TIDMKBC
RNS Number : 5497L
Aspen Technology, Inc.
12 January 2016
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY IN, INTO OR FROM ANY JURISDICTION
WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OF
SUCH JURISDICTION
For immediate release
12 January 2016
RECOMMENDED CASH ACQUISITION
of
KBC Advanced Technologies plc
by
ATI Global Optimisation Ltd (a wholly-owned subsidiary of Aspen
Technology, Inc.)
(to be implemented by way of a scheme of arrangement under Part
26 of the Companies Act)
Summary
-- The boards of AspenTech and KBC are pleased to announce that
they have agreed a recommended all cash acquisition by Global
Optimisation (a wholly-owned subsidiary of AspenTech) of the entire
issued and to be issued share capital of KBC. It is intended that
the Acquisition be implemented by means of a Court-sanctioned
scheme of arrangement under Part 26 of the Companies Act.
-- Under the terms of the Acquisition, KBC Shareholders will be entitled to receive:
for each KBC Share 185 pence in cash
-- The Acquisition values the entire issued and to be issued
share capital of KBC at approximately GBP158 million on a fully
diluted basis.
-- The Acquisition price represents a premium of approximately:
o 49.2 per cent. to the Closing Price per KBC Share of 124 pence
on 11 January 2016 (being the last Business Day prior to this
announcement);
o 37.2 per cent. to the volume weighted average Closing Price
per KBC Share of 135 pence for the one-month period ended on 11
January 2016 (being the last Business Day prior to this
announcement); and
o 40.7 per cent. to the volume weighted average Closing Price
per KBC Share of 132 pence for the three-month period ended on 11
January 2016 (being the last Business Day prior to this
announcement).
-- The consideration payable under the terms of the Acquisition
is being financed by cash from AspenTech's balance sheet and short
term borrowings arranged for the purpose. AspenTech intends that
such borrowings will be replaced by a revolving credit facility
following the date of this announcement.
-- It is intended that the Acquisition will be implemented by
means of a Court-sanctioned scheme of arrangement under Part 26 of
the Companies Act (or, if AspenTech elects, with the consent of the
Takeover Panel, a Takeover Offer). The Acquisition is conditional
on, among other things: (i) the approval of Scheme Shareholders at
the Court Meeting and the passing of the Resolutions by KBC
Shareholders at the General Meeting; and (ii) the sanction of the
Scheme by the Court.
-- The KBC Directors, who have been so advised by Evercore,
consider the terms of the Acquisition to be fair and reasonable. In
providing advice to the KBC Directors, Evercore has taken into
account the commercial assessments of the KBC Directors.
-- The KBC Directors intend to recommend unanimously that KBC
Shareholders vote or procure votes in favour of the Scheme at the
Court Meeting and the Resolutions to be proposed at the General
Meeting, as the KBC Directors who hold KBC Shares (in a personal
capacity or through a nominee[1]) have irrevocably undertaken to do
in respect of their entire beneficial holdings of 417,006 KBC
Shares, in aggregate, representing approximately 0.51 per cent. of
KBC's issued share capital as at 11 January 2016 (being the last
Business Day prior to this announcement).
-- Global Optimisation has also received irrevocable
undertakings to vote or procure votes in favour of the Scheme at
the Court Meeting and the Resolutions to be proposed at the General
Meeting from Kestrel Partners LLP, AXA Investment Management UK
Limited, Hargreave Hale Limited, Herald Investment Trust plc,
Killik & Co LLP and Ari Zaphiriou-Zarifi in respect of
34,687,142 KBC Shares, in aggregate, representing approximately
42.1 per cent. of KBC's issued share capital as at 11 January 2016
(being the last Business Day prior to this announcement).
-- Accordingly, Global Optimisation has received irrevocable
undertakings to vote or procure votes in favour of the Scheme at
the Court Meeting and the Resolutions to be proposed at the General
Meeting from the holders of 35,104,148 KBC Shares in total
representing approximately 42.6 per cent. of KBC's issued share
capital as at 11 January 2016 (being the last Business Day prior to
this announcement).
-- Full details of the irrevocable undertakings received by
Global Optimisation (including the circumstances in which the
irrevocable undertakings cease to be binding) are set out in
Appendix III to this announcement.
