TIDMKBC
RNS Number : 2914P
Yokogawa Electric Corporation
17 February 2016
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY IN, INTO OR FROM ANY JURISDICTION
WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OF
SUCH JURISDICTION
For immediate release
17 February 2016
RECOMMENDED CASH ACQUISITION
of
KBC Advanced Technologies plc ("KBC")
by
Yokogawa Electric Corporation ("Yokogawa")
(to be implemented by way of a scheme of arrangement under Part
26 of the Companies Act)
Summary
-- The boards of Yokogawa and KBC are pleased to announce that
they have reached agreement on the terms of a recommended all cash
acquisition by Yokogawa of the entire issued and to be issued share
capital of KBC (the "Acquisition"). It is intended that the
Acquisition be implemented by means of a Court-sanctioned scheme of
arrangement under Part 26 of the Companies Act.
-- Under the terms of the Acquisition, KBC Shareholders will be entitled to receive:
for each KBC Share 210 pence in cash
-- The Acquisition values the entire issued and to be issued
share capital of KBC at approximately GBP180.3 million on a fully
diluted basis.
-- The Acquisition price represents a premium of approximately:
o 69 per cent. to the Closing Price per KBC Share of 124 pence
on 11 January 2016 (being the last Business Day prior to the start
of the Offer Period); and
o 14 per cent. to the offer price of 185 pence per KBC Share
offered by Global Optimisation under the AspenTech Proposal.
-- Yokogawa believes the Acquisition will provide a one-stop
solution to customers by combining KBC's premium consulting
services and software business with Yokogawa's operational
excellence in the industrial automation field.
-- The consideration payable under the terms of the Acquisition
is being funded by a new committed debt facility arranged for the
purpose.
-- It is intended that the Acquisition will be implemented by
means of a Court- sanctioned scheme of arrangement under Part 26 of
the Companies Act (or, if Yokogawa elects, with the consent of the
Takeover Panel, a Takeover Offer). The Acquisition is conditional
on, among other things: (i) the approval of Scheme Shareholders at
the Court Meeting and the passing of the Resolutions by KBC
Shareholders at the General Meeting; and (ii) the sanction of the
Scheme by the Court.
-- The KBC Directors, who have been so advised by Evercore,
consider the terms of the Acquisition to be fair and reasonable. In
providing advice to the KBC Directors, Evercore has taken into
account the commercial assessments of the KBC Directors.
-- The KBC Directors have unanimously withdrawn their
recommendation of the AspenTech Proposal and intend to recommend
unanimously that KBC Shareholders vote or procure votes in favour
of the Scheme at the Court Meeting and the Resolutions to be
proposed at the General Meeting.
-- The irrevocable undertakings given by Kestrel Partners LLP,
AXA Investment Management UK Limited, Hargreave Hale Limited,
Herald Investment Trust plc, Killik & Co LLP and Ari
Zaphiriou-Zarifi in respect of the AspenTech Proposal have fallen
away as a result of this announcement.
-- Yokogawa has received irrevocable undertakings to vote or
procure votes in favour of the Scheme at the Court Meeting and the
Resolutions to be proposed at the General Meeting from Kestrel
Partners LLP, AXA Investment Management UK Limited, Hargreave Hale
Limited, Herald Investment Trust plc, Killik & Co LLP and Ari
Zaphiriou-Zarifi in respect of 34,521,501 KBC Shares, in aggregate,
representing approximately 41.9 per cent. of KBC's issued share
capital (excluding Treasury Shares) as at 16 February 2016 (being
the last Business Day prior to the date of this announcement).
-- Full details of the irrevocable undertakings received by
Yokogawa (including the circumstances in which the irrevocable
undertakings cease to be binding) are set out in Appendix III to
this announcement.
-- Yokogawa has been unable to obtain irrevocable undertakings
from the KBC Directors because the irrevocable undertakings which
the KBC Directors entered into with Global Optimisation continue to
be binding in the event that a higher competing offer is made for
KBC. However, in aggregate the entire beneficial holdings of KBC
Shares of the KBC Directors who entered into irrevocable
undertakings with Global Optimisation amount to 417,006 KBC Shares,
representing approximately only 0.51 per cent. of KBC's issued
share capital (excluding Treasury Shares) as at 16 February 2016
(being the last Business Day prior to the date of this
announcement).
-- Yokogawa was founded in 1915 and is one of the leading
players in the global industrial automation and control field,
operating with great emphasis on its founding principles of putting
quality first, having a pioneering spirit and contributing to
society.
-- KBC is a successful provider of software and consultancy to
the oil and gas industry, focused on operational excellence and
profit improvement for both the upstream (oil production) and
downstream (oil refining and refinery-integrated petrochemicals)
segments.
-- Further details of the Acquisition will be contained in the
Scheme Document which is intended to be posted to KBC Shareholders
along with notices of the Court Meeting and General Meeting and the
Forms of Proxy within 28 days of the date of this announcement,
unless KBC and Yokogawa otherwise agree, and the Takeover Panel
consents, to a later date. At this stage, subject to the approval
and availability of the Court (which is subject to change), KBC and
Yokogawa expect the Meetings to be held by the end of April 2016
and the Acquisition to become Effective during the second quarter
of 2016.
-- Commenting on the Acquisition, Takashi Nishijima, President and CEO of Yokogawa, said:
"We have long admired KBC's successful consulting business and
sophisticated software capabilities and we are excited about this
proposed acquisition and partnership that will enable KBC to
develop and broaden its business. Together, we believe that we can
provide a one-stop solution that we believe customers will value
highly. This kind of integrated service will not only create value
for customers but drive technological innovation and ensure that
the combined group remains at the forefront of the industry.
Expanding our advanced solution business is a strategic priority
for Yokogawa and we strongly believe that KBC is the ideal partner
for us to achieve this goal."
-- Commenting on the Acquisition, Ian Godden, Chairman of KBC, said:
"Yokogawa is a highly-respected international business and there
is a strong strategic fit with KBC. We believe that Yokogawa will
also provide KBC with all the advantages associated with being part
of a larger, and better capitalised, group. The Yokogawa
Acquisition represents a premium of 14 per cent. in cash to the
offer price of 185 pence per KBC Share under the AspenTech
Proposal. The KBC Board considers that the Yokogawa Acquisition
represents a superior proposal for KBC Shareholders to the
AspenTech Proposal and accordingly has withdrawn its recommendation
of the AspenTech Proposal and now intends to recommend that KBC
Shareholders vote in favour of the Acquisition."
-- This summary should be read in conjunction with, and is
subject to, the full text of the announcement and its
Appendices.
-- The Acquisition is subject to the Conditions and further
terms that are set out in Appendix I. Appendix II contains details
of sources and bases of certain information contained in this
announcement. Appendix III contains certain details relating to the
irrevocable undertakings referred to in this announcement. Appendix
IV contains definitions of certain terms used in this announcement.
The appendices form part of, and should be read in conjunction
with, this announcement.
Other announcements by Yokogawa
Yokogawa is today also releasing an announcement in Japan
pursuant to the rules of the Tokyo Stock Exchange in relation to
the Acquisition. Further, on or around the date of this
announcement Yokogawa will release an announcement in Japan
pursuant to Japan's Financial Instruments and Exchange Act and
Japan's Cabinet Office Ordinance on Disclosure of Corporate
Affairs. English translations of both these additional
announcements will be made available on Yokogawa's website at
http://www.yokogawa.com/
Enquiries
Yokogawa Tel:+81 422 52 5530
Hiroshi Kubo
Corporate Communications Department
Morgan Stanley Tel:+44 (0) 20 7425 8000
(Financial Adviser to Yokogawa)
Ian Hart
Dominic Desbiens
KBC Tel:+44 (0) 20 7357 0800
Eric Dodd
Chief Financial Officer
Evercore Tel:+44 (0) 20 7653 6000
(Financial Adviser to KBC)
Edward Banks
Cenkos Tel:+44 (0) 20 7397 8900
(Corporate broker and
NOMAD to KBC)
Bobbie Hilliam
Julian Morse
Weber Shandwick Tel:+44 (0) 20 7397 8900
(PR Adviser to KBC)
Nick Oborne
Tom Jenkins
Mitsubishi UFJ Morgan Stanley Securities Co., Ltd ("MUMSS"),
through its affiliate, Morgan Stanley & Co. International plc
("Morgan Stanley") which is authorised by the Prudential Regulation
Authority and regulated by the Financial Conduct Authority and the
Prudential Regulation Authority in the UK is acting as financial
adviser to Yokogawa and no one else in connection with the matters
set out in this announcement. In connection with such matters,
MUMMS, Morgan Stanley, each of their affiliates and each of their
affiliates' respective directors, officers, employees and agents
will not regard any other person as their client, nor will they be
responsible to any other person for providing the protections
afforded to their clients or for providing advice in relation to
the contents of this announcement or any other matter referred to
herein.
(MORE TO FOLLOW) Dow Jones Newswires
February 17, 2016 02:00 ET (07:00 GMT)
Evercore Partners International LLP, which is authorised and
regulated in the United Kingdom by the Financial Conduct Authority,
is acting exclusively for KBC and no one else in connection with
the Acquisition and the matters set out in this announcement and
will not regard any other person as its client in connection with
the matters referred to in this announcement and will not be
responsible to anyone other than KBC for providing the protections
afforded to clients of Evercore or its affiliates, or for providing
advice in relation to the Acquisition, the contents of this
announcement or any other matters referred to herein. Neither
Evercore nor any of its subsidiaries, branches or 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 Evercore
in connection with this announcement, any statement contained
herein or otherwise.
Cenkos Securities Plc, which is authorised and regulated in the
United Kingdom by the Financial Conduct Authority, is acting
exclusively as corporate broker and nominated adviser to KBC and
no-one else in connection with the Acquisition and other matters
described in this announcement and will not be responsible to
anyone other than KBC for providing the protections afforded to
clients of Cenkos Securities Plc or for providing advice in
relation to the Acquisition, the contents of this announcement or
any other matter referred to herein.
This announcement is for information purposes only and is not
intended to and does not constitute, or form any part of, an offer
to sell or an invitation to purchase or subscribe for any
securities or the solicitation of any vote or approval in any
jurisdiction pursuant to the Acquisition or otherwise. The
Acquisition will be made solely by the Scheme Document (or, if
applicable, the Offer Document) which will contain the full terms
and conditions of the Acquisition, including details of how to vote
in respect of the Acquisition. Any decision in respect of, or other
response to, the Acquisition should be made only on the basis of
the information contained in the Scheme Document (or, if
applicable, the Offer Document).
This announcement does not constitute a prospectus or a
prospectus equivalent document.
This announcement has been prepared for the purpose of complying
with English law, the Code and the AIM Rules 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 United Kingdom.
Overseas shareholders
The laws of the relevant jurisdictions may affect the
availability of the Acquisition to persons who are not resident in
the United Kingdom. Persons who are not resident in the United
Kingdom or who are subject to laws of any jurisdiction other than
the United Kingdom, should inform themselves about, and observe,
any applicable requirements. Any person (including, without
limitation, nominees, trustees and custodians) who would, or
otherwise intends to, forward this announcement, the Scheme
Document or any accompanying document to any jurisdiction outside
the United Kingdom should refrain from doing so and seek
appropriate professional advice before taking any action. In
particular, the ability of persons who are not resident in the
United Kingdom to vote their KBC Shares at the Court Meeting or the
General Meeting or to execute and deliver Forms of Proxy appointing
another to vote their KBC Shares in respect of the Court Meeting or
the General Meeting on their behalf, may be affected by the laws of
the relevant jurisdiction in which they are located.
Any failure to comply with the applicable legal or regulatory
requirements may constitute a violation of the laws and/or
regulations of any such jurisdiction. To the fullest extent
permitted by applicable law, the companies and persons involved in
the Acquisition disclaim any responsibility and liability for the
violation of such restrictions by any person.
The Acquisition will not be made, directly or indirectly, in or
into or by use of the mails or any other means or instrumentality
(including, without limitation, telephonic or electronic) of
interstate or foreign commerce of, or any facility of a national,
state or other securities exchange of, a Restricted Jurisdiction,
and the Acquisition will not be capable of acceptance by any such
use, means, instrumentality or facility or from within a Restricted
Jurisdiction. Accordingly, copies of this announcement and formal
documentation relating to the Acquisition are not being, and must
not be, directly or indirectly, mailed or otherwise forwarded or
distributed in, into or from a Restricted Jurisdiction and persons
receiving this announcement (including custodians, nominees and
trustees) must not distribute or send it into or from a Restricted
Jurisdiction.
