 CapRegen
Shares, representing approximately 17.8 per cent. of the issued share capital
of CapRegen and approximately 29.9 per cent. of the existing Independent
Shares.
The Director Shareholders have irrevocably undertaken to vote in favour of the
resolutions to be proposed at the Second Court Meeting and the General Meeting
in respect of, in aggregate, 20,500,000 CapRegen Shares, representing 100 per
cent. of the existing Director Shares and approximately 23.0 per cent. of the
issued share capital of CapRegen.
The Scheme Document setting out the conditions and further details of the
Proposal and the procedures to be followed in connection with the
implementation of the Scheme will be posted to CapRegen Shareholders as soon as
reasonably practicable. The Acquisition is expected to be completed on 24 July
2009.
PKF is acting as financial adviser to Tarsus. Blue Oar is acting as financial
adviser to CapRegen.
This summary should be read in conjunction with, and is subject to, the full
text of this announcement including the Appendices. The Proposal will be
subject to the Conditions set out in Appendix I to this announcement and to the
further terms to be set out in the Scheme Document. Appendix II sets out the
bases and sources of information from which the financial calculations used in
this announcement have been derived. Appendix III contains particulars of the
irrevocable undertakings referred to in paragraph 11 of this announcement.
Appendix IV contains the definitions of terms used in this announcement
(including this summary).
Enquiries
Tarsus 020 8846 2700
Douglas Emslie
PKF (UK) LLP (Financial Adviser to Tarsus) 020 7065 0000
Jeff Harris
Araminta Sugden
CapRegen 07785 257 010
George Greenwood
Blue Oar Securities Plc (Financial Adviser to CapRegen) 020 7448 4400
William Vandyk
PKF, which is authorised and regulated in the UK by the FSA, is acting
exclusively as financial adviser to Tarsus and to no one else in connection
with the Proposal and will not be responsible to anyone other than Tarsus for
providing the protections afforded to customers of PKF nor for providing advice
in relation to the Proposal or any other matter referred to in this
announcement.
Blue Oar, which is authorised and regulated in the UK by the FSA, is acting
exclusively as financial adviser to CapRegen and no one else in connection with
the Proposal and will not be responsible to anyone other than CapRegen for
providing the protections afforded to customers of Blue Oar nor for providing
advice in relation to the Proposal or any other matter referred to in this
announcement.
This announcement is not intended to and does not constitute or form part of,
an offer or invitation to sell or subscribe for or acquire or exchange
securities in Tarsus or CapRegen or a solicitation of any vote or approval in
any jurisdiction pursuant to the Proposal or otherwise. The full terms and
conditions of the Scheme will be set out in the Scheme Document. CapRegen
Shareholders are advised to read carefully the formal documentation in relation
to the Proposal, once it is dispatched. In deciding whether or not to approve
the Scheme, CapRegen Shareholders must rely solely on the terms and conditions
of the Proposal and the information contained, and the procedures described, in
the Scheme Document.
The distribution of this announcement in jurisdictions other than the UK and
the implications of the Scheme for CapRegen Shareholders outside the UK may be
affected by the laws of the relevant jurisdictions. CapRegen Shareholders
outside the UK should inform themselves about and observe any applicable
requirements. It is the responsibility of each CapRegen Shareholder to satisfy
himself as to the full observance of the laws of the relevant jurisdiction in
connection therewith, including the obtaining of any governmental, exchange
control or other consents which may be required to be observed and the payment
of any issue, transfer or other taxes in such jurisdictions. This announcement
has been prepared for the purpose of complying with English law and the City
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 the UK.
Cautionary note on forward looking statements
This announcement contains statements that are or may be forward-looking
statements concerning the Proposal, Tarsus and CapRegen. These forward-looking
statements can be identified by the fact that they do not relate only to
historical or current facts. Forward-looking statements often use words such as
"anticipate", "target", "expect", "estimate", "intend", "plan", "goal",
"believe", "will", "may", "should", "would", "could" or other words of similar
meaning. These statements are based on assumptions and assessments made by the
directors of Tarsus or CapRegen in light of their experience and their
perception of historical trends, current conditions, expected future
developments and other factors they believe appropriate. By their nature,
forward-looking statements involve risk and uncertainty, and the factors
described in the context of such forward-looking statements in this document
could cause actual results and developments to differ materially from those
expressed in or implied by such forward-looking statements.
Should one or more of these risks or uncertainties materialise, or should
underlying assumptions prove incorrect, actual results may vary materially from
those described in this document. Tarsus and CapRegen assume no obligation to
update or correct the information contained in this announcement, whether as a
result of new information, future events or otherwise, except to the extent
legally required.
Nothing in this announcement is intended to be a profit forecast and the
statements in this announcement should not be interpreted to mean that the
earnings per Tarsus Share for the current or future financial periods will
necessarily be greater than those for the relevant preceding financial period.
Dealing disclosure requirements
Under the provisions of Rule 8.3 of the City Code, if any person is, or
becomes, "interested" (directly or indirectly) in 1 per cent. or more of any
class of "relevant securities" of Tarsus or of CapRegen, all "dealings" in any
"relevant securities" of that company (including by means of an option in
respect of, or a derivative referenced to, any such "relevant securities") must
be publicly disclosed by no later than 3.30 pm (London time) on the Business
Day following the date of the relevant transaction. This requirement will
continue until the date on which the Acquisition and/or Scheme becomes
effective, lapses or is otherwise withdrawn or on which the "offer period"
otherwise ends. If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire an "interest" in
"relevant securities" of CapRegen or Tarsus, they will be deemed to be a single
person for the purpose of Rule 8.3. Under the provisions of Rule 8.1 of the
City Code, all "dealings" in "relevant securities" of Tarsus or of CapRegen by
Tarsus or CapRegen, or by any of their respective "associates", must be
disclosed by no later than 12.00 noon (London time) on the Business Day
following the date of the relevant transaction. A disclosure table, giving
details of the companies in whose "relevant securities" "dealings" should be
disclosed, and the number of such securities in issue, can be found on the
Panel's website at www.thetakeoverpanel.org.uk.
"Interests in securities" arise, in summary, when a person has long economic
exposure, whether conditional or absolute, to changes in the price of
securities. In particular, a person will be treated as having an "interest" by
virtue of the ownership or control of securities, or by virtue of any option in
respect of, or derivative referenced to, securities. Terms in quotation marks
are defined in the City Code, which can also be found on the Panel's website.
If you are in any doubt as to whether or not you are required to disclose a
dealing under Rule 8 you should consult the Panel.
In accordance with Rule 2.10 of the City Code, Tarsus confirms that it has
62,212,671 ordinary shares of 5 pence each in issue and admitted to trading on
AIM under the UK ISIN Code JE00B3DG9318.
In accordance with Rule 2.10 of the City Code, CapRegen confirms that it has
89,010,000 ordinary shares of 1 pence each in issue and admitted to trading on
the AIM Market of the London Stock Exchange's under the UK ISIN Code
GB00B1ZBZK91.
A copy of this document will be published and available for download from http:
//www.tarsus-group.com/
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, IN OR INTO
OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE
RELEVANT LAWS OF SUCH JURISDICTION
London, 9 June 2009
RECOMMENDED ACQUISITION
by
TARSUS GROUP PLC ("TARSUS")
of
CAPREGEN PLC ("CAPREGEN")
(TO BE EFFECTED BY MEANS OF A SCHEME OF ARRANGEMENT)
1. Introduction
The board of Tarsus and the Independent CapRegen Director are pleased to
announce that they have today reached agreement on the terms of a recommended
acquisition by Tarsus of the entire issued and to be issued share capital of
CapRegen that it does not already own. It is proposed that the Proposal be
implemented by way of a scheme of arrangement under section 899 of the 2006 Act
involving a reduction of capital under section 135 of the 1985 Act.