-- AspenTech is a leading supplier of software that optimises
process manufacturing for energy, chemicals, engineering and
construction, and for other industries that manufacture and produce
products from a chemical process.
-- KBC is a leading provider of software and consultancy to the
oil and gas industry, focused on operational excellence and profit
improvement for both the upstream (oil production) and downstream
(oil refining and refinery-integrated petrochemicals) segments.
-- Further details of the Acquisition will be contained in the
Scheme Document which is intended to be posted to KBC Shareholders
along with notices of the Court Meeting and General Meeting and the
Forms of Proxy within 28 days of the date of this announcement,
unless KBC and AspenTech otherwise agree, and the Takeover Panel
consents, to a later date. At this stage, subject to the approval
and availability of the Court (which is subject to change), KBC and
AspenTech expect the Meetings to be held in February 2016 and the
Acquisition to become Effective during the first quarter of
2016.
-- Commenting on the Acquisition, Antonio Pietri, President and
Chief Executive Officer of AspenTech, said:
"We are excited to announce the proposed acquisition of KBC,
which is a trusted adviser to C level executives in the oil and gas
industry. We believe KBC's operational excellence expertise and
customer relationships, particularly in emerging markets, will help
drive greater adoption and usage of AspenTech's broad and expanding
suite of software solutions.
In addition, we believe combining KBC's industry leading reactor
software models with AspenTech's strength in engineering design
will create a highly differentiated solution for the refining
industry. Also, KBC's software assets would meaningfully accelerate
the build out of our vertical-specific analytics solutions.
KBC's domain expertise and software would be important additions
to our asset optimisation strategy, which focuses on driving
improved capital and operational efficiency for owner-operators
across an asset's entire lifecycle. Acquiring KBC would enhance
AspenTech's ability to capitalise on the asset optimisation
opportunity and leadership position and generate substantial value
for our customers."
-- Commenting on the Acquisition, Ian Godden, Chairman of KBC, said:
"Over the last few years, KBC has proactively reshaped and
broadened its business to make it more adaptable and successful. We
have continued to perform well notwithstanding the challenging
operating conditions in the hydrocarbon industry. In the current
market environment, however, we believe that there are advantages
in being part of a larger, broader and better capitalised group.
The offer from AspenTech represents a compelling opportunity for
KBC's shareholders to realise an attractive value for their
investment in cash at a significant premium.
AspenTech is a strong partner that can continue to develop KBC's
business. Following the transaction, KBC will become a key part of
AspenTech's business and will continue to provide its market
leading solutions to the customers we serve.
We are therefore pleased to recommend this transaction to our
shareholders."
-- This summary should be read in conjunction with, and is
subject to, the full text of the announcement and its
Appendices.
-- The Acquisition is subject to the Conditions and further
terms that are set out in Appendix I. Appendix II contains details
of sources and bases of certain information contained in this
announcement. Appendix III contains certain details relating to the
irrevocable undertakings referred to in this announcement. Appendix
IV contains definitions of certain terms used in this announcement.
The appendices form part of, and should be read in conjunction
with, this announcement.
Conference Call and Webcast
AspenTech will host a conference call and webcast today, 12
January 2016, at 1.00 pm (London time) / 8.00 am (Eastern time), to
discuss the details of the Acquisition.
The live dial-in number is +1 (866) 604-6127 or +1 (706)
634-5625, conference ID code 24843348. Interested parties may also
listen to a live webcast of the call by logging on to the Investor
Relations section of AspenTech's website,
http://www.aspentech.com/corporate/investor.cfm, and clicking on
the "webcast" link. A replay of the call will be archived on
AspenTech's website and will also be available via telephone at +1
(855) 859-2056 or +1 (404) 537-3406, conference ID code 24843348,
until 12 February 2016.
