TIDMEPO
RNS Number : 4952L
Visa International Holdings Limited
27 December 2018
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM ANY JURISDICTION
WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR
REGULATIONS OF SUCH JURISDICTION
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION
FOR IMMEDIATE RELEASE
27 December 2018
RECOMMED CASH OFFER
for
Earthport PLC ("Earthport")
by
Visa International Service Association ("Bidco")
a wholly-owned direct subsidiary of
Visa Inc. ("Visa")
to be effected by means of a Scheme of Arrangement
under Part 26 of the Companies Act 2006
Summary and highlights
-- The boards of Bidco and Earthport are pleased to announce
that they have reached agreement on the terms of a recommended all
cash offer for the entire issued and to be issued ordinary share
capital of Earthport by Bidco, a wholly-owned direct subsidiary of
Visa.
-- Under the terms of the Offer, each Scheme Shareholder at the
Scheme Record Time will be entitled to receive:
For each Earthport Share held 30 pence in cash
-- The Offer values the entire issued and to be issued ordinary
share capital of Earthport at approximately GBP198 million on a
fully diluted basis, and represents a premium of approximately:
o 250 per cent. to the six month volume weighted average price
of 8.6 pence per Earthport Share to 24 December 2018 (being the
last Business Day before the date of this Announcement); and
o 50 per cent. to the Placing share price of 20 pence per
Earthport Share on 4 October 2017.
-- If any dividend or other distribution is authorised,
declared, made or paid in respect of Earthport Shares on or after
the date of this Announcement, Bidco reserves the right to reduce
the Offer Price by the aggregate amount of such dividend or other
distribution.
-- The Earthport Directors, who have been so advised by
Rothschild & Co as to the financial terms of the Offer,
consider the terms of the Offer to be fair and reasonable. In
providing its advice to the Earthport Directors, Rothschild &
Co has taken into account the commercial assessments of the
Earthport Directors. Rothschild & Co is providing independent
financial advice to the Earthport Directors for the purposes of
Rule 3 of the Code.
-- Accordingly, the Earthport Directors intend to recommend
unanimously that Earthport Shareholders vote, or procure the
voting, to approve the Scheme at the Court Meeting and vote, or
procure the voting, in favour of the Resolutions to be proposed at
the General Meeting or, if (with the consent of the Panel and
subject to the terms of the Cooperation Agreement) Bidco exercises
its right to implement the Offer by way of a Takeover Offer, accept
or procure the acceptance of, such Takeover Offer, as all Earthport
Directors who hold Earthport Shares (in a personal capacity or
through members of their immediate family, related trusts or a
nominee or nominees) have irrevocably undertaken to do, or procure
to be done, in respect of their own beneficial holdings (and the
beneficial holdings of members of their immediate families, related
trusts or nominee(s)) of 5,215,312 Earthport Shares, in aggregate,
representing approximately 0.84 per cent. of the Earthport Shares
in issue on 24 December 2018 (being the last Business Day before
the date of this Announcement).
-- In addition to the irrevocable undertakings from the
Earthport Directors, Bidco has also received an irrevocable
undertaking from OppenheimerFunds, Inc. and OFI Global
Institutional, Inc. as discretionary investment advisers to vote,
or procure the voting, to approve the Scheme at the Court Meeting
and vote, or procure the voting, in favour of the Resolutions to be
proposed at the General Meeting or, if (with the consent of the
Panel and subject to the terms of the Cooperation Agreement) Bidco
exercises its right to implement the Offer by way of a Takeover
Offer, to accept, or procure the acceptance of such Takeover Offer
in respect of a total of 103,556,953 Earthport Shares representing
approximately 16.61 per cent. of the Earthport Shares in issue on
24 December 2018 (being the last Business Day before the date of
this Announcement).
-- Therefore, as at the date of this Announcement, Bidco has
received irrevocable undertakings to vote, or procure the voting,
to approve the Scheme at the Court Meeting and vote, or procure the
voting, in favour of the Resolutions to be proposed at the General
Meeting or, if (with the consent of the Panel and subject to the
terms of the Cooperation Agreement) Bidco exercises its right to
implement the Offer by way of a Takeover Offer, to accept, or
procure the acceptance of such Takeover Offer with respect to a
total of 108,772,265 Earthport Shares representing approximately
17.45 per cent. of the Earthport Shares in issue on 24 December
2018 (being the last Business Day before the date of this
Announcement).
-- Bidco is a wholly-owned direct subsidiary of Visa.
-- Visa is one of the world's leading payments technology
companies. Visa's mission is to connect the world through the most
innovative, reliable and secure payment network - enabling
individuals, businesses and economies to thrive. Visa's advanced
global processing network, VisaNet, provides secure and reliable
payments around the world, and is capable of handling more than
65,000 transaction messages a second. Visa's focus on innovation is
helping drive the rapid growth of connected commerce on mobile and
other devices, and the significant shift of transactions from cash
to digital. As the world moves from analogue to digital, Visa is
applying its brand, products, people, network and scale to reshape
the future of commerce.
-- It is intended that the Offer will be implemented by way of a
court-sanctioned scheme of arrangement under Part 26 of the
Companies Act.
-- The Offer is subject to the further conditions and terms set
out in Appendix I to this Announcement, including receipt of
customary competition and merger clearances and on receiving the
approval of the Financial Conduct Authority in the UK.
-- It is expected that the Scheme Document, containing further
information about the Offer and notices of the Court Meeting and
the General Meeting, together with the Forms of Proxy, will be
published as soon as practicable and, in any event, within 28 days
of this Announcement (unless Bidco and Earthport otherwise agree,
and the Panel consents, to a later date).
Commenting on the Offer, Sunil Sabharwal, Chairman of Earthport,
said:
"The Earthport Board believes the offer by Bidco represents an
opportunity for shareholders to realise an immediate and attractive
cash value in Earthport today. Visa shares our vision of growth and
expansion for Earthport and, as such, we believe it is a suitable
and appropriate partner for our employees, partners, customers and
other stakeholders."
Commenting on the Offer, Amanda Mesler, CEO of Earthport,
said:
"Having been appointed as Earthport's CEO in July my focus,
following a full strategic review has been to rapidly implement a
transformational growth strategy. Whilst I believe Earthport is
well positioned to deliver the potential it has always possessed,
the all-cash offer from Visa represents a very attractive and
immediate return for our shareholders.
On behalf of the entire executive team, I would like to thank
all of our employees for their outstanding contribution to making
Earthport the unique and valuable company it is today. Visa shares
our commitment to operational and technological excellence in cross
border payments, and completion of the transaction would mean that
Earthport and its customers will benefit from new opportunities
arising from being part of a larger group with a shared
vision."
This Summary should be read in conjunction with, and is subject
to, the full text of this Announcement (including its Appendices).
The Offer will be subject to the Conditions and certain further
terms set out in Appendix I to this Announcement and to the full
terms and conditions which will be set out in the Scheme Document.
Appendix II to this Announcement contains the sources and bases of
certain information contained in this Announcement, Appendix III
contains a summary of the irrevocable undertakings received in
relation to the Offer and Appendix IV contains definitions of
certain expressions used in this summary and in this
Announcement.
Enquiries:
+44 (0) 20 7220
Earthport plc 9700
Amanda Mesler, Chief Executive Officer
Alexander Filshie, Chief Financial Officer
Rothschild & Co +44 (0) 20 7280
(Financial adviser to Earthport) 5000
Anton Black
Pietro Franchi
+44 (0) 20 7496
N+1 3000
(NOMAD to Earthport)
Mark Taylor
James White
Newgate Communications +44 (0) 20 7653
(PR adviser to Earthport) 9848
Bob Huxford
Goldman Sachs International +44 (0) 20 7774
(Financial adviser to Visa) 1000
Stephen Considine
Chris Emmerson
Freshfields Bruckhaus Deringer LLP are retained as legal adviser
to Visa and Bidco. Bird & Bird LLP are retained as legal
adviser to Earthport.
Important notices
Goldman Sachs International, which is authorised by the
Prudential Regulation Authority ("PRA") and regulated by the PRA
and the Financial Conduct Authority ("FCA") in the United Kingdom,
is acting exclusively for Bidco and Visa and for no one else in
connection with the Offer and will not be responsible to anyone
other than Bidco and Visa for providing the protections afforded to
its clients or for providing advice in relation to the Offer, the
contents of this Announcement or any other matters referred to in
this Announcement.
N.M. Rothschild & Sons Limited ("Rothschild & Co"),
which is authorised and regulated in the United Kingdom by the FCA,
is acting exclusively for Earthport and for no one else in
connection with the Offer and will not be responsible to anyone
other than Earthport for providing the protections afforded to its
clients nor for providing advice in relation to the Offer, the
contents of this Announcement or any other matters referred to in
this Announcement.
Nplus1 Singer Advisory LLP ("N+1"), which is authorised and
regulated by the FCA in the United Kingdom is acting exclusively as
nominated adviser for Earthport and no one else in connection with
the Offer and will not be responsible to anyone other than
Earthport for providing the protections afforded to its clients nor
for providing advice in connection with the Offer, the contents of
this Announcement or any other matters referred to in this
Announcement.
Further information
This Announcement is for information purposes only and is not
intended to and does not constitute, or form part of, an offer to
sell or an invitation to purchase any securities or the
solicitation of an offer to buy, otherwise acquire, subscribe for,
sell or otherwise dispose of any securities, pursuant to the Offer
or otherwise, nor shall there be any purchase, sale, issuance or
exchange of securities or such solicitation in any jurisdiction in
which such offer, solicitation, sale, issuance or exchange would be
unlawful prior to the registration or qualification under the laws
of such jurisdiction. The Offer will be made solely by means of the
Scheme Document or any document by which the Offer is made which
will contain the full terms and Conditions of the Offer, including
details of how to vote in respect of the Proposed Acquisition. Any
vote in respect of the Scheme or other response in relation to the
Offer should be made only on the basis on the information contained
in the Scheme Document.
This Announcement has been prepared for the purpose of complying
with English law and the Code and the information disclosed may not
be the same as that which would have been disclosed if this
Announcement had been prepared in accordance with the laws of
jurisdictions outside of England.
Earthport will prepare the Scheme Document to be distributed to
Earthport Shareholders at no cost to them. Earthport and Bidco urge
Earthport Shareholders to read the Scheme Document when it becomes
available because it will contain important information relating to
the Offer.
Overseas Shareholders
The release, publication or distribution of this Announcement in
or into certain jurisdictions other than the UK may be restricted
by law. Persons who are not resident in the United Kingdom or who
are subject to the laws of other jurisdictions should inform
themselves of, and observe, any applicable legal and regulatory
requirements. In particular the ability of persons who are not
resident in the United Kingdom, to vote their Earthport Shares with
respect to the Scheme at the Court Meeting, or to appoint another
person as proxy to vote at the Court Meeting on their behalf, may
be affected by the laws of the relevant jurisdiction in which they
are located. Further details in relation to the Overseas
Shareholders will be contained in the Scheme Document. Any failure
to comply with the applicable restrictions may constitute a
violation of the securities laws of any such jurisdiction. To the
fullest extent permitted by applicable law, the companies and
persons involved in the Offer disclaim any responsibility or
liability for the violation of such restrictions by any person.
The Offer relates to shares of a UK company and is proposed to
be effected by means of a scheme of arrangement under the laws of
England and Wales. Neither the US proxy solicitation rules nor the
tender offer rules under the US Securities Exchange Act of 1934, as
amended (the "US Exchange Act") apply to the Offer. Accordingly,
the Offer is subject to the disclosure requirements, rules and
practices applicable in the United Kingdom to schemes of
arrangement, which differ from the requirements of US proxy
solicitation or tender offer rules. However, if Bidco were to elect
to implement the Offer by means of a Takeover Offer, such Takeover
Offer would be made in compliance with all applicable laws and
regulations, including Section 14(e) of the US Exchange Act and
Regulation 14E thereunder. Such a takeover would be made in the
United States by Bidco and no one else. In addition to any such
Takeover Offer, Bidco, certain affiliated companies and the
nominees or brokers (acting as agents) may make certain purchases
of, or arrangements to purchase, shares in Earthport outside such
Takeover Offer during the period in which such Takeover Offer would
remain open for acceptance. If such purchases or arrangements to
purchase were to be made, they would be made outside the United
States and would comply with applicable law, including the US
Exchange Act.
None of the securities referred to in this Announcement have
been approved or disapproved by the US Securities and Exchange
Commission, any state securities commission in the United States or
any other US regulatory authority, nor have such authorities passed
upon or determined the adequacy or accuracy of the information
contained in this document. Any representation to the contrary is a
criminal offence in the United States.
The receipt of cash pursuant to the Offer by a US holder as
consideration for the transfer of its Scheme Shares pursuant to the
Scheme will likely be a taxable transaction for United States
federal income tax purposes and under applicable United States
state and local, as well as foreign and other, tax laws. Each
Earthport Shareholder is urged to consult his or her independent
professional adviser immediately regarding the tax consequences of
the Offer applicable to him or her.
