Apax Partners LLP Offer Update
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF THAT JURISDICTION
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION
FOR IMMEDIATE RELEASE
27 December 2023
Apax Sets Aside No Increase Statement
Apax notes the announcement made on 19 December 2023 by Ken Bidco Limited ("Valtech") of a recommended cash offer for the entire issued and to be issued share capital of Kin and Carta plc ("Kin and Carta").
Apax confirms that, pursuant to the reservations to the Increased and Final Offer set out in the Increased and Final Offer Announcement published on 6 December 2023, the no increase statement regarding the offer price is no longer in effect and has been set aside.
Apax is considering its options and a further announcement will be made when appropriate. Kin and Carta Shareholders are strongly advised to take no action in response to the announcement by Valtech in the meantime.
Update on Conditions
Conditions 2.1(ii) and 2.2(ii) set out in the Kin and Carta Scheme Document state that the Acquisition is conditional on the Court Meeting and General Meeting being held on or before the 22nd day after the expected date of the Court Meeting and General Meeting set out in the Scheme Document (or such later date as may be agreed between Bidco and Kin and Carta with the consent of the Panel (and that the Court may approve if required)). Bidco has received consent from the Panel to a later date of 1 March 2024 for the purposes of Conditions 2.1(ii) and 2.2(ii) in the Kin and Carta Scheme Document, provided that, if the court meeting and general meeting to be held in connection with the proposed offer by Valtech (the "Valtech Meetings") are scheduled to be held on a date other than 8 February 2024, the relevant date for the purposes of Conditions 2.1(ii) and 2.2(ii) in the Kin and Carta Scheme Document shall be such date as falls 22 calendar days after the date of the Valtech Meetings as set out in the Valtech scheme document.
The Acquisition is conditional on, among other things, certain antitrust, foreign investment and regulatory approvals and clearances. All first-round filings required in relation to such approvals and clearances were made on or before 17 November 2023.
Bidco is pleased to confirm: (i) that the CMA has responded to a briefing paper in writing confirming that it has no further questions in relation to the Acquisition (and has not otherwise opened an inquiry, or indicated that it is still deciding whether to open an enquiry); (ii) the UK Secretary of State has determined that he will be taking no further action under the National Security and Investment Act 2021 in relation to the Acquisition; and (iii) the Commission for Protection of the Competition of North Macedonia has confirmed in writing that it has no objection to the Acquisition. In addition, the applicable waiting period for the Hart Scott Rodino Antitrust Improvements Act of 1976 (as amended) and the regulations made thereunder relating to the Acquisition, has now expired.
Bidco therefore continues to be of the view that, subject to the satisfaction (or where applicable, waiver) of the Conditions, the Scheme would be capable of becoming Effective during the first quarter of 2024.
Enquiries
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Apax Luke Charalambous
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+44 79 1828 6640
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BofA Securities (Lead Financial Adviser to Apax and Bidco) James Robertson Eish Dhillon Antonia Rowan Charles Pitt Ford
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+44 20 7628 1000 |
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Equiteq Corporate Finance Limited (Financial Adviser to Apax and Bidco) Jerome Glynn-Smith Emmanuel Kostucki
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+44 (0) 203 651 0600 |
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Headland Consultancy Limited (PR Adviser to Apax and Bidco) Emma Nyman
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+44 (0)74713 50848 |
Important Notices
Merrill Lynch International ("BofA Securities"), which is authorised by the PRA and regulated by the FCA and the PRA in the United Kingdom, is acting exclusively for Apax and Bidco and for no one else in connection with the matters set out in this Announcement and will not be responsible to anyone other than Apax and Bidco for providing the protections afforded to its clients or for providing advice in relation to any matter referred to in this Announcement or any transaction or arrangement referred to herein. Neither BofA Securities, nor any of its affiliates, owes or accepts any duty, liability or responsibility whatsoever (whether direct or indirect, whether in contract, in tort, under statute or otherwise) to any person who is not a client of BofA Securities in connection with this Announcement, any statement contained herein, any transaction or arrangement referred to herein, or otherwise.