The Independent CapRegen Director, who has been so advised by Blue Oar,
considers the terms of the Proposal to be fair and reasonable. In providing its
advice, Blue Oar has taken into account the commercial assessment of the
Independent CapRegen Director. Accordingly, the Independent CapRegen Director
intends to recommend Scheme Shareholders to vote in favour of the resolutions
to approve the Scheme at the Court Meetings and CapRegen Shareholders to vote
in favour of the Special Resolution to be proposed at the General Meeting, as
he has irrevocably undertaken to do in respect of his own beneficial holdings
of 400,000 CapRegen Shares, representing approximately 0.45 per cent. of the
CapRegen Shares in issue on 8 June 2009 (being the last Business Day prior to
the date of this announcement).
2. The Proposal
The Proposal involves the acquisition by Tarsus of the entire issued and to be
issued share capital of CapRegen and is to be effected by way of a scheme of
arrangement between CapRegen and the Scheme Shareholders under section 899 of
the 2006 Act involving a reduction of capital under the 1985 Act. Under the
terms of the Scheme, which will be subject to satisfaction or (where
appropriate) waiver of the Conditions set out in Appendix I and to the further
terms to be set out in the Scheme Document, Scheme Shareholders who are on the
register of members at the Scheme Record Time will receive:
1 New Tarsus Share for every 24 CapRegen Shares
and so in proportion for any other number of Scheme Shares held at that time;
Fractions of New Tarsus Shares will not be allotted or issued pursuant to the
Proposal and fractional entitlements will be rounded down to the nearest whole
number of New Tarsus Shares.
Based upon the Closing Price of 102.0 pence per Tarsus Share on 9 June 2009
(being today's Closing Price), the Proposal values each CapRegen Share at 4.25
pence and CapRegen's Existing Share Capital at approximately GBP3.78 million.
On this agreed basis, the Proposal represents a premium of 3.03 per cent. to
the Closing Price of a CapRegen Share of 4.125 pence on 9 June 2009 (being
today's Closing Price).
Assuming no further Tarsus Shares or CapRegen Shares are issued in the period
between the date of this announcement and the Effective Date, immediately
following the Effective Date approximately 4.69 per cent. of the Enlarged Share
Capital of Tarsus will be held by existing CapRegen Shareholders and
approximately 95.31 per cent. will be held by existing Tarsus Shareholders.
If the Scheme becomes effective, it will be binding on all Scheme Shareholders
irrespective of whether or not they attended or voted in favour of the Scheme
at the Court Meetings or the Special Resolution at the General Meeting.
The New Tarsus Shares will be issued credited as fully paid, and on identical
terms to and will rank pari passu with the existing Tarsus Shares, including
the right to receive and retain all dividends and other distributions declared,
paid or made on Tarsus Shares after the Scheme becomes effective.
3. Irrevocable undertakings
Helium Special Situations Fund, and the Independent Director as Independent
Shareholders have each irrevocably undertaken to exercise (or procure the
exercise of) the voting rights in respect of their aggregate interests in
15,830,000 CapRegen Shares, representing approximately 29.9 per cent. of the
existing Independent Shares and approximately 17.8 per cent. of the existing
issued share capital of CapRegen) in favour of the resolutions to be proposed
at the First Court Meeting.
The Director Shareholders have each irrevocably undertaken to exercise (or
procure the exercise of) the voting rights in respect of their respective
interests in 20,500,000 CapRegen Shares, representing 100 per cent. of the
existing Director Shares and approximately 23.0 per cent. of the existing
issued share capital of CapRegen) in favour of the resolutions to be proposed
at the Second Court Meeting.
In aggregate, Helium Special Situations Fund, the Independent Director and the
Director Shareholders have irrevocably undertaken to exercise (or procure the
exercise of) the voting rights in respect of a total of 36,330,000 CapRegen
Shares, representing approximately 40.8 per cent. of the existing share capital
of CapRegen in favour of the resolutions to be proposed at the General Meeting.
4. Background to and reasons for the Proposal
In 2006, Tarsus acquired 80 per cent. of MCII from the Doctors, allowing Tarsus
to further develop its exhibitions and conference business. MCII, which had
been founded by the Doctors in 2003, owned and operated medical sector
exhibitions and conferences in the US anti-ageing market.
CapRegen was formed in 2007 and listed on the AIM market by Tarsus and the
Doctors in order to make investments in anti-ageing healthcare products and
technologies. Investment opportunities were to be identified by the Doctors
through their expertise from MCII and their earlier endeavours. CapRegen has
made three investments since its formation. However, in the current economic
climate, the CapRegen Directors consider it unlikely that further investments
will be made in the foreseeable future or that the existing portfolio will
produce a strong return.
Tarsus currently holds 15,500,000 CapRegen Shares, representing 17.4 per cent.
of the issued share capital of CapRegen. Tarsus believes it would be attractive
to acquire the balance of the CapRegen Shares it does not currently own in
order to incorporate CapRegen's investment portfolio within its own assets and
to make use of CapRegen's currently unutilised cash, which at 31 May 2009 stood
at GBP3.44 million.
The Proposal is intended to provide CapRegen Shareholders with an opportunity
to swap their interest in an investment company with, by its own reckoning,
limited short-term growth potential and which trades in the relatively illiquid
AIM junior market for shares in an established, profitable trading business
which are admitted to the Official List and which pays regular dividends,.
5. Information on Tarsus
Tarsus was incorporated under the Companies (Jersey) Law 1991 on 19 August 2008
and pursuant to a scheme of arrangement effected on 26 November 2008 became the
parent company of an international media group with interests in exhibitions,
conferences, publishing and online media. Since that date Tarsus has had
substantially the same business, operations and executive management as Tarsus
Group PLC (a company registered in England and Wales under company number
2000544) had prior to that date. For purposes of comparison all comparative
figures and other comparative data cited herein compare results of Tarsus with
those of "Old Tarsus" notwithstanding that these are different companies.
Domiciled in Ireland, Tarsus is operational worldwide with offices in London,
Paris, Milwaukee, Boca Raton (Florida), Düsseldorf and Shanghai. Its revenues
are derived primarily in US dollars and Euros.
Tarsus Shares are listed on the Official List and it currently has around 780
shareholders. Some 55 per cent. of Tarsus Shares are held by 24 major
institutions and over 16 per cent. of Tarsus Shares are owned by the Chairman
and other members of the Tarsus Board.
The Tarsus Group has six divisions and operates in an increasingly diversified
range of sectors, including: aviation; labels and packaging; merchandising;
anti-ageing medicine; IT; education; training and marketing. The Tarsus Group's
profits are driven by a mixture of biennial, annual and biannual events.
The Tarsus Group employs around 200 staff worldwide, plus 150 in a joint
venture in China, and benefits from expert teams with deep knowledge of each of
the sectors in which the Tarsus Group operates.
In the year to 31 December 2008 the Tarsus Group achieved turnover of GBP42.5
million (2007: GBP46 million). The Tarsus Group reported a profit before taxation
of GBP5.7 million (2007: GBP11.9). Adjusted profit before taxation was GBP10.7
million (2007: GBP13.0 million). Adjusted profits exclude one-off exceptional
costs of GBP2.4 million resulting from the Tarsus Group's change of domicile and
the restructuring of its French division. As at 31 December 2008 the Tarsus
Group had net assets of GBP39.1 million (2007: GBP35.1 million), an increase of GBP4
million in the year.
Whilst revenues declined in 2008, this was largely as a result of the two
largest exhibitions, Labelexpo Europe and the Dubai Airshow (which are held
biennially), not being run during the year. Bookings for these two events, both
of which are being held in 2009, remain strong and the contracted revenue for
each event is currently ahead of that in 2007, when they were last run. Events
which have already taken place during the current financial year have seen
attendance figures level with or ahead of previous years and although exhibitor
numbers in the USA had declined the changes in exchange rate more than
compensated for the lost revenue.
Tarsus now produces nearly all of its profits from outside the UK. The
principal functional currencies of its trading companies are the US Dollar and
the Euro. As Tarsus reports its results in Sterling, the level of its profits
is affected by movements in exchange rates, notably the US$:GBP and the EUR:GBP.