It may be difficult for US holders to enforce their rights and
claims arising out of the US federal securities laws, since
Earthport is located in a country other than the US, and some or
all of their officers and directors may be residents of countries
other than the US. US holders may not be able to sue a non-US
company or its officers or directors in a non-US court for
violations of US securities laws. Further, it may be difficult to
compel a non-US company and its affiliates to subject themselves to
a US court's judgement.
Earthport's financial statements, and all financial information
that is included in this Announcement, or that may be included in
the Scheme Document, have been prepared in accordance with
international financial reporting standards and may not be
comparable to financial statements of companies in the United
States or other companies whose financial statements are prepared
in accordance with US generally accepted accounting principles.
Unless otherwise determined by Bidco or required by the Code and
permitted by applicable law and regulation, the Offer will not be
made available, directly or indirectly, in, into or from a
Restricted Jurisdiction where to do so would violate the laws in
that jurisdiction and no person may vote in favour of the offer by
any such use, means, instrumentality or form within a Restricted
Jurisdiction or any other jurisdiction if to do so would constitute
a violation of the laws of that jurisdiction. Accordingly, copies
of this Announcement and all documents relating to the Offer are
not being, and must not be, directly or indirectly, mailed or
otherwise forwarded, distributed or sent in, into or from a
Restricted Jurisdiction where to do so would violate the laws in
that jurisdiction, and persons receiving this Announcement and all
documents relating to the Offer (including custodians, nominees and
trustees) must observe these restrictions and must not mail or
otherwise distribute or send them in, into or from such
jurisdictions where to do so would violate the laws in that
jurisdiction.
The availability of the Offer to Earthport Shareholders who are
not resident in the United Kingdom may be affected by the laws of
the relevant jurisdictions in which they are resident. Persons who
are not resident in the United Kingdom should inform themselves of,
and observe, any applicable requirements.
The Offer will be subject to the applicable requirements of the
Code, the Panel, AIM and the FCA.
Further details in relation to Overseas Shareholders will be
contained in the Scheme Document.
Forward looking statements
This Announcement (including information incorporated by
reference in this Announcement), oral statements made regarding the
Proposed Acquisition, and other information published by Bidco and
Earthport contains statements about Bidco and Earthport that are or
may be deemed to be "forward looking statements". These statements
are prospective in nature and are not based on historical facts,
but rather based on the current expectations of the management of
Bidco and Earthport about future events, and are naturally subject
to uncertainty and changes in circumstances. All statements,
including the expected timing and scope of the Offer, other than
statements of historical facts included in this Announcement, may
be forward looking statements. Without limitation, any statements
preceded or followed by or that include the words "targets",
"plans", "believes", "expects", "aims", "intends", "will", "may",
"should", "would", "could", "anticipates", "estimates", "projects",
"strategy" or words or terms of similar substance or the negative
thereof are forward looking statements. Forward looking statements
include statements relating to the following: (i) future capital
expenditures, expenses, revenues, earnings, synergies, economic
performance, indebtedness, financial condition, dividend policy,
losses and future prospects; (ii) business and management
strategies and the expansion and growth of Bidco's or Earthport's
operations and potential synergies resulting from the Proposed
Acquisition; and (iii) the effects of government regulation on
Bidco's or Earthport's business.
Such forward looking statements are not guarantees of future
performance. By their nature, because they relate to events and
depend on circumstances that will occur in the future, such forward
looking statements involve risks and uncertainties that could
significantly affect expected results and are based on certain key
assumptions. Many factors could cause actual results and
developments to differ materially from those projected or implied
in any forward looking statements. These factors include, but are
not limited to, the satisfaction of the conditions to the Offer, as
well as additional factors, such as changes in political and
economic conditions, changes in the level of capital investment,
retention of key employees, changes in customer habits, success of
business and operating initiatives and restructuring objectives,
impact of any acquisitions or similar transactions, changes in
customers' strategies and stability, competitive product and
pricing measures, changes in the regulatory environment,
fluctuations or interest and exchange rates, the outcome of any
litigation. Other unknown or unpredictable factors could cause
actual results to differ materially from those in the
forward-looking statements. Due to such uncertainties and risks,
readers are cautioned not to place undue reliance on such forward
looking statements, which speak only as of the date hereof. Each of
Bidco and Earthport disclaims any obligation to update publicly or
revise any forward looking or other statements contained herein,
whether as a result of new information, future events or otherwise,
except as required by applicable law.
No profit forecasts or profit estimates
No statement in this Announcement is intended as a profit
forecast or profit estimate for any period and no statement in this
Announcement should be interpreted to mean that earnings or
earnings per share for Earthport for the current or future
financial years would necessarily match or exceed the historical
published earnings or earnings per share for Earthport.
Right to switch to a Takeover Offer
Bidco reserves the right to elect, with the consent of the
Panel, and subject to the terms of Cooperation Agreement, to
implement the Offer by way of Takeover Offer for the entire issued
and to be issued ordinary share capital of Earthport as an
alternative to the Scheme. In such an event, the Takeover Offer
will be implemented on the same terms or, if Bidco 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.
Dealing and Opening Position Disclosure Requirements of the
Code
Under Rule 8.3(a) of the Code, any person who is interested in
1% or more of any class of relevant securities of an offeree
company or of any securities exchange offeror (being any offeror
other than an offeror in respect of which it has been announced
that its offer is, or is likely to be, solely in cash) must make an
Opening Position Disclosure following the commencement of the offer
period and, if later, following the announcement in which any
securities exchange offeror is first identified. An Opening
Position Disclosure must contain details of the person's interests
and short positions in, and rights to subscribe for, any relevant
securities of each of (i) the offeree company and (ii) any
securities exchange offeror(s). An Opening Position Disclosure by a
person to whom Rule 8.3(a) applies must be made by no later than
3.30 p.m. (London time) on the 10(th) business day following the
commencement of the offer period and, if appropriate, by no later
than 3.30 p.m. (London time) on the 10(th) business day following
the announcement in which any securities exchange offeror is first
identified. Relevant persons who deal in the relevant securities of
the offeree company or of a securities exchange offeror prior to
the deadline for making an Opening Position Disclosure must instead
make a Dealing Disclosure.
Under Rule 8.3(b) of the Code, any person who is, or becomes,
interested in 1% or more of any class of relevant securities of the
offeree company or of any securities exchange offeror must make a
Dealing Disclosure if the person deals in any relevant securities
of the offeree company or of any securities exchange offeror. A
Dealing Disclosure must contain details of the dealing concerned
and of the person's interests and short positions in, and rights to
subscribe for, any relevant securities of each of (i) the offeree
company and (ii) any securities exchange offeror(s), save to the
extent that these details have previously been disclosed under Rule
8. A Dealing Disclosure by a person to whom Rule 8.3(b) applies
must be made by no later than 3.30 p.m. (London time) on the
business day following the date of the relevant dealing.
If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
interest in relevant securities of an offeree company or a
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree
company and by any offeror and Dealing Disclosures must also be
made by the offeree company, by any offeror and by any persons
acting in concert with any of them (see Rules 8.1, 8.2 and
8.4).
Details of the offeree and offeror companies in respect of whose
relevant securities Opening Position Disclosures and Dealing
Disclosures must be made can be found in the Disclosure Table on
the Panel's website at www.thetakeoverpanel.org.uk, including
details of the number of relevant securities in issue, when the
offer period commenced and when any offeror was first identified.
You should contact the Panel's Market Surveillance Unit on +44
(0)20 7638 0129 if you are in any doubt as to whether you are
required to make an Opening Position Disclosure or a Dealing
Disclosure.
In accordance with Rule 2.9 of the Code, Earthport confirms that
as at the close of business on 24 December 2018 (being the last
Business Day before the date of this Announcement) its issued
ordinary share capital consisted of 623,500,354 ordinary shares of
10 pence each. The International Securities Identification Number
for Earthport's ordinary shares is GB00B0DFPF10.
Information relating to Earthport Shareholders
Please be aware that addresses, electronic addresses and certain
other information provided by Earthport Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from Earthport may be provided to Bidco during the
Offer Period as required under Section 4 of Appendix 4 to the Code
to comply with Rule 2.11(c) of the Code.
Publication on website and hard copies
This Announcement and the documents required to be published
pursuant to Rule 26.1 of the Code will be available free of charge,
subject to certain restrictions relating to persons resident in
Restricted Jurisdictions, on Earthport's website at
www.earthport.com and on Visa's website at investor.visa.com by no
later than 12.00 noon (London time) on the Business Day following
this Announcement.
Neither the content of any website referred to in this
Announcement nor the content of any website accessible from
hyperlinks is incorporated into, or forms part of, this
Announcement.
Earthport Shareholders may request a hard copy of this
Announcement by contacting Goldman Sachs International on +44(0) 20
7774 1000. You may also request that all future documents,
announcements and information to be sent to you in relation to the
Offer should be in hard copy form.
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.
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM ANY JURISDICTION
WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR
REGULATIONS OF SUCH JURISDICTION
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION
FOR IMMEDIATE RELEASE
27 December 2018
RECOMMED CASH OFFER
for
Earthport PLC ("Earthport")
by
Visa International Service Association ("Bidco")
a wholly-owned direct subsidiary of
Visa Inc. ("Visa")
to be effected by means of a Scheme of Arrangement
under Part 26 of the Companies Act 2006
1. Introduction
The boards of Bidco and Earthport are pleased to announce that
they have reached agreement on the terms of a recommended all cash
offer for the entire issued and to be issued ordinary share capital
of Earthport by Bidco, a wholly-owned direct subsidiary of Visa.
The Offer is intended to be effected by means of a scheme of
arrangement under Part 26 of the Companies Act.
2. The Offer
Under the terms of the Offer, which will be subject to
Conditions and further terms set out in Appendix I to this
Announcement and to be set out in the Scheme Document, Scheme
Shareholders at the Scheme Record Time will be entitled to
receive:
For each Earthport Share 30 pence in cash
The Offer values the entire issued and to be issued ordinary
share capital of Earthport at approximately GBP198 million on a
fully diluted basis, and represents a premium of approximately:
o 250 per cent. to the six month volume weighted average price
of 8.6 pence per Earthport Share to 24 December 2018 (being the
last Business Day before the date of this Announcement); and
o 50 per cent. to the Placing share price of 20 pence per
Earthport Share on 4 October 2017.
It is currently expected that the Scheme Document will be
published in January 2019, that the Court Meeting and the General
Meeting will be held in February 2019 and that the Scheme will
become Effective by June 2019.
The Deferred Shares will not form part of the Proposed
Acquisition and the Scheme. For further details, see paragraph 12
below.
3. Background to and reasons for the Offer
As a champion in the digital payments and innovation space, Visa
allows businesses, governments and consumers to use the Visa
network to transfer funds globally from an originating account to
another account via card credentials. With Visa's capabilities,
funds can be transferred into the recipient's Visa account quickly,
conveniently, and securely - providing real time access to funds
and the ability to utilise Visa cards to make purchases at 54
million merchant locations worldwide.
Bidco believes that Earthport can complement the development of
the Visa payment solutions and intends to use its resources to help
Earthport grow.
4. Recommendation
The Earthport Directors, who have been so advised by Rothschild
& Co as to the financial terms of the Offer, consider the terms
of the Offer to be fair and reasonable. In providing its advice to
the Earthport Directors, Rothschild & Co has taken into account
the commercial assessments of the Earthport Directors. Rothschild
& Co is providing independent financial advice to the Earthport
Directors for the purposes of Rule 3 of the Code.
Accordingly, the Earthport Directors intend to recommend
unanimously that Earthport Shareholders vote, or procure the
voting, to approve the Scheme at the Court Meeting and vote, or
procure the voting, in favour of the Resolutions to be proposed at
the General Meeting or, if (with the consent of the Panel and
subject to the terms of the Cooperation Agreement) Bidco exercises
its right to implement the Offer by way of a Takeover Offer, accept
or procure the acceptance of such Takeover Offer as all Earthport
Directors who hold Earthport Shares (in a personal capacity or
through members of their immediate family, related trusts or a
nominee or nominees) have irrevocably undertaken to do, or procure
to be done, in respect of their own beneficial holdings (and the
beneficial holdings of members of their immediate families, related
trusts or nominee(s)) of 5,215,312 Earthport Shares, in aggregate,
representing approximately 0.84 per cent. of the Earthport Shares
in issue on 24 December 2018 (being the last Business Day before
the date of this Announcement).
Rothschild & Co has given and not withdrawn its consent to
the inclusion in this Announcement of reference to its advice to
the Earthport Directors in the form and context in which it
appears.
5. Background to and reasons for the Recommendation
Over the summer of 2018 Earthport put in place a new executive
team to guide the Company through the next phase of growth of the
business. The first task set out for the new executive team was a
full strategic review of every part of the business and operations
from end-to-end, assessing the strengths and weaknesses of the
organisation, core and non-core activities, and the opportunities
and threats the Company faces. The results of this review
underpinned a resetting of Earthport's strategy including a
redefined "go to market", investment into the technology platform,
a new operating model for scale, and capability enhancement. The
Earthport Board believes Earthport has the resources and the team
in place to execute on this strategy and make a transition to
become a bigger and more technologically enabled player in the
global payments market.