Equiteq Corporate Finance Limited ("Equiteq"), an appointed representative of Frank Investments Limited, who is authorised and regulated by the FCA in the United Kingdom, is acting exclusively for Apax and Bidco and for no one else in connection with this Announcement and any other matters in connection with it. Equiteq will not be responsible to anyone other than Apax and Bidco for providing the protections afforded to its clients or for providing advice in connection with any matters in connection with this Announcement. Neither Equiteq, nor any of its affiliates, directors or employees, owes or accepts any duty, liability or responsibility whatsoever (whether direct or indirect, whether in contract, in tort, under statute or otherwise) to any person who is not a client of Equiteq in connection with this Announcement or any statement contained therein or otherwise.
Further information
The release, publication or distribution of this Announcement in or into or from jurisdictions other than the United Kingdom may be restricted by law and therefore any persons who are subject to the laws of any jurisdiction other than the United Kingdom should inform themselves about, and observe, such restrictions. Any failure to comply with the applicable restrictions may constitute a violation of the securities laws of such jurisdiction. To the fullest extent permitted by applicable law, the companies and persons involved in the Acquisition disclaim any responsibility or liability for the violation of such restrictions by any person. This Announcement does not constitute an offer or invitation to purchase or subscribe for any securities or a solicitation of an offer to buy any securities pursuant to the Scheme Document or otherwise in any jurisdiction in which such offer or solicitation is unlawful.
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. Nothing in this Announcement shall be deemed to be a forecast, projection or estimate of the future financial performance of Kin and Carta, the Wider Kin and Carta Group, Bidco or the Wider Bidco Group except where otherwise stated.
This Announcement is not a prospectus or prospectus-equivalent document.
Overseas Shareholders
This Announcement has been prepared in accordance with and for the purpose of complying with English and Welsh law, the Code, the Market Abuse Regulation, the Disclosure Guidance and Transparency Rules and the Listing Rules and information disclosed may not be the same as that which would have been disclosed if this Announcement had been prepared in accordance with the laws of jurisdictions outside England and Wales.
The availability of the Acquisition to Kin and Carta Shareholders who are not resident in and citizens of the United Kingdom may be affected by the laws of the relevant jurisdictions in which they are located or of which they are citizens. Persons who are not resident in the United Kingdom should inform themselves of, and observe, any applicable legal or regulatory requirements of their jurisdictions. In particular, the ability of persons who are not resident in the United Kingdom to vote their Kin and Carta Shares with respect to the Scheme at the Court Meeting, or to appoint another person as proxy to vote at the Court Meeting on their behalf, may be affected by the laws of the relevant jurisdictions in which they are located. Any failure to comply with the applicable restrictions may constitute a violation of the securities laws of any such jurisdiction. To the fullest extent permitted by applicable law, the companies and persons involved in the Acquisition disclaim any responsibility or liability for the violation of such restrictions by any person.
Unless otherwise determined by Bidco or required by the Code, and permitted by applicable law and regulation, the Acquisition will not be made available, directly or indirectly, in, into or from a Restricted Jurisdiction where to do so would violate the laws in that jurisdiction and no person may vote in favour of the Scheme by any such use, means, instrumentality or from within a Restricted Jurisdiction or any other jurisdiction if to do so would constitute a violation of the laws of that jurisdiction. Accordingly, copies of this Announcement and any formal documentation relating to the Acquisition are not being, and must not be, directly or indirectly, mailed or otherwise forwarded, distributed or sent in or into or from any Restricted Jurisdiction where to do so would violate the laws in that jurisdiction, and persons receiving this Announcement and all such documents relating to the Acquisition (including, without limitation, agents, custodians, nominees and trustees) must not mail or otherwise forward, distribute or send them in or into or from such jurisdictions where to do so would violate the laws in that jurisdiction. Doing so may render invalid any related purported vote in respect of the Acquisition. If the Acquisition is implemented (with the consent of the Panel and subject to and in accordance with the terms of the Co-operation Agreement) by way of a Takeover Offer (unless otherwise permitted by applicable law and regulation), the Takeover Offer may not be made directly or indirectly, in or into, or by the use of mails or any means or instrumentality (including, but not limited to, facsimile, e-mail or other electronic transmission, telex or telephone) of interstate or foreign commerce of, or of any facility of a national, state or other securities exchange of any Restricted Jurisdiction and the Takeover Offer may not be capable of acceptance by any such use, means, instrumentality or facilities.