(MORE TO FOLLOW) Dow Jones Newswires
January 12, 2016 02:00 ET (07:00 GMT)
Enquiries
AspenTech KBC
David Grip Tel: +1 781 Eric Dodd, Tel: +44 (0)20
221 5273 Chief Financial 7357 0800
Officer
J.P. Morgan Evercore
(Financial (Financial
Adviser Tel: +1 888 Adviser to Tel: +44 (0)20
to AspenTech) 963 5089 KBC) 7653 6000
Brian Truesdale Edward Banks
Rupert Tel: +44 (0) Cenkos
Sadler 20 7742 4000 (Corporate Tel: +44 (0)20
James Robinson broker and 7397 8900
NOMAD to KBC)
Bobbie Hilliam
Julian Morse
ICR Weber Shandwick
(PR Adviser (PR Adviser
to AspenTech) Tel: +1 646 to KBC) Tel: +44 (0)20
Brian Denyeau 277 1251 Nick Oborne 7067 0000
Tom Jenkins
J.P. Morgan, which conducts its UK investment banking business
as J.P. Morgan Cazenove and which is authorised and regulated in
the United Kingdom by the Financial Conduct Authority, is acting
exclusively for AspenTech in connection with the Acquisition and
the matters set out in this announcement and will not regard any
other person as its client in relation to the matters set out in
this announcement and will not be responsible to anyone other than
AspenTech for providing the protections afforded to clients of J.P.
Morgan or its affiliates, or for providing advice in relation to
the Acquisition, the contents of this announcement or any other
matters referred to herein.
Evercore Partners International LLP, which is authorised and
regulated in the United Kingdom by the Financial Conduct Authority,
is acting exclusively for KBC and no one else in connection with
the Acquisition and the matters set out in this announcement and
will not regard any other person as its client in connection with
the matters referred to in this announcement and will not be
responsible to anyone other than KBC for providing the protections
afforded to clients of Evercore or its affiliates, or for providing
advice in relation to the Acquisition, the contents of this
announcement or any other matters referred to herein. Neither
Evercore nor any of its subsidiaries, branches or affiliates owes
or accepts any duty, liability or responsibility whatsoever
(whether direct or indirect, whether in contract, in tort, under
statute or otherwise) to any person who is not a client of Evercore
in connection with this announcement, any statement contained
herein or otherwise.
Cenkos Securities Plc, which is authorised and regulated in the
United Kingdom by the Financial Conduct Authority, is acting
exclusively as corporate broker and nominated adviser to KBC and
no-one else in connection with the Acquisition and other matters
described in this announcement and will not be responsible to
anyone other than KBC for providing the protections afforded to
clients of Cenkos Securities Plc or for providing advice in
relation to the Acquisition, the contents of this announcement or
any other matter referred to herein.
This announcement is for information purposes only and is not
intended to and does not constitute, or form any part of, an offer
to sell or an invitation to purchase or subscribe for any
securities or the solicitation of any vote or approval in any
jurisdiction pursuant to the Acquisition or otherwise. The
Acquisition will be made solely by the Scheme Document (or, if
applicable, the Offer Document) which will contain the full terms
and conditions of the Acquisition, including details of how to vote
in respect of the Acquisition. Any decision in respect of, or other
response to, the Acquisition should be made only on the basis of
the information contained in the Scheme Document (or, if
applicable, the Offer Document).
This announcement does not constitute a prospectus or a
prospectus equivalent document.
This announcement has been prepared for the purpose of complying
with English law, the Code and the AIM Rules and the information
disclosed may not be the same as that which would have been
disclosed if this announcement had been prepared in accordance with
the laws of jurisdictions outside the United Kingdom.
Overseas shareholders
The laws of the relevant jurisdictions may affect the
availability of the Acquisition to persons who are not resident in
the United Kingdom. Persons who are not resident in the United
Kingdom or who are subject to laws of any jurisdiction other than
the United Kingdom, should inform themselves about, and observe,
any applicable requirements. Any person (including, without
limitation, nominees, trustees and custodians) who would, or
otherwise intends to, forward this announcement, the Scheme
Document or any accompanying document to any jurisdiction outside
the United Kingdom should refrain from doing so and seek
appropriate professional advice before taking any action. In
particular, the ability of persons who are not resident in the
United Kingdom to vote their KBC Shares at the Court Meeting or the
General Meeting or to execute and deliver Forms of Proxy appointing
another to vote their KBC Shares in respect of the Court Meeting or
the General Meeting on their behalf, may be affected by the laws of
the relevant jurisdiction in which they are located.