In November 2018 Earthport received an indicative offer from
Visa. After a period of negotiation, on 14 December 2018 Earthport
received a revised offer from Visa at a price of 30 pence per
Earthport share. The Earthport Board, together with its financial
adviser Rothschild & Co, has considered the Offer with regard
to price, deliverability and with reference to the range of
strategic options available to Earthport, and in particular its
renewed growth strategy.
The Earthport Directors believe the Offer represents attractive
value given the balance of material future opportunities and risks
facing the business. The Offer allows Earthport Shareholders to
crystallise in cash the value of their holdings at an implied
multiple of 5.3 times Earthport's revenues for 2018, at a premium
of 250 per cent. to Earthport's six month volume weighted average
share price to 24 December 2018, being the last Business Day prior
to this Announcement, and 50 per cent. to Earthport's latest equity
raise in October 2017.
Accordingly, the Earthport Board intends to recommend
unanimously the Offer to Earthport Shareholders as set out in
paragraph 4 above.
6. Irrevocable undertakings
In addition to the irrevocable undertakings from the Earthport
Directors, Bidco has also received an irrevocable undertaking from
OppenheimerFunds, Inc. and OFI Global Institutional, Inc. acting as
discretionary investment advisers to vote, or procure the voting,
to approve the Scheme at the Court Meeting and vote, or procure the
voting, in favour of the Resolutions to be proposed at the General
Meeting or, if (with the consent of the Panel and subject to the
terms of the Cooperation Agreement) Bidco exercises its right to
implement the Offer by way of a Takeover Offer, to accept, or
procure the acceptance of such Takeover Offer in respect of a total
of 103,556,953 Earthport Shares representing approximately 16.61
per cent. of the Earthport Shares in issue on 24 December 2018
(being the last Business Day before the date of this
Announcement).
Therefore, as at the date of this Announcement, Bidco has
received irrevocable undertakings to vote, or procure the voting,
to approve the Scheme at the Court Meeting and vote, or procure the
voting, in favour of the Resolutions to be proposed at the General
Meeting or, if (with the consent of the Panel and subject to the
terms of the Cooperation Agreement) Bidco exercises its right to
implement the Offer by way of a Takeover Offer, to accept, or
procure the acceptance of such Takeover Offer with respect to a
total of 108,772,265 Earthport Shares (representing approximately
17.45 per cent. of Earthport Shares in issue on 24 December 2018
(being the last Business Day before the date of this
Announcement).
Further details of these irrevocable undertakings, including the
circumstances in which they may lapse, are set out in Appendix III
to this Announcement.
7. Information on Visa and Bidco
Visa Inc. (NYSE: V) is one of the world's leading payment
technology companies. Visa's mission is to connect the world
through the most innovative, reliable and secure payment network -
enabling individuals, businesses and economies to thrive. Visa's
advanced global processing network, VisaNet, provides secure and
reliable payments around the world, and is capable of handling more
than 65,000 transaction messages a second. Visa's focus on
innovation is helping drive the rapid growth of connected commerce
on mobile and other devices and the significant shift of
transactions from cash to digital, and a driving force behind the
dream of a cashless future for everyone, everywhere. As the world
moves from analog to digital, Visa is applying its brand, products,
people, network and scale to reshape the future of commerce.
Bidco is a wholly-owned direct subsidiary of Visa.
8. Information on Earthport
Earthport provides cross-border payment services to banks and
businesses. Through a single relationship with Earthport, clients
can seamlessly manage payments to almost any bank account in the
world, reducing costs and complexity to meet their customers'
evolving expectations of price, speed and transparency.
Earthport offers clients access to global payment capability in
200+ countries and territories, with local automated clearing house
options in 88 countries and an evolving suite of currencies and
settlement options.
Headquartered in London with regional offices in New York, San
Francisco, Miami and Singapore, Earthport is a public company whose
shares have been admitted to trading on AIM, the London Stock
Exchange's international market for smaller, growing companies.
Further information is available at www.earthport.com.
For the financial year ended 30 June 2018, Earthport generated
revenue of GBP31.9 million and adjusted operating loss of GBP8.4
million.
9. Directors, management, employees, pensions, research and development and locations
As set out in paragraph 3 (Background to and reasons for the
Offer), Bidco believes that Earthport can complement the
development of Visa's payment solutions and intends to use its
resources to help Earthport grow.
Bidco expects that the existing personnel of Earthport will
continue to contribute to the success of Earthport following
completion of the Proposed Acquisition. Consistent with Earthport's
current strategy, Bidco intends to continue to invest in and
enhance Earthport's current network, and given the benefits of
being able to leverage transaction volume from Visa, it is expected
that the transaction volume of the Earthport business will be
enhanced following the Proposed Acquisition. As a result of this
strategy, Bidco does not intend to initiate any material headcount
reductions within the current Earthport organisation as a result of
the Proposed Acquisition.
However, it is expected that each of the Earthport Directors
will cease to be directors of Earthport on or shortly after the
Effective Date.
Given the expected growth in the Earthport business following
the Proposed Acquisition, Bidco intends to invest in Earthport's
employees and to supplement the business with additional people and
skills as the business scales. However, Bidco does not expect to
make a material change in the balance of skills and functions of
the employees and management of Earthport.
Bidco confirms that, following the Scheme becoming effective,
the existing contractual and statutory employment rights, including
in relation to pensions, of all Earthport management and employees
will be fully safeguarded in accordance with applicable law. Bidco
does not intend to make any material change to the conditions of
employment. Earthport does not have any defined benefit pension
schemes.
Visa has over 115 offices in 72 countries around the world, and
therefore Bidco intends to leverage the scale of Visa to
consolidate offices where appropriate. Further work is required to
evaluate whether duplications in headquarter functions and office
locations necessitate rationalisation in the future. In accordance
with Earthport's current policy, Bidco will assess options
regarding the rationalisation and consolidation of Earthport's
current leasing of data centres. This assessment is expected to be
completed within nine months of closing, with the results of that
assessment to be implemented thereafter. No changes are otherwise
expected with respect to the redeployment of Earthport's fixed
asset base and to Earthport's research and development
function.
Earthport Shares are currently admitted to trading on AIM, a
market operated by the London Stock Exchange. As set out in
paragraph 16, applications will be made for the cancellation of the
admission to trading of Earthport Shares on AIM and the
cancellation of trading of the Earthport Shares on the London Stock
Exchange.
No statements in this paragraph 9 are "post-offer undertakings"
for the purposes of Rule 19.5 of the Takeover Code.
10. Earthport Share Plans
Participants in the Earthport Share Plans will be contacted
regarding the effect of the Offer on their rights under the
Earthport Share Plans and an appropriate proposal will be made to
such participants which reflect their rights under the Earthport
Share Plans in due course.
11. Warrants
The Warrantholder will be contacted regarding the effect of the
Offer on its rights under the Warrant Instrument and an appropriate
proposal will be made to the Warrantholder which reflects its
rights under the Warrant Instrument.
12. Deferred Shares
Earthport has in issue 307,449,792 fully paid Deferred Shares.
The Deferred Shares carry no rights to receive any dividend or
other distribution. The holders of the Deferred Shares have no
rights to receive notice, attend, speak or vote at any general
meeting of Earthport. On a return of capital on liquidation or
otherwise, the holders of the Deferred Shares are entitled to
receive the nominal amount paid up on the Deferred Shares after the
repayment of GBP10,000,000 per Earthport Share.
The Deferred Shares will not form part of the Proposed
Acquisition and the Scheme.
13. Financing
The cash consideration payable by Bidco pursuant to the Offer
will be funded from Visa's existing cash resources. Goldman Sachs
International is satisfied that sufficient resources are available
to Bidco to enable it to satisfy in full the cash consideration
payable to Earthport Shareholders under the terms of the Offer.
14. Offer-related Arrangements
Confidentiality Agreement
Bidco and Earthport entered into a confidentiality agreement on
4 December 2018 (the "Confidentiality Agreement") pursuant to which
Bidco has undertaken to: (i) keep confidential and proprietary
information relating to Earthport provided to it in connection with
the Offer by Earthport or its advisers (the Confidential
Information) confidential and not disclose it to anyone except for
certain permitted purposes; (ii) to ensure that all Confidential
Information is kept securely and to apply the same security
measures and degree of care to the Confidential Information as it
applies to its own confidential information; (iii) to use the
Confidential Information only for purposes in relation to the
Offer; (iv) to keep confidential and not disclose to any person,
except for certain permitted purposes, the fact that the
Confidential Information has been made available or that any
discussions may occur between the parties relating to the
Confidential Information, the Confidentiality Agreement and the
Offer; and (v) to inform Earthport, to the extent permitted by law,
if it becomes aware that Confidential Information has been
disclosed in breach of the Confidentiality Agreement by Bidco or
its related parties. These confidentiality obligations will remain
in force until 4 December 2019 (or, if earlier, the consummation of
the acquisition pursuant to the Offer). The Confidentiality
Agreement contains standstill provisions which restricted the Visa
Group from acquiring or offering to acquire interests in certain
securities of Earthport; those restrictions ceased to apply upon
the making of this Announcement.
The Confidentiality Agreement also contains restrictions on
Bidco soliciting, endeavouring to entice away or employing the
directors or employees of Earthport or its affiliates' subject to
customary exceptions.
Cooperation Agreement
Pursuant to the Cooperation Agreement, Bidco and Earthport have,
amongst other things, each agreed to: (i) cooperate in relation to
obtaining any consents, clearances, permissions, waivers and/or
approvals as may be necessary, and the making of all filings as may
be necessary, from or under the law, regulations or practices
applied by any applicable regulatory authority in connection with
the Offer; (ii) cooperate in relation to preparing the Scheme
Document; (iii) cooperate in relation to implementing the Proposed
Acquisition; and (iv) cooperate in preparing and implementing
appropriate proposals in relation to the Earthport Share Plans and
Warrants. In addition, Bidco has agreed to certain provisions if
the Scheme should switch to a Takeover Offer. The Cooperation
Agreement will terminate in certain circumstances, including if the
Offer is withdrawn or lapses, if prior to the Longstop Date any
Condition becomes incapable of satisfaction, if the Earthport
Directors withdraw their recommendation of the Offer, a competing
proposal (as defined in the Cooperation Agreement) is recommended
by the Earthport Board or completes, becomes effective or is
declared or becomes unconditional in all respects, or if the Scheme
does not become effective in accordance with its terms by the
Longstop Date or otherwise as agreed between Bidco and
Earthport.
15. Structure of the Offer
It is intended that the Offer will be effected by means of a
court-sanctioned scheme of arrangement between Earthport and
Earthport Shareholders under Part 26 of the Companies Act. Bidco
reserves the right to elect to implement the Offer by way of a
Takeover Offer (with the consent of the Panel and subject to the
terms of the Cooperation Agreement). The purpose of the Scheme is
to provide for Bidco to become the holder of the entire issued and
to be issued ordinary share capital of Earthport. Under the Scheme,
the Scheme Shares will be transferred to Bidco in consideration for
which the Scheme Shareholders will receive cash consideration on
the basis set out in paragraph 2 of this Announcement.
The Offer is subject to the Conditions and certain further terms
set out in Appendix I to this Announcement and to the full terms
and conditions to be set out in the Scheme Document, and will only
become Effective if, amongst other things, the following events
occur on or before the Longstop Date or such later date as Bidco
and Earthport agree:
o a resolution to approve the Scheme is passed by a majority in
number of Scheme Shareholders present and voting (and entitled to
vote) at the Court Meeting, either in person or by proxy,
representing at least 75% in value of the Scheme Shares held by
those Scheme Shareholders;
o the Resolutions are passed (by the requisite majority of
Earthport Shareholders required to pass such Resolutions) at the
General Meeting which is expected to be held immediately after the
Court Meeting;
o following the Court Meeting and General Meeting, the Scheme is
sanctioned by the Court (without modification, or with modification
on terms agreed by Bidco and Earthport);
o a copy of the Court Order is delivered to the Registrar of
Companies of England and Wales; and
o certain competition and regulatory approvals are obtained.
Upon the Scheme becoming Effective: (i) it will be binding on
all Earthport Shareholders, irrespective of whether or not they
attended or voted at the Court Meeting and/or the General Meeting
(and, if they attended and voted, whether or not they voted in
favour of the Scheme at the Court Meeting or in favour of or
against the Resolutions at the General Meeting); and (ii) share
certificates in respect of Earthport Shares will cease to be of
value and should be destroyed and entitlements to Earthport Shares
held within the CREST system will be cancelled.
Any Earthport Shares issued before the Scheme Record Time will
be subject to the terms of the Scheme. The Resolutions to be
proposed at the General Meeting will, amongst other matters,
provide that Earthport's Articles be amended to incorporate
provisions requiring any Earthport Shares issued after the Scheme
Record Time (other than to Bidco and/or its nominees) to be
automatically transferred to Bidco on the same terms as the Offer
(other than terms as to timings and formalities). The provisions of
Earthport's Articles (as amended) will avoid any person (other than
Bidco and/or its nominees) holding ordinary shares in the capital
of Earthport after the Effective Date.