The Acquisition shall be subject to, among other things, the applicable requirements of the Code, the Panel, the London Stock Exchange and the FCA.
The statements contained in this Announcement are not to be construed as legal, business, financial or tax advice.
Additional information for US investors
The Acquisition relates to the shares of an English company and is being made by means of a scheme of arrangement provided for under the laws of England and Wales. A transaction effected by means of a scheme of arrangement is not subject to the tender offer rules or the proxy solicitation rules under the US Exchange Act. Accordingly, the Acquisition is subject to the disclosure requirements and practices applicable in the United Kingdom to schemes of arrangement, which differ from the disclosure requirements of United States tender offer and proxy solicitation rules.
The financial information included in this Announcement and the Scheme Document (or, if the Acquisition is implemented by way of a Takeover Offer, the Offer Document) has been prepared in accordance with generally accepted accounting principles applicable in the United Kingdom and thus may not be comparable to financial information of US companies or companies whose financial statements are prepared in accordance with generally accepted accounting principles in the United States ("US GAAP"). US GAAP differs in significant respects from accounting standards applicable in the United Kingdom.
If Bidco were to exercise its right (with the consent of the Panel and subject to and in accordance with the terms of the Co-operation Agreement) to implement the Acquisition by means of a Takeover Offer and determines to extend the Takeover Offer into the United States, such Takeover Offer would be made in compliance with all applicable United States laws and regulations.
In the event that the Acquisition is implemented by way of a Takeover Offer, in accordance with normal United Kingdom practice and pursuant to Rule 14e-5(b) of the US Exchange Act, Bidco or its nominees, or its brokers (acting as agents), may from time to time make certain purchases of, or arrangements to purchase, shares or other securities of Kin and Carta outside of the US, other than pursuant to the Acquisition, until the date on which the Acquisition becomes Effective, lapses or is otherwise withdrawn. Also, in accordance with Rule 14e-5(b) of the US Exchange Act, BofA Securities will continue to act as exempt principal trader in Kin and Carta Shares on the London Stock Exchange. These purchases may occur either in the open market at prevailing prices or in private transactions at negotiated prices and would comply with applicable law, including the US Exchange Act. Any information about such purchases or arrangements to purchase shall be disclosed as required in the United Kingdom, shall be reported to a Regulatory Information Service and shall be available on the London Stock Exchange website at www.londonstockexchange.com.
Neither the US Securities and Exchange Commission (the "SEC") nor any securities commission of any state of the US nor any other US regulatory authority has approved the Acquisition, passed upon the fairness of the Acquisition or passed upon the adequacy or accuracy of this Announcement. Any representation to the contrary is a criminal offence in the US.
For the purposes of qualifying for the exemption from the registration requirements of the US Securities Act afforded by Section 3(a)(10) thereof, Kin and Carta will advise the Court that its sanctioning of the Acquisition will be relied upon by Kin and Carta and Bidco as an approval of the Scheme following a hearing on its fairness which all Scheme Shareholders are entitled to attend, in person or through counsel, to support or oppose the sanctioning of the Scheme and with respect to which notification has been given to all such Scheme Shareholders.
The receipt of cash pursuant to the Acquisition by a US holder of Kin and Carta Shares as consideration for the transfer of its Kin and Carta Shares pursuant to the Scheme will likely be a taxable transaction for US federal income tax purposes and may also be a taxable transaction under applicable state and local tax laws, as well as foreign and other tax laws. Each US holder of Kin and Carta Shares is strongly advised to consult an appropriately qualified independent professional adviser immediately regarding the tax consequences of the Scheme applicable to them, including under applicable United States state and local, as well as overseas and other, tax laws.