Any failure to comply with the applicable legal or regulatory
requirements may constitute a violation of the laws and/or
regulations of any such jurisdiction. To the fullest extent
permitted by applicable law, the companies and persons involved in
the Acquisition disclaim any responsibility and liability for the
violation of such restrictions by any person.
The Acquisition will not be made, directly or indirectly, in or
into or by use of the mails or any other means or instrumentality
(including, without limitation, telephonic or electronic) of
interstate or foreign commerce of, or any facility of a national,
state or other securities exchange of, a Restricted Jurisdiction,
and the Acquisition will not be capable of acceptance by any such
use, means, instrumentality or facility or from within a Restricted
Jurisdiction. Accordingly, copies of this announcement and formal
documentation relating to the Acquisition are not being, and must
not be, directly or indirectly, mailed or otherwise forwarded or
distributed in, into or from a Restricted Jurisdiction and persons
receiving this announcement (including custodians, nominees and
trustees) must not distribute or send it into or from a Restricted
Jurisdiction. In the event that the Acquisition is implemented by
way of a Takeover Offer and extended into the US, AspenTech will do
so in satisfaction of the procedural and filing requirements of the
US securities laws at that time, to the extent applicable
thereto.
The Acquisition relates to the shares of a UK company and it is
proposed to be made by means of a scheme of arrangement provided
for under the laws of England and Wales. The Scheme will relate to
the shares of a UK company that is a "foreign private issuer" as
defined under Rule 3b-4 under the US Securities Exchange Act of
1934, as amended (the "Exchange Act"). A transaction effected by
means of a scheme of arrangement is not subject to the shareholder
vote, proxy solicitation and tender offer rules under the Exchange
Act. Accordingly, the Acquisition is subject to the disclosure
requirements and practices applicable in the UK to schemes of
arrangement, which differ from the disclosure requirements and
practices of US shareholder vote, proxy solicitation and tender
offer rules. Financial information included in the relevant
documentation will have been prepared in accordance with accounting
standards applicable in the UK and may not be comparable to the
financial statements of US companies. However, if AspenTech were to
elect to implement the Acquisition by means of a Takeover Offer,
such Takeover Offer shall be made in compliance with all applicable
laws and regulations, including Section 14(e) of the Exchange Act
and Regulation 14E thereunder. Such Takeover Offer would be made in
the US by AspenTech and no one else. In addition to any such
Takeover Offer, AspenTech, certain affiliated companies and the
nominees or brokers (acting as agents) may make certain purchases
of, or arrangements to purchase, shares in KBC outside such
Takeover Offer during the period in which such Takeover Offer would
remain open for acceptance. If such purchases or arrangements to
purchase are made they would be made outside the United States in
compliance with applicable law, including the Exchange Act.
Forward looking statements
This announcement contains certain forward-looking statements
with respect to AspenTech, Global Optimisation and KBC. These
forward-looking statements can be identified by the fact that they
do not relate only to historical or current facts. Forward-looking
statements often use words such as "anticipate", "target",
"expect", "estimate", "intend", "plan", "goal", "believe", "aim",
"will", "may", "would", "could" or "should" or other words of
similar meaning or the negative thereof. Forward-looking statements
include statements relating to the following: (i) future capital
expenditures, expenses, revenues, economic performance, financial
conditions, dividend policy, losses and future prospects; (ii)
business and management strategies and the expansion and growth of
the operations of the AspenTech Group or the KBC Group; and (iii)
the effects of government regulation on the business of the
AspenTech Group or the KBC Group.
(MORE TO FOLLOW) Dow Jones Newswires
January 12, 2016 02:00 ET (07:00 GMT)
These forward-looking statements involve known and unknown
risks, uncertainties and other factors which may cause the actual
results, performance or achievements of any such person, or
industry results, to be materially different from any results,
performance or achievements expressed or implied by such
forward-looking statements. These forward-looking statements are
based on numerous assumptions regarding the present and future
business strategies of such persons and the environment in which
each will operate in the future. You are cautioned not to place
undue reliance on these forward-looking statements, which speak
only as of the date hereof. All subsequent oral or written
forward-looking statements attributable to AspenTech, Global
Optimisation or KBC or any persons acting on their behalf are
expressly qualified in their entirety by the cautionary statement
above. None of AspenTech, Global Optimisation or KBC undertake any
obligation to update publicly or revise forward-looking or other
statements contained in this announcement, whether as a result of
new information, future events or otherwise, except to the extent
legally required.