If the Scheme does not become Effective on or before the
Longstop Date (or such later date as Bidco and Earthport may, with
the consent of the Panel, agree and subject to the terms of the
Cooperation Agreement), it will lapse and the Offer will not
proceed (unless the Panel otherwise consents and subject to the
terms of the Cooperation Agreement).
The Scheme Document will include full details of the Scheme,
together with notices of the Court Meeting and the General Meeting.
The Scheme Document will also contain the expected timetable for
the Offer, and will specify the necessary actions to be taken by
Earthport Shareholders. The Scheme Document, together with the
notice of the Court Meeting and the General Meeting and the Forms
of Proxy, will be despatched to Earthport Shareholders and, for
information only, to persons with information rights, to holders of
options and awards granted under the Earthport Share Plans and to
the Warrantholder within 28 days, unless Bidco and Earthport
otherwise agree, and the Panel consents to, a later date.
Subject, amongst other things, to the satisfaction or waiver of
the Conditions, it is expected that the Scheme will become
Effective at the latest by the Longstop Date.
16. De-listing and re-registration
It is intended that dealings in Earthport Shares will be
suspended at 5.00 p.m. London time on the business day prior to the
Effective Date. It is further intended that an application will be
made to the London Stock Exchange for the cancellation of the
admission to trading of Earthport Shares on AIM, with effect as of
or shortly after the Effective Date.
It is also intended that, following the Effective Date and after
its shares are delisted, Earthport will be re-registered as a
private limited company.
17. Disclosure of interests in Earthport Shares
Save in respect of the irrevocable undertakings referred to in
paragraph 6 above, as at the close of business on 24 December 2018
(being the latest practicable date prior to the date of this
Announcement) neither Bidco, nor any of its directors, nor, so far
as Bidco is aware, any person acting in concert (within the meaning
of the Code) with it for the purposes of the Offer (i) had any
interest in or right to subscribe for or had borrowed or lent any
Earthport Shares or securities convertible or exchangeable into
Earthport Shares, or (ii) had any short positions in respect of
relevant securities of Earthport (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, or (iii) has borrowed or lent any relevant securities of
Earthport (including, for these purposes, any financial collateral
arrangements of the kind referred to in Note 4 on Rule 4.6 of the
Code) save for any borrowed shares which have been either on-lent
or resold, or (iv) is a party to any dealing arrangement of the
kind referred to in Note 11 on the definition of acting in concert
in the Code.
It has not been practicable for Bidco to make enquiries of all
of its concert parties in advance of the release of this
Announcement. Therefore, if Bidco becomes aware, following the
making of such enquiries, that any of its concert parties have any
such interests in relevant securities of Earthport, all relevant
details in respect of Bidco's concert parties will be included in
Bidco's Opening Position Disclosure in accordance with Rule 8.1(a)
and Note 2(a)(i) on Rule 8 of the Code which must, unless there are
no such interests of which Bidco is aware, be made on or before 12
noon (London time) on 11 January 2019.
18. Dividends
If any dividend is paid or becomes payable in respect of
Earthport Shares on or after the date of this Announcement and
prior to closing of the Offer, Bidco has the right to reduce the
Offer Price by an amount up to the aggregate amount of such
dividend or distribution.
19. General
The Proposed Acquisition will be subject to the Conditions and
certain further terms set out in Appendix I and the further terms
and conditions set out in the Scheme Document when issued.
Bidco reserves the right, subject to the prior consent of the
Panel and subject to the terms of the Cooperation Agreement to
elect to implement the Offer by way of a Takeover Offer for the
entire issued and to be issued ordinary share capital of Earthport
not already held by Bidco, as an alternative to the Scheme. In such
an event, such offer will be implemented on the same terms (subject
to appropriate amendments as described in Appendix I), so far as
applicable, as those which would apply to the Scheme.
If the Offer is effected by way of a Takeover Offer and such
offer becomes or is declared unconditional in all respects and
sufficient acceptances are received, Bidco intends to exercise its
rights to apply the provisions of Chapter 3 of Part 28 of the
Companies Act 2006 to acquire compulsorily the remaining Earthport
Shares in respect of which the Takeover Offer has not been
accepted.
Investors should be aware that Bidco or its affiliates may
purchase Earthport Shares otherwise than under any Takeover Offer
or scheme of arrangement relating to the Offer, such as in open
market or privately negotiated purchases.
Goldman Sachs International has given and not withdrawn its
consent to the publication of this Announcement with the inclusion
herein of the references to their name in the form and context in
which it appears.
The Scheme will be governed by English law and will be subject
to the jurisdiction of the courts of England and Wales. The Scheme
will be subject to applicable requirements of the Code, the Panel,
AIM and the FCA.
20. Documents available on website
Copies of the following documents will be made available,
subject to certain restrictions relating to persons resident in any
Restricted Jurisdiction, on both Earthport's website at
https://www.earthport.com and Visa's website at
https://www.Visa.com by no later than 12 noon (London time) on 28
December 2018 until the end of the Offer Period:
-- the irrevocable undertakings referred to in paragraph 6 above;
-- the Confidentiality Agreement;
-- the Cooperation Agreement;
-- the consents to be named in this Announcement from financial advisers; and
-- a copy of this Announcement.
The bases and sources of certain financial information contained
in this Announcement are set out in Appendix II to this
Announcement. Certain terms used in this Announcement are defined
in Appendix IV to this Announcement.
Enquiries:
+44 (0) 20 7220
Earthport plc 9700
Amanda Mesler, Chief Executive Officer
Alexander Filshie, Chief Financial Officer
Rothschild & Co +44 (0) 20 7280
(Financial adviser to Earthport) 5000
Anton Black
Pietro Franchi
+44 (0) 20 7496
N+1 3000
(NOMAD to Earthport)
Mark Taylor
James White
Newgate Communications +44 (0) 20 7653
(PR adviser to Earthport) 9848
Bob Huxford
Goldman Sachs International +44 (0) 20 7774
(Financial adviser to Visa) 1000
Stephen Considine
Chris Emmerson
Freshfields Bruckhaus Deringer LLP are retained as legal adviser
to Visa and Bidco. Bird & Bird LLP are retained as legal
adviser to Earthport.
Important notices
Goldman Sachs International, which is authorised by the
Prudential Regulation Authority ("PRA") and regulated by the PRA
and the Financial Conduct Authority ("FCA") in the United Kingdom,
is acting exclusively for Bidco and Visa and for no one else in
connection with the Offer and will not be responsible to anyone
other than Bidco and Visa for providing the protections afforded to
its clients or for providing advice in relation to the Offer, the
contents of this Announcement or any other matters referred to in
this Announcement.
N.M. Rothschild & Sons Limited ("Rothschild & Co"),
which is authorised and regulated in the United Kingdom by the FCA,
is acting exclusively for Earthport and for no one else in
connection with the Offer and will not be responsible to anyone
other than Earthport for providing the protections afforded to its
clients nor for providing advice in relation to the Offer, the
contents of this Announcement or any other matters referred to in
this Announcement.
Nplus1 Singer Advisory LLP ("N+1"), which is authorised and
regulated by the FCA in the United Kingdom is acting exclusively as
nominated adviser for Earthport and no one else in connection with
the Offer and will not be responsible to anyone other than
Earthport for providing the protections afforded to its clients nor
for providing advice in connection with the Offer, the contents of
this Announcement or any other matters referred to in this
Announcement.
Further information
This Announcement is for information purposes only and is not
intended to and does not constitute, or form part of, an offer to
sell or an invitation to purchase any securities or the
solicitation of an offer to buy, otherwise acquire, subscribe for,
sell or otherwise dispose of any securities, pursuant to the Offer
or otherwise, nor shall there be any purchase, sale, issuance or
exchange of securities or such solicitation in any jurisdiction in
which such offer, solicitation, sale, issuance or exchange would be
unlawful prior to the registration or qualification under the laws
of such jurisdiction. The Offer will be made solely by means of the
Scheme Document or any document by which the Offer is made which
will contain the full terms and Conditions of the Offer, including
details of how to vote in respect of the Proposed Acquisition. Any
vote in respect of the Scheme or other response in relation to the
Offer should be made only on the basis on the information contained
in the Scheme Document.
This Announcement has been prepared for the purpose of complying
with English law and the Code and the information disclosed may not
be the same as that which would have been disclosed if this
Announcement had been prepared in accordance with the laws of
jurisdictions outside of England.
Earthport will prepare the Scheme Document to be distributed to
Earthport Shareholders at no cost to them. Earthport and Bidco urge
Earthport Shareholders to read the Scheme Document when it becomes
available because it will contain important information relating to
the Offer.
Overseas Shareholders
The release, publication or distribution of this Announcement in
or into certain jurisdictions other than the UK may be restricted
by law. Persons who are not resident in the United Kingdom or who
are subject to the laws of other jurisdictions should inform
themselves of, and observe, any applicable legal and regulatory
requirements. In particular the ability of persons who are not
resident in the United Kingdom, to vote their Earthport Shares with
respect to the Scheme at the Court Meeting, or to appoint another
person as proxy to vote at the Court Meeting on their behalf, may
be affected by the laws of the relevant jurisdiction in which they
are located. Further details in relation to the Overseas
Shareholders will be contained in the Scheme Document. Any failure
to comply with the applicable restrictions may constitute a
violation of the securities laws of any such jurisdiction. To the
fullest extent permitted by applicable law, the companies and
persons involved in the Offer disclaim any responsibility or
liability for the violation of such restrictions by any person.
The Offer relates to shares of a UK company and is proposed to
be effected by means of a scheme of arrangement under the laws of
England and Wales. Neither the US proxy solicitation rules nor the
tender offer rules under the US Securities Exchange Act of 1934, as
amended (the "US Exchange Act") apply to the Offer. Accordingly,
the Offer is subject to the disclosure requirements, rules and
practices applicable in the United Kingdom to schemes of
arrangement, which differ from the requirements of US proxy
solicitation or tender offer rules. However, if Bidco were to elect
to implement the Offer by means of a Takeover Offer, such Takeover
Offer would be made in compliance with all applicable laws and
regulations, including Section 14(e) of the US Exchange Act and
Regulation 14E thereunder. Such a takeover would be made in the
United States by Bidco and no one else. In addition to any such
Takeover Offer, Bidco, certain affiliated companies and the
nominees or brokers (acting as agents) may make certain purchases
of, or arrangements to purchase, shares in Earthport outside such
Takeover Offer during the period in which such Takeover Offer would
remain open for acceptance. If such purchases or arrangements to
purchase were to be made, they would be made outside the United
States and would comply with applicable law, including the US
Exchange Act.
None of the securities referred to in this Announcement have
been approved or disapproved by the US Securities and Exchange
Commission, any state securities commission in the United States or
any other US regulatory authority, nor have such authorities passed
upon or determined the adequacy or accuracy of the information
contained in this document. Any representation to the contrary is a
criminal offence in the United States.
The receipt of cash pursuant to the Offer by a US holder as
consideration for the transfer of its Scheme Shares pursuant to the
Scheme will likely be a taxable transaction for United States
federal income tax purposes and under applicable United States
state and local, as well as foreign and other, tax laws. Each
Earthport Shareholder is urged to consult his or her independent
professional adviser immediately regarding the tax consequences of
the Offer applicable to him or her.
It may be difficult for US holders to enforce their rights and
claims arising out of the US federal securities laws, since
Earthport is located in a country other than the US, and some or
all of their officers and directors may be residents of countries
other than the US. US holders may not be able to sue a non-US
company or its officers or directors in a non-US court for
violations of US securities laws. Further, it may be difficult to
compel a non-US company and its affiliates to subject themselves to
a US court's judgement.
Earthport's financial statements, and all financial information
that is included in this Announcement, or that may be included in
the Scheme Document, have been prepared in accordance with
international financial reporting standards and may not be
comparable to financial statements of companies in the United
States or other companies whose financial statements are prepared
in accordance with US generally accepted accounting principles.
Unless otherwise determined by Bidco or required by the Code and
permitted by applicable law and regulation, the Offer will not be
made available, directly or indirectly, in, into or from a
Restricted Jurisdiction where to do so would violate the laws in
that jurisdiction and no person may vote in favour of the offer by
any such use, means, instrumentality or form within a Restricted
Jurisdiction or any other jurisdiction if to do so would constitute
a violation of the laws of that jurisdiction. Accordingly, copies
of this Announcement and all documents relating to the Offer are
not being, and must not be, directly or indirectly, mailed or
otherwise forwarded, distributed or sent in, into or from a
Restricted Jurisdiction where to do so would violate the laws in
that jurisdiction, and persons receiving this Announcement and all
documents relating to the Offer (including custodians, nominees and
trustees) must observe these restrictions and must not mail or
otherwise distribute or send them in, into or from such
jurisdictions where to do so would violate the laws in that
jurisdiction.
The availability of the Offer to Earthport Shareholders who are
not resident in the United Kingdom may be affected by the laws of
the relevant jurisdictions in which they are resident. Persons who
are not resident in the United Kingdom should inform themselves of,
and observe, any applicable requirements.