Notes to US investors in KBC
Shareholders in the United States should note that the
Acquisition relates to the shares of an English company and is
proposed to be made by means of a scheme of arrangement provided
for under, and governed by, English law. Neither the proxy
solicitation nor the tender offer rules under the US Securities
Exchange Act of 1934, as amended, will apply to the Scheme.
Moreover the Scheme will be subject to the disclosure requirements
and practices applicable in the UK to schemes of arrangement, which
differ from the disclosure requirements of the US proxy
solicitation rules and tender offer rules. Financial information
included in this announcement and the Scheme Document has been or
will be prepared in accordance with accounting standards applicable
in the UK and may not be comparable to financial information of US
companies or companies whose financial statements are prepared in
accordance with generally accepted accounting principles in the
United States.
In accordance with normal UK practice and pursuant to Rule
14e-5(b) of the US Exchange Act, Yokogawa or its nominees, or its
brokers (acting as agents), may from time to time make certain
purchases of, or arrangements to purchase KBC Shares outside of the
United States, other than pursuant to the Acquisition, until the
date on which the Acquisition becomes Effective, lapses or is
otherwise withdrawn. These purchases may occur either in the open
market at prevailing prices or in private transactions at
negotiated prices. Any information about such purchases will be
disclosed as required in the UK, will be reported to the Regulatory
Information Service of the London Stock Exchange and will be
available on the London Stock Exchange website at
http://www.londonstockexchange.com/exchange/news/market-news/market-news-home.html.
Forward looking statements
This announcement contains certain forward-looking statements
with respect to Yokogawa and KBC. 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", "aim", "will", "may", "would",
"could" or "should" or other words of similar meaning or the
negative thereof. Forward-looking statements include statements
relating to the following: (i) future capital expenditures,
expenses, revenues, economic performance, financial conditions,
dividend policy, losses and future prospects; (ii) business and
management strategies and the expansion and growth of the
operations of the Yokogawa or the KBC Group; and (in) the effects
of government regulation on the business of the Yokogawa or the KBC
Group.
These forward-looking statements involve known and unknown
risks, uncertainties and other factors which may cause the actual
results, performance or achievements of any such person, or
industry results, to be materially different from any results,
performance or achievements expressed or implied by such
forward-looking statements. These forward-looking statements are
based on numerous assumptions regarding the present and future
business strategies of such persons and the environment in which
each will operate in the future. You are cautioned not to place
undue reliance on these forward-looking statements, which speak
only as of the date hereof. All subsequent oral or written
forward-looking statements attributable to Yokogawa or KBC or any
persons acting on their behalf are expressly qualified in their
entirety by the cautionary statement above. Neither Yokogawa nor
KBC undertakes any obligation to update publicly or revise
forward-looking or other statements contained in this announcement,
whether as a result of new information, future events or otherwise,
except to the extent legally required.
No profit forecasts or estimates
No statement in this announcement is intended as a profit
forecast or estimate for any period and no statement in this
announcement should be interpreted to mean that earnings or
earnings per ordinary share, for Yokogawa or KBC, respectively for
the current or future financial years would necessarily match or
exceed the historical published earnings or earnings per ordinary
share for Yokogawa or KBC, respectively.
Right to switch to a Takeover Offer
Yokogawa reserves the right to elect, with the consent of the
Takeover Panel, to implement the Acquisition by way of a Takeover
Offer for the entire issued and to be issued share capital of KBC
as an alternative to the Scheme. In such an event, the Takeover
Offer will be implemented on the same terms or, if Yokogawa so
decides, on such other terms being no less favourable (subject to
appropriate amendments), so far as applicable, as those which would
apply to the Scheme and subject to the amendment referred to in
Appendix I to this announcement.
Publication on website
(MORE TO FOLLOW) Dow Jones Newswires
February 17, 2016 02:00 ET (07:00 GMT)
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), free of charge, on Yokogawa's website at
http://www.yokogawa.com/ and KBC's website at
http://ir.kbcat.com/home/ by no later than 12 noon on 18 February
2016.
Neither the contents of these websites nor the content of any
other website accessible from hyperlinks on such websites is
incorporated into, or forms part of, this announcement.
In accordance with Rule 30.2 of the Code, a person so entitled
may request a hard copy of this announcement, free of charge, by
contacting Morgan Stanley on +44 (0)20 7425 8000 or Evercore on +44
(0)20 7653 6000. For persons who receive a copy of this
announcement in electronic form or via a website notification, a
hard copy of this announcement will not be sent unless so
requested. In accordance with Rule 30.2 of the Code, a person so
entitled may also request that all future documents, announcements
and information to be sent to them in relation to the Acquisition
should be in hard copy form.
Information relating to KBC Shareholders
Please be aware that addresses, electronic addresses and certain
other information provided by KBC Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from KBC may be provided to Yokogawa during the
Offer Period as required under Section 4 of Appendix 4 of the Code
to comply with Rule 2.12(c) of the Code.
Rounding
Certain figures included in this announcement have been
subjected to rounding adjustments. Accordingly, figures shown for
the same category presented in different tables may vary slightly
and figures shown as totals in certain tables may not be an
arithmetic aggregation of the figures that precede them.
Disclosure Requirements of the Code
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 pm (London time) on the 10th business day following the
commencement of the offer period and, if appropriate, by no later
than 3.30 pm (London time) on the 10th business day following the
announcement in which any securities exchange offeror is first
identified. Relevant persons who deal in the relevant securities of
the offeree company or of a securities exchange offeror prior to
the deadline for making an Opening Position Disclosure must instead
make a Dealing Disclosure.
Under Rule 8.3(b) of the Code, any person who is, or becomes,
interested in 1 per cent. or more of any class of relevant
securities of the offeree company or of any securities exchange
offeror must make a Dealing Disclosure if the person deals in any
relevant securities of the offeree company or of any securities
exchange offeror. A Dealing Disclosure must contain details of the
dealing concerned and of the person's interests and short positions
in, and rights to subscribe for, any relevant securities of each of
(i) the offeree company and (ii) any securities exchange
offeror(s), save to the extent that these details have previously
been disclosed under Rule 8. A Dealing Disclosure by a person to
whom Rule 8.3(b) applies must be made by no later than 3.30 pm
(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 Takeover Panel's website at www.thetakeoverpanel.org.uk,
including details of the number of relevant securities in issue,
when the offer period commenced and when any offeror was first
identified. You should contact the Takeover Panel's Market
Surveillance Unit on +44 (0)20 7638 0129 if you are in any doubt as
to whether you are required to make an Opening Position Disclosure
or a Dealing Disclosure.
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY IN, INTO OR FROM ANY JURISDICTION
WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OF
SUCH JURISDICTION
For immediate release
17 February 2016
RECOMMENDED CASH ACQUISITION
of
KBC Advanced Technologies plc
by
Yokogawa Electric Corporation
(to be implemented by way of a scheme of arrangement under Part
26 of the Companies Act)
1. INTRODUCTION
The boards of Yokogawa and KBC are pleased to announce that they
have reached agreement on the terms of a recommended acquisition by
Yokogawa of the entire issued and to be issued share capital of
KBC. It is intended that the Acquisition be implemented by means of
a Court-sanctioned scheme of arrangement under Part 26 of the
Companies Act.
2. THE ACQUISITION
The Acquisition, which will be on the terms and subject to the
Conditions set out below and in Appendix I, and to be set out in
the Scheme Document, will be made on the following basis:
for each KBC Share 210 pence in cash
The Acquisition values the entire issued and to be issued share
capital of KBC at approximately GBP180.3 million on a fully diluted
basis.
The Acquisition price represents a premium of approximately:
-- 69 per cent. to the Closing Price per KBC Share of 124 pence
on 11 January 2016 (being the last Business Day prior to the start
of the Offer Period); and
-- 14 per cent. to the offer price of 185 pence per KBC Share
offered by Global Optimisation under the AspenTech Proposal.
The Acquisition is conditional, amongst other things, on the
Scheme becoming Effective no later than the Long Stop Date.
The KBC Shares will be acquired by Yokogawa (or its nominee)
with full title guarantee, fully paid and free from all liens,
equitable interests, charges, encumbrances, rights of pre-emption
and any other third party rights or interests whatsoever and
together with all rights existing at the date of this announcement
or thereafter attaching thereto, including (without limitation) the
right to receive and retain, in full, all dividends and other
distributions (if any) declared, made or paid or any other return
of capital (whether by way of reduction of share capital or share
premium account or otherwise) made on or after the date of this
announcement in respect of the KBC Shares.
If any dividend or other distribution or return of value is
proposed, declared, made, paid or becomes payable by KBC in respect
of the KBC Shares on or after the date of this announcement and
prior to the Scheme becoming Effective Yokogawa will have the right
to reduce the value of the consideration payable for each KBC Share
by up to the amount per KBC Share of such dividend, distribution or
return of value except where the KBC Share is or will be acquired
pursuant to the Scheme on a basis which entitles Yokogawa to
receive the dividend, distribution or return of value and to retain
it.
If any such dividend, distribution or return of value is paid or
made after the date of this announcement and Yokogawa exercises its
rights described above, any reference in this announcement to the
consideration payable under the Scheme shall be deemed to be a
reference to the consideration as so reduced. Any exercise by
Yokogawa of its rights referred to in this paragraph shall be the
subject of an announcement and, for the avoidance of doubt, shall
not be regarded as constituting any revision or variation of the
terms of the Scheme.
3. BACKGROUND TO AND REASONS FOR THE ACQUISITION
Yokogawa is one of the leading players in the global industrial
automation and control sector. Its product offerings include
distributed control systems for the monitoring and control of
processes in production facilities in petroleum refining,
petrochemical, pharmaceutical, power and various other industries.
KBC is a successful consultancy and software provider to the oil
and gas industry, focused on operational excellence and profit
improvement in relation to both upstream and downstream.
In May 2015 Yokogawa announced its Transformation 2017 business
plan ("TF2017"), a mid-term business plan for growth. Under TF2017,
Yokogawa aims to further expand its advanced solution business and
the proposed Acquisition is therefore consistent with, and an
important part of, this plan.
Yokogawa expects its financial strength to allow KBC to broaden
its consulting activities and take on additional projects with
attractive return profiles, alleviating working capital
constraints. KBC would benefit from Yokogawa's customer
relationships throughout the world, including the areas where KBC
does not have a significant presence. This broadened customer base
and augmented sales force is expected to accelerate the growth of
the combined business as an integrated automation solution service
company.
(MORE TO FOLLOW) Dow Jones Newswires
February 17, 2016 02:00 ET (07:00 GMT)
The integration of KBC's premium consulting services and
software capabilities with Yokogawa's operational excellence in the
industrial automation field would provide a one-stop solution to
various customers ranging from senior management to engineers at
field level. KBC and Yokogawa would, together, be able to provide
consultancy, supply control equipment and servicing throughout the
customer's asset life-cycle. Yokogawa expects this integrated
service would create additional value for its existing and new
customers and enable further technology and product innovation.
Yokogawa believes that the Acquisition has a compelling
strategic logic and represents an exciting opportunity for
stakeholders of both companies.
4. BACKGROUND TO AND REASONS FOR THE RECOMMENDATION
The hydrocarbon industry is experiencing significant volatility
and the competitive landscape for industrial automation and process
engineering software vendors has been changing. KBC has been
proactively reshaping and repositioning its business and adjusting
its short-term tactics to reflect the new market conditions. KBC's
traditional strengths in the downstream area have helped to buffer
it from the full hydrocarbon downturn and its recent financial
performance has been robust.
On 12 January 2016, it was announced that the boards of
AspenTech and KBC had reached agreement on the terms of a
recommended acquisition by Global Optimisation of the entire issued
and to be issued share capital of KBC for 185 pence in cash per KBC
Share. The scheme document in relation to the AspenTech Proposal
was posted to KBC Shareholders on 5 February 2016. The full details
of the background to and reasons for the KBC Board's recommendation
of the AspenTech Proposal are set out in that document.
Following the announcement of the AspenTech Proposal, KBC was
approached by Yokogawa regarding a possible higher offer by
Yokogawa for KBC. Yokogawa and KBC signed the Confidentiality
Agreement on 15 January 2016 and, following some preliminary
discussions, the KBC Board commenced a detailed due diligence
exercise with Yokogawa on 29 January 2016. The Boards of Yokogawa
and KBC have now reached agreement on the terms of the
Acquisition.
The KBC Directors have considered the benefits that being part
of the Yokogawa Group would bring to KBC's business in terms of
long-term stability and access to capital. The KBC Board believes
that Yokogawa is well-positioned to grow and develop KBC's business
and that there is a strong strategic fit between the companies. KBC
will benefit from access to Yokogawa's extensive global customer
base and the financial support to take on additional projects.
Yokogawa recognises the strength of KBC's technology, consultants
and leadership and intends to invest in their future success.