6. Information on CapRegen
Following the 2006 acquisition by Tarsus of an 80 per cent. interest in MCII,
Tarsus and the Doctors considered that an offshoot of the business of MCII,
namely investing in anti-ageing healthcare products and technologies, had
significant potential to grow independently. The Doctors, through their many
personal contacts, which include physicians, scientists and healthcare
professionals, had always intended to pioneer innovations and develop
technologies consistent with their existing work for MCII and Tarsus. Tarsus
and the Doctors believed that this business would be more appropriately carried
on in a separate corporate vehicle with access to the capital markets.
CapRegen was therefore incorporated on 31 May 2007 as a public limited company
and on 24 July 2007 it was admitted to AIM with a remit to make investments in
the global anti-ageing and regenerative medicine marketplace. Following
admission CapRegen examined a number of business propositions, some of which
resulted in the investments outlined below.
The CapRegen Group's strategy is to use the expertise of the Doctors to invest
in medical technologies that they and the other CapRegen Directors believe have
commercial viability. The CapRegen Group does not carry out any research and
development on its own account, but seeks to invest in technologies and
products in the anti-ageing healthcare marketplace through the Doctors'
personal contacts. Any such investment is likely to be unquoted and located in
North America, although the Directors may look to make investments around the
world if appropriate.
The first investment, in December 2007, was in CapRegen Magnum, which in 2008
generated royalties from the sales of its Arasys Perfector and Ion Magnum
medical devices of GBP249,951. Royalty receipts slowed in the second half of the
year as a result of deteriorating economies.
CapRegen made two further investments in 2008. The first was the formation of a
new, US based company, CapRegen Nutraceuticals, initially owned 96 per cent. by
CapRegen and 4 per cent. by CapRegen Nutraceutical's staff and licensees. If
agreed financial targets are achieved over the first two years of operation,
the staff and licensees' shareholdings can increase to 12 per cent. CapRegen
Nutraceuticals sells and markets nutraceutical products acquired under licence
from third parties to anti-ageing doctors.
The second investment in 2008 was the acquisition of 50 per cent. of Natural
Biosciences, a US company, for $250,000. Natural Biosciences markets three
medicinal mushroom products that assist the body's immune system in its fight
against illness and disease. These new investments are in early development and
both started their activities late in 2008.
CapRegen Nutraceuticals and Natural Biosciences incurred nearly GBP50,000 of net
start-up costs in 2008 as they commenced trading towards the end of the
financial year.
Caution in committing funds resulted in CapRegen's profits for 2008 being ahead
of expectations. The CapRegen Group generated revenues of GBP270,018 (2007: GBPnil)
and interest income of GBP194,996 (2007: GBP75,418) and made a profit before tax of
GBP105,970 (2007: loss of GBP6,404). The profit before tax, warrant charges and
amortisation (adjusted profit) was GBP171,330 (2007: GBP23,694). Gross assets at 31
December 2008 were GBP4,161,374. Net assets at 31 December 2008 were GBP3,689,586
(2007: GBP3,527,827) of which GBP3,524,765 (GBP3,574,588) was cash. Net assets per
share were up 5 per cent at 4.1p (4.0p per share at 31 December 2007). Net
assets per share represented by cash at 31 December 2008 were 4p (4p at 31
December 2007).
Sales of capital equipment by CapRegen Magnum continue to slow as a result of
the economic climate. Both CapRegen Nutraceuticals and Natural Biosciences are
in start-up phase and are unlikely to contribute materially to the CapRegen
Group this year. CapRegen manages its cash tightly but the reduction in
interest rates means that the interest income in 2009 is likely to be less than
in 2008.
7. Directors, Management and Employees
Tarsus attaches great importance to the skills and experience of the existing
management and employees of the CapRegen Group. Tarsus has given assurances
that the existing employment rights, including pension rights, of all employees
of CapRegen will be observed. Tarsus does not plan any material changes to the
strategy of CapRegen or in the places of business or conditions of employment
of the employees of CapRegen.
Following completion of the Proposal, the management and employees of the
Enlarged Group will be considered in light of Tarsus's overall strategy and
will be reviewed from time to time in light of the ongoing requirements of the
Enlarged Group.
Neither Douglas Emslie, who is the Tarsus Group's Managing Director and the
Non-executive Chairman of CapRegen, nor Neville Buch, who is the Executive
Chairman of Tarsus and a Non-executive director of CapRegen, intend to take
part in the executive management of CapRegen or the CapRegen Group. If the
Acquisition is effected, Dr. Goldman and Dr. Klatz and the existing operating
management of CapRegen's businesses are expected to continue their present
roles under Tarsus's strategic direction.
Following completion of the Scheme, the Independent CapRegen Director will be
stepping down from the board of CapRegen at the end of the 2009 calendar year,
without compensation for loss of office.
Upon the Proposal becoming effective, Neville Buch will resign as a director of
CapRegen. Douglas Emslie will remain as a director of CapRegen in a
non-executive capacity and Dr Robert Goldman, Dr Ronald Klatz and David Steel
will remain as directors of CapRegen in an executive capacity.
8. Structure of the Acquisition and shareholder meetings
It is intended that the Acquisition will be implemented by way of a scheme of
arrangement between CapRegen and Scheme Shareholders under section 899 of the
2006 Act involving a reduction of capital under section 135 the 1985 Act. The
purpose of the Scheme is to enable Tarsus to become the owner of the entire
issued and to be issued share capital of CapRegen. The procedure involves an
application by CapRegen to the Court to sanction the Scheme, the cancellation
of the Scheme Shares held by the Scheme Shareholders, the application of the
reserve arising from such cancellation in paying up in full a number of new
ordinary shares in CapRegen (which is equal to the number of the Scheme Shares
cancelled) and issuing those new shares to Tarsus in consideration for which
the Scheme Shareholders will receive New Tarsus Shares on the basis set out in
paragraph 2 of this announcement.
The implementation of the Scheme will be subject to satisfaction or (where
appropriate) waiver of all the Conditions set out in Appendix I and the further
terms to be set out in the Scheme Document. Implementation of the Scheme will
be subject, amongst other things, to the approval of a majority in number of
the Independent Shareholders present and voting (and entitled to vote) in
person or by proxy at the First Court Meeting and which represent not less than
75 per cent. in value of the Independent Shares and the approval of a majority
in number of the Director Shareholders present and voting (and entitled to
vote) in person or by proxy at the Second Court Meeting and which represent not
less than 75 per cent. in value of the Director Shares.
Implementation of the Scheme will also require the passing of the Special
Resolution, requiring the approval of CapRegen Shareholders representing at
least 75 per cent. of the votes cast at the General Meeting. Application has
been made to the Court for leave to convene the Court Meetings which are to be
held at 10.00 a.m. on 3 July 2009 (First Court Meeting) and 10.10 a.m. on 3
July 2009 (Second Court Meeting). It is expected that the General Meeting will
be convened at 10.15 a.m. (or as soon thereafter as the Court Meetings are
concluded or adjourned) on 3 July 2009.
Following the Court Meetings, the Scheme will only become effective once the
Special Resolution is passed by the CapRegen Shareholders and the Court
sanctions the Scheme and copies of the Court Order have been delivered to the
Registrar of Companies. The Scheme is also conditional on the UKLA agreeing to
admit the New Tarsus shares to the Official List subject to (i) the allotment
of such shares and/or the (ii) the Acquisition becoming effective.. Once the
Scheme becomes effective, it will be binding on all Scheme Shareholders whether
or not they attended or voted at the Court Meetings or the General Meeting.
The Scheme Document setting out full details of the Proposal, together with
notices of the Court Meetings and the General Meeting will be posted as soon as
practicable to CapRegen Shareholders.
9. CapRegen Warrantholders
PKF has agreed with the Takeover Panel that, due to the exercise prices of all
of the CapRegen Warrants being significantly above the value that the Proposal
places on each CapRegen Share, no equivalent offer will be made by Tarsus to
the holders of CapRegen Warrants in respect of those CapRegen Warrants.