The Offer will be subject to the applicable requirements of the
Code, the Panel, AIM and the FCA.
Further details in relation to Overseas Shareholders will be
contained in the Scheme Document.
Forward looking statements
This Announcement (including information incorporated by
reference in this Announcement), oral statements made regarding the
Proposed Acquisition, and other information published by Bidco and
Earthport contains statements about Bidco and Earthport that are or
may be deemed to be "forward looking statements". These statements
are prospective in nature and are not based on historical facts,
but rather based on the current expectations of the management of
Bidco and Earthport about future events, and are naturally subject
to uncertainty and changes in circumstances. All statements,
including the expected timing and scope of the Offer, other than
statements of historical facts included in this Announcement, may
be forward looking statements. Without limitation, any statements
preceded or followed by or that include the words "targets",
"plans", "believes", "expects", "aims", "intends", "will", "may",
"should", "would", "could", "anticipates", "estimates", "projects",
"strategy" or words or terms of similar substance or the negative
thereof are forward looking statements. Forward looking statements
include statements relating to the following: (i) future capital
expenditures, expenses, revenues, earnings, synergies, economic
performance, indebtedness, financial condition, dividend policy,
losses and future prospects; (ii) business and management
strategies and the expansion and growth of Bidco's or Earthport's
operations and potential synergies resulting from the Proposed
Acquisition; and (iii) the effects of government regulation on
Bidco's or Earthport's business.
Such forward looking statements are not guarantees of future
performance. By their nature, because they relate to events and
depend on circumstances that will occur in the future, such forward
looking statements involve risks and uncertainties that could
significantly affect expected results and are based on certain key
assumptions. Many factors could cause actual results and
developments to differ materially from those projected or implied
in any forward looking statements. These factors include, but are
not limited to, the satisfaction of the conditions to the Offer, as
well as additional factors, such as changes in political and
economic conditions, changes in the level of capital investment,
retention of key employees, changes in customer habits, success of
business and operating initiatives and restructuring objectives,
impact of any acquisitions or similar transactions, changes in
customers' strategies and stability, competitive product and
pricing measures, changes in the regulatory environment,
fluctuations or interest and exchange rates, the outcome of any
litigation. Other unknown or unpredictable factors could cause
actual results to differ materially from those in the
forward-looking statements. Due to such uncertainties and risks,
readers are cautioned not to place undue reliance on such forward
looking statements, which speak only as of the date hereof. Each of
Bidco and Earthport disclaims any obligation to update publicly or
revise any forward looking or other statements contained herein,
whether as a result of new information, future events or otherwise,
except as required by applicable law.
No profit forecasts or profit estimates
No statement in this Announcement is intended as a profit
forecast or profit estimate for any period and no statement in this
Announcement should be interpreted to mean that earnings or
earnings per share for Earthport for the current or future
financial years would necessarily match or exceed the historical
published earnings or earnings per share for Earthport.
Right to switch to a Takeover Offer
Bidco reserves the right to elect, with the consent of the
Panel, and subject to the terms of Cooperation Agreement, to
implement the Offer by way of Takeover Offer for the entire issued
and to be issued ordinary share capital of Earthport as an
alternative to the Scheme. In such an event, the Takeover Offer
will be implemented on the same terms or, if Bidco 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.
Dealing and Opening Position Disclosure Requirements of the
Code
Under Rule 8.3(a) of the Code, any person who is interested in
1% or more of any class of relevant securities of an offeree
company or of any securities exchange offeror (being any offeror
other than an offeror in respect of which it has been announced
that its offer is, or is likely to be, solely in cash) must make an
Opening Position Disclosure following the commencement of the offer
period and, if later, following the announcement in which any
securities exchange offeror is first identified. An Opening
Position Disclosure must contain details of the person's interests
and short positions in, and rights to subscribe for, any relevant
securities of each of (i) the offeree company and (ii) any
securities exchange offeror(s). An Opening Position Disclosure by a
person to whom Rule 8.3(a) applies must be made by no later than
3.30 p.m. (London time) on the 10(th) business day following the
commencement of the offer period and, if appropriate, by no later
than 3.30 p.m. (London time) on the 10(th) business day following
the announcement in which any securities exchange offeror is first
identified. Relevant persons who deal in the relevant securities of
the offeree company or of a securities exchange offeror prior to
the deadline for making an Opening Position Disclosure must instead
make a Dealing Disclosure.
Under Rule 8.3(b) of the Code, any person who is, or becomes,
interested in 1% or more of any class of relevant securities of the
offeree company or of any securities exchange offeror must make a
Dealing Disclosure if the person deals in any relevant securities
of the offeree company or of any securities exchange offeror. A
Dealing Disclosure must contain details of the dealing concerned
and of the person's interests and short positions in, and rights to
subscribe for, any relevant securities of each of (i) the offeree
company and (ii) any securities exchange offeror(s), save to the
extent that these details have previously been disclosed under Rule
8. A Dealing Disclosure by a person to whom Rule 8.3(b) applies
must be made by no later than 3.30 p.m. (London time) on the
business day following the date of the relevant dealing.
If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
interest in relevant securities of an offeree company or a
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree
company and by any offeror and Dealing Disclosures must also be
made by the offeree company, by any offeror and by any persons
acting in concert with any of them (see Rules 8.1, 8.2 and
8.4).
Details of the offeree and offeror companies in respect of whose
relevant securities Opening Position Disclosures and Dealing
Disclosures must be made can be found in the Disclosure Table on
the Panel's website at www.thetakeoverpanel.org.uk, including
details of the number of relevant securities in issue, when the
offer period commenced and when any offeror was first identified.
You should contact the Panel's Market Surveillance Unit on +44
(0)20 7638 0129 if you are in any doubt as to whether you are
required to make an Opening Position Disclosure or a Dealing
Disclosure.
In accordance with Rule 2.9 of the Code, Earthport confirms that
as at the close of business on 24 December 2018 (being the last
Business Day before the date of this Announcement) its issued
ordinary share capital consisted of 623,500,354 ordinary shares of
10 pence each. The International Securities Identification Number
for Earthport's ordinary shares is GB00B0DFPF10.
Information relating to Earthport Shareholders
Please be aware that addresses, electronic addresses and certain
other information provided by Earthport Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from Earthport may be provided to Bidco during the
Offer Period as required under Section 4 of Appendix 4 to the Code
to comply with Rule 2.11(c) of the Code.
Publication on website and hard copies
This Announcement and the documents required to be published
pursuant to Rule 26.1 of the Code will be available free of charge,
subject to certain restrictions relating to persons resident in
Restricted Jurisdictions, on Earthport's website at
www.earthport.com and on Visa's website at investor.visa.com by no
later than 12.00 noon (London time) on the Business Day following
this Announcement.
Neither the content of any website referred to in this
Announcement nor the content of any website accessible from
hyperlinks is incorporated into, or forms part of, this
Announcement.
Earthport Shareholders may request a hard copy of this
Announcement by contacting Goldman Sachs International on +44(0) 20
7774 1000. You may also request that all future documents,
announcements and information to be sent to you in relation to the
Offer should be in hard copy form.
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.
APPIX I
CONDITIONS AND FURTHER TERMS OF THE OFFER
Conditions and Certain Further Terms of the Scheme and the
Proposed Acquisition
A. Conditions to the Scheme and Proposed Acquisition
The Proposed Acquisition will be conditional upon the Scheme
becoming unconditional and becoming effective, subject to the
provisions of the Code, by no later than 30 September 2019 or such
later date (if any) as Bidco and Earthport may, with the consent of
the Panel, agree and (if required) the Court may approve.
Scheme approval
1. The Scheme will be conditional upon:
(a) approval of the Scheme at the Court Meeting (or at any
adjournment thereof, provided that the Court Meeting may not be
adjourned beyond the 22(nd) day after the expected date of the
Court Meeting to be set out in the Scheme Document in due course or
such later date (if any) as Bidco and Earthport may agree) by a
majority in number of the Scheme Shareholders present and voting,
either in person or by proxy, representing three-quarters or more
in value of the Scheme Shares held by those Scheme
Shareholders;
(b) all resolutions in connection with or required to approve
and implement the Scheme as set out in the notice of the General
Meeting (including, without limitation, the Special Resolution)
being duly passed by the requisite majority at the General Meeting
(or at any adjournment thereof, provided that the General Meeting
may not be adjourned beyond the 22(nd) day after the expected date
of the General Meeting to be set out in the Scheme Document in due
course or such later date (if any) as Bidco and Earthport may
agree); and
(c) the sanction of the Scheme without modification or with
modification on terms acceptable to Bidco and Earthport, provided
that the Scheme Court Hearing may not be adjourned beyond the
22(nd) day after the expected date of the Scheme Court Hearing to
be set out in the Scheme Document in due course or such later date
(if any) as Bidco and Earthport may agree) and the delivery of a
copy of the Court Order to the Registrar of Companies.
In addition, Bidco and Earthport have agreed that the Proposed
Acquisition will be conditional upon the following Conditions and,
accordingly, the necessary actions to make the Scheme effective
will not be taken unless such conditions (as amended, if
appropriate) have been satisfied or, where relevant, waived:
Competition and Markets Authority clearance
2. Without limitation to Condition 5 below:
(a) the Competition and Markets Authority having indicated, in
terms satisfactory to Bidco, that the Competition and Markets
Authority or, as the case may be, the Secretary of State for
Business, Energy and Industrial Strategy does not intend to refer
the proposed acquisition of Earthport by Bidco, or any matters
arising from that proposed acquisition, to the Chair of the
Competition and Markets Authority for the constitution of a group
under Schedule 4 to the Enterprise and Regulatory Reform Act
2013;
(b) all appropriate time periods (including any extensions of
such time periods) for any person to apply for a review of any
decision taken by the Competition and Markets Authority or, as the
case may be, the Secretary of State for Business, Energy and
Industrial Strategy under paragraph 2(a) above having expired or
lapsed (as appropriate) without any such application for review
having been made; and
(c) in the event that any Member State of the European Union
requests a referral to the European Commission pursuant to Article
22(1) of the EC Merger Regulation to review all or part of the
transaction and such a request being accepted either:
(i) the European Commission having declared the transaction to
be compatible with the common market pursuant to Article 6(1)(b) of
the EC Merger Regulation applied directly or pursuant to Article
22(4) first subparagraph of the EC Merger Regulation in respect of
all parts of the transaction which were the subject of such a
request; or
(ii) all parts of the transaction which were the subject of the
request having been deemed compatible with the common market
pursuant to Article 10(6) of the EC Merger Regulation applied
directly or pursuant to Article 22(4) first subparagraph of the EC
Merger Regulation.
Other regulatory approvals
3. The Financial Conduct Authority having given notice in
writing in accordance with section 189(4) or, if applicable, 189(7)
of FSMA that it has determined to approve the acquisition
unconditionally, or subject to conditions satisfactory to Bidco or,
absent such notice, the FCA being treated as having approved the
acquisition of control by Bidco by virtue of section 189(6)
FSMA.
4. In the event that Earthport ceases to be able to exercise its
passport rights under the Payment Services Directive as a result of
the United Kingdom ceasing to be a member state of the European
Union without having entered into the EU Withdrawal Agreement, a
Competent Authority having authorised Earthport Europe or another
member of the Earthport Group as a payment institution and Bidco as
the holder of a qualifying holding in Earthport Europe or such
other member of the Earthport Group.