Yokogawa understands the importance of maintaining and investing in
KBC's competitive capabilities in consulting and advanced
technology, and, therefore, retaining the skills, knowledge and
expertise within KBC's existing management and employees will be an
imperative.
The KBC Board has also considered the Acquisition with regard to
price, transaction timing and execution risk. The Acquisition price
of 210 pence per KBC Share represents a 14 per cent. premium to the
AspenTech Proposal and a 69 per cent. premium to the Closing Price
per KBC Share on 11 January 2016 (being the last Business Day prior
to the start of the Offer Period). The Acquisition is in all other
material respects on the same terms as the AspenTech Proposal.
Following careful consideration of the factors set out above,
the KBC Board considers that the Acquisition represents a superior
offer for KBC's Shareholders as compared with the AspenTech
Proposal. Accordingly, the KBC Board has withdrawn its
recommendation of the AspenTech Proposal and intends to recommend
unanimously that KBC Shareholders vote in favour of the
Acquisition.
The KBC Directors, who have been so advised by Evercore,
consider the terms of the Acquisition to be fair and reasonable. In
providing advice to the KBC Directors, Evercore has taken into
account the commercial assessments of the KBC Directors. The KBC
Directors have unanimously withdrawn their recommendation of the
AspenTech Proposal and intend to recommend unanimously that KBC
Shareholders vote in favour of the Scheme at the Court Meeting and
the Resolutions to be proposed at the General Meeting.
The KBC Directors intend to seek the permission of the Court to
adjourn the Court meeting to consider and, if thought fit, approve
the AspenTech Proposal convened for 10.00 a.m. on 29 February 2016
(the "AspenTech Proposal Court Meeting") and intend to adjourn the
KBC general meeting to consider and, if thought fit, approve the
AspenTech Proposal and associated matters convened for 10.15 a.m.
on 29 February 2016 (the "AspenTech Proposal General Meeting"),
subject to the passing at such meeting of a resolution to adjourn
that meeting. The KBC Directors will make a further announcement in
the event that the AspenTech Proposal Court Meeting and the
AspenTech Proposal General Meeting are adjourned.
5. IRREVOCABLE UNDERTAKINGS
The irrevocable undertakings given by Kestrel Partners LLP, AXA
Investment Management UK Limited, Hargreave Hale Limited, Herald
Investment Trust plc, Killik & Co LLP and Ari Zaphiriou-Zarifi
in respect of the AspenTech Proposal have fallen away as a result
of this announcement.
Yokogawa has received irrevocable undertakings to vote or
procure votes in favour of the Scheme at the Court Meeting and the
Resolutions to be proposed at the General Meeting from Kestrel
Partners LLP, AXA Investment Management UK Limited, Hargreave Hale
Limited, Herald Investment Trust plc, Killik & Co LLP and Ari
Zaphiriou-Zarifi in respect of 34,521,501 KBC Shares, in aggregate,
representing approximately 41.9 per cent. of KBC's issued share
capital (excluding Treasury Shares) as at 16 February 2016 (being
the last Business Day prior to the date of this announcement).
Further details of these irrevocable undertakings (including
details of the circumstances in which they cease to be binding) are
set out in Appendix III to this announcement.
6. INFORMATION ON Yokogawa
Founded in 1915, Yokogawa is one of the leading players in the
global industrial automation industry with turnover of US$3.4
billion for the twelve month period ended 31 March 2015. Yokogawa
engages in cutting-edge research and innovation in three business
segments, namely industrial automation and control ("IA"), test and
measurement, and aviation, as well as other businesses. The IA
segment plays a vital role in a wide range of industries including
oil, chemicals, natural gas, power, iron and steel, pulp and paper,
pharmaceuticals and food. Yokogawa's global network includes 88
group companies across 56 countries.
Yokogawa is listed on the Tokyo Stock Exchange and, as at 16
February 2016, had a market capitalisation of approximately GBP2
billion.
7. INFORMATION ON KBC
KBC is a successful provider of software and consultancy to the
oil and gas industry, focused on operational excellence and profit
improvement for both the upstream (oil production) and downstream
(oil refining and refinery-integrated petrochemicals) segments. KBC
was incorporated in the UK in 1978. KBC's Shares are admitted to
trading on AIM and it had a market capitalisation of GBP102 million
on 11 January 2016 (being the last Business Day prior to the start
of the Offer Period).
KBC employs more than 300 staff primarily based out of three
main hubs in the UK, USA and Singapore, plus a number of other
smaller offices. KBC's clients include national oil companies
(NOCs), international oil companies (IOCs), independent oil
companies and engineering companies.
KBC deploys an integrated operating model which yields two main
revenue streams:
-- Consulting: technical / engineering and operational effectiveness consulting
-- Technology: proprietary engineering-oriented process optimisation / simulation software
The focus of KBC's consulting offering is operational excellence
and profit improvement programmes for refiners and
refinery-integrated petrochemicals, with the majority of consulting
revenue from downstream clients. The services are delivered via
in-house highly skilled engineering and management consultants,
supported by a small pool of contracted associates. From recent
acquisitions KBC has moved into the upstream oil and gas consulting
space with flow assurance and life of field solutions. KBC's advice
is delivered by consultants with deep industry / domain-specific
knowledge and operating experience and KBC has a strong reputation
for improving the safety and profitability of hydrocarbon
operations.
KBC's technology offering comprises upstream flow assurance,
fluid characterisation and facilities process simulation and
optimisation software, spanning from the wellhead in upstream
through the facilities in midstream and downstream. The technology
is delivered through access to, and implementation of, process
simulation platforms and/or specialised "plug-ins" for upstream and
downstream. KBC's flagship technology product is Petro- SIM(TM).
Through organic development as well as add-on acquisitions, such as
Infochem Computer Services Limited in 2012 and FEESA Limited in
2014, KBC has added significant intellectual property to its
technology offering. KBC has a clear focus on quality, usability
and innovation in its software products and is particularly
recognised as a provider of PVT (pressure-volume-temperature)
thermodynamics, thermal hydraulics, assay synthesis and reactor
modelling. By the end of 2014, KBC's annual technology revenue had
increased to more than GBP20 million.
For the year ended 31 December 2014, KBC's revenues were GBP76.0
million and its adjusted profit before tax was GBP9.5 million.
For the half year ended 30 June 2015, KBC's revenues were
GBP36.2 million and its adjusted profit before tax was GBP4.2
million.
8. KBC SHARE SCHEMES
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Appropriate proposals will be made in due course to participants
in the KBC Share Schemes. The Acquisition will extend to any KBC
Shares which are unconditionally allotted or issued as a result of
the exercise of existing options and vesting of awards under the
KBC Share Schemes on or prior to the Scheme Record Time.
9. FINANCING
The cash consideration payable under the terms of the
Acquisition is being financed from the proceeds of a GBP 180.3
million facility agreement (the "Facility Agreement") which
Yokogawa (as borrower) has entered into with Mizuho.
Under the Facility Agreement, Yokogawa (as borrower) has agreed,
among other things, that it shall not without the prior consent of
Mizuho, amend or waive any term of the Scheme or the Takeover Offer
in a manner which is materially adverse to the interests of Mizuho
unless such action is required by the Takeover Panel, the Code, a
court or any other applicable law, regulation or regulatory
body.
Morgan Stanley & Co. International plc, financial adviser to
Yokogawa, is satisfied that sufficient financial resources are
available to Yokogawa to enable it to satisfy in full the cash
consideration payable under the terms of the Acquisition.
10. MANAGEMENT AND EMPLOYEES
Yokogawa recognises that it is critical to maintain KBC's
competitive capabilities in consulting and advanced technology,
and, therefore, to retain the skills, knowledge and expertise
within KBC's existing management and employees. Whilst no firm
performance-based incentive arrangements are in place at this
stage, Yokogawa has reassured the KBC Board that appropriate
measures will be put in place as part of transaction closure led by
an integration team comprised of key Yokogawa and KBC
personnel.
Yokogawa intends to carry out a strategic review of the KBC
business following completion of the Acquisition. There may be some
headcount reductions in areas of overlapping administrative and
head office functions, and duplicate facilities. Absent a
significant deterioration in the KBC business, Yokogawa does not
anticipate any other headcount reduction programmes affecting KBC
staff.
Yokogawa confirms that, following completion of the Acquisition,
the existing contractual and statutory employment rights, including
in relation to pensions, of KBC's management and employees will be
fully observed in accordance with applicable law.
The remuneration committee of KBC has determined that it would
be appropriate to make certain cash awards to the executive
directors of KBC in recognition of their substantial achievements
over the past year, the significant extra work carried out by them
in order to deliver the Acquisition, the successful outcome for KBC
Shareholders as a result of their endeavours and their commitment
to effecting a smooth integration after completion of the
Acquisition. These awards will only be paid in the event that the
Acquisition becomes Effective. These awards comprise:
Andrew Howell, Chief Executive GBP1,100,000
Officer:
Kevin Smith, Chief Commercial GBP275,000
Officer:
Eric Dodd, Chief Financial GBP275,000
Officer:
It is intended that the Chairman and non-executive KBC Directors
will resign as KBC Directors immediately following the Effective
Date. Ian Godden will continue to provide services to the Combined
Group following completion of the Acquisition in order to assist
with customer retention and development, primarily in the Middle
East. Yokogawa intends to enter into discussions with Mr Godden in
due course regarding his potential continued contribution to the
success of the Combined Group in the longer term.
11. ACQUISITION RELATED ARRANGEMENTS
Confidentiality Agreement
Yokogawa and KBC entered into a confidentiality agreement dated
15 January 2016 (the "Confidentiality Agreement") pursuant to which
each of Yokogawa and KBC have agreed to keep confidential
information about the other party and not to disclose to third
parties (other than permitted recipients) confidential information
exchanged by them unless required by law or regulation. These
confidentiality obligations will remain in force for a period of
four years expiring on 15 January 2020. The parties have also
agreed not to solicit the employees of the other for a period
expiring on 15 January 2017.
12. STRUCTURE OF THE ACQUISITION
Scheme
It is intended that the Acquisition will be effected by a
Court-sanctioned scheme of arrangement between KBC and the Scheme
Shareholders under Part 26 of the Companies Act. The purpose of the
Scheme is to provide for Yokogawa to become the owner of the whole
of the issued and to be issued share capital of KBC. Under the
Scheme, the Acquisition is to be principally achieved by the:
(a) transfer of the Scheme Shares held by Scheme Shareholders to
Yokogawa in consideration for which the Scheme Shareholders will
receive the Consideration; and
(b) passing of the Resolutions at the General Meeting.
Approval by Court Meeting and General Meeting
In order to become Effective, the Scheme requires the:
(a) satisfaction (or, where applicable, waiver) of the Conditions;
(b) approval of a majority in number of the Scheme Shareholders
who vote, representing not less than 75 per cent. in value of the
Scheme Shares voted, either in person or by proxy, at the Court
Meeting; and
(c) approval by the requisite majority of the Resolutions at the
General Meeting (to be held directly after the Court Meeting)
necessary in order to implement the Scheme.
Application to Court to sanction the Scheme
Once the approvals have been obtained at the Court Meeting and
the General Meeting, and the other Conditions have been satisfied
or (where applicable) waived, the Scheme must be sanctioned by the
Court at the Court Hearing.
The Scheme will become Effective in accordance with its terms on
delivery of the Court Order to the Registrar of Companies. Upon the
Scheme becoming Effective, it will be binding on all Scheme
Shareholders, irrespective of whether or not they attended or voted
at the Court Meeting or General Meeting, or whether they voted in
favour of or against the Scheme.
Full details of the Scheme to be set out in the Scheme
Document
The Scheme will be subject to the satisfaction (or, where
applicable, waiver) of the Conditions and the full terms and
conditions to be set out in the Scheme Document. Further details of
the Scheme will be set out in the Scheme Document, including the
expected timetable and the action to be taken by Scheme
Shareholders.
The Scheme will be governed by the laws of England and Wales.
The Scheme will be subject to the applicable requirements of the
Code, the Takeover Panel, the London Stock Exchange, the FCA and
the AIM Rules.
It is expected that the Scheme Document will be despatched to
KBC Shareholders and, for information only, to participants in the
KBC Share Schemes within 28 days of the date of this announcement,
unless Yokogawa and KBC otherwise agree, and the Takeover Panel
consents, to a later date.
Conditions to the Acquisition
The Acquisition will be subject to the Conditions and further
terms set out in Appendix I to this announcement and to be set out
in the Scheme Document.