No profit forecasts or estimates
No statement in this announcement is intended as a profit
forecast or estimate for any period and no statement in this
announcement should be interpreted to mean that earnings or
earnings per ordinary share, for AspenTech or KBC, respectively for
the current or future financial years would necessarily match or
exceed the historical published earnings or earnings per ordinary
share for AspenTech or KBC, respectively.
Right to switch to a Takeover Offer
AspenTech reserves the right to elect, with the consent of the
Takeover Panel, to implement the Acquisition by way of a Takeover
Offer for the entire issued and to be issued share capital of KBC
as an alternative to the Scheme. In such an event, the Takeover
Offer will be implemented on the same terms or, if AspenTech so
decides, on such other terms being no less favourable (subject to
appropriate amendments), so far as applicable, as those which would
apply to the Scheme and subject to the amendment referred to in
Appendix I to this announcement.
Publication on website
In accordance with Rule 26.1 of the Code, a copy of this
announcement will be made available (subject to certain
restrictions relating to persons resident in Restricted
Jurisdictions), free of charge, at AspenTech's website at
www.aspentech.com/corporate/press/press-releases.aspx and KBC's
website at http://ir.kbcat.com/home/ by no later than 12 noon on 13
January 2016.
Neither the contents of these websites nor the content of any
other website accessible from hyperlinks on such websites is
incorporated into, or forms part of, this announcement.
In accordance with Rule 30.2 of the Code, a person so entitled
may request a hard copy of this announcement, free of charge, by
contacting J.P. Morgan on +44 (0)20 7742 4000 or Evercore on +44
(0)20 7653 6000. For persons who receive a copy of this
announcement in electronic form or via a website notification, a
hard copy of this announcement will not be sent unless so
requested. In accordance with Rule 30.2 of the Code, a person so
entitled may also request that all future documents, announcements
and information to be sent to them in relation to the Acquisition
should be in hard copy form.
Information relating to KBC Shareholders
Please be aware that addresses, electronic addresses and certain
other information provided by KBC Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from KBC may be provided to AspenTech during the
Offer Period as required under Section 4 of Appendix 4 of the Code
to comply with Rule 2.12(c) of the Code.
Rounding
Certain figures included in this announcement have been
subjected to rounding adjustments. Accordingly, figures shown for
the same category presented in different tables may vary slightly
and figures shown as totals in certain tables may not be an
arithmetic aggregation of the figures that precede them.
Disclosure Requirements of the Code
Under Rule 8.3(a) of the Code, any person who is interested in
1% or more of any class of relevant securities of an offeree
company or of any securities exchange offeror (being any offeror
other than an offeror in respect of which it has been announced
that its offer is, or is likely to be, solely in cash) must make an
Opening Position Disclosure following the commencement of the offer
period and, if later, following the announcement in which any
securities exchange offeror is first identified. An Opening
Position Disclosure must contain details of the person's interests
and short positions in, and rights to subscribe for, any relevant
securities of each of (i) the offeree company and (ii) any
securities exchange offeror(s). An Opening Position Disclosure by a
person to whom Rule 8.3(a) applies must be made by no later than
3.30 pm (London time) on the 10th business day following the
commencement of the offer period and, if appropriate, by no later
than 3.30 pm (London time) on the 10th business day following the
announcement in which any securities exchange offeror is first
identified. Relevant persons who deal in the relevant securities of
the offeree company or of a securities exchange offeror prior to
the deadline for making an Opening Position Disclosure must instead
make a Dealing Disclosure.
Under Rule 8.3(b) of the Code, any person who is, or becomes,
interested in 1% or more of any class of relevant securities of the
offeree company or of any securities exchange offeror must make a
Dealing Disclosure if the person deals in any relevant securities
of the offeree company or of any securities exchange offeror. A
Dealing Disclosure must contain details of the dealing concerned
and of the person's interests and short positions in, and rights to
subscribe for, any relevant securities of each of (i) the offeree
company and (ii) any securities exchange offeror(s), save to the
extent that these details have previously been disclosed under Rule
8. A Dealing Disclosure by a person to whom Rule 8.3(b) applies
must be made by no later than 3.30 pm (London time) on the business
day following the date of the relevant dealing.