Any CapRegen Shares issued pursuant to the exercise of a CapRegen Warrant prior
to the Scheme Record Time will form part of the Scheme. If not exercised prior
to the Scheme Record Time, the CapRegen Warrants will continue in accordance
with their terms.
Any CapRegen Shares issued to holders of CapRegen Warrants (other than Tarsus
or its nominees) on the exercise of their CapRegen Warrants after the Scheme
Record Time will not be included in the Scheme and therefore such holders of
CapRegen Warrants will not be bound by the Scheme. The amendments to the
Articles to be proposed at the General Meeting will provide that any person
acquiring CapRegen Shares after the Effective Date will be required to transfer
them to Tarsus on the basis that they will receive the same number of New
Tarsus Shares to which they would have been entitled had their CapRegen Shares
been subject to the Scheme.
10. Settlement, trading and dealings
Prior to the Scheme becoming effective, application will be made to the London
Stock Exchange for CapRegen Shares to be suspended from trading on AIM with
effect from 7.00 a.m. on the day of the Court Hearing. If the Scheme becomes
effective, based on the expected timetable set out in this document, the last
day of dealings in CapRegen Shares on AIM is expected to be 20 July 2009 (being
the Scheme Record Date).
On the Effective Date, share certificates in respect of Scheme Shares will
cease to be valid and should be destroyed. In addition, on the Effective Date
entitlements to CapRegen Shares held within the CREST system will be cancelled.
It is proposed that following the Effective Date and after the CapRegen Shares
have ceased to trade on AIM, CapRegen will be re-registered as a private
limited company.
11. Overseas CapRegen Shareholders
The implications of the Scheme for CapRegen Shareholders resident in,
ordinarily resident in, or who are citizens of any jurisdiction outside of the
UK ("Overseas CapRegen Shareholders") may be affected by the laws of the
relevant jurisdictions. Such Overseas CapRegen Shareholders should inform
themselves about and observe any applicable legal requirements. It is the
responsibility of each Overseas CapRegen Shareholder to satisfy himself as to
the full observance of the laws of the relevant jurisdiction in connection
therewith, including the obtaining of any governmental, exchange control or
other consents which may be required to be observed and the payment of any
issue, transfer or other taxes in such jurisdictions. If any CapRegen
Shareholder is in any doubt as to his eligibility to participate in the
Recommended Offer, he should contact his independent professional adviser
immediately.
12. Expected timetable of principal events
Posting of the Scheme Document 10 June 2009
First Court Meeting 10.00 a.m. on 3 July 2009
Second Court Meeting 10.10 a.m. on 3 July 2009
General Meeting 10.15 a.m. on 3 July 2009
Court hearing to sanction the Scheme 22 July 2009
and confirm the Reduction of Capital
Scheme Record Time 6 p.m. on 20 July 2009
Effective Date of the Scheme 23 July 2009
Cancellation of trading of CapRegen 8.00am on 24 July 2009
Shares to trading on AIM
Admission and first dealing date of 8.00am on 29 July 2009
New Tarsus Shares and crediting of
New Tarsus Shares to CREST accounts
Latest date for dispatch of share 6 August 2009
certificates in respect of New
Tarsus Shares
These dates are indicative only and will depend, amongst other things, on the
date upon which the Order is delivered to the Registrar of Companies.
13. Concert parties
The Tarsus Directors and certain senior employees, together with their
associates, are deemed, by the Panel, to be acting in concert with Tarsus for
the purposes of the Proposal. Certain of the concert parties listed below do
not hold CapRegen Shares but are, nevertheless deemed to be acting in concert
with Tarsus for the purposes of the Proposal. In addition, certain of the
concert parties listed below also hold Tarsus Shares. The information disclosed
below is in respect of interests in CapRegen Shares (excluding CapRegen
Warrants) held by Tarsus Shareholders and other concert parties as at the
disclosure date:
Name No CapRegen Shares Percentage of total
issued share capital of
CapRegen
ND Buch 2,000,000 2.25
JD Emslie 2,000,000 2.25
RM Goldman 7,750,000 8.71
MR Klatz 7,750,000 8.71
P Begg 1,000,000 1.12
H Emslie 40,000 0.04
B Emslie 20,000 0.02
G Emslie 20,000 0.02
R Martin 20,000 0.02
S Stephen 20,000 0.02
M Wilkes 40,000 0.04
P Wilkes 20,000 0.02
J Wilkes 20,000 0.02
A Buch - -
C Buch - -
D Buch - -
D and C Buch - -
Total 20,700,000 23.3
The members of the concert party who are directors or senior management of
Tarsus will be precluded from voting at the Independent Share class meeting and
will instead vote at the Directors Share class meeting. Other members of the
concert party will be eligible to vote at the Independent Share class meeting.
14. Disclosure of interests in CapRegen Shares
Save as disclosed below, as at the time of this announcement neither Tarsus
(nor any of the Tarsus Directors) nor, so far as Tarsus is aware, any person
acting in concert with Tarsus, has any interest in, any right to subscribe for,
or has borrowed or lent any CapRegen Shares or any securities convertible or
exchangeable into CapRegen Shares ("Relevant Securities"), nor does any such
person hold any short positions in relation to Relevant Securities (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, nor
does any such person have any arrangement in relation to Relevant Securities.
For these purposes, "arrangement" includes any indemnity or option arrangement,
any agreement or understanding, formal or informal, of whatever nature,
relating to Relevant Securities which may be an inducement to deal or refrain
from dealing in such securities.
Name Number of Number of Relationship to Tarsus
CapRegen Shares CapRegen Warrants
Tarsus Group PLC 15,500,000 8,901,000 -
N Buch 2,000,000 - Executive Chairman
D Emslie 2,000,000 - Executive Director
Dr R Klatz 7,750,000 6,675,000 Director of Tarsus
subsidiary
Dr R Martin 7,750,000 6,675,000 Director of Tarsus
subsidiary
P Begg 800,000 - Company Secretary
H Emslie 40,000 - Member of Concert party
B Emslie 20,000 - Member of Concert party
R Martin 20,000 - Member of Concert party
S Stephen 20,000 - Member of Concert party
M Wilkes 40,000 - Member of Concert party
In view of the requirement for confidentiality and therefore the availability
to Tarsus of all relevant persons who are presumed to be acting in concert with
Tarsus to provide information, Tarsus has not made any enquiries in this
respect of certain parties who may be deemed by the Panel to be acting in
concert with it for the purposes of the Recommended Offer. Any such additional
interest(s) or dealing(s) will be discussed with the Panel and, if appropriate,
will be disclosed in the Scheme Document or announced if requested by the
Panel.
15. Enquiries
Tarsus
Douglas Emslie 020 8846 2700
PKF (UK) LLP (Financial Adviser to Tarsus) 020 7065 0000
Jeff Harris
Araminta Sugden
CapRegen 07785 257 010
George Greenwood
Blue Oar Securities Plc (Financial Adviser to CapRegen) 020 7448 4400
William Vandyk
16. Cautionary note on forward looking statements
This announcement contains statements that are or may be forward-looking
statements concerning the Proposal, Tarsus and CapRegen. These forward-looking
statements can be identified by the fact that they do not relate only to
historical or current facts. Forward-looking statements often use words such as
"anticipate", "target", "expect", "estimate", "intend", "plan", "goal",
"believe", "will", "may", "should", "would", "could" or other words of similar
meaning. These statements are based on assumptions and assessments made by the
directors of Tarsus or CapRegen in light of their experience and their
perception of historical trends, current conditions, expected future
developments and other factors they believe appropriate. By their nature,
forward-looking statements involve risk and uncertainty, and the factors
described in the context of such forward-looking statements in this document
could cause actual results and developments to differ materially from those
expressed in or implied by such forward-looking statements.
Should one or more of these risks or uncertainties materialise, or should
underlying assumptions prove incorrect, actual results may vary materially from
those described in this document. Tarsus and CapRegen assume no obligation to
update or correct the information contained in this announcement, whether as a
result of new information, future events or otherwise, except to the extent
legally required.