The Scheme will be conditional, amongst other things, upon:
(a) the Scheme becoming Effective by the Long Stop Date, failing
which the Scheme will lapse;
(b) the approval of the Scheme by a majority in number
representing not less than 75 per cent. in value of the KBC
Shareholders entitled to vote and present and voting, either in
person or by proxy, at the Court Meeting (or at any adjournment,
postponement or reconvention of such meeting) on or before the 22nd
day after the expected date of the Court Meeting to be set out in
the Scheme Document in due course (or such later date as may be
agreed between Yokogawa and KBC and the Court may allow);
(c) the passing of the Resolutions by the requisite majority at
the General Meeting or at any adjournment, postponement or
reconvention of that meeting to be held on or before the 22nd day
after the expected date of the General Meeting to be set out in the
Scheme Document (or such later date, if any, as Yokogawa and KBC
may agree and the Court may allow); and
(d) the sanction of the Scheme on or before the 22nd day after
the expected date of the Court Hearing to be set out in the Scheme
Document in due course (or such later date as may be agreed between
Yokogawa and KBC and the Court may allow) and the delivery of an
office copy of the Court Order to the Registrar of Companies.
Scheme timetable/further information
A full anticipated timetable will be set out in the Scheme
Document which will be posted to KBC Shareholders within 28 days of
the date of this announcement unless Yokogawa and KBC otherwise
agree, and the Takeover Panel consents, to a later date. Subject to
certain restrictions relating to persons resident in Restricted
Jurisdictions, the Scheme Document will also be made available on
Yokogawa's website at http://www.yokogawa.com/ and KBC's website at
http://ir.kbcat.com/home/.
At this stage, subject to the approval and availability of the
Court (which is subject to change), KBC and Yokogawa expect the
Meetings to be held by the end of April 2016 and the Acquisition to
become Effective during the second quarter of 2016.
Right to switch to a Takeover Offer
Yokogawa reserves the right to elect, with the consent of the
Takeover Panel, to implement the Acquisition by way of a Takeover
Offer for the entire issued and to be issued share capital of KBC
as an alternative to the Scheme. In such an event, the Takeover
Offer will be implemented on the same terms or, if Yokogawa so
decides, on such other terms being no less favourable (subject to
appropriate amendments), so far as applicable, as those which would
apply to the Scheme and subject to the amendment referred to in
Appendix I to this announcement.
13. DE-LISTING AND COMPULSORY ACQUISITION
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Prior to the Scheme becoming Effective and subject to any
applicable requirements of the AIM Rules, Yokogawa intends to
procure the making of an application by KBC for cancellation of the
trading in KBC Shares on AIM on the first Business Day following
the Effective Date.
Share certificates in respect of the KBC Shares will cease to be
valid and should be destroyed following the Effective Date. In
addition, entitlements to KBC Shares held within the CREST system
will be cancelled.
As soon as practicable after the Effective Date and after the
KBC Shares are de-listed, it is intended that KBC will be
re-registered as a private limited company under the relevant
provisions of the Companies Act.
14. DISCLOSURE OF INTERESTS IN KBC
As at the close of business on 16 February 2016, being the last
Business Day prior to the date of this announcement, save for the
irrevocable undertakings referred to in paragraph 5 (Irrevocable
undertakings) above, none of Yokogawa or any Yokogawa Directors or,
so far as Yokogawa is aware, any person acting, or deemed to be
acting, in concert with Yokogawa:
(a) had an interest in, or right to subscribe for, relevant securities of KBC;
(b) had any short position in (whether conditional or absolute
and whether in the money or otherwise), including any short
position under a derivative, any agreement to sell or any delivery
obligation or right to require another person to purchase or take
delivery of, relevant securities of KBC;
(c) had procured an irrevocable commitment or letter of intent
to accept the terms of the Acquisition in respect of relevant
securities of KBC; or
(d) had borrowed or lent any KBC Shares.
Furthermore, save for the irrevocable undertakings described in
paragraph 5 (Irrevocable undertakings) above, no arrangement exists
between Yokogawa or KBC or a person acting in concert with Yokogawa
or KBC in relation to KBC Shares. For these purposes, an
"arrangement" includes any indemnity or option arrangement, any
agreement or any understanding, formal or informal, of whatever
nature, relating to KBC Shares which may be an inducement to deal
or refrain from dealing in such securities.
15. GENERAL
The Acquisition will be subject to the Conditions and other
terms set out in this announcement and to the full terms and
conditions which will be set out in the Scheme Document. Appendix I
to this announcement contains a summary of the principal terms and
conditions. It is expected that the Scheme Document will be
despatched to KBC Shareholders as soon as practicable and, in any
event, (save with the consent of the Takeover Panel) within 28 days
of this announcement.
In deciding whether or not to vote or procure votes in favour of
the Scheme at the Court Meeting and the Resolutions to be proposed
at the General Meeting, KBC Shareholders should rely on the
information contained, and follow the procedures described, in the
Scheme Document.
Morgan Stanley and Evercore have each given and not withdrawn
their consent to the publication of this announcement with the
inclusion herein of the references to their names in the form and
context in which they appear.
Appendix II contains details of sources and bases of certain
information contained in this announcement. Appendix III contains
certain details relating to the irrevocable undertakings referred
to in this announcement. Appendix IV contains definitions of
certain terms used in this announcement. The appendices form part
of, and should be read in conjunction with, this announcement.
16. DOCUMENTS ON DISPLAY
Copies of this announcement and the following documents will, by
no later than 12 noon (London time) on the Business Day following
the date of this announcement, be made available on Yokogawa's
website at http://www.yokogawa.com/ and KBC's website at
http://ir.kbcat.com/home/ until the end of the Offer Period:
(a) a copy of this announcement;
(b) the Confidentiality Agreement;
(c) the Irrevocable Undertakings; and
(d) the Facility Agreement.
Neither the contents of KBC's website or the contents of
Yokogawa's website, nor the content of any other website accessible
from hyperlinks on either such website, is incorporated into or
forms part of, this announcement.
Enquiries
Yokogawa Tel: +81 422 52 5530
Hiroshi Kubo
Corporate Communications Department
Morgan Stanley Tel: +44 (0) 20 7425 8000
(Financial Adviser to Yokogawa)
Ian Hart
Dominic Desbiens
KBC Tel: +44 (0) 20 7357 0800
Eric Dodd
Chief Financial Officer
Evercore Tel: +44 (0) 20 7653 6000
(Financial Adviser to KBC)
Edward Banks
Cenkos Tel: +44 (0) 20 7397 8900
(Corporate broker and
NOMAD to KBC)
Bobbie Hilliam
Julian Morse
Weber Shandwick Tel: +44 (0) 20 7397 8900
(PR Adviser to KBC)
Nick Oborne
Tom Jenkins
Mitsubishi UFJ Morgan Stanley Securities Co., Ltd ("MUMSS"),
through its affiliate, Morgan Stanley & Co. International plc
("Morgan Stanley") which is authorised by the Prudential Regulation
Authority and regulated by the Financial Conduct Authority and the
Prudential Regulation Authority in the UK is acting as financial
adviser to Yokogawa and no one else in connection with the matters
set out in this announcement. In connection with such matters,
MUMMS, Morgan Stanley, each of their affiliates and each of their
affiliates' respective directors, officers, employees and agents
will not regard any other person as their client, nor will they be
responsible to any other person for providing the protections
afforded to their clients or for providing advice in relation to
the contents of this announcement or any other matter referred to
herein.
Evercore Partners International LLP, which is authorised and
regulated in the United Kingdom by the Financial Conduct Authority,
is acting exclusively for KBC and no one else in connection with
the Acquisition and the matters set out in this announcement and
will not regard any other person as its client in connection with
the matters referred to in this announcement and will not be
responsible to anyone other than KBC for providing the protections
afforded to clients of Evercore or its affiliates, or for providing
advice in relation to the Acquisition, the contents of this
announcement or any other matters referred to herein. Neither
Evercore nor any of its subsidiaries, branches or 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 Evercore
in connection with this announcement, any statement contained
herein or otherwise.
Cenkos Securities Plc, which is authorised and regulated in the
United Kingdom by the Financial Conduct Authority, is acting
exclusively as corporate broker and nominated adviser to KBC and
no-one else in connection with the Acquisition and other matters
described in this announcement and will not be responsible to
anyone other than KBC for providing the protections afforded to
clients of Cenkos Securities Plc or for providing advice in
relation to the Acquisition, the contents of this announcement or
any other matter referred to herein.
This announcement is for information purposes only and is not
intended to and does not constitute, or form any part of, an offer
to sell or an invitation to purchase or subscribe for any
securities or the solicitation of any vote or approval in any
jurisdiction pursuant to the Acquisition or otherwise. The
Acquisition will be made solely by the Scheme Document (or, if
applicable, the Offer Document) which will contain the full terms
and conditions of the Acquisition, including details of how to vote
in respect of the Acquisition. Any decision in respect of, or other
response to, the Acquisition should be made only on the basis of
the information contained in the Scheme Document (or, if
applicable, the Offer Document).
This announcement does not constitute a prospectus or a
prospectus equivalent document.
This announcement has been prepared for the purpose of complying
with English law, the Code and the AIM Rules 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 United Kingdom.
Overseas shareholders
The laws of the relevant jurisdictions may affect the
availability of the Acquisition to persons who are not resident in
the United Kingdom. Persons who are not resident in the United
Kingdom or who are subject to laws of any jurisdiction other than
the United Kingdom, should inform themselves about, and observe,
any applicable requirements. Any person (including, without
limitation, nominees, trustees and custodians) who would, or
otherwise intends to, forward this announcement, the Scheme
Document or any accompanying document to any jurisdiction outside
the United Kingdom should refrain from doing so and seek
appropriate professional advice before taking any action. In
particular, the ability of persons who are not resident in the
United Kingdom to vote their KBC Shares at the Court Meeting or the
General Meeting or to execute and deliver Forms of Proxy appointing
another to vote their KBC Shares in respect of the Court Meeting or
the General Meeting on their behalf, may be affected by the laws of
the relevant jurisdiction in which they are located.
Any failure to comply with the applicable legal or regulatory
requirements may constitute a violation of the laws and/or
regulations of any such jurisdiction. To the fullest extent
permitted by applicable law, the companies and persons involved in
the Acquisition disclaim any responsibility and liability for the
violation of such restrictions by any person.
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The Acquisition will not be made, directly or indirectly, in or
into or by use of the mails or any other means or instrumentality
(including, without limitation, telephonic or electronic) of
interstate or foreign commerce of, or any facility of a national,
state or other securities exchange of, a Restricted Jurisdiction,
and the Acquisition will not be capable of acceptance by any such
use, means, instrumentality or facility or from within a Restricted
Jurisdiction. Accordingly, copies of this announcement and formal
documentation relating to the Acquisition are not being, and must
not be, directly or indirectly, mailed or otherwise forwarded or
distributed in, into or from a Restricted Jurisdiction and persons
receiving this announcement (including custodians, nominees and
trustees) must not distribute or send it into or from a Restricted
Jurisdiction.
Notes to US investors in KBC
Shareholders in the United States should note that the
Acquisition relates to the shares of an English company and is
proposed to be made by means of a scheme of arrangement provided
for under, and governed by, English law. Neither the proxy
solicitation nor the tender offer rules under the US Securities
Exchange Act of 1934, as amended, will apply to the Scheme.
Moreover the Scheme will be subject to the disclosure requirements
and practices applicable in the UK to schemes of arrangement, which
differ from the disclosure requirements of the US proxy
solicitation rules and tender offer rules. Financial information
included in this announcement and the Scheme Document has been or
will be prepared in accordance with accounting standards applicable
in the UK and may not be comparable to financial information of US
companies or companies whose financial statements are prepared in
accordance with generally accepted accounting principles in the
United States.
In accordance with normal UK practice and pursuant to Rule
14e-5(b) of the US Exchange Act, Yokogawa or its nominees, or its
brokers (acting as agents), may from time to time make certain
purchases of, or arrangements to purchase KBC Shares outside of the
United States, other than pursuant to the Acquisition, until the
date on which the Acquisition becomes Effective, lapses or is
otherwise withdrawn. These purchases may occur either in the open
market at prevailing prices or in private transactions at
negotiated prices. Any information about such purchases will be
disclosed as required in the UK, will be reported to the Regulatory
Information Service of the London Stock Exchange and will be
available on the London Stock Exchange website at
http://www.londonstockexchange.com/exchange/news/market-news/market-news-home.html.
Forward looking statements
This announcement contains certain forward-looking statements
with respect to Yokogawa and KBC. 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", "aim", "will", "may", "would",
"could" or "should" or other words of similar meaning or the
negative thereof. Forward-looking statements include statements
relating to the following: (i) future capital expenditures,
expenses, revenues, economic performance, financial conditions,
dividend policy, losses and future prospects; (ii) business and
management strategies and the expansion and growth of the
operations of the Yokogawa Group or the KBC Group; and (iii) the
effects of government regulation on the business of the Yokogawa
Group or the KBC Group.