General Third Party clearances
5. All notifications to and filings with, Third Parties which
are necessary or are reasonably considered appropriate by Bidco
having been made, all appropriate waiting and other time periods
(including any extensions of such waiting and other time periods)
under any applicable legislation or regulation of any relevant
jurisdiction having expired, lapsed or been terminated (as
appropriate) and all statutory or regulatory obligations in any
relevant jurisdiction having been complied with in each case in
connection with the Scheme or Proposed Acquisition or the
acquisition or proposed acquisition of any shares or other
securities in, or control or management of, Earthport or any other
member of the Wider Earthport Group by any member of the Wider
Bidco Group or the carrying on by any member of the Wider Earthport
Group of any material aspect of its business;
6. No Third Party having intervened (as defined below) and there
not continuing to be outstanding any statute, regulation or order
of any Third Party in each case which is or is likely to be
material in the context of the Wider Bidco Group or Wider Earthport
Group or the Proposed Acquisition which would or might reasonably
be expected to:
(a) make the Scheme or the Proposed Acquisition or, in each
case, its implementation or the acquisition or proposed acquisition
by Bidco or any member of the Wider Bidco Group of any shares or
other securities in, or control or management of, Earthport or any
member of the Wider Earthport Group void, illegal or unenforceable
in any jurisdiction, or otherwise directly or indirectly materially
restrain, prevent, prohibit, restrict or delay the same or impose
additional material conditions or obligations with respect to the
Scheme or the Proposed Acquisition or such acquisition, or
otherwise materially impede, challenge or interfere with the Scheme
or Proposed Acquisition or such acquisition, or require material
amendment to the terms of the Scheme or Proposed Acquisition or the
acquisition or proposed acquisition of any Earthport Shares or the
acquisition of control or management of Earthport or the Wider
Earthport Group by Bidco or any member of the Wider Bidco
Group;
(b) materially limit or delay, or impose any material
limitations on, the ability of any member of the Wider Bidco Group
or any member of the Wider Earthport Group to acquire or to hold or
to exercise effectively, directly or indirectly, all or any rights
of ownership in respect of shares or other securities in, or to
exercise voting or management control over, any member of the Wider
Earthport Group or any member of the Wider Bidco Group;
(c) require, prevent or materially delay the divestiture or
materially alter the terms envisaged for any proposed divestiture
by any member of the Wider Bidco Group of any shares or other
securities in Earthport;
(d) require, prevent or materially delay the divestiture or
alter the terms envisaged for any proposed divestiture by any
member of the Wider Bidco Group or by any member of the Wider
Earthport Group of all or any portion of their respective
businesses, assets or properties or materially limit the ability of
any of them to conduct any of their respective businesses or to own
or control any of their respective assets or properties or any part
thereof;
(e) except pursuant to sections 974 to 991 of the Companies Act,
require any member of the Wider Bidco Group or of the Wider
Earthport Group to acquire, or to offer to acquire, any shares or
other securities (or the equivalent) in any member of either group
owned by any third party;
(f) materially limit the ability of any member of the Wider
Bidco Group or of the Wider Earthport Group to conduct or integrate
or co--ordinate its business, or any part of it, with the
businesses or any part of the businesses of any other member of the
Wider Bidco Group or of the Wider Earthport Group;
(g) result in any member of the Wider Earthport Group or the
Wider Bidco Group ceasing to be able to carry on business under any
name under which it presently does so; or
(h) otherwise materially adversely affect any or all of the
business, assets, profits, financial or trading position or
prospects of any member of the Wider Earthport Group or of the
Wider Bidco Group,
and all applicable waiting and other time periods during which
any Third Party could intervene under the laws of any relevant
jurisdiction having expired, lapsed or been terminated;
7. All Authorisations which are necessary or are reasonably
considered necessary or appropriate by Bidco in any relevant
jurisdiction for or in respect of the Scheme or Proposed
Acquisition or the acquisition or proposed acquisition of any
shares or other securities in, or control or management of,
Earthport or any other member of the Wider Earthport Group by any
member of the Wider Bidco Group or the carrying on by any member of
the Wider Earthport Group of its business having been obtained, in
terms and in a form reasonably satisfactory to Bidco, from all
appropriate Third Parties or from any persons or bodies with whom
any member of the Wider Earthport Group has entered into
contractual arrangements in each case where the absence of such
Authorisation would have a material adverse effect on the Earthport
Group taken as a whole and all such Authorisations remaining in
full force and effect and there being no notice or intimation of
any intention to revoke, suspend, restrict, modify or not to renew
any of the same;
Certain matters arising as a result of any arrangement,
agreement etc.
8. Since 30 June 2018 and except as disclosed in Earthport's
annual report and accounts for the year then ended or as publicly
announced by Earthport prior to Announcement Date (by the delivery
of an announcement to a Regulatory Information Service), there
being no provision of any arrangement, agreement, licence, permit,
franchise or other instrument to which any member of the Wider
Earthport 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 circumstance, which, in each case as a consequence of the
Scheme or Proposed Acquisition or the acquisition or proposed
acquisition of any shares or other securities in, or control of,
Earthport or any other member of the Wider Earthport Group by any
member of the Wider Bidco Group or otherwise, could or might
reasonably be expected to result in, (in any case to an extent
which is or would be material in the context of the Wider Earthport
Group taken as a whole):
(a) any monies borrowed by or any other indebtedness or
liabilities (actual or contingent) of, or any grant available to,
any member of the Wider Earthport Group being or becoming repayable
or capable of being declared repayable immediately or prior to its
stated maturity date or repayment date or the ability of any member
of the Wider Earthport Group to borrow monies or incur any
indebtedness being withdrawn or inhibited or becoming capable of
being withdrawn or inhibited;
(b) the creation or enforcement of any mortgage, charge or other
security interest over the whole or any part of the business,
property, assets or interests of any member of the Wider Earthport
Group or any such mortgage, charge or other security interest
(wherever created, arising or having arisen) becoming
enforceable;
(c) any such arrangement, agreement, licence, permit, franchise
or instrument, or the rights, liabilities, obligations or interests
of any member of the Wider Earthport Group thereunder, being, or
becoming capable of being, terminated or adversely modified or
affected or any adverse action being taken or any obligation or
liability arising thereunder;
(d) any asset or interest of any member of the Wider Earthport
Group being or falling to be disposed of or charged or ceasing to
be available to any member of the Wider Earthport Group or any
right arising under which any such asset or interest could be
required to be disposed of or could cease to be available to any
member of the Wider Earthport Group otherwise than in the ordinary
course of business;
(e) any member of the Wider Earthport Group ceasing to be able
to carry on business under any name under which it presently does
so;
(f) the creation of material liabilities (actual or contingent)
by any member of the Wider Earthport Group other than in the
ordinary course of business;
(g) the rights, liabilities, obligations or interests of any
member of the Wider Earthport Group under any such arrangement,
agreement, licence, permit, franchise or other instrument or the
interests or business of any such member in or with any other
person, firm, company or body (or any arrangement or arrangements
relating to any such interests or business) being terminated or
adversely modified or affected; or
(h) the financial or trading position or the prospects or the
value of any member of the Wider Earthport Group being prejudiced
or adversely affected,
and no event having occurred which, under any provision of any
such arrangement, agreement, licence, permit or other instrument,
could result in any of the events or circumstances which are
referred to in paragraphs (a) to (h) of this Condition 8 in any
case to an extent which is or would be material in the context of
the Earthport Group taken as a whole;
9. Since 30 June 2018 and except as disclosed in Earthport's
annual report and accounts for the year then ended or as otherwise
publicly announced by Earthport prior to Announcement Date (by the
delivery of an announcement to a Regulatory Information Service) no
member of the Wider Earthport Group having:
(a) purchased or redeemed or repaid any of its own shares or
other securities or reduced or made any other change to any part of
its share capital to an extent which (other than in the case of
Earthport) is material in the context of the Earthport Group taken
as a whole;
(b) recommended, declared, paid or made any dividend or other
distribution whether payable in cash or otherwise or made any bonus
issue (other than to Earthport or a wholly--owned subsidiary of
Earthport);
(c) except as between Earthport and its wholly-owned
subsidiaries or between such wholly-owned subsidiaries made or
authorised any change in its loan capital;
(d) (other than any acquisition or disposal in the ordinary
course of business or a transaction between Earthport and a
wholly--owned subsidiary of Earthport or between such wholly-owned
subsidiaries) merged with, demerged or acquired any body corporate,
partnership or business or acquired or disposed of or transferred,
mortgaged, charged or created any security interest over any assets
or any right, title or interest in any assets (including shares in
any undertaking and trade investments) or authorised the same (in
each case to an extent which is material in the context of the
Earthport Group taken as a whole);
(e) issued or authorised the issue of, or made any change in or
to, any debentures or (except in the ordinary course of business or
except as between Earthport and its wholly-owned subsidiaries or
between such wholly-owned subsidiaries) incurred or increased any
indebtedness or liability (actual or contingent) which in any case
is material in the context of the Earthport Group taken as a
whole;
(f) entered into, varied, or authorised any agreement,
transaction, arrangement or commitment (whether in respect of
capital expenditure or otherwise) which:
(i) is of a long term, onerous or unusual nature or magnitude or
which could involve an obligation of such nature or magnitude;
or
(ii) could restrict the business of any member of the Wider Earthport Group; or
(iii) is other than in the ordinary course of business,
and which in any case is material in the context of the
Earthport Group taken as a whole;
(g) except as between Earthport and its wholly-owned
subsidiaries or between such wholly-owned subsidiaries entered
into, implemented, effected or authorised any merger, demerger,
reconstruction, amalgamation, scheme, commitment or other
transaction or arrangement in respect of itself or another member
of the Wider Earthport Group otherwise than in the ordinary course
of business which in any case is material in the context of the
Earthport Group taken as a whole;
(h) save as fairly disclosed by any member of the Earthport
Group or any of its professional advisers, including any of its
legal advisers and any of its financial advisers, to a member of
the Bidco Group or any of its professional advisors, including any
of its legal advisers and any of its financial advisers, before the
date of this Announcement, entered into or varied the terms of, any
contract, agreement or arrangement with any of the directors or
senior executives of any member of the Wider Earthport Group;
(i) taken any corporate action or had any legal proceedings
instituted or threatened against it or petition presented or order
made for its winding--up (voluntarily or otherwise), dissolution or
reorganisation or for the appointment of a receiver, administrator,
administrative receiver, trustee or similar officer of all or any
material part of its assets and revenues or any analogous
proceedings in any jurisdiction or appointed any analogous person
in any jurisdiction which in any case is material in the context of
the Earthport Group taken as a whole;
(j) been unable, or admitted in writing that it is unable, to
pay its debts 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 in
any case with a material adverse effect on the Earthport Group
taken as a whole;
(k) waived or compromised any claim ,otherwise than in the
ordinary course of business, which is material in the context of
the Earthport Group taken as a whole;
(l) made any alteration to its memorandum or articles of
association which is material in the context of the Proposed
Acquisition;
(m) made or agreed or consented to:
(i) any material change to:
(A) the terms of the trust deeds constituting the pension
scheme(s) established for its directors, employees or their
dependants; or
(B) the contributions payable to any such scheme(s) or to the
benefits which accrue or to the pensions which are payable
thereunder; or
(C) the basis on which qualification for, or accrual or
entitlement to such benefits or pensions are calculated or
determined; or
(D) the basis upon which the liabilities (including pensions) of
such pension schemes are funded, valued or made,
in each case, which has an effect that is material in the
context of the Earthport Group taken as a whole, or
(ii) any change to the trustees including the appointment of a trust corporation;
(n) save as fairly disclosed by any member of the Earthport
Group or any of its professional advisers, including any of its
legal advisers and any of its financial advisers, to a member of
the Bidco Group or any of its professional advisors, including any
of its legal advisers and any of its financial advisers, before the
date of this Announcement, entered into or varied the terms of, or
made any offer (which remains open for acceptance) to enter into or
vary to a material extent the terms of any contract, service
agreement, commitment or arrangement with any director or senior
executive of any member of the Wider Earthport Group, except for
(in each case) salary increases, bonuses or variations of terms in
the ordinary course;
(o) save as fairly disclosed by any member of the Earthport
Group or any of its professional advisers, including any of its
legal advisers and any of its financial advisers, to a member of
the Bidco Group or any of its professional advisors, including any
of its legal advisers and any of its financial advisers, before the
date of this Announcement, proposed, agreed to provide or modified
the terms of any share option scheme, incentive scheme, employee
ownership plan or other benefit relating to the employment or
termination of employment of any person employed by the Wider
Earthport Group in a manner which is material in the context of the
Earthport Group taken as a whole; or
(p) entered into any agreement, commitment or arrangement or
passed any resolution or made any offer (which remains open for
acceptance) or proposed or announced any intention with respect to
any of the transactions, matters or events referred to in this
Condition 9;
No adverse change, litigation or regulatory enquiry
10. Since 30 June 2018 and except as disclosed in Earthport's
annual report and accounts for the year then ended or as otherwise
publicly announced by Earthport prior to Announcement Date (by the
delivery of an announcement to a Regulatory Information
Service):
(a) there having been no adverse change or deterioration in the
business, assets, financial or trading positions or profit or
prospects of any member of the Wider Earthport Group which in any
case is material in the context of the Earthport Group taken as a
whole, save in consequence of the Proposed Acquisition or of the
process leading to the Proposed Acquisition;
(b) no contingent or other liability of any member of the Wider
Earthport Group having arisen or become apparent or increased which
in any case is material in the context of the Earthport Group taken
as a whole;
(c) no litigation, arbitration proceedings, prosecution or other
legal proceedings to which any member of the Wider Earthport Group
is or may become a party (whether as plaintiff, defendant or
otherwise) having been threatened, announced, implemented or
instituted by or against or remaining outstanding against or in
respect of any member of the Wider Earthport Group which in any
case would be likely to have a material adverse effect in the
context of the Earthport Group taken as a whole; and
(d) (other than as a result of the Proposed Acquisition) no
enquiry or investigation by, or complaint or reference to, any
Third Party having been threatened, announced, implemented,
instituted by or against or remaining outstanding against or in
respect of any member of the Wider Earthport Group which in any
case might reasonably be expected to have an adverse effect that is
material in the context of the Earthport Group taken as a
whole;
(e) other than with the consent of Bidco, no action having been
taken or proposed by any member of the Wider Earthport Group, or
having been approved by Earthport Shareholders or consented to by
the Panel, which falls or would fall within or under Rule 21.1 of
the Code or which otherwise is or would be materially inconsistent
with the implementation by Bidco of the Proposed Acquisition on the
basis contemplated as at the date of this announcement; and
(f) no member of the Wider Earthport Group having conducted its
business in breach of any applicable laws and regulations which in
any case is material in the context of the Earthport Group taken as
a whole;
No discovery of certain matters
11. Bidco not having discovered:
(a) that any financial or business or other information
concerning the Wider Earthport Group disclosed at any time by or on
behalf of any member of the Wider Earthport Group, whether
publicly, to any member of the Wider Bidco Group or to any of their
advisers or otherwise, is misleading or contains any
misrepresentation of fact or omits to state a fact necessary to
make any information contained therein not misleading to an extent
which in any case is material in the context of the Earthport Group
taken as a whole;
(b) that any member of the Wider Earthport Group is subject to
any liability (actual or contingent) which is not disclosed in
Earthport's annual report and accounts for the financial year ended
30 June 2018 and which in any case is material in the context of
the Earthport Group taken as a whole; or
(c) any information which affects the import of any information
disclosed at any time by or on behalf of any member of the Wider
Earthport Group to an extent which is material in the context of
the Earthport Group taken as a whole;
Anti-corruption, sanctions and criminal property
12. Bidco not having discovered that:
(a) (i) any past or present member, director, officer or
employee of the Wider Earthport Group is or has at any time engaged
in any activity, practice or conduct which would constitute an
offence under the Bribery Act 2010, the US Foreign Corrupt
Practices Act of 1977, Part 3 of the Criminal Finances Act 2017 or
any other anti-corruption or anti-tax evasion legislation
applicable to the Wider Earthport Group or (ii) any person that
performs or has performed services for or on behalf of the Wider
Earthport Group is or has at any time engaged in any activity,
practice or conduct in connection with the performance of such
services which would constitute an offence under the Bribery Act
2010, the US Foreign Corrupt Practices Act of 1977, Part 3 of the
Criminal Finances Act 2017 or any other applicable anti-corruption
or anti-tax evasion legislation; or
(b) any asset of any member of the Wider Earthport Group
constitutes criminal property as defined by section 340(3) of the
Proceeds of Crime Act 2002 (but disregarding paragraph (b) of that
definition); or
(c) any past or present member, director, officer or employee of
the Earthport Group, or any other person for whom any such person
may be liable or responsible, has engaged in any business with,
made any investments in, made any funds or assets available to or
received any funds or assets from: (i) any government, entity or
individual in respect of which US or European Union persons, or
persons operating in those territories, are prohibited from
engaging in activities or doing business, or from receiving or
making available funds or economic resources, by US or European
Union laws or regulations, including the economic sanctions
administered by the United States Office of Foreign Assets Control,
or HM Treasury & Customs; or (ii) any government, entity or
individual targeted by any of the economic sanctions of the United
Nations, the United States, the European Union or any of its member
states; or
(d) a member of the Earthport Group has engaged in any
transaction which would cause Bidco to be in breach of any law or
regulation upon its acquisition of Earthport, including the
economic sanctions of the United States Office of Foreign Assets
Control, or HM Treasury & Customs, or any government, entity or
individual targeted by any of the economic sanctions of the United
Nations, the United States, the European Union or any of its member
states.