Nothing in this announcement is intended to be a profit forecast and the
statements in this announcement should not be interpreted to mean that the
earnings per Tarsus Share for the current or future financial periods will
necessarily be greater than those for the relevant preceding financial period.
17. Dealing disclosure requirements
Under the provisions of Rule 8.3 of the City Code, if any person is, or
becomes, "interested" (directly or indirectly) in 1 per cent. or more of any
class of "relevant securities" of Tarsus or of CapRegen, all "dealings" in any
"relevant securities" of that company (including by means of an option in
respect of, or a derivative referenced to, any such "relevant securities") must
be publicly disclosed by no later than 3.30 pm (London time) on the Business
Day following the date of the relevant transaction. This requirement will
continue until the date on which the Acquisition and/or Scheme becomes
effective, lapses or is otherwise withdrawn or on which the "offer period"
otherwise ends. If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire an "interest" in
"relevant securities" of Tarsus or CapRegen, they will be deemed to be a single
person for the purpose of Rule 8.3. Under the provisions of Rule 8.1 of the
City Code, all "dealings" in "relevant securities" of Tarsus or of CapRegen by
Tarsus or CapRegen, or by any of their respective "associates", must be
disclosed by no later than 12.00 noon (London time) on the Business Day
following the date of the relevant transaction. A disclosure table, giving
details of the companies in whose "relevant securities" "dealings" should be
disclosed, and the number of such securities in issue, can be found on the
Panel's website at www.thetakeoverpanel.org.uk.
"Interests in securities" arise, in summary, when a person has long economic
exposure, whether conditional or absolute, to changes in the price of
securities. In particular, a person will be treated as having an "interest" by
virtue of the ownership or control of securities, or by virtue of any option in
respect of, or derivative referenced to, securities. Terms in quotation marks
are defined in the City Code, which can also be found on the Panel's website.
If you are in any doubt as to whether or not you are required to disclose a
dealing under Rule 8, you should consult the Panel.
18. General
Tarsus reserves the right, with the consent of the Panel, to elect to implement
the Proposal by making a takeover offer for the entire issued and to be issued
share capital of CapRegen. If Tarsus elects to implement the Proposal by a
takeover offer, that offer will be implemented on the same terms (subject to
appropriate amendments), so far as applicable, as those which would apply to
the Scheme, except that the Acquisition may exclude CapRegen Shareholders
resident in certain overseas jurisdictions. Further, if sufficient acceptances
of any such offer are received and/or sufficient CapRegen Shares are otherwise
acquired, it is the intention of Tarsus to acquire compulsorily any outstanding
CapRegen Shares to which such offer relates.
This announcement is not intended to and does not constitute or form part of,
an offer or invitation to sell or subscribe for or acquire or exchange
securities in Tarsus or CapRegen or a solicitation of any vote or approval in
any jurisdiction pursuant to the Proposal or otherwise. The full terms and
conditions of the Scheme will be set out in the Scheme Document. CapRegen
Shareholders are advised to read carefully the formal documentation in relation
to the Proposal, once it is dispatched. In deciding whether or not to approve
the Scheme, CapRegen Shareholders must rely solely on the terms and conditions
of the Proposal and the information contained, and the procedures described, in
the Scheme Document.
The distribution of this announcement in jurisdictions other than the UK and
the implications of the Scheme for CapRegen Shareholders outside the UK may be
affected by the laws of the relevant jurisdictions. CapRegen Shareholders
outside the UK should inform themselves about and observe any applicable
requirements. It is the responsibility of each CapRegen Shareholder to satisfy
himself as to the full observance of the laws of the relevant jurisdiction in
connection therewith, including the obtaining of any governmental, exchange
control or other consents which may be required to be observed and the payment
of any issue, transfer or other taxes in such jurisdictions. This announcement
has been prepared for the purpose of complying with English law and the City
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 the UK.
The CapRegen Directors accept responsibility for the information insofar as it
relates to CapRegen and the CapRegen Directors in this announcement. To the
best of the knowledge and belief of the CapRegen Directors (who have taken all
reasonable care to ensure that such is the case), the information contained in
this announcement is in accordance with the facts and does not omit anything
likely to affect the import of such information.
The Tarsus Directors accept responsibility for the information insofar as it
relates to Tarsus and the Tarsus Directors in this announcement. To the best of
the knowledge and belief of the Tarsus Directors (who have taken all reasonable
care to ensure that such is the case), the information contained in this
announcement is in accordance with the facts and does not omit anything likely
to affect the import of such information.
PKF, which is authorised and regulated in the UK by the FSA, is acting
exclusively as financial adviser to Tarsus and to no one else in connection
with the Proposal and will not be responsible to anyone other than Tarsus for
providing the protections afforded to customers of PKF nor for providing advice
in relation to the Proposal or any other matter referred to in this
announcement.
Blue Oar, which is authorised and regulated in the UK by the FSA, is acting
exclusively as financial adviser to CapRegen and no one else in connection with
the Proposal and will not be responsible to anyone other than CapRegen for
providing the protections afforded to customers of Blue Oar nor for providing
advice in relation to the Proposal or any other matter referred to in this
announcement.
Appendices
Appendix I sets out the Conditions for implementation of the Proposal and
certain further terms.
Appendix II sets out the bases and sources of information from which the
financial calculations used in this announcement have been derived.
Appendix III contains particulars of the irrevocable undertakings referred to
in paragraph 11 of this announcement.
Appendix IV contains the definitions of terms used in this announcement
(including the summary).
A copy of this document will be published and available for download from http:
//www.tarsus-group.com/
Appendix I
Conditions to the implementation of the Scheme
1. The Proposal is conditional upon the Scheme becoming unconditional and
becoming effective, subject to the Takeover Code, by not later than 31
August 2009 or such later date (if any) as CapRegen and Tarsus may agree
and the Court may allow. The Scheme is conditional upon:
a. the approval by a majority in number representing three-fourths in value of
the holders of Independent Shares present and voting, either in person or
by proxy, at the First Court Meeting;
b. the approval by a majority in number representing three-fourths in value of
the holders of Director Shares present and voting, either in person or by
proxy, at the Second Court Meeting;
c. the Special Resolution set out in the notice of the General Meeting
required to approve and implement the Scheme being duly passed by the
requisite majority at the General Meeting;
d. the Court Sanction being obtained (with or without modifications, but
subject to any such modifications being on terms acceptable to CapRegen and
Tarsus) and a copy of the Order being delivered for registration to the
Registrar of Companies; and
e. confirmation of the Reduction of Capital by the Court and a copy of the
Order and a minute showing the capital as altered being filed with the
Registrar of Companies and registered by him.
2. CapRegen and Tarsus have agreed that the Proposal is conditional upon the
following matters, and, accordingly, the necessary action to make the
Proposal effective will not be taken unless such Conditions (as amended if
appropriate) have been satisfied or waived:
a. Admission
The UKLA agreeing to admit the New Tarsus Shares to the Official List and the
London Stock Exchange agreeing to admit such shares to trading on its main
market for listed securities subject only to (i) the allotment of such shares
and/or (ii) the Acquisition becoming effective.
b. Authorisations
i. all Authorisations in any jurisdiction necessary for or in respect of the
Proposal, its implementation or any acquisition of any shares in, or
control of, CapRegen or any other member of the Wider CapRegen Group by any
member of the Tarsus Group having been obtained in terms and in a form
satisfactory to Tarsus acting reasonably from any relevant person or
authority or from any person or body with whom any member of the Wider
CapRegen Group has entered into contractual arrangements and all such
Authorisations remaining in full force and effect and there being no
intimation of any intention to revoke or not renew the same; and
j.
i. all Authorisations necessary to carry on the business of any member of
the Wider CapRegen Group remaining in full force and effect and there
being no notification of any intention to revoke or not to renew the
same; and
ii. all necessary filings having been made and all applicable waiting and
other periods having expired, lapsed or been terminated and all
applicable statutory or regulatory obligations in any jurisdiction in
respect of the Proposal having been complied with.