These forward-looking statements involve known and unknown
risks, uncertainties and other factors which may cause the actual
results, performance or achievements of any such person, or
industry results, to be materially different from any results,
performance or achievements expressed or implied by such
forward-looking statements. These forward-looking statements are
based on numerous assumptions regarding the present and future
business strategies of such persons and the environment in which
each will operate in the future. You are cautioned not to place
undue reliance on these forward-looking statements, which speak
only as of the date hereof. All subsequent oral or written
forward-looking statements attributable to Yokogawa or KBC or any
persons acting on their behalf are expressly qualified in their
entirety by the cautionary statement above. None of Yokogawa or KBC
undertake any obligation to update publicly or revise
forward-looking or other statements contained in this announcement,
whether as a result of new information, future events or otherwise,
except to the extent legally required.
No profit forecasts or estimates
No statement in this announcement is intended as a profit
forecast or estimate for any period and no statement in this
announcement should be interpreted to mean that earnings or
earnings per ordinary share, for Yokogawa or KBC, respectively for
the current or future financial years would necessarily match or
exceed the historical published earnings or earnings per ordinary
share for Yokogawa or KBC, respectively.
Right to switch to a Takeover Offer
Yokogawa reserves the right to elect, with the consent of the
Takeover Panel, to implement the Acquisition by way of a Takeover
Offer for the entire issued and to be issued share capital of KBC
as an alternative to the Scheme. In such an event, the Takeover
Offer will be implemented on the same terms or, if Yokogawa so
decides, on such other terms being no less favourable (subject to
appropriate amendments), so far as applicable, as those which would
apply to the Scheme and subject to the amendment referred to in
Appendix I to this announcement.
Publication on 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), free of charge, at Yokogawa's website at
http://www.yokogawa.com and KBC's website at
http://ir.kbcat.com/home/ by no later than 12 noon on 18 February
2016.
Neither the contents of these websites nor the content of any
other website accessible from hyperlinks on such websites is
incorporated into, or forms part of, this announcement.
In accordance with Rule 30.2 of the Code, a person so entitled
may request a hard copy of this announcement, free of charge, by
contacting Morgan Stanley on +44 (0)20 7425 8000 or Evercore on +44
(0)20 7653 6000. For persons who receive a copy of this
announcement in electronic form or via a website notification, a
hard copy of this announcement will not be sent unless so
requested. In accordance with Rule 30.2 of the Code, a person so
entitled may also request that all future documents, announcements
and information to be sent to them in relation to the Acquisition
should be in hard copy form.
Information relating to KBC Shareholders
Please be aware that addresses, electronic addresses and certain
other information provided by KBC Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from KBC may be provided to Yokogawa during the
Offer Period as required under Section 4 of Appendix 4 of the Code
to comply with Rule 2.12(c) of the Code.
Rounding
Certain figures included in this announcement have been
subjected to rounding adjustments. Accordingly, figures shown for
the same category presented in different tables may vary slightly
and figures shown as totals in certain tables may not be an
arithmetic aggregation of the figures that precede them.
Disclosure Requirements of the Code
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 pm (London time) on the 10th business day following the
commencement of the offer period and, if appropriate, by no later
than 3.30 pm (London time) on the 10th business day following the
announcement in which any securities exchange offeror is first
identified. Relevant persons who deal in the relevant securities of
the offeree company or of a securities exchange offeror prior to
the deadline for making an Opening Position Disclosure must instead
make a Dealing Disclosure.
Under Rule 8.3(b) of the Code, any person who is, or becomes,
interested in 1 per cent. or more of any class of relevant
securities of the offeree company or of any securities exchange
offeror must make a Dealing Disclosure if the person deals in any
relevant securities of the offeree company or of any securities
exchange offeror. A Dealing Disclosure must contain details of the
dealing concerned and of the person's interests and short positions
in, and rights to subscribe for, any relevant securities of each of
(i) the offeree company and (ii) any securities exchange
offeror(s), save to the extent that these details have previously
been disclosed under Rule 8. A Dealing Disclosure by a person to
whom Rule 8.3(b) applies must be made by no later than 3.30 pm
(London time) on the business day following the date of the
relevant dealing.
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If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
interest in relevant securities of an offeree company or a
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree
company and by any offeror and Dealing Disclosures must also be
made by the offeree company, by any offeror and by any persons
acting in concert with any of them (see Rules 8.1, 8.2 and
8.4).
Details of the offeree and offeror companies in respect of whose
relevant securities Opening Position Disclosures and Dealing
Disclosures must be made can be found in the Disclosure Table on
the Takeover Panel's website at www. thetakeoverpanel.org.uk,
including details of the number of relevant securities in issue,
when the offer period commenced and when any offeror was first
identified. You should contact the Takeover Panel's Market
Surveillance Unit on +44 (0)20 7638 0129 if you are in any doubt as
to whether you are required to make an Opening Position Disclosure
or a Dealing Disclosure.
APPENDIX I
CONDITIONS AND CERTAIN FURTHER TERMS OF THE OFFER
The Acquisition will be subject to the applicable requirements
of the Code, the Takeover Panel, the London Stock Exchange, the AIM
Rules and the FCA. The Acquisition will be governed by the laws of
England and Wales and will be subject to the exclusive jurisdiction
of the English courts and to the Conditions and further terms set
out in this Appendix I and to be set out in the Scheme
Document.
Yokogawa reserves the right to elect (with the consent of the
Takeover Panel) to implement the Acquisition by way of a Takeover
Offer.
Each of the Conditions shall be regarded as a separate Condition
and shall not be limited by reference to any other Condition.
1. CONDITIONS OF THE ACQUISITION
The Acquisition will be conditional upon the Scheme becoming
unconditional and effective, subject to the Code, by no later than
6.00 pm on the Long Stop Date, or such later date (if any) as
Yokogawa and KBC may (with the consent of the Takeover Panel) agree
and, if required, the Takeover Panel and the Court may allow.
The Acquisition will be subject to the satisfaction of, or (to
the extent permitted by the Takeover Panel) waiver of, the
following Conditions:
Scheme approval
(A) The Scheme will be conditional upon:
(i) its approval by a majority in number representing not less
than 75 per cent. in value of the KBC Shareholders entitled to vote
and present and voting, either in person or by proxy, at the Court
Meeting and at any separate class meeting which may be required by
the Court (or at any adjournment, postponement or reconvention of
such meeting) on or before the 22nd day after the expected date of
the Court Meeting to be set out in the Scheme Document (or such
later date, if any, as Yokogawa and KBC may agree and the Court may
allow);
(ii) the passing of the Resolutions by the requisite majority at
the General Meeting or at any adjournment, postponement or
reconvention of that meeting to be held on or before the 22nd day
after the expected date of the General Meeting to be set out in the
Scheme Document (or such later date, if any, as Yokogawa and KBC
may agree and the Court may allow);
(iii) the sanction of the Scheme by the Court without
modification or with modification on terms acceptable to Yokogawa
and KBC, on or before the 22nd day after the expected date of the
Court Hearing to be set out in the Scheme Document (or such later
date, if any, as Yokogawa and KBC may agree and the Court may
allow) and the delivery of a copy of the Court Order to the
Registrar of Companies; and
(iv) the Scheme becoming Effective on or before 6.00 pm on the Long Stop Date.
In addition, subject to the requirements of the Takeover Panel,
the Acquisition will be conditional upon the following Conditions
and, accordingly, the Court Order shall not be delivered to the
Registrar of Companies unless the following Conditions (as amended
if appropriate) have been satisfied (and continue to be satisfied
pending the commencement of the Court Hearing) or, where relevant,
waived in writing prior to the Scheme being sanctioned by the
Court:
General regulatory
(B) No Third Party having decided, threatened or given notice of
its decision to take, institute, implement or threaten any action,
proceeding, suit, investigation, enquiry or reference or withdrawal
of a clearance decision, or having required any action or step to
be taken or otherwise having done anything or having enacted, made
or proposed any statute, regulation, decision or order (and in each
case, not having withdrawn the same) and there not continuing to be
outstanding any statute, regulation, decision or order which would
or might reasonably be expected to (in any case to an extent or in
a manner which is material in the context of, and adverse to, the
Acquisition):
(i) make the Acquisition, its implementation or the acquisition
or proposed acquisition of any shares or other securities in, or
control or management of, KBC by any member of the Wider Yokogawa
Group, void, illegal and/or unenforceable under the laws of any
relevant jurisdiction, or otherwise directly or indirectly prevent,
prohibit, or restrain, restrict, materially delay or otherwise to a
material extent interfere with the implementation of, or impose
material additional conditions or obligations with respect to, or
otherwise impede, challenge, interfere, hinder the Acquisition or
its implementation or require material amendment to the terms of
the Acquisition or the acquisition or proposed acquisition of any
shares or other securities in, or control or management of, KBC by
any member of the Wider Yokogawa Group, or otherwise challenge or
interfere therewith;
(ii) require any member of the Wider Yokogawa Group or any
member of the Wider KBC Group to sell, divest, hold separate, or
otherwise dispose of all or any material part of their respective
businesses, operations, product lines or assets or property or to
prevent or materially delay any of the above;
(iii) require, prevent or materially delay the divestiture or
materially alter the terms envisaged for any proposed divestiture
by any member of the Wider Yokogawa Group or by any member of the
Wider KBC Group of all or any material part of their respective
businesses, assets or property or impose any material limitation on
the ability of all or any of them to conduct their respective
businesses (or any part thereof) or to own, control or manage any
of their material assets or material properties (or any part
thereof);
(iv) impose any material limitation on, or result in a material
delay in, the ability of any member of the Wider Yokogawa Group
directly or indirectly to acquire, hold or to exercise effectively
all or any rights of ownership in respect of shares or loans or
securities convertible into shares or any other securities (or the
equivalent) in KBC or on the ability of any member of the Wider KBC
Group or any member of the Wider Yokogawa Group directly or
indirectly to hold or exercise effectively all or any rights of
ownership in respect of shares or loans or securities convertible
into shares or any other securities (or the equivalent) in, or to
exercise voting or management control over, any member of the Wider
KBC Group;
(v) require, prevent or materially delay a divestiture, or
materially alter the terms envisaged for any proposed divestiture
by any member of the Wider Yokogawa Group or the Wider KBC Group of
any shares or other securities (or the equivalent) in any member of
the Wider KBC Group or any member of the Wider Yokogawa Group;
(vi) except pursuant to Chapter 3 of Part 28 of the Companies
Act in the event that Yokogawa elects to implement the Acquisition
by way of a Takeover Offer, require any member of the Wider
Yokogawa Group or the Wider KBC Group to acquire, or offer to
acquire any shares or other securities (or the equivalent) or
interest in any member of the Wider KBC Group or any asset owned by
any third party (other than in connection with the implementation
of the Acquisition);
(vii) impose any material limitation on, or result in a material
delay in, the ability of any member of the Wider Yokogawa Group or
any member of the Wider KBC Group to integrate all or any part of
its business with all or any part of the business of any other
member of the Wider Yokogawa Group and/or the Wider KBC Group;
(viii) require any member of the Wider KBC Group to relinquish,
terminate or amend in any material way any material contract to
which any member of the Wider KBC Group or the Wider Yokogawa Group
is a party;
(ix) result in any member of the Wider KBC Group or any member
of the Wider Yokogawa Group ceasing to be able to carry on business
under any name under which it currently does so in any
jurisdiction;
(x) require any member of the Wider Yokogawa Group or any member
of the Wider KBC Group or any of their respective affiliates to:
(A) invest, contribute or loan any capital or assets to; or (B)
guarantee or pledge capital assets for the benefit of any member of
the Combined Group, which in each such case or together is material
and adverse in the context of the Combined Group or in the context
of the Acquisition; or
(xi) otherwise materially adversely affect all or any of the
business, assets, liabilities, profits, financial or trading
position or prospects of any member of the Wider KBC Group or any
member of the Wider Yokogawa Group,
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and all applicable waiting and other time periods (including any
extensions thereof) during which any such Third Party could decide
to take, institute, implement or threaten any such action,
proceeding, suit, investigation, enquiry or reference or take any
other step under the laws of any jurisdiction in respect of the
Acquisition or the acquisition or proposed acquisition of any KBC
Shares or other securities in, or control or management of, KBC or
otherwise intervene having expired, lapsed or been terminated, in
any case where the absence of the expiry, lapse or termination of
such waiting or other time period, would have a material adverse
effect on the Wider Yokogawa Group or the Wider KBC Group, in each
case taken as a whole;
Other regulatory approvals
(C) Each Governmental Entity (other than any anti-trust
authority) which regulates or licences any member of the KBC Group
or any other body corporate in which any member of the KBC Group
has an interest in shares, and whose prior approval, consent or
non-objection to any change in control, or acquisition of (or
increase in) control in respect of that or any other member of the
KBC Group is required, or any Governmental Entity (other than any
anti-trust authority) whose prior approval, consent or
non-objection to the Acquisition is otherwise required, or from
whom one or more material licences or permissions are required in
order to complete the Acquisition, having given its approval,
non-objection or legitimate deemed consent or consent in writing
thereto and, as the case may be, having granted such licences and
permissions (in each case where required and on terms reasonably
satisfactory to Yokogawa) and where a failure to receive such
approval, non-objection or legitimate consent or to be granted such
licences and permissions would be material and adverse in the
context of the Acquisition;
Notifications, waiting periods and Authorisations
(D) All material notifications, filings or applications which
are necessary having been made in connection with the Acquisition
and all necessary waiting and other time periods (including any
extensions thereof) under any applicable legislation or regulations
of any relevant jurisdiction having expired, lapsed or been
terminated (as appropriate) and all applicable statutory and
regulatory obligations in any jurisdiction having been complied
with in each case in respect of the Acquisition in each case where
the absence of such notification, filing or application would have
a material effect on the Wider KBC Group or the Wider Yokogawa
Group, as the case may be, in each case taken as a whole, and all
Authorisations which are necessary in any relevant jurisdiction for
or in respect of the Acquisition or the acquisition or the proposed
acquisition of any shares or other securities in, or control or
management of, KBC or any other member of the Wider KBC Group by
any member of the Wider Yokogawa Group having been obtained in
terms and in a form reasonably satisfactory to Yokogawa from all
relevant Third Parties or (without prejudice to the generality of
the foregoing) from any persons or bodies with whom any member of
the Wider KBC Group or the Wider Yokogawa Group has entered into
contractual arrangements, in each case where the absence of an
Authorisation from such a person would have a material adverse
effect on the Wider KBC Group taken as a whole, and all such
Authorisations necessary to carry on the business of any member of
the Wider KBC Group in any jurisdiction having been obtained and
all such Authorisations remaining in full force and effect at the
time at which the Acquisition becomes Effective and there being no
written notice of any intention to revoke, suspend, restrict,
impede, modify or not to renew such Authorisations in each such
case to an extent or in a manner which is material and adverse in
the context of the Wider KBC Group or the Wider Yokogawa Group, as
the case may be, in each case, taken as a whole or is material and
adverse in the context of the Acquisition;
KBC Shareholder resolutions
(E) No resolution of KBC Shareholders in relation to any
acquisition or disposal of assets or shares (or the equivalent
thereof) in any undertaking or undertakings (or in relation to any
merger, consolidation, demerger, reconstruction, amalgamation or
scheme) being passed at a meeting of KBC Shareholders other than in
relation to the implementation of the Acquisition or the Scheme
and, other than with the consent or the agreement of Yokogawa, no
member of the KBC Group having taken (or agreed or proposed to
take) any action that requires, or would require, the consent of
the Takeover Panel or the approval of KBC Shareholders in general
meeting in accordance with, or as contemplated by, Rule 21.1 of the
Code;
Certain matters arising as a result of any arrangement,
agreement, etc.