For the purpose of these Conditions:
(i) "Third Party" means any central bank, government, government
department or governmental, quasi--governmental, supranational,
statutory, regulatory, environmental or investigative body,
authority (including any national or supranational anti--trust or
merger control authority), court, trade agency, association,
institution or professional or environmental body or any other
person or body whatsoever in any relevant jurisdiction, including,
for the avoidance of doubt, the Panel;
(ii) a Third Party shall be regarded as having "intervened" if
it has decided to take, institute, implement or threaten any
action, proceeding, suit, investigation, enquiry or reference or
made, proposed or enacted any statute, regulation, decision or
order or taken any measures or other steps or required any action
to be taken or information to be provided or otherwise having done
anything and "intervene" shall be construed accordingly; and
(iii) "Authorisations" means authorisations, orders, grants,
recognitions, determinations, certificates, confirmations,
consents, licences, clearances, provisions and approvals, in each
case, of a Third Party.
B. Waiver and invocation of the Conditions
The Scheme will not become effective unless the Conditions have
been fulfilled or (to the extent capable of waiver) waived or,
where appropriate, have been determined by Bidco to be or remain
satisfied by no later than 30 September 2019 (or such later date as
Bidco and Earthport may, with the consent of the Panel, agree and
(if required) the Court may allow).
Subject to the requirements of the Panel, Bidco reserves the
right in its sole discretion to waive:
(a) those parts of all or any of the Conditions set out in
paragraph 1 of Part A of this Appendix I relating to the deadlines
for the Court Meeting, General Meeting and/or the Scheme Court
Hearing. If any such deadline is not met, Bidco shall make an
Announcement by 8.00 a.m. on the Business Day following such
deadline confirming whether it has invoked the relevant Condition,
waived the relevant deadlines or agreed with Earthport to extend
the relevant deadline; and
(b) in whole or in part, all or any of Conditions 2 and 4 to 12 in Part A above.
Bidco shall be under no obligation to waive (if capable of
waiver), to determine to be or remain satisfied or to treat as
fulfilled any of Conditions in Part A above by a date earlier than
the latest date specified above for the fulfilment of that
condition, notwithstanding that the other Conditions may at such
earlier date have been waived or fulfilled and that there are, at
such earlier date, no circumstances indicating that any Condition
may not be capable of fulfilment.
The Proposed Acquisition will lapse if the acquisition of
Earthport by Bidco is referred to the Chair of the Competition and
Markets Authority for the constitution of a group under Schedule 4
to the Enterprise and Reform Act 2013 before the date of the Court
Meeting.
If the Panel requires Bidco to make an offer or offers for any
Earthport Shares under the provisions of Rule 9 of the Code, Bidco
may make such alterations to the Conditions as are necessary to
comply with the provisions of that Rule.
Each of the Conditions shall be regarded as a separate Condition
and shall not be limited by reference to any other Condition.
C. Implementation by way of Takeover Offer
Bidco reserves the right to elect to implement the Proposed
Acquisition by way of a Takeover Offer, subject to the Panel's
consent. In such event, such Takeover Offer will be implemented on
the same terms and conditions, so far as applicable, as those which
would apply to the Scheme subject to appropriate amendments,
including (without limitation) an acceptance condition set at 75
per cent. (or such other percentage (being more than 50 per cent.)
as Bidco may decide (subject to the Panel's consent) (i) in nominal
value of the shares to which such Takeover Offer relates; and (ii)
of the voting rights attaching to those shares.
D. Certain further terms of the Proposed Acquisition
Earthport Shares will be acquired by Bidco fully paid and free
from all liens, equitable interests, charges, encumbrances, rights
of pre-emption and other third party rights of any nature
whatsoever and together with all rights attaching to them as at the
date of this Announcement or subsequently attaching or accruing to
them, including the right to receive and retain, in full, all
dividends and other distributions (if any) declared, made, paid or
payable, or any other return of capital made, on or after the
Announcement Date.
If, on or after the Announcement Date, any dividend and/or other
distribution and/or other return of capital is declared, made or
paid or becomes payable in respect of the Earthport Shares, Bidco
reserves the right (without prejudice to any right of Bidco to
invoke Condition 9(b) in Part A of this Appendix I), to reduce the
consideration payable under the terms of the Offer for the
Earthport Shares by an amount up to the amount of such dividend
and/or distribution and/or return of capital, in which case any
reference in this Announcement or in the Scheme Document to the
consideration payable under the terms of the Offer will be deemed
to be a reference to the consideration as so reduced. To the extent
that any such dividend and/or distribution and/or other return of
capital is declared, made or paid or is payable and it is: (i)
transferred pursuant to the Proposed Acquisition on a basis which
entitles Bidco to receive the dividend or distribution and to
retain it; or (ii) cancelled, the consideration payable under the
terms of the Offer will not be subject to change in accordance with
this paragraph. Any exercise by Bidco 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 Offer.
The Offer will be subject, inter alia, to the Conditions and
certain further terms which are set out in this Appendix and those
terms which will be set out in the Scheme Document and such further
terms as may be required to comply with the AIM Rules and the
provisions of the Code.
The availability of the Offer to persons not resident in the
United Kingdom may be affected by the laws of the relevant
jurisdiction. Any persons who are subject to the laws of any
jurisdiction other than the United Kingdom should inform themselves
about and observe any applicable requirements. Further information
in relation to Overseas Shareholders will be contained in the
Scheme Document.
This announcement and any rights or liabilities arising
hereunder, the Proposed Acquisition, the Scheme, and any proxies
will be governed by English law and be subject to the jurisdiction
of the courts of England and Wales. The Scheme will be subject to
the applicable requirements of the Code, the Panel, AIM and the
FCA.
APPIX II
SOURCES OF INFORMATION AND BASES OF CALCULATION
i. The value placed by the Offer on the existing issued ordinary
share capital of Earthport is based on 623,500,354 Earthport Shares
in issue on 24 December 2018, being the last dealing day prior to
the date of this Announcement.
ii. The value of the Offer on a fully diluted basis has been
calculated on the basis of 623,500,354 Earthport Shares in issue on
24 December 2018 and the net dilutive impact of an additional
36,076,682 Earthport Shares that may be issued pursuant to the
Earthport Share Plans and Warrants. This additional number of
Earthport Shares has been calculated using the treasury method on
the basis of the maximum number of Earthport Shares that may be
issued under the Earthport Share Plans (less 3,646,137 Earthport
Shares held by the Earthport 2011 Employee Share Ownership Trust
No. 2 for the purposes of the Earthport Share Plans).
iii. Unless otherwise stated, the financial information on
Earthport is extracted from Earthport's Annual Report and Accounts
for the year ended 30 June 2018.
iv. The Closing Price on 24 December 2018 is taken from the
Daily Official List.
v. Volume-weighted average prices have been derived from
Bloomberg and have been rounded to the nearest single decimal
place.
vi. The reference to the implied revenue multiple is based on
the value of the fully-diluted share capital of Earthport (as per
note ii above) at the offer price less Earthport's net cash as at
30 June 2018 of GBP28.3 million, all divided by Earthport's
revenues for the 2018 financial year of GBP31.9m.
APPIX III
IRREVOCABLE UNDERTAKINGS
Bidco has received irrevocable undertakings to accept the Offer
in respect of total of 108,772,265 Earthport Shares (representing,
in aggregate, approximately 17.45 per cent. of Earthport Shares in
issue on 24 December 2018 (being the last Business Day before the
date of this Announcement)).
Market soundings, as defined in the Market Abuse Regulation
No.596/2014, were taken in respect of the Offer with the result
that certain persons became aware of inside information, as
permitted by the Market Abuse Regulation No.596/2014. That inside
information is set out in this announcement. Therefore, those
persons that received inside information in a market sounding are
no longer in possession of inside information relating to Earthport
and Visa and their respective securities.
Irrevocable Undertakings given by Earthport Directors
Name of Earthport Number of Earthport Percentage of Earthport's Options / awards
Director Shares in respect issued ordinary
of which undertaking share capital
is given
Sunil Sabhawal 727,000 0.12% -
---------------------- -------------------------- -----------------
Vinode Bhesham
Ramgopal - - 800,000
---------------------- -------------------------- -----------------
Amanda Jo Mesler - - 8,500,000
---------------------- -------------------------- -----------------
Terence John Williams 4,488,312 0.72% 800,000
---------------------- -------------------------- -----------------
Alexander Filshie - - 1,000,000
---------------------- -------------------------- -----------------
Total 5,215,312 0.84% 11,100,000
---------------------- -------------------------- -----------------
Bidco has received irrevocable undertakings from the Earthport
Directors in respect of their own beneficial holdings of Earthport
Shares, representing approximately 0.84 per cent. of the existing
issued ordinary share capital of Earthport:
a) to cast (or procure the casting of) all voting rights
attaching to such Earthport Shares in favour of the Scheme at the
Court Meeting and in favour of the Resolutions at the General
Meeting; and
b) if the Offer is structured as a Takeover Offer, to accept or
procure the acceptance of such Takeover Offer in respect of all
such Earthport Shares.
The irrevocable undertakings from the Earthport Directors will
only lapse and cease to be binding if: (i) Bidco announces that it
does not intend to make or proceed with the Offer and no new,
revised or replacement Takeover Offer or Scheme is announced, in
accordance with Rule 2.7 of the Code at the same time; or (ii) the
Takeover Offer or Scheme lapses or is withdrawn in a manner which
is permitted by the Panel and no new, revised or replacement Scheme
or Takeover Offer has been announced, in accordance with Rule 2.7
of the Code, in its place or is announced, in accordance with Rule
2.7 of the Code, at the same time.
Irrevocable Undertakings given by other shareholders
Name Number of Earthport Shares Percentage of Earthport's
in respect of which undertaking issued ordinary share
is given capital
OppenheimerFunds,
Inc. 100,566,655 16.13%
--------------------------------- --------------------------
OFI Global Institutional,
Inc. 2,990,298 0.48%
--------------------------------- --------------------------
Total 103,556,953 16.61%
--------------------------------- --------------------------
Bidco has received an irrevocable undertaking from
OppenheimerFunds, Inc. and OFI Global Institutional, Inc. as
discretionary investment advisers in respect of 103,556,953
Earthport Shares, in respect of which it is able to exercise
discretionary and voting control, representing approximately 16.61
per cent. of the existing issued ordinary share capital of
Earthport:
a) to cast (or procure the casting of) all voting rights
attaching to such Earthport Shares in favour of the Scheme at the
Court Meeting and in favour of the Resolutions at the General
Meeting; and
b) if the Offer is structured as a Takeover Offer, to accept or
procure the acceptance of such Takeover Offer in respect of all
such Earthport Shares.