a. Regulatory Intervention
No relevant person having taken, instituted, implemented or threatened any
legal proceedings, or having required any action to be taken or otherwise
having done anything or having enacted, made or proposed any statute,
regulation, order or decision or taken any other step and there not continuing
to be outstanding any statute, regulation, order or decision that would or
might reasonably be expected to (in each case to an extent which is material
and adverse in the context of the Wider CapRegen Group or the Wider Tarsus
Group (as the case may be) taken as a whole):
i. make the Proposal, its implementation or the acquisition or proposed
acquisition of any shares in, or control or management of, the Wider
CapRegen Group by Tarsus illegal, void or unenforceable; or
ii. otherwise directly or indirectly prevent, prohibit or otherwise restrict,
restrain, delay or interfere with the implementation of, or impose
additional conditions or obligations with respect to or otherwise challenge
or require amendment of, the Proposal or the proposed acquisition of
CapRegen by Tarsus or any acquisition of CapRegen Shares by Tarsus; or
iii. require, prevent or delay the divestiture by Tarsus of any shares or other
securities in CapRegen; or
iv. impose any limitation on the ability of any member of the Wider Tarsus
Group or any member of the Wider CapRegen Group to acquire or hold or
exercise effectively, directly or indirectly, any rights of ownership of
shares or other securities or the equivalent in any member of the Wider
CapRegen Group or the Wider Tarsus Group or to exercise management control
over any member of the Wider CapRegen Group or the Wider Tarsus Group (as
the case may be) taken as a whole; or
v. require, prevent or delay the disposal by Tarsus or any member of the Wider
Tarsus Group or CapRegen or any member of the Wider CapRegen Group, of all
or any part of their respective businesses, assets or properties or impose
any limitation on the ability of any of them to conduct their respective
businesses or own their respective assets or properties; or
vi. (save as required pursuant to the Proposal) require any member of the Wider
Tarsus Group or of the Wider CapRegen Group to offer to acquire any shares
or other securities (or the equivalent) in any member of the Wider CapRegen
Group or the Wider Tarsus Group owned by any third party (in each case,
other than in implementation of the Proposal); or
vii. impose any material limitation on the ability of any member of the Wider
Tarsus Group or the Wider CapRegen Group to integrate or co-ordinate its
business, or any part of it, with the businesses or any part of the
businesses of any other member of the Wider Tarsus Group and/or the Wider
CapRegen Group; or
viii. result in any member of the Wider Tarsus Group or the Wider CapRegen
Group ceasing to be able to carry on business under any name under which it
presently does so; or
ix. otherwise materially and adversely affect any or all of the businesses,
assets or financial condition of any member of the Wider Tarsus Group or
the Wider CapRegen Group;
and all applicable waiting and other time periods during which any such
relevant person could institute, or implement or threaten any legal
proceedings, having expired, lapsed or been terminated.
a. Consequences of the Proposal
There being no provision of any agreement to which any member of the Wider
CapRegen Group is a party, or by or to which any such member, or any part of
their assets, is or may be bound, entitled or subject, which would as a
consequence of the Proposal or of the acquisition or proposed acquisition of
all or any part of the issued share capital of, or change of control or
management of, CapRegen or any other member of the Wider CapRegen Group result
in (in each case to an extent which is material and adverse in the context of
the Wider CapRegen Group or the Wider Tarsus Group (as the case may be) taken
as a whole):
i. any material assets or interests of any member of the Wider CapRegen Group
being or falling to be disposed of or charged in any way or ceasing to be
available to any member of the Wider CapRegen Group or any rights arising
under which any such asset or interest could be required to be disposed of
or charged in any way or could cease to be available to any member of the
Wider CapRegen Group; or
ii. any moneys borrowed by, or other indebtedness (actual or contingent) of, or
any grant available to, any member of the Wider CapRegen Group being or
becoming repayable or capable of being declared repayable immediately or
earlier than the repayment date stated in such agreement or the ability of
such member of the Wider CapRegen Group to incur any such borrowing or
indebtedness becoming or being capable of becoming withdrawn, inhibited or
prohibited; or
iii. any such agreement or the rights, liabilities, obligations or interests of
any such member under it being terminated or materially and adversely
modified or affected or any onerous obligation arising or any material
adverse action being taken under it; or
iv. the interests or business of any such member in or with any third party (or
any arrangements relating to any such interests or business) being
terminated or adversely modified or affected; or
v. the financial or trading position or prospects or value of any member of
the Wider CapRegen Group being materially prejudiced or materially
adversely affected; or
vi. the creation of any mortgage, charge or other security interest over the
whole or any part of the business, property or assets of any member of the
Wider CapRegen Group or any such security (whenever arising or having
arisen) becoming enforceable or being enforced; or
vii. any member of the Wider CapRegen Group ceasing to be able to carry on
business under any name under which or on the terms on which it currently
does so or any person presently not able to carry on business under any
name under which any member of the Wider CapRegen Group currently carries
on business becoming able to do so; or
viii. the creation of actual or contingent material liabilities by any member
of the Wider CapRegen Group other than in the ordinary course of trading;
or
ix. the ability of any member of the Tarsus Group to carry on its business
being materially and adversely affected,
and no event having occurred which, under any provision of any such agreement
to which any member of the Wider CapRegen Group is a party, or by or to which
any such member, or any of its assets, may be bound, entitled or subject, could
result in any of the events or circumstances as are referred to in
sub-paragraphs (i) to (ix) inclusive.
a. No Corporate Action Taken Since the Accounting Date
Since the Accounting Date, save as otherwise Disclosed to Tarsus or pursuant to
transactions in favour of CapRegen or a wholly-owned subsidiary of CapRegen, no
member of the Wider CapRegen Group having (in each case to an extent which is
material and adverse in the context of the Wider CapRegen Group taken as a
whole):
i. issued or agreed to issue or authorised or proposed the issue or grant of
additional shares of any class or securities convertible into or
exchangeable for, or rights, warrants or options to subscribe for or
acquire, any such shares or convertible securities (save pursuant to the
issue of CapRegen Shares on the exercise of Disclosed CapRegen Warrants);
or
ii. redeemed, purchased, repaid or reduced or announced the redemption,
purchase, repayment or reduction of any part of its share capital or made
or announced the making of any other change to its share capital; or
iii. recommended, declared, paid or made or proposed to recommend, declare, pay
or make any dividend, bonus issue or other distribution whether payable in
cash or otherwise other than dividends lawfully paid to CapRegen or wholly
owned subsidiaries of CapRegen; or
iv. (save for transactions between two or more wholly owned members of the
CapRegen Group) merged or demerged with or from, or acquired, any body
corporate or authorised or proposed or announced any intention to propose
any such merger or demerger; or
v. other than in the ordinary course of business acquired or disposed of,
transferred, mortgaged or charged, or created or granted any security
interest over, any material assets (including shares and trade investments)
or authorised or proposed or announced any intention to propose any
acquisition, disposal, transfer, mortgage, charge or creation or grant of
any security interest; or
vi. (save for transactions between two or more wholly owned members of the
CapRegen Group) issued or authorised or proposed the issue of any
debentures or incurred or increased any borrowings, indebtedness or
liability (actual or contingent); or
vii. entered into or varied, or authorised or proposed the entry into or
variation of, or announced its intention to enter into or vary, any
transaction, arrangement, contract or commitment (whether in respect of
capital expenditure or otherwise) which is material and of a long term,
onerous or unusual nature or magnitude (other than to a nature and extent
which is normal in the context of the business concerned or which is or
could involve obligations which would or might reasonably be expected to be
so long, onerous or unusual in nature or magnitude) or which is restrictive
to the existing business of any member of the Wider CapRegen Group (other
than to a nature and extent which is normal in the context of the business
concerned or which is or could involve obligations which would or might
reasonably be expected to be so restrictive) or which is not in the
ordinary course of business; or
viii. entered into, implemented, effected, authorised or proposed or announced
its intention to enter into, implement, effect, authorise or propose any
material contract, reconstruction, amalgamation, scheme, commitment or
other transaction or arrangement otherwise than in the ordinary course of
business; or
ix. waived or compromised any material claim (other than in the ordinary course
of business); or
x. entered into or varied or made any offer (which remains open for
acceptance) to enter into or vary the terms of any material contract with
any of the directors or senior executives of CapRegen or any of the
directors or senior executives of any other member of the Wider CapRegen
Group; or
xi. taken or proposed any corporate action or had any legal proceedings
instituted or threatened against it or petition presented for its
winding-up (voluntary or otherwise), dissolution or reorganisation or for
the appointment of a receiver, administrator, administrative receiver,
trustee or similar officer of all or any material part of its assets and
revenues or for any analogous proceedings or steps in any jurisdiction or
for the appointment of any analogous person in any jurisdiction; or
xii. been unable, or admitted in writing that it is unable, to pay its debts or
has stopped or suspended (or threatened to stop or suspend) payment of its
debts generally or ceased or threatened to cease carrying on all or a
substantial part of its business; or
xiii. made any material alteration to its memorandum or articles of
association, or other incorporation documents; or
xiv. disposed of or acquired any assets or businesses or offered or agreed to
the same for an amount in aggregate of GBP1 million or more (or in the case
of disposals where the book value was in aggregate greater than GBP1
million), entered into or offered or agreed to enter into or announced any
arrangement which requires expenditure or the foregoing of revenue by the
Wider CapRegen Group of an amount in aggregate of greater than GBP1 million;
or
xv. entered into any agreement or passed any resolution or made any offer
(which remains open for acceptance) or proposed or announced any intention
with respect to any of the transactions, matters or events referred to in
this condition 2(d) otherwise than in the ordinary course of business.