(F) Except as Disclosed, there being no provision of any
agreement, arrangement, lease, licence, franchise, permit or other
instrument to which any member of the Wider KBC Group is a party,
or by or to which any such member or any of its assets is or are or
may be bound, entitled or subject or any event or circumstance,
which, in each case as a consequence of the Acquisition, or the
acquisition or proposed acquisition of any shares in, or because of
a change in the control or management of KBC or any other member of
the Wider KBC Group or otherwise, would or might reasonably be
expected to result in (in any case to an extent that is or would be
material and adverse in the context of the Wider KBC Group taken as
a whole):
(i) any monies borrowed by, or any other indebtedness or
liabilities (actual or contingent) of, or any grant available to,
any such member being or becoming repayable or capable of being
declared repayable immediately or prior to its or their stated
maturity date or repayment date, or the ability of any such member
to borrow monies or incur any indebtedness being withdrawn or being
capable of becoming or being withdrawn;
(ii) any such agreement, arrangement, lease, licence, franchise,
permit or other instrument or the rights, liabilities, obligations,
interests or business of any such member thereunder, or the
interests or business of any such member in or with any other
person (or any arrangement or arrangements relating to any such
interests or business) being, or becoming capable of being
terminated or adversely affected or any onerous obligation or
liability arising or any adverse action occurring thereunder;
(iii) any such member ceasing to be able to carry on its
business under any name under which it currently does so;
(iv) any material assets or material interests of or used by any
such member being or being required to be disposed of or charged or
ceasing to be available to any such member or any right arising
under which any such material asset or material interest could be
required to be disposed of or charged or could cease to be
available to any such member, in each case otherwise than in the
ordinary course of business;
(v) the creation, save in the ordinary course of business, or
enforcement of any mortgage, charge or other security interest over
the whole or any part of the business, property or assets of any
such member or any such mortgage, charge or other security interest
(whenever created, arising or having arisen) becoming
enforceable;
(vi) the creation or acceleration of any liability, actual or
contingent, by any such member (other than creation of trade
creditors or other liabilities incurred in the ordinary course of
business);
(vii) any material liability of any such member to make any
severance, termination, bonus or other payment to any of its
directors or other officers;
(viii) any requirement on any such member to acquire, subscribe,
pay up or repay any shares or other securities;
(ix) the rights, liabilities, obligations or interests of any
such member in, or the business of any such member with, any
person, firm, company or body (or any arrangement or arrangements
relating to any such interest or business) being or becoming
capable of being terminated, or adversely modified or affected or
any onerous obligation or liability arising or any adverse action
being taken thereunder; or
(x) the value of any such member or its financial or trading
position or prospects being prejudiced or adversely affected,
and no event having occurred which, under any provision of any
agreement, arrangement, lease, licence, franchise, permit or other
instrument to which any member of the Wider KBC Group is a party or
by or to which any such member or any of its assets are or may be
bound, entitled or subject, would or might reasonably be expected
to result in any of the events or circumstances as are referred to
in sub-paragraphs (i) to (x) of this Condition (F) (Certain matters
arising a result of any arrangement, agreement, etc.);
Certain events occurring since 31 December 2014
(G) Since 31 December 2014, except as Disclosed, no member of the Wider KBC Group having:
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(i) save for transactions between KBC and any of its
wholly-owned subsidiaries or between the wholly-owned subsidiaries
of KBC or upon the exercise of rights to subscribe for KBC Shares
pursuant to the vesting of awards or the exercise of options
granted under any of the KBC Share Schemes in the ordinary course
of business consistent with past practice on or prior to 31
December 2014, issued or agreed to issue or authorised or proposed
or announced its intention to authorise or propose the issue of
additional shares (or other securities) of any class, or securities
or securities convertible into or exchangeable for, or rights,
warrants or options to subscribe for or acquire, any such shares,
securities or convertible securities or transferred or sold, or
agreed to transfer or sell or authorised or proposed the transfer
or sale of any shares out of treasury (except to satisfy awards or
the exercise of options under the KBC Share Schemes) or purchased,
redeemed or repaid or announced any proposal to purchase, redeem or
repay any of its own shares or other securities or reduced or made
any other change to any part of its share capital;
(ii) other than dividends (or other distributions whether
payable in cash or otherwise) lawfully paid or made by any
wholly-owned subsidiary of KBC to KBC or any of its wholly-owned
subsidiaries, recommended, declared, paid or made or proposed to
recommend, declare, pay or make any bonus issue, dividend or other
distribution whether payable in cash or otherwise;
(iii) save for transactions between KBC and any of its
wholly-owned subsidiaries or between the wholly-owned subsidiaries
of KBC or pursuant to the Acquisition, merged or demerged with any
body corporate or acquired or disposed of or transferred, mortgaged
or charged or created any security interest over any material
assets or any right, title or interest in any material asset
(including shares or loan capital (or the equivalent thereof) in
any undertaking or undertakings and further including trade
investments) or implemented, effected, authorised or proposed or
announced any intention to implement, effect, authorise or propose
any such merger, demerger, reconstruction, amalgamation, scheme,
commitment, acquisition, disposal, transfer, mortgage, charge or
security interest (which, in the case of an acquisition or disposal
is material in the context of the Wider KBC Group taken as a whole
or in the context of the Acquisition and in the case of any
transfer, mortgage, charge or security interest, is other than in
the ordinary course of business);
(iv) save for transactions between KBC and any of its
wholly-owned subsidiaries or between the wholly-owned subsidiaries
of KBC, made or authorised or proposed or announced an intention to
propose any change to the terms of any of its loan capital,
debentures or other indebtedness, which in any case is material and
adverse in the context of the Wider KBC Group taken as a whole or
material and adverse in the context of the Acquisition;
(v) entered into, implemented or authorised the entry into of,
or amended, terminated or permitted to be terminated, any joint
venture, asset or profit sharing arrangement, partnership or merger
of business or corporate entities which in any case is material and
adverse in the context of the Wider KBC Group taken as a whole or
material and adverse in the context of the Acquisition;
(vi) save for transactions between KBC and any of its
wholly-owned subsidiaries or between the wholly-owned subsidiaries
of KBC, issued or agreed to issue, authorised or proposed or
announced an intention to authorise or propose the issue of, any
debentures or (except in the ordinary course of business), incurred
or increased, or agreed to incur or increase, any indebtedness
which is material and adverse in the context of the Wider KBC Group
taken as a whole or material and adverse in the context of the
Acquisition, or become, or agreed to become, subject to any
liability (actual or contingent) to an extent which is material and
adverse in the context of the Wider KBC Group taken as a whole or
material and adverse in the context of the Acquisition;
(vii) implemented, effected, authorised or proposed or announced
its intention to implement, effect, authorise or propose any
composition, assignment, reconstruction, amalgamation, scheme,
commitment or other transaction or arrangement otherwise than in
the ordinary course of business or in respect of the Acquisition or
entered into or materially varied, or made any offer to enter into
or materially vary, the terms of any contract, agreement or
arrangement with any director or senior executive of any member of
the Wider KBC Group other than in the ordinary course of business
or in respect of the Acquisition, in each case other than with the
agreement of Yokogawa or the Takeover Panel;
(viii) entered into or varied or authorised, proposed or
announced its intention to enter into or vary any material
agreement, contract, transaction, arrangement or commitment
(whether in respect of capital expenditure or otherwise) other than
in the ordinary course of business which is of a long-term, onerous
or unusual nature or magnitude or which is or involves or would or
might reasonably be expected to involve an obligation of a nature
or magnitude which is or would be or might reasonably be likely to
be materially restrictive or onerous on the business of any member
of the Wider KBC Group or the Wider Yokogawa Group which taken
together with any other such material agreement, contract,
transaction, arrangement or commitment is or would be or might
reasonably be expected to be material and adverse in the context of
the Wider KBC Group taken as a whole or material and adverse in the
context of the Acquisition;
(ix) other than in respect of a member which is dormant and was
solvent at the relevant time, taken or proposed any step or
corporate action, or had any legal proceedings instituted or
threatened against it or petition presented or order made, in
relation to the suspension of payments, a moratorium of any
indebtedness, its winding-up (voluntary or otherwise), dissolution
or reorganisation or for the appointment of a receiver,
administrative receiver, administrator, manager, trustee or similar
officer of all or any material part of its assets or revenues or
any analogous or equivalent steps or proceedings in any
jurisdiction or appointed any analogous person in any jurisdiction
or had any such person appointed, which in any case is material in
the context of the Wider KBC Group taken as a whole;
(x) been unable, or admitted in writing that it is unable, to
pay its debts as they fall due or commenced negotiations with one
or more of its creditors with a view to rescheduling or
restructuring any of its indebtedness, or having 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, which in any case is material in
the context of the Wider KBC Group taken as a whole;
(xi) entered into or changed the terms of, or made any offer
(which remains open for acceptance) to enter into or vary the terms
of, any contract, service agreement, commitment, transaction or
arrangement which would be materially restrictive on the business
of any member of the Wider KBC Group or the Wider Yokogawa Group
other than in the ordinary course of the business concerned;
(xii) waived, compromised or settled any claim which is material
and adverse in the context of the Wider KBC Group taken as a whole
or material and adverse in the context of the Acquisition otherwise
than in the ordinary course of business;
(xiii) terminated or varied the terms of any agreement or
arrangement between any member of the Wider KBC Group and any other
person in a manner which would or might reasonably be expected to
have a material adverse effect on the financial position of the
Wider KBC Group taken as a whole;
(xiv) except in relation to changes made or agreed as a result
of, or arising from, legislation or changes to legislation, made or
agreed or consented to any change in any material respect to:
(a) the terms of the trust deeds (or other terms) constituting
the pension scheme(s) established by any member of the Wider KBC
Group for its directors, officers, employees or their
dependants;
(b) the contributions payable to any such scheme(s) or to the
benefits which accrue or to the pensions which are payable
thereunder;
(c) the basis on which qualification for, or accrual or
entitlement to, such benefits or pensions are calculated or
determined;
(d) the basis upon which the liabilities (including pensions) of
such pension schemes are funded, valued or made, or agreed or
consented to; or
(e) the trustees involving the appointment of a trust corporation,
in a manner which, in any such case or together, is material and
adverse in the context of the Wider KBC Group taken as a whole or
material and adverse in the context of the Acquisition;
(xv) save as agreed in writing by Yokogawa, proposed, agreed to
provide or modified the terms of any share option scheme, incentive
scheme or other benefit relating to the employment or termination
of employment of any person employed by the Wider KBC Group which
are material and adverse in the context of the Wider KBC Group
taken as a whole or material and adverse in the context of the
Acquisition;
(xvi) (except as disclosed on publicly available registers) made