If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
interest in relevant securities of an offeree company or a
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree
company and by any offeror and Dealing Disclosures must also be
made by the offeree company, by any offeror and by any persons
acting in concert with any of them (see Rules 8.1, 8.2 and
8.4).
Details of the offeree and offeror companies in respect of whose
relevant securities Opening Position Disclosures and Dealing
Disclosures must be made can be found in the Disclosure Table on
the Takeover Panel's website at www.thetakeoverpanel.org.uk,
including details of the number of relevant securities in issue,
when the offer period commenced and when any offeror was first
identified. You should contact the Takeover Panel's Market
Surveillance Unit on +44 (0)20 7638 0129 if you are in any doubt as
to whether you are required to make an Opening Position Disclosure
or a Dealing Disclosure.
Rule 2.10 Requirement
In accordance with Rule 2.10 of the Code, KBC confirms that as
at the close of business on 11 January 2016, being the last
Business Day prior to this announcement, it had 82,341,156 ordinary
shares in issue and admitted to trading on AIM under ISIN reference
GB0004804646.
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY IN, INTO OR FROM ANY JURISDICTION
WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OF
SUCH JURISDICTION
For immediate release
12 January 2016
RECOMMENDED CASH ACQUISITION
of
KBC Advanced Technologies plc
by
ATI Global Optimisation Ltd (a wholly-owned subsidiary of Aspen
Technology, Inc.)
(to be implemented by way of a scheme of arrangement under Part
26 of the Companies Act)
1. Introduction
The boards of AspenTech and KBC are pleased to announce that
they have agreed the terms of a recommended all cash acquisition by
Global Optimisation (a wholly-owned subsidiary of AspenTech) of the
entire issued and to be issued share capital of KBC. It is intended
that the Acquisition be implemented by means of a Court-sanctioned
scheme of arrangement under Part 26 of the Companies Act.
2. The Acquisition
The Acquisition, which will be on the terms and subject to the
Conditions set out below and in Appendix I, and to be set out in
the Scheme Document, will be made on the following basis:
for each KBC Share 185 pence in cash
The Acquisition values the entire issued and to be issued share
capital of KBC at approximately GBP158 million on a fully diluted
basis.
The Acquisition price represents a premium of approximately:
-- 49.2 per cent. to the Closing Price per KBC Share of 124
pence on 11 January 2016 (being the last Business Day prior to this
announcement);
-- 37.2 per cent. to the volume weighted average Closing Price
per KBC Share of 135 pence for the one-month period ended on 11
January 2016 (being the last Business Day prior to this
announcement); and
-- 40.7 per cent. to the volume weighted average Closing Price
per KBC Share of 132 pence for the three-month period ended on 11
January 2016 (being the last Business Day prior to this
announcement).
The Acquisition is conditional, amongst other things, on the
Scheme becoming Effective no later than the Long Stop Date.
(MORE TO FOLLOW) Dow Jones Newswires
January 12, 2016 02:00 ET (07:00 GMT)
The KBC Shares will be acquired by Global Optimisation (or its
nominee) with full title guarantee, fully paid and free from all
liens, equitable interests, charges, encumbrances, rights of
pre-emption and any other third party rights or interests
whatsoever and together with all rights existing at the date of
this announcement or thereafter attaching thereto, including
(without limitation) the right to receive and retain, in full, all
dividends and other distributions (if any) declared, made or paid
or any other return of capital (whether by way of reduction of
share capital or share premium account or otherwise) made on or
after the date of this announcement in respect of the KBC
Shares.
If any dividend or other distribution in respect of the KBC
Shares is declared, paid or made on or after the date of this
announcement, AspenTech reserves the right to reduce the
consideration payable for each KBC Share under the terms of the
Acquisition by the amount per KBC Share of such dividend or
distribution.