a. Other Events Since the Accounting Date
In the period since the Accounting Date, save as Disclosed to Tarsus:
i. no litigation or arbitration proceedings, prosecution, investigation or
other legal proceedings having been announced, instituted, threatened or
remaining outstanding by, against or in respect of, any member of the Wider
CapRegen Group or to which any member of the Wider CapRegen Group is or may
become a party (whether as claimant, defendant or otherwise) which in any
case, would be likely to have a material adverse effect on the financial
position of the Wider CapRegen Group; and
ii. no event, change or condition has occurred or become known to CapRegen
which has resulted in or could be reasonably expected to have a material
adverse change or a material deterioration in the business or assets or
financial or trading position, assets, liabilities or profits or prospects
of any member of the Wider CapRegen Group; and
iii. no enquiry or investigation by, or complaint or reference to, any relevant
person against or in respect of any member of the Wider CapRegen Group
having been threatened, announced, implemented or instituted or remaining
outstanding by, against or in respect of, any member of the Wider CapRegen
Group which in any case, would be likely to have a material adverse effect
on the financial position of the Wider CapRegen Group taken as a whole; and
iv. no contingent or other liability having arisen or become apparent or
increased which in any case, would be likely to have a material adverse
effect on the financial position of the Wider CapRegen Group taken as a
whole; and
v. the business of the Wider CapRegen Group has been carried on in the usual
and ordinary course.
b. Other Issues
Save as Disclosed to Tarsus, CapRegen not having discovered that (in each case
to an extent which is material and adverse in the context of the Wider Tarsus
Group taken as a whole):
i. the financial, business or other information Disclosed at any time by any
member of the Wider Tarsus Group, whether publicly or in the context of the
Proposal either contained a material misrepresentation of fact or omitted
to state a fact necessary to make the information Disclosed not misleading
in any material respect; or
ii. any contingent liability Disclosed in such Disclosed information would or
might materially and adversely affect, directly or indirectly, the business
or profits of the Wider Tarsus Group taken as a whole; or
iii. any information Disclosed at any time by or on behalf of any member of the
Wider Tarsus Group is or becomes incorrect in any material respect.]
3. Subject to the requirements of the Panel, Tarsus reserves the right to
waive all or any of the Conditions contained in paragraphs 2(a); 2(b); 2(c)
and 2 (d) (in each case only insofar as non-fulfilment of the Condition
would be material and adverse in the context of the Wider CapRegen Group
taken as a whole); 2(e) and 2(f); and 2(g), in whole or in part.
4. The Proposal is governed by English law and is subject to the jurisdiction
of the English courts. The rules of the Takeover Code, so far as they are
appropriate, apply to the Proposal.
Appendix II
Bases and sources of financial information
Save as otherwise stated, the following constitute the bases and sources of
certain information
referred to in this announcement:
Historic financial information relating to CapRegen has been extracted without
material adjustment from the relevant published audited reports and accounts of
CapRegen.
Historic financial information relating to Tarsus has been extracted without
material adjustment from the relevant published audited reports and accounts
and unaudited interim results of Tarsus.
Unless otherwise stated, all prices quoted for shares are Closing Prices.
The percentage ownership of the Enlarged Group held by former CapRegen
Shareholders and existing Tarsus Shareholders is based on the enlarged issued
share capital of Tarsus following the Acquisition, being the aggregate of
62,212,671 Tarsus Shares in issue on 9 June 2009 (source: Tarsus registrar) and
approximately 3,062,916 New Tarsus Shares to be issued pursuant to the
Proposal.
CapRegen's Existing Share Capital means the 89,010,000 CapRegen Shares in issue
as at the date of this announcement.
Appendix III
Details of Irrevocable Undertakings
The following Independent Shareholders have signed irrevocable undertakings in
respect of the numbers of CapRegen Shares shown below to vote in favour of the
Scheme at the First Court Meeting and the Special Resolution at the General
Meeting:
Name No. CapRegen Shares Approximate percentage of
CapRegen's issued share
capital as at 30 April
2009
G Greenwood 400,000 0.45%
Helium Special Situations 15,430,000 17.34%
Fund
TOTAL 15,830,000 17.79%
The following Director Shareholders have signed irrevocable undertakings in
respect of the numbers of CapRegen Shares shown below to vote in favour of the
Scheme at the Second Court Meeting and the Special Resolution at the General
Meeting:
Name No. CapRegen Shares Approximate percentage of
CapRegen's issued share
capital as at 30 April
2009
N Buch 2,000,000 2.25%
D Emslie 2,000,000 2.25%
P Begg 1,000,000 1.12%
R Klatz 7,750,000 8.71%
R Goldman 7,750,000 8.71%
TOTAL 20,500,000 23.03%
The irrevocable undertakings received from each of the signatories will only
cease to be binding if the Proposal is withdrawn or lapses in accordance with
its terms.