any material alteration to the articles of association or other
incorporation documents of KBC or any material alteration to the
memorandum or articles of association of any other member of the
KBC Group (in each case, other than an alteration in connection
with the Acquisition) which in any such case or together is
material and adverse in the context of the KBC Group taken as a
whole or material and adverse in the context of the Acquisition;
or
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February 17, 2016 02:00 ET (07:00 GMT)
(xvii) entered into any contract, commitment, arrangement or
agreement otherwise than in the ordinary course of business or
passed any resolution or made any offer (which remains open for
acceptance) with respect to or announced any intention to, or to
propose to, effect any of the transactions, matters or events
referred to in this Condition G (Certain events occurring since 31
December 2014), which in any case is material in the context of the
Wider KBC Group taken as a whole or in the context of the
Acquisition;
No adverse change, litigation or regulatory enquiry
(H) Since 31 December 2014, except as Disclosed, there having been:
(i) no material adverse change or deterioration in the business,
assets, liabilities, shareholders' equity, financial or trading
position or profits, operational performance or prospects of any
member of the Wider KBC Group which, in any such case or together,
is material in the context of the Wider KBC Group taken as a whole
and no circumstance having arisen which would or might reasonably
be expected to result in any such adverse change or
deterioration;
(ii) no agreement or arrangement between any member of the Wider
KBC Group and any other person has been terminated or varied in a
manner which, in any such case or together, would or might
reasonably be expected to have a material adverse effect on the
financial position of the Wider KBC Group taken as a whole;
(iii) no litigation, arbitration proceedings, prosecution or
other legal proceedings to which any member of the Wider KBC Group
is or may become a party (whether as a claimant, defendant or
otherwise) and no enquiry, review or investigation by, or complaint
or reference to, any Third Party against or in respect of any
member of the Wider KBC Group (or any person in respect of which
any such member has or may have responsibility or liability) having
been threatened in writing, announced, implemented or instituted by
or against or remaining outstanding against or in respect of any
member of the Wider KBC Group which, in any such case or together,
has had, or might reasonably be expected to have, a material
adverse effect on the Wider KBC Group taken as a whole or material
and adverse in the context of the Acquisition;
(iv) no contingent or other material liability having arisen or
become apparent to Yokogawa or increased other than in the ordinary
course of business which has had, or might reasonably be expected
to have, a material adverse effect on the business, assets,
financial or trading position or profits or prospects of any member
of the Wider KBC Group to an extent which, in any such case or
together, is material and adverse in the context of the Wider KBC
Group taken as a whole or material and adverse in the context of
the Acquisition; and
(v) no action having been taken and no omissions having been
made which are reasonably likely to lead to or result in the
withdrawal, cancellation, termination, modification or variation of
any Authorisation held by or on behalf of any member of the Wider
KBC Group which is necessary for the proper carrying on of its
business and the withdrawal, cancellation, termination or
modification of which has had, or would reasonably be expected to
have, a material adverse effect on the Wider KBC Group taken as a
whole or in the context of the Acquisition;
No discovery of certain matters regarding information and
liabilities
(I) Except as Disclosed, Yokogawa not having discovered:
(i) that any financial, business or other information concerning
the Wider KBC Group as contained in the information publicly
disclosed prior to the date of this announcement at any time by or
on behalf of any member of the Wider KBC Group or disclosed in the
information contained in the data rooms established by KBC for the
purposes of the Acquisition is materially misleading, contains a
misrepresentation of any material fact or omits to state a fact
necessary to make that information not misleading in any material
respect where in each case the relevant information has not
subsequently been corrected prior to the date of this announcement
by disclosure either publicly or otherwise to Yokogawa, in each
case to an extent which is in any case, material and adverse in the
context of the Wider KBC Group taken as a whole or material and
adverse in the context of the Acquisition; or
(ii) that any member of the Wider KBC Group or any partnership,
company or other entity in which any member of the Wider KBC Group
has a significant economic interest and which is not a subsidiary
undertaking of KBC is, otherwise than in the ordinary course of
business, subject to any liability (contingent or otherwise) which,
in any such case or together, is material and adverse in the
context of the Wider KBC Group taken as a whole or material and
adverse in the context of the Acquisition; and
Anti-corruption, sanctions and criminal property
(J) Except as Disclosed, Yokogawa not having discovered:
(i) any past or present member, director, officer or employee of
the Wider KBC Group, or any other person for whom any such person
may be liable or responsible, has not (in the course of the
business of the Wider KBC Group or their engagement on it) complied
with the OECD Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions and any laws
implementing the same, the UK Bribery Act 2010 and/or the US
Foreign Corrupt Practices Act of 1977;
(ii) any past or present member, director, officer or employee
of the Wider KBC Group, or any other person for whom any such
person may be liable or responsible, has (in the course of the
business of the Wider KBC Group or their engagement on it) engaged
in any business with or made any investments in, or made any
payments to, (a) any government, entity or individual with which US
or EU persons are prohibited from engaging in activities or doing
business by US or EU laws or regulations, including the economic
sanctions administered by the United States Office of Foreign
Assets Control, or (b) any government, entity or individual
targeted by any of the economic sanctions of the United Nations or
the European Union or any of their respective member states;
and
(iii) any asset of any member of the Wider KBC Group constitutes
criminal property as defined by section 340(3) of the Proceeds of
Crime Act 2002 (but disregarding paragraph (b) of that
definition).
2. WAIVER AND AMENDMENT OF CONDITIONS
Subject to the requirements of the Takeover Panel, Yokogawa
reserves the right in its sole discretion to waive (if capable of
waiver) in whole or in part:
(A) any of the Conditions set out in the above Condition (A)
relating to the dates of the Court Meeting, General Meeting, the
Court Hearing and the sanctioning of the Scheme. If any of the
deadlines for those events are not met, Yokogawa shall release an
announcement via a Regulatory Information Service by 8.00 am on the
Business Day following such deadline confirming whether it has
invoked or waived the relevant Condition or agreed with KBC to
extend the relevant deadline in respect of all or any of the above
Conditions; and
(B) any of the above Conditions (B) (General regulatory) to (J)
(Anti-corruption, sanctions and criminal property) (inclusive).
Conditions (B) (General regulatory) to (J) (Anti-corruption,
sanctions and criminal property) (inclusive) must be fulfilled or
waived by no later than 11.59 pm on the date immediately preceding
the date of the Court Hearing, failing which the Scheme will lapse
or if the Acquisition is implemented by way of a Takeover Offer, no
later than as permitted by the Takeover Panel. Yokogawa shall be
under no obligation to waive or treat as satisfied any of
Conditions by a date earlier than the latest date specified above
for the fulfilment or waiver thereof, notwithstanding that any such
Condition or the other Conditions of the Scheme and the Acquisition
may at such earlier date have been waived or fulfilled and that
there are at such earlier date no circumstances indicating that any
of such Conditions may not be capable of fulfilment.
If Yokogawa is required by the Takeover Panel to make an offer
for KBC Shares under the provisions of Rule 9 of the Code, Yokogawa
may make such alterations to the Conditions and further terms of
the Acquisition as are necessary to comply with the provisions of
that Rule.
3. IMPLEMENTATION BY WAY OF A TAKEOVER OFFER
Yokogawa may, with the consent of the Takeover Panel, implement
the Acquisition by making, directly or indirectly through a
subsidiary or nominee of Yokogawa a Takeover Offer as an
alternative to the Scheme. In such event, the Takeover Offer will
be implemented on the same terms or, if Yokogawa so decides, on
such other terms being no less favourable, subject to appropriate
amendments, so far as applicable, as those which would apply to the
Scheme. The acceptance condition would be set at 90 per cent. of
the shares to which such Takeover Offer relates (or such lesser
percentage (being more than 50 per cent.) as Yokogawa may decide
with the consent of the Takeover Panel). Further, if sufficient
acceptances of the Takeover Offer are received and/or sufficient
KBC Shares are otherwise acquired, it is the intention of Yokogawa
to apply the provisions of the Companies Act to compulsorily
acquire any outstanding KBC Shares to which such Takeover Offer
relates.
4. CERTAIN FURTHER TERMS OF THE ACQUISITION
(A) The Acquisition will lapse (unless otherwise agreed with the Takeover Panel) if:
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(i) in so far as the Acquisition or any matter arising from or
relating to the Scheme or Acquisition constitutes a concentration
with a Community dimension within the scope of the Regulation, the
European Commission either initiates proceedings under Article
6(1)(c) of the Regulation or makes a referral to a competent
authority in the United Kingdom under Article 9(1) of the
Regulation and there is then a CMA Phase 2 Reference; or
(ii) in so far as the Acquisition or any matter arising from the
Scheme or Acquisition does not constitute a concentration with a
Community dimension within the scope of the Regulation, the Scheme
or Acquisition or any matter arising from or relating to the
Acquisition becomes subject to a CMA Phase 2 Reference,
in each case, before the date of the Court Meeting.
(B) Yokogawa reserves the right for any other member of the
Yokogawa Group from time to time to implement the Acquisition.
(C) The availability of the Acquisition to KBC Shareholders who
are not resident in the United Kingdom may be affected by the laws
of relevant jurisdictions. Therefore any persons who are subject to
the laws of any jurisdiction other than the United Kingdom and any
KBC Shareholders who are not resident in the United Kingdom will
need to inform themselves about, and observe, any applicable
requirements.
(D) Unless otherwise determined by Yokogawa or required by the
Code and permitted by applicable law and regulation, the
Acquisition is not being, and will not be, made, directly or
indirectly, in or into or by the use of the mails of, or by any
other means or instrumentality (including, without limitation,
facsimile transmission, telex, telephone, internet or other forms
of electronic transmission) of interstate or foreign commerce of,
or by any facility of a national, state or other securities
exchange of, any Restricted Jurisdiction and will not be capable of
acceptance by any such use, means, instrumentality or facility or
from within any Restricted Jurisdiction.
(E) KBC Shares which will be acquired under the Acquisition will
be acquired with full title guarantee, fully paid and free from all
liens, equities, charges, encumbrances, options, rights of
pre-emption and any other third party rights and interests of any
nature and together with all rights now or hereafter attaching or
accruing to them, including voting rights and the right to receive
and retain in full all dividends and other distributions (if any),
and any other return of capital (whether by way of reduction of
share capital or share premium account or otherwise), declared,
made or paid on or after the date of this announcement.
APPENDIX II
SOURCES OF INFORMATION AND BASES OF CALCULATION
In this announcement:
(i) Unless otherwise stated, financial information concerning
KBC has been extracted from the Annual Report and Accounts of KBC
or KBC's half-year report for the six months ended 30 June
2015.
(ii) The value of the Acquisition is based upon the following share count:
-- 82,341,156 KBC Shares in issue on 16 February 2016 (net of 214,000 Treasury Shares)
-- Plus 4,003,898 KBC Shares which are the subject of the
expected vesting of awards and the exercise of options granted and
to be granted under the KBC Share Schemes
-- Less 507,790 KBC Shares currently held in KBC's employee
benefit trusts and included in the existing issued share capital
which may be utilised to satisfy awards under the KBC Share
Schemes
-- Resulting in a fully diluted share capital of 85,837,264 KBC Shares.