3. Background to and reasons for the Acquisition
AspenTech (NASDAQ: AZPN) is a leading global supplier of
optimisation software for plant and process design, operational
performance, and supply-chain planning. Its solutions are
mission-critical and have been specifically created for process
industries, including energy, chemicals, engineering and
construction, and other industries that manufacture and produce
products from a chemical process. KBC is a leading technical
consultancy for hydrocarbon facilities around the world and has a
growing portfolio of optimisation software. KBC provides a variety
of strategic, operational and environmental solutions.
The Acquisition combines AspenTech's leading process
optimisation software with KBC's leading process technology and
operational excellence consulting business, representing a highly
attractive and complementary opportunity. AspenTech expects the
addition of KBC to help drive increased usage and adoption of its
software from existing and new customers, especially in emerging
markets and geographies where KBC has significant experience and
presence. Furthermore, KBC's software portfolio adds new and
complementary technology to AspenTech's extensive set of solutions,
including in the area of refinery operations. The combination of
these technology portfolios should increase AspenTech's ability to
address customers' process optimisation requirements - especially
in refinery operations and reactor modelling - and enable further
innovation in refining and upstream operations. AspenTech believes
this will assist in accelerating its asset optimisation strategy,
generating significant value for customers from improved capital
and operating efficiency as well as operations benchmarking, best
practices and increased safety.
The Acquisition is expected to be accretive in fiscal year 2017
to Non-GAAP EPS and Free Cash Flow per share, excluding the impact
of one-time and Acquisition-related costs and purchase accounting
adjustments[2].
4. background to and reasons for the recommendation
The hydrocarbon industry is continuing to experience significant
volatility, driven primarily by a material decline in crude oil
prices. This is creating a particularly challenging operating
environment in most upstream (and integrated downstream) segments
of the industry, causing major project cutbacks throughout the
world and headwinds in discretionary spending budgets. In parts of
the downstream market, however, refinery and petrochemical margins
have improved, and the search for profit improvement has continued,
leading to sustained demand for KBC's solutions.
In addition, the competitive landscape for industrial automation
and process engineering software vendors has been changing, with
consolidation occurring in order to offer customers more integrated
platforms and solutions. There has also been consolidation among
engineering and consulting services vendors as they seek broader
and deeper technical expertise.
Since 2012, KBC has been proactively reshaping and repositioning
its business to make it more adaptable and successful. KBC has
expanded its product offering through organic development as well
as add-on acquisitions, such as Infochem Computer Services Limited
in 2012 and FEESA Limited in 2014. KBC has also sought to focus on
larger consulting projects to improve revenue visibility and
margins and to better align its software and consulting business.
In addition, KBC has reduced its cost base, including consolidation
of offices in North America and reduction of staff in more mature
regions. The KBC Group has continued its expansion in parts of the
world where hydrocarbon projects are still well-funded such as the
Middle East.
Whilst KBC has not altered its long-term strategy of increasing
and strengthening the more profitable software-related business,
expanding its resources in growth regions and breaking further into
the upstream sector, the KBC Group has in the short term adjusted
its tactics to reflect the new market conditions in the upstream
sector. KBC has therefore continued to develop its core business in
the downstream market, particularly in Europe and North Africa;
regions whose downstream markets are experiencing a boost from
lower oil and gas prices. In the downstream sector KBC is executing
its technology strategy of adding its content to third-party
alliance software to deliver software as a service.
KBC's traditional strengths in the downstream area have resulted
in a number of consulting contracts and opportunities which are
helping to buffer the KBC Group from the full hydrocarbon
downturn.
Over the last twelve months, KBC's financial performance has
been robust and KBC has delivered a Total Shareholder Return of
29.2 per cent., notwithstanding the difficult market backdrop.
When considering the proposal from AspenTech, the KBC Directors
have taken into account the current market conditions in the
hydrocarbon industry and the short and long term opportunities and
risks for KBC. The KBC Directors have also considered the benefits
that being part of a larger group would bring to the KBC business
in terms of long-term stability and access to capital.
The KBC Board has considered the proposal with regard to price,
deliverability and with reference to the range of other strategic
options available to KBC. In particular, the KBC Directors have
evaluated the terms of the Acquisition in relation to the prospects
of the underlying business and the potential medium term standalone
value of KBC Shares. The KBC Directors have also considered the
interests of KBC employees, customers and other stakeholders in
addition to the economic benefits to KBC Shareholders.