Each US holder is urged to consult his, her or its independent professional adviser immediately regarding the tax consequences of the Acquisition.
It may be difficult for US holders of Kin and Carta Shares to enforce their rights and claims arising out of US federal securities laws, since Bidco and Kin and Carta are located in a non-US jurisdiction, and some or all of their officers and directors may be residents of a non-US jurisdiction, and a substantial part of the assets of Kin and Carta are located outside of the US. US holders of Kin and Carta Shares may not be able to sue a non-US company or its officers or directors in a non-US court for violations of US securities laws. Further, it may be difficult to compel a non-US company and its affiliates to subject themselves to a US court's judgement.
Cautionary note regarding forward-looking statements
This Announcement (including information incorporated by reference in this Announcement), oral statements made regarding the Acquisition, and other information published by Bidco and Kin and Carta contain statements which are, or may be deemed to be, "forward looking statements". Forward-looking statements are prospective in nature and are not based on historical facts, but rather on current expectations and projections of the management of Bidco and Kin and Carta about future events, and are therefore subject to risks and uncertainties which could cause actual results to differ materially from the future results expressed or implied by the forward-looking statements.
The forward-looking statements contained in this Announcement include statements relating to the expected effects of the Acquisition on Bidco and Kin and Carta (including their future prospects, developments and strategies), the expected timing and scope of the Acquisition and other statements other than historical facts. Often, but not always, forward-looking statements can be identified by the use of forward-looking words such as "prepares", "plans", "expects" or "does not expect", "is expected", "is subject to", "budget", "projects", "synergy", "strategy", "scheduled", "goal", "estimates", "forecasts", "cost-saving", "intends", "anticipates" or "does not anticipate", or "believes", or variations of such words and phrases or statements that certain actions, events or results "may", "could", "should", "would", "might" or "will" be taken, occur or be achieved. Forward looking statements may include statements relating to the following: (i) future capital expenditures, expenses, revenues, earnings, synergies, economic performance, indebtedness, financial condition, dividend policy, losses and future prospects; (ii) business and management strategies and the expansion and growth of Bidco's, Kin and Carta's, any member of the Bidco Group's or any member of the Kin and Carta Group's operations and potential synergies resulting from the Acquisition; and (iii) the effects of global economic conditions and governmental regulation on Bidco's, Kin and Carta's, any member of the Bidco Group's or any member of the Kin and Carta Group's business.
Although Bidco and Kin and Carta believe that the expectations reflected in such forward-looking statements are reasonable, Bidco and Kin and Carta can give no assurance that such expectations will prove to be correct. By their nature, forward-looking statements involve risk and uncertainty because they relate to events and depend on circumstances that will occur in the future. There are a number of factors that could cause actual results and developments to differ materially from those expressed or implied by such forward-looking statements.
These factors include, but are not limited to: the ability to complete the Acquisition; the ability to obtain requisite regulatory and shareholder approvals and the satisfaction of other Conditions on the proposed terms and schedule; changes in the global political, economic, business and competitive environments and in market and regulatory forces; changes in future exchange and interest rates; changes in tax rates; future business combinations or disposals; changes in general economic and business conditions; changes in the behaviour of other market participants; changes in the anticipated benefits from the Acquisition not being realised as a result of changes in general economic and market conditions in the countries in which Bidco and Kin and Carta operate, weak, volatile or illiquid capital and/or credit markets, changes in tax rates, interest rate and currency value fluctuations, the degree of competition in the geographic and business areas in which Bidco and Kin and Carta operate and changes in laws or in supervisory expectations or requirements. Other unknown or unpredictable factors could cause actual results to differ materially from those expected, estimated or projected in the forward-looking statements. If any one or more of these risks or uncertainties materialises or if any one or more of the assumptions proves incorrect, actual results may differ materially from those expected, estimated or projected. Such forward-looking statements should therefore be construed in the light of such factors. Neither Bidco nor Kin and Carta, nor any of their respective associates or directors, officers or advisers, provides any representation, assurance or guarantee that the occurrence of the events expressed or implied in any forward-looking statements in this Announcement will actually occur. You are cautioned not to place any reliance on these forward-looking statements.