Appendix IV
Definitions
In this document, unless the context requires otherwise, the following
expressions shall have the following meanings:
"1985 Act" the Companies Act 1985 (as amended) and to the
extent in force;
"2006 Act" The Companies Act 2006, to the extent in force;
"Acquisition" the recommended acquisition by Tarsus of the
entire issued share capital of CapRegen (other
than the CapRegen Shares already held by Tarsus),
subject to the Conditions and on the terms of this
document;
"Accounting Date" 31 December 2008;
"Admission" the admission of the New Tarsus Shares to trading
on the Official List in accordance with the
Listing Rules and the admission of such New Tarsus
Shares to trading on the London Stock Exchange's
main market for listed securities in accordance
with the Admission and Disclosure Standards;
"Admission and Disclosure means the requirements contained in the
Standards" publication "Admission and Disclosure Standards"
(as amended from time to time) containing, amongst
other things, the admission requirements to be
observed by companies seeking admission to the
London Stock Exchange's main market for listed
securities;
"AIM" The AIM market operated by the London Stock
Exchange;
"Articles" The articles of association of CapRegen;
"Authorisations" authorisations, orders, grants, recognitions,
confirmations, consents, licences, clearances,
certificates, permissions or approvals;
"Blue Oar" Blue Oar Securities PLC of 30 Old Broad Street,
London, EC2N 1HT;
"Business Day" a day on which the London Stock Exchange is open
for the transaction of business;
"Capita Registrars" a trading name of Capita Registrars Limited;
"CapRegen" or the "Company" CapRegen PLC;
"CapRegen Board" or the directors of CapRegen as at the date of this
"CapRegen Directors" document, whose names are set out in paragraph 3
of Part 6 of this document;
"CapRegen Group" CapRegen, CapRegen Magnum, CapRegen Nutraceuticals
and Natural Biosciences and any other subsidiary
undertakings and/or (where the context requires)
any one or more of them;
"CapRegen Magnum" CapRegen Magnum Limited;
"CapRegen Nutraceuticals" CapRegen Nutraceuticals Inc.;
"CapRegen Shareholder" a holder of CapRegen Shares;
"CapRegen Shares" ordinary shares of 1p each in the capital of
CapRegen;
"CapRegen Warrant" a warrant to subscribe for one CapRegen Share
created pursuant to the warrant instrument dated
16 July 2007 further details of which are set out
in paragraph 9 of Part II and paragraph 6(b) of
Appendix IV to this document;
"CapRegen Warrantholders" holders of CapRegen Warrants;
"Closing Price" The closing middle market price of a relevant
share as derived from the Daily Official List
"Court Meetings" the meetings of Director Shareholders and
Independent Shareholders convened by order of the
Court pursuant to section 899 of the 2006 Act (as
set out in Part 8 of this document) to consider
and, if thought fit, approve the Scheme, including
any adjournment thereof;
"Court Sanction" the sanction (with or without modification) of the
Scheme by the Court;
"CREST" the relevant system (as defined in the CREST
Regulations) in respect of which Euroclear is the
operator in accordance with which securities may
be held and transferred in uncertificated form;
"CREST Regulations" the Uncertificated Securities Regulations 2001 (SI
2001 No. 3755);
"Daily Official List" The Daily Official List of the London Stock
Exchange;
"Director Shares" CapRegen Shares beneficially owned or registered
in the name of any of the following persons: N
Buch; D Emslie; Dr R Goldman; Dr R Klatz; and P
Begg;
"Director Shareholders" holders of Director Shares;
"Disclosed" (i) as disclosed in the CapRegen Annual Report;
(ii) as publicly announced by any member of the
Wider CapRegen Group (through a Regulatory
Information Service or any other information
service made available in the country where the
relevant company is listed) prior to the date of
this document; (iii) as disclosed in this
document; (iv) as otherwise fairly disclosed in
writing (including facsimile) to Tarsus or its
advisers by or on behalf or CapRegen prior to the
date of this document;
"Doctors" together Dr Robert Goldman and Dr Ronald Klatz;
"Effective Date" the date on which the Scheme becomes effective in
accordance with its terms;
"Enlarged Group" The Tarsus Group as enlarged by the Proposal;
"Enlarged Share Capital" the entire issued share capital of Tarsus
following the issue of the New Tarsus Shares
(assuming no CapRegen Warrants are exercised and
no further CapRegen Shares are issued);
"Euroclear" Euroclear UK & Ireland Limited;
"First Court Meeting" the meeting of Independent Shareholders convened
by order of the Court pursuant to section 899 of
the 2006 Act (as set out in Part 8 of this
document) to consider and, if thought fit, approve
the Scheme, including any adjournment thereof;
"Forms of Proxy" the forms of proxy for use at the Court Meetings
and at the General Meeting;
"FSA" The Financial Services Authority;
"FSMA" The Financial Services and Markets Act 2000;
"General Meeting" the general meeting of CapRegen convened by the
notice contained in Part 9 of this document to
consider any resolution required to approve and
implement the Scheme and the Proposal, including
any adjournment thereof;
"Hearing Date" The date of the Court Hearing;
"holder" a registered holder and any person entitled by
transmission;
"Independent CapRegen George Greenwood;
Director"
"Independent Shares" all the CapRegen Shares:
(i) in issue at the date of this Scheme;
(ii) (if any) issued after the date of this Scheme
and prior to the Voting Record Time;
(iii) (if any) issued at or after the Voting
Record Time and before the Scheme Record Time, in
respect of which the original or any subsequent
holders thereof are, or shall have agreed in
writing to be, bound by this Scheme
in each case other than (a) Director Shares and
(b) CapRegen Shares beneficially owned/registered
in the name of Tarsus;
"Independent Shareholders" holders of Independent Shares
"Listing Rules" The rules and regulations of the UKLA, as amended;
"London Stock Exchange" London Stock Exchange PLC;
"MCII" Medical Conferences International Inc.;
"Meetings" The Court Meetings and the General Meeting;
"Natural Biosciences" Natural Biosciences Inc.;
"New Tarsus Shares" the new Tarsus Shares to be issued by Tarsus as
consideration for the Acquisition pursuant to the
Proposal;
"Official List" The official list of the UKLA;
"Order" the order of the Court sanctioning the Scheme
under section 899 of the 2006 Act and confirming
the Reduction of Capital;
"Panel" or "Takeover Panel" The Panel on Takeovers and Mergers;
"Proposal" the Scheme and the other matters to be considered
at the Meetings;
"PKF" PKF (UK) LLP of 20 Farringdon Place, London, EC1M
3AP;
"Reduction of Capital" the reduction of the share capital of CapRegen
under section 135 of the 1985 Act by the
cancellation and extinguishing of the Scheme
Shares, to be effected as part of the Scheme;
"Regulatory Information any of the services set out in Appendix 3 to the
Service" Listing Rules;
"Registrar of Companies" The Registrar of Companies in England and Wales;
"Restricted Jurisdiction" the United States, Canada, Australia, the Republic
of South Africa or Japan;
"Scheme" the proposed scheme of arrangement under section
899 of the 2006 Act with or subject to any
modification or addition thereto or condition
approved or imposed by the Court and agreed by
CapRegen and by Tarsus;
"Scheme Record Date" Two Business Days immediately preceding the
Hearing Date;
"Scheme Record Time" 6.00 p.m. on the Scheme Record Date;
"Scheme Shareholders" Director Shareholders and Independent
Shareholders;
"Scheme Shares" Director Shares and Independent Shares;
"SEC" The US Securities and Exchange Commission;
"Second Court Meeting" the meeting of Director Shareholders convened by
order of the Court pursuant to section 899 of the
2006 Act (as set out in Part 8 of this document)
to consider and, if thought fit, approve the
Scheme, including any adjournment thereof;
"Special Resolution" the special resolution to be proposed by CapRegen
at the General Meeting in connection with, inter
alia, the approval of the Scheme and the Reduction
of Capital;
"Tarsus" Tarsus Group PLC;
"Tarsus Directors" or the directors of Tarsus, whose names are set out
"Tarsus Board" in paragraph 2 of Part 6 of this document;
"Tarsus Group" Tarsus and its subsidiaries and/or (where the
context requires) any one or more of them;
"Tarsus Shares" ordinary shares of 5p each in the share capital of
Tarsus;
"Tarsus Shareholder" a holder of Tarsus Shares;
"UKLA" the UK Listing Authority, being the FSA acting in
its capacity as the competent authority for the
purposes of Part IV FSMA;
"uncertificated" or "in recorded on the relevant register of the share or
uncertificated form" security concerned as being held in uncertificated
form in CREST, and title to which, by virtue of
the CREST Regulations, may be transferred by means
of CREST;
"United States" or "US" the United States of America, its territories and
possessions, any states of the United States and
the District of Columbia;
"Voting Record Time" in relation to the Court Meetings, 6.00 p.m. on
the day which is two days before the relevant
Court Meeting or, if either Court Meeting is
adjourned, two days before the time set for any
such adjourned meeting; and
"Wider CapRegen Group" CapRegen, its subsidiary undertakings and its
associated
undertakings; and
"Wider Tarsus Group" Tarsus, its subsidiary undertakings and its
associated undertakings (excluding, for these
purposes CapRegen).
All references to legislation in this document are to English legislation
unless the contrary is indicated. All references to time in this document are
to London time unless the contrary is indicated.
Any reference to any provision of any legislation shall include any amendment,
modification, re-enactment or extension thereof.
Words importing the singular shall include the plural and vice versa, and words
importing the masculine gender shall include the feminine or neutral gender.
END
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