The irrevocable undertakings from OppenheimerFunds, Inc. and OFI
Global Institutional, Inc. will lapse and cease to be binding if :
(i) the Takeover Offer documents or, as the case may be, Scheme
documents are not released by 5pm on 24 January 2019 or such other
date as the Panel may agree; (ii) the Proposed Acquisition has not
been completed by 5pm on 30 June 2019; (iii) Bidco announces that
it does not intend to make or proceed with the Offer and no new,
revised or replacement Takeover Offer or Scheme is announced in
accordance with Rule 2.7 of the Code at the same time; (iv) the
Takeover Offer or Scheme lapses or is withdrawn in a manner which
is permitted by the Panel and no new, revised or replacement Scheme
or Takeover Offer has been announced, in accordance with Rule 2.7
of the Code, in its place or is announced, in accordance with Rule
2.7 of the Code, at the same; or (v) at 11.59 p.m. on the
fourteenth day following the date of announcement of Higher
Competing Offer (as defined below) if a person other than Bidco or
a subsidiary of Bidco or any
person acting in concert with Bidco announces a firm intention
to make an offer (in accordance with Rule 2.7 of the Code) to
acquire the Earthport Shares where the value of the consideration
represents an improvement of at least 10 per cent. over the value
of the consideration available under the Offer as at the date of
this Announcement (a Higher Competing Offer) and prior to that
time, Bidco or a subsidiary of Bidco has not announced a revision
of the terms of the Offer so that the value and consideration under
the Offer represents, in the reasonable opinion of Rothschild &
Co, an improvement on the value of the consideration under the
Higher Competing Offer.
APPIX IV
DEFINITIONS
The following definitions apply throughout this Announcement
unless the context requires otherwise:
"AIM" the market of that name operated
by the London Stock Exchange;
"AIM Rules" the AIM Rules for companies published
by the London Stock Exchange;
"Announcement" this announcement made in accordance
with Rule 2.7 of the Code;
"Announcement Date" 27 December 2018;
"Bidco" Visa International Service Association;
"Board" or "board" the board of directors of the
relevant company;
"Business Day" a day (other than Saturdays,
Sundays and public holidays in
the UK) on which banks are open
for business in the City of London;
"Code" the City Code on Takeovers and
Mergers;
"Closing Price" the closing middle market price
of an Earthport Share on a particular
trading day as derived from the
Daily Official List;
"Companies Act" the Companies Act 2006, as amended;
"Competent Authority" a supervisory authority in the
European Union on or after 29
March 2019 acting in its capacity
as a competent authority for
the purposes of the Payment Services
Directive as implemented in an
European Union Member State;
"Competition and Markets Authority" a UK statutory body established
under the Enterprise and Regulatory
Reform Act 2013;
"Conditions" the conditions to the implementation
of the Proposed Acquisition (including
the Scheme), as set out in Appendix
I to this Announcement and to
be set out in the Scheme Document;
"Confidentiality Agreement" the confidentiality agreement
entered into between Earthport
and Bidco on 4 December 2018;
"Cooperation Agreement" the cooperation agreement entered
into between Earthport and Bidco
on the Announcement Date;
"Court" the High Court of Justice in
England and Wales;
"Court Meeting" the meeting(s) of the Scheme
Shareholders to be convened by
order of the Court pursuant to
section 896 of the Companies
Act, notice of which will be
set out in the Scheme Document,
for the purpose of approving
the Scheme, including any adjournment
thereof;
"Court Order" the order of the Court sanctioning
the Scheme under Part 26 of the
Companies Act;
"CREST" the system for the paperless
settlement of trades in securities
and the holding of uncertificated
securities operated by Euroclear;
"Daily Official List" the Daily Official List published
by 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;
"Deferred Shares" the deferred shares of 7 pence
each in the capital of Earthport;
"Earthport" or the "Company" Earthport Plc;
"Earthport's Articles" the articles of association of
Earthport;
"Earthport Directors" the directors of Earthport;
"Earthport Europe" Earthport Europe B.V.;
"Earthport Group" Earthport and its subsidiary
undertakings and, where the context
permits, each of them;
"Earthport Shareholders" or the holders of Earthport Shares;
"Shareholders"
"Earthport Shares" the existing unconditionally
allotted or issued and fully
paid ordinary shares of 10 pence
each in the capital of Earthport
and any further such ordinary
shares which are unconditionally
allotted or issued before the
Scheme becomes effective;
"Earthport Share Plans" the 2011 Employee Option Plan,
the 2016 Long Term Incentive
Plan, the 2013 Long Term Incentive
Plan as amended in September
2015, the 2013 Long Term Incentive
Plan and the Earthport Joint
Share Ownership Plan;
"EC Merger Regulation" means Council Regulation (EC)
No 139/2004 of 20 January 2004
on the control of concentrations
between undertakings;
"Effective" the Scheme having become effective
pursuant to and in accordance
with its terms;
"Effective Date" the date on which the Scheme
becomes effective;
"Euroclear" Euroclear UK and Ireland Limited;
"EU Withdrawal Agreement" the Agreement on the withdrawal
of the United Kingdom of Great
Britain and Northern Ireland
from the European Union and the
European Atomic Energy Community,
as endorsed by leaders at a special
meeting of the European Council
on 25 November 2018;
"Financial Conduct Authority" the Financial Conduct Authority
or "FCA" in its capacity as the competent
authority for the purposes of
Part VI of the FSMA or, as the
context may require, for the
purposes of the Payment Services
Regulations 2017, including its
successor(s) from time to time;
"Forms of Proxy" the form of proxy for use at
the Court Meeting and the form
of proxy for use at the General
Meeting and "Forms of Proxy"
means either of them;
"FSMA" the Financial Services and Markets
Act 2000 (as amended from time
to time);
"General Meeting" the general meeting of Earthport
Shareholders (including any adjournment
thereof) to be convened in connection
with the Scheme;
"Higher Competing Offer" has the meaning given in Appendix
III;
"London Stock Exchange" the London Stock Exchange plc;
"Longstop Date" 30 September 2019, or such later
date (if any) as Bidco and Earthport
may agree and (if required) the
Panel and the Court may allow;
"Meetings" the Court Meeting and the General
Meeting and "Meeting" means any
of them;
"Member State" a member state of the European
Union from time to time;
"Offer" the recommended cash offer pursuant
to which Bidco will acquire the
entire issued and to be issued
ordinary share capital of Earthport;
"Offer Period" the offer period (as defined
by the Code) relating to Earthport,
which commenced on 27 December
2018;
"Offer Price" the consideration payable under
the Offer in respect of an Earthport
Share;
"Opening Position Disclosure" has the same meaning as in Rule
8 of the Code;
"Overseas Shareholders" Earthport Shareholders (or nominees
of, or custodians or trustees
for Earthport Shareholders) not
resident in, or nationals or
citizens of, the United Kingdom;
"Panel" the Panel on Takeovers and Mergers;
"Payment Services Directive" Directive (EU) 2015/2366 of the
European Parliament and of the
Council of 25 November 2015 on
payment services in the internal
market;
"Placing" the placing of 125,000,000 Earthport
Shares at 20 pence per share
announced on 4 October 2017;
"Proposed Acquisition" the direct or indirect acquisition
of the entire issued and to be
issued ordinary share capital
of Earthport by Bidco (other
than Earthport Shares already
held by Bidco, if any) to be
implemented by way of the Scheme
or (should Bidco so elect, subject
to the consent of the Panel and
subject to the terms of the Cooperation
Agreement) by way of the Takeover
Offer;
"Registrar of Companies" the Registrar of Companies in
England and Wales;
"Regulatory Information Service" any information service authorised
from time to time by the FCA
for the purpose of disseminating
regulatory announcements;
"Relevant Securities" means relevant securities (as
defined in the Code) of Earthport;
"Resolutions" such shareholder resolutions
as are necessary to approve,
implement and effect the Scheme
and the Offer and changes to
Earthport's Articles;
"Restricted Jurisdiction" any jurisdiction where local
laws or regulations may result
in a significant risk of civil,
regulatory or criminal exposure
if information concerning the
Proposed Acquisition is sent
or made available to Earthport
Shareholders in that jurisdiction;
"Scheme" the proposed scheme of arrangement
under Part 26 of the Companies
Act between Earthport and the
Scheme Shareholders, with or
subject to any modification,
addition or condition approved
or imposed by the Court and agreed
by Earthport and Bidco;
"Scheme Court Hearing" the hearing of the Court to sanction
the Scheme;
"Scheme Document" the document to be sent to (among
others) Earthport Shareholders
containing and setting out, amongst
other things, the full terms
and conditions of the Scheme
and containing the notices convening
the Court Meeting and General
Meeting;
"Scheme Record Time" the time and date specified in
the Scheme Document, expected
to be 6.00 p.m. on the business
day immediately prior to the
Effective Date;
"Scheme Shareholders" the holders of Scheme Shares;
"Scheme Shares" all Earthport Shares:
(i) in issue at the date of the
Scheme Document;
(ii) (if any) issued after the
date of the Scheme Document and
before the Scheme Voting Record
Time; and
(iii) (if any) issued at or after
the Scheme Voting Record Time
but on or before the Scheme becoming
effective either on terms that
the original or any subsequent
holders thereof are bound by
the Scheme or in respect of which
such holders are, or shall have
agreed in writing to be, so bound;
"Scheme Voting Record Time" the time and date specified in
the Scheme Document by reference
to which entitlement to vote
on the Scheme will be determined;
"Significant Interest" in relation to an undertaking,
a direct or indirect interest
of 20 per cent. or more of the
total voting rights conferred
by the equity share capital (as
defined in section 548 of the
Companies Act) of such undertaking;
"Special Resolution" the special resolution to be
proposed by Earthport at the
General Meeting in connection
with, amongst other things, the
approval of the Scheme and the
alteration of Earthport's Articles
and such other matters as may
be necessary to implement the
Scheme and the delisting of the
Earthport Shares;
"Takeover Offer" if (with the consent of the Panel
and subject to the terms of the
Cooperation Agreement) Bidco
elects to effect the Proposed
Acquisition by way of a takeover
offer (as defined in Chapter
3 of Part 29 of the Companies
Act), the offer to be made by
or on behalf of Bidco to acquire
the issued and to be issued ordinary
share capital of Earthport on
the terms and subject to the
conditions to be set out in the
related offer document;
"treasury shares" any Earthport Shares held by
Earthport as treasury shares;
"United Kingdom" or "UK" the United Kingdom of Great Britain
and Northern Ireland;
"United States" or "US" the United States of America,
its territories and possessions,
any state of the United States
of America, the District of Columbia
and all other areas subject to
its jurisdiction and any political
sub-division thereof;
"US Exchange Act" the United States Securities
Exchange Act of 1934, as amended,
and the rules and regulations
promulgated thereunder;
"Visa" Visa Inc.;
"Visa Group" Visa Inc. and its subsidiary
undertakings;
"Warrants" the warrants to subscribe for
Earthport Shares granted pursuant
to the Warrant Instrument;
"Warrantholder" the holder of the Warrants;
"Warrant Instrument" the warrant to subscribe for
shares dated 18 December 2013
made by Earthport;
"Wider Bidco Group" Visa and the subsidiaries and
subsidiary undertakings of Visa
and associated undertakings (including
any joint venture, partnership,
firm or company in which any
member of the Visa Group is interested
or any undertaking in which Visa
and such undertakings (aggregating
their interests) have a Significant
Interest); and
"Wider Earthport Group" Earthport and the subsidiaries
and subsidiary undertakings of
Earthport and associated undertakings
(including any joint venture,
partnership, firm or company
in which any member of the Earthport
Group is interested or any undertaking
in which Earthport and such undertakings
(aggregating their interests)
have a Significant Interest.
For the purposes of this Announcement, "subsidiary", "subsidiary
undertaking", "undertaking" and "associated undertaking" have the
respective meanings given thereto by the Companies Act.
All references to "pounds", "pounds Sterling", "Sterling",
"GBP", "GBP", "pence", "penny" and "p" are to the lawful currency
of the United Kingdom.
References to an enactment include references to that enactment
as amended, replaced, consolidated or re-enacted by or under any
other enactment before or after the date of this announcement.
All the times referred to in this Announcement are London times
unless otherwise stated.
References to the singular include the plural and vice
versa.
This information is provided by RNS, the news service of the
London Stock Exchange. RNS is approved by the Financial Conduct
Authority to act as a Primary Information Provider in the United
Kingdom. Terms and conditions relating to the use and distribution
of this information may apply. For further information, please
contact rns@lseg.com or visit www.rns.com.
END
OFFFKODBDBDKOBB
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