(iii) Unless otherwise stated, all prices for KBC Shares are the
Closing Price for the relevant date;
(iv) The exchange rate of 0.00614 for the conversion of JPY into
pounds sterling has been derived from Bloomberg and is based on the
exchange rate as at 4:00 pm (London time) on 16 February 2016
(being the last Business Day prior to the date of this
announcement); and
(v) The premia implied by the Acquisition price have been
calculated with reference to prices of 124 pence per KBC Share on
11 January 2016 (being the last Business Day prior to the start of
the Offer Period).
APPENDIX III
IRREVOCABLE UNDERTAKINGS
KBC Shareholder Irrevocable Undertakings
Yokogawa has received irrevocable commitments from the following
KBC Shareholders in respect of their beneficial holdings of KBC
Shares representing in aggregate approximately 41.9 per cent. of
KBC's issued share capital (excluding Treasury Shares) as at 16
February 2016 (being the last Business Day prior to the date of
this announcement). These commitments are subject to certain
limitations and exceptions as described below.
These commitments require each such shareholder to vote or
procure that the registered holder votes in favour of the Scheme at
the Court Meeting and the Resolutions to be proposed at the General
Meeting.
Name of KBC Shareholder Number of KBC Approximate
Shares % of KBC issued
share capital
(excluding Treasury
Shares)
Kestrel Partners LLP 13,006,871 15.8
AXA Investment Management UK
Limited 8,106,000 9.8
Hargreave Hale Limited 4,750,000 5.8
Herald Investment Trust plc 3,955,000 4.8
Killik & Co LLP 3,558,630 4.3
Ari Zaphiriou-Zarifi 1,145,000 1.4
TOTAL 34,521,501 41.9
Kestrel Partners LLP
The irrevocable commitments given by Kestrel Partners LLP will
cease to be binding on the earliest to occur of the following:
-- Yokogawa announces that the Acquisition will not proceed;
-- the Takeover Panel announces that it has released Yokogawa
from its obligation under the Code to make or proceed with the
Acquisition or the Takeover Panel confirms to Yokogawa or its
financial advisers or Kestrel Partners LLP that it has released
Yokogawa from that obligation;
-- a majority of the KBC Directors cease to recommend on an
unqualified basis that holders of KBC Shares vote in favour of the
Resolutions;
-- Yokogawa ceases to be permitted under the Code to proceed with the Acquisition;
-- an announcement is released by any person of a firm intention
to make a competing offer for KBC at a value that is (in the
opinion of Kestrel Partners LLP) in excess of that set out in this
announcement; and
-- the Long Stop Date.
AXA Investment Management UK Limited
The irrevocable commitments given by AXA Investment Management
UK Limited will cease to be binding on the earliest to occur of the
following:
-- Yokogawa announces that the Acquisition will not proceed;
-- the Takeover Panel announces that it has released Yokogawa
from its obligation under the Code to make or proceed with the
Acquisition or the Takeover Panel confirms to Yokogawa or its
financial advisers or AXA Investment Management UK Limited that it
has released Yokogawa from that obligation;
-- a majority of the KBC Directors cease to recommend on an
unqualified basis that holders of KBC Shares vote in favour of the
Resolutions;
-- Yokogawa ceases to be permitted under the Code to proceed with the Acquisition;
-- an announcement is released by any person of a firm intention
to make a competing offer for KBC at a value that is reasonably
considered by AXA Investment Management UK Limited to be in excess
of that set out in this announcement;
-- the Long Stop Date; and
-- the date falling six months from the date of its irrevocable commitment.
Hargreave Hale Limited
The irrevocable commitments given by Hargreave Hale Limited will
cease to be binding on the earliest to occur of the following:
-- Yokogawa announces that the Acquisition will not proceed;
-- the Takeover Panel announces that it has released Yokogawa
from its obligation under the Code to make or proceed with the
Acquisition or the Takeover Panel confirms to Yokogawa or its
financial advisers or Hargreave Hale Limited that it has released
Yokogawa from that obligation;
-- a majority of the KBC Directors cease to recommend on an
unqualified basis that holders of KBC Shares vote in favour of the
Resolutions;
-- Yokogawa ceases to be permitted under the Code to proceed with the Acquisition;
-- an announcement is released by any person of a firm intention
to make a competing offer for KBC at a value that is (in the
opinion of Hargreave Hale Limited) in excess of that set out in
this announcement; and
-- the Long Stop Date.
Herald Investment Trust plc
The irrevocable commitments given by Herald Investment Trust plc
will cease to be binding on the earliest to occur of the
following:
-- Yokogawa announces that the Acquisition will not proceed;
-- the Takeover Panel announces that it has released Yokogawa
from its obligation under the Code to make or proceed with the
Acquisition or the Takeover Panel confirms to Yokogawa or its
financial advisers or Herald Investment Trust plc that it has
released Yokogawa from that obligation;
-- a majority of the KBC Directors cease to recommend on an
unqualified basis that holders of KBC Shares vote in favour of the
Resolutions;
-- Yokogawa ceases to be permitted under the Code to proceed with the Acquisition;
-- an announcement is released by any person of a firm intention
to make a competing offer for KBC at a value that is (in the
opinion of Herald Investment Trust plc) in excess of that set out
in this announcement; and
-- the Long Stop Date.
Killik & Co LLP
The irrevocable commitments given by Killik & Co LLP will
cease to be binding on the earliest to occur of the following:
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-- Yokogawa announces that the Acquisition will not proceed (or
will proceed otherwise than by way of a scheme of arrangement);
-- the Takeover Panel announces that it has released Yokogawa
from its obligation under the Code to make or proceed with the
Acquisition or the Takeover Panel confirms to Yokogawa or its
financial advisers or Killik & Co LLP that it has released
Yokogawa from that obligation;
-- a majority of the KBC Directors cease to recommend on an
unqualified basis that holders of KBC Shares vote in favour of the
Resolutions;
-- Yokogawa ceases to be permitted under the Code to proceed with the Acquisition;
-- an announcement is released by any person of a firm intention
to make a competing offer for KBC at a value that is (in the
opinion of Killik & Co LLP) in excess of that set out in this
announcement;
-- the Long Stop Date; and
-- the date falling six months from the date of this announcement.
Ari Zaphiriou-Zarifi
The irrevocable commitments given by Ari Zaphiriou-Zarifi will
cease to be binding on the earliest to occur of the following:
-- Yokogawa announces that the Acquisition will not proceed;
-- the Takeover Panel announces that it has released Yokogawa
from its obligation under the Code to make or proceed with the
Acquisition or the Takeover Panel confirms to Yokogawa or its
financial advisers or Ari Zaphiriou-Zarifi that it has released
Yokogawa from that obligation;
-- a majority of the KBC Directors cease to recommend on an
unqualified basis that holders of KBC Shares vote in favour of the
Resolutions;
-- Yokogawa ceases to be permitted under the Code to proceed with the Acquisition;
-- an announcement is released by any person of a firm intention
to make a competing offer for KBC at a value that is (in the
opinion of Ari Zaphiriou-Zarifi) in excess of that set out in this
announcement; and
-- the Long Stop Date.
APPENDIX IV
DEFINITIONS
The following definitions apply throughout this announcement,
unless the context otherwise requires:
"Acquisition" the recommended all-cash acquisition of the entire
issued and to be issued share capital of KBC by Yokogawa to be
effected by the Scheme as described in this announcement (or by a
Takeover Offer under certain circumstances as described in this
announcement) on the terms and subject to the conditions to be set
out in the Scheme Document including, where the context requires,
any subsequent revision, variation, extension or renewal of such
offer and includes any election available thereunder
"AIM" AIM, a market operated by the London Stock Exchange
"AIM Rules" the AIM Rules for Companies published by the London
Stock Exchange (as amended from time to time)
"Annual Report
and Accounts of KBC" the annual report and audited financial
statements of KBC for the year ended 31 December 2014
"AspenTech" Aspen Technology, Inc.
"AspenTech Proposal" the offer for the entire issued and to be
issued share capital of KBC by Global Optimisation which was
announced on 12 January 2016 and set out in the scheme document
which was published on 5 February 2016
"associated undertaking" has the meaning given by the Companies Act
"Authorisations" for the purposes of the Conditions, means
authorisations, orders, grants, recognitions, determinations,
confirmations, consents, licences, clearances, permissions,
exemptions and approvals
"Business Day" a day on which banks are generally open for
business in the United Kingdom and New York, USA, not including
Saturdays, Sundays or any public holiday
"Cenkos" Cenkos Securities Plc
"Closing Price" the closing middle market price of an KBC Share
on a particular trading day as derived from the AIM appendix to the
Daily Official List
"CMA" the independent public body which conducts second phase,
in-depth inquiries into mergers, markets and the regulation of the
major regulated industries in the United Kingdom (or any successor
body or bodies carrying out the same functions in the United
Kingdom from time to time)
"Code" the City Code on Takeovers and Mergers
"Combined Group" the enlarged group following the Acquisition,
comprising the Yokogawa Group and the KBC Group
"Community" the European Community
"Companies Act" the UK Companies Act 2006, as amended from time to time
"Conditions" the conditions of the Acquisition, as set out in
Appendix I to this announcement and to be set out in the Scheme
Document
"Confidentiality Agreement" has the meaning given to that term
in paragraph 11 of this announcement (Acquisition related
arrangements)
"Consideration" the cash payment of 210 pence per Scheme Share
to be made pursuant to the Scheme to the Scheme Shareholders
"Court" the High Court of Justice in England and Wales
"Court Hearing" the hearing of the Court to sanction the Scheme
under section 899 of the Companies Act and if such hearing is
adjourned references to commencement of any such hearing shall mean
the commencement of the final adjournment thereof
"Court Meeting" the meeting or meetings of the Scheme
Shareholders (or the relevant class or classes thereof) as may be
convened pursuant to an order of the Court under section 896 of the
Companies Act for the purposes of considering and, if thought fit,
approving the Scheme (with or without amendment) including any
adjournment thereof, notice of which is to be contained in the
Scheme Document
"Court Order" the order of the Court sanctioning the Scheme
under section 899 of the Companies Act
"CREST" the relevant system (as defined in the Uncertificated
Securities Regulations 2001 (SI 2001/3755)) in respect of which
Euroclear UK & Ireland Limited is the Operator (as defined in
the CREST Regulations)
"CREST Regulations" the Uncertificated Securities Regulations 2001 (SI2001/3755)
"Daily Official List" the Daily Official List of the London Stock Exchange
"Dealing Disclosure" an announcement pursuant to Rule 8 of the
Code containing details of dealings in interests in relevant
securities of a party to an offer
"Disclosed" (i) matters fairly disclosed in the information made
available to Yokogawa (or Yokogawa's advisers) in the data rooms
established by KBC for the purposes of the Acquisition prior to the
date of this announcement; (ii) any other information that is
fairly disclosed by or on behalf of KBC to Yokogawa or Yokogawa's
financial, accounting, tax or legal advisers (specifically as
Yokogawa's advisers in relation to the Acquisition) prior to the
date of this announcement; (iii) information included in KBC's
annual report and audited accounts for the relevant financial
period or periods referred to in the relevant Condition and
published prior to the date of this announcement; (iv) information
included in KBC's half-year report for the six months ended 30 June
2015; (v) disclosed in a public announcement to a Regulatory
Information Service made by KBC prior to the date of this
announcement; or (vi) disclosed in this announcement
"Disclosure Table" the disclosure table on the Takeover Panel's website at www.thetakeoverpanel.org.uk, including details of the offeree and offeror companies in respect of whose relevant securities any Opening Position Disclosures and Dealing Disclosures must be made
"Effective" in the context of the Acquisition: (i) if the
Acquisition is implemented by way of a Scheme, the Scheme having
become effective in accordance with its terms, upon the delivery of
the Court Order to the Registrar of Companies and, if the Court so
orders, registration by the Registrar of Companies; or (ii) if the
Acquisition is implemented by way of a Takeover Offer, the Takeover
Offer having been declared or become unconditional in all respects
in accordance with the requirements of the Code
"Effective Date" the date upon which:
(a) the Scheme becomes Effective; or
(b) if Yokogawa elects and the Takeover Panel consents to implement the Acquisition by way of a Takeover Offer, the Takeover Offer becomes Effective
"EU" European Union
"Evercore" Evercore Partners International LLP
"Facility Agreement" has the meaning given to that term in
paragraph 9 of this announcement (Financing)
"FCA" or "Financial the UK Financial Conduct Authority or its successor
"Conduct Authority" from time to time
"Forms of Proxy" the forms of proxy in connection with the Court
Meeting and the General Meeting respectively, which shall accompany
the Scheme Document
"General Meeting" the general meeting (or any adjournment,
postponement or reconvention thereof) of KBC Shareholders to be
convened to consider and if thought fit pass, inter alia, the
Resolutions
"Global Optimisation" ATI Global Optimisation Ltd (being a
wholly-owned subsidiary of AspenTech)
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