Other than in accordance with their legal or regulatory obligations, neither Bidco nor Kin and Carta is under any obligation, and Bidco and Kin and Carta expressly disclaim any intention or obligation, to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
Profit forecasts, estimates or quantified financial benefits statements
No statement in this Announcement is intended as a profit forecast, estimate or quantified financial benefits statement for any period and no statement in this Announcement should be interpreted to mean that earnings or earnings per share for Kin and Carta for the current or future financial years would necessarily match or exceed the historical published earnings or earnings per share for Kin and Carta.
Dealing and Opening Position Disclosure Requirements
Under Rule 8.3(a) of the 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 p.m. (London time) on the 10th Business Day following the commencement of the Offer Period and, if appropriate, by no later than 3:30 p.m. (London time) on the 10th Business Day following the announcement in which any securities exchange offeror is first identified. Relevant persons who deal in the relevant securities of the offeree company or of a securities exchange offeror prior to the deadline for making an Opening Position Disclosure must instead make a Dealing Disclosure.
Under Rule 8.3(b) of the 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 p.m. (London time) on the Business Day following the date of the relevant dealing.
If two or more persons act together pursuant to an agreement or understanding, whether formal or informal, to acquire or control an interest in relevant securities of an offeree company or a securities exchange offeror, they will be deemed to be a single person for the purpose of Rule 8.3.
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 Panel's website at www.thetakeoverpanel.org.uk, including details of the number of relevant securities in issue, when the Offer Period commenced and when any offeror was first identified. You should contact the Panel's Market Surveillance Unit on +44 (0)20 7638 0129 if you are in any doubt as to whether you are required to make an Opening Position Disclosure or a Dealing Disclosure.
Publication on a website
In accordance with Rule 26.1 of the Code, a copy of this Announcement will be made available, subject to certain restrictions relating to persons resident in Restricted Jurisdictions, on Kin and Carta's website at https://investors.kinandcarta.com and on Bidco's website at www.kelvinoffer.com.
For the avoidance of doubt, neither the contents of Kin and Carta's website and Bidco's website nor Apax's website nor any website accessible from hyperlinks is incorporated into or forms part of this Announcement.
Requesting hard copy documents
In accordance with Rule 30.3 of the Code, Kin and Carta Shareholders, persons with information rights and participants in Kin and Carta Share Plans may request a hard copy of this Announcement by contacting Kin and Carta's receiving agents, Link Group, between 9:00 a.m. and 5:30 p.m. (London time) Monday to Friday (except UK public holidays) on 0371 664 0321 from within the UK or on +44 371 664 0321 if calling from outside the UK or by submitting a request in writing to Link Group, Corporate Actions, Central Square, 29 Wellington Street, Leeds, LS1 4DL. Calls are charged at the standard geographical rate and will vary by provider. Calls outside the United Kingdom will be charged at the applicable international rate. Please note that Link Group cannot provide any financial, legal or tax advice and calls may be recorded and monitored for security and training purposes.
For persons who receive a copy of this Announcement in electronic form or via a website notification, a hard copy of this Announcement and any such information incorporated in it by reference to another source will not be sent unless so requested. Such persons may also request that all future documents, announcements and information in relation to the Acquisition be sent to them in hard copy form.
Electronic communications
Please be aware that addresses, electronic addresses and certain information provided by Kin and Carta Shareholders, persons with information rights and other relevant persons for the receipt of communications from Kin and Carta may be provided to Bidco during the Offer Period as requested under Section 4 of Appendix 4 of the Code to comply with Rule 2.11(c) of the Code.
Rounding
Certain figures included in this Announcement have been subjected to rounding adjustments.
General
If you are in any doubt about the contents of this Announcement or the action you should take, you are recommended to seek your own independent financial advice immediately from your stockbroker, bank manager, solicitor, accountant or from an independent financial adviser duly authorised under the Financial Services and Markets Act 2000 if you are a resident in the UK or, if not, from another appropriate authorised independent financial adviser.
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