The KBC Board believes that AspenTech is a strong,
well-capitalised partner which can continue to develop the KBC
business. AspenTech provides KBC with significantly greater access
to a broader and deeper customer base. The KBC Board expects that
AspenTech will be able to accelerate the growth of KBC's technology
business by expanding its routes to market and exploiting the
greater scale and reach of AspenTech's sales force. KBC's
consulting business will also benefit from the greater range of
products and technical expertise provided by AspenTech.
The terms of the Acquisition represent a significant premium, in
cash, of approximately 49.2 per cent. to the Closing Price of 124
pence per KBC Share on 11 January 2016 (being the last Business Day
prior to this announcement). This cash premium is on top of a 27.8
per cent. increase in the KBC share price over the last twelve
months.
The KBC Directors have balanced the premium and the certainty
that the Acquisition provides against the current market
environment and the risks inherent in the continued successful
execution of KBC's business plan.
Following careful consideration of the above factors, the KBC
Directors, who have been so advised by Evercore, consider the terms
of the Acquisition to be fair and reasonable. In providing advice
to the KBC Directors, Evercore has taken into account the
commercial assessments of the KBC Directors. Accordingly, the KBC
Directors intend unanimously to recommend that KBC Shareholders
vote in favour of the Scheme at the Court Meeting and the
Resolutions to be proposed at the General Meeting, as the KBC
Directors who hold KBC Shares (in a personal capacity or through a
nominee[3]) have irrevocably undertaken to do in respect of their
entire holdings of 417,006 KBC Shares, representing approximately
0.51 per cent. of KBC's issued share capital as at 11 January 2016
(being the last Business Day prior to this announcement).
5. Irrevocable undertakings
Global Optimisation has received irrevocable undertakings to
vote or procure votes in favour of the Scheme at the Court Meeting
and the Resolutions to be proposed at the General Meeting (or in
the event that the Acquisition is implemented by way of a Takeover
Offer, to accept or procure acceptance of the Takeover Offer) from
all of the KBC Directors who hold KBC Shares (in a personal
capacity or through a nominee[4]), in respect of their entire
beneficial holdings of KBC Shares, amounting in aggregate to
417,006 KBC Shares and representing approximately 0.51 per cent. of
KBC's issued share capital as at 11 January 2016 (being the last
Business Day prior to this announcement).
Global Optimisation has also received irrevocable undertakings
to vote or procure votes in favour of the Scheme at the Court
Meeting and the Resolutions to be proposed at the General Meeting
from Kestrel Partners LLP, AXA Investment Management UK Limited,
Hargreave Hale Limited, Herald Investment Trust plc, Killik &
Co LLP and Ari Zaphiriou-Zarifi in respect of 34,687,142 KBC
Shares, in aggregate, representing approximately 42.1 per cent. of
KBC's issued share capital as at 11 January 2016 (being the last
Business Day prior to this announcement).
(MORE TO FOLLOW) Dow Jones Newswires
January 12, 2016 02:00 ET (07:00 GMT)
In aggregate, therefore, Global Optimisation has received
irrevocable undertakings to vote or procure votes in favour of the
Scheme at the Court Meeting and in favour of the Resolutions to be
proposed at the General Meeting in respect of a total of 35,104,148
KBC Shares, representing approximately 42.6 per cent. of the entire
share capital of KBC as at 11 January 2016 (being the last Business
Day prior to this announcement). Further details of these
irrevocable undertakings (including details of the circumstances in
which they cease to be binding) are set out in Appendix III to this
announcement.
6. Information on AspenTech and Global Optimisation
AspenTech
AspenTech is a leading supplier of software that optimises
process manufacturing for energy, chemicals, engineering and
construction, and for other industries that manufacture and produce
products from a chemical process. With integrated AspenONE
solutions, process manufacturers can implement best practices for
optimising their engineering, manufacturing and supply chain
operations. As a result, AspenTech customers are better able to
increase capacity, improve margins, reduce costs and become more
energy efficient.
Global Optimisation
Global Optimisation is a newly incorporated English company
which is a wholly-owned subsidiary of AspenTech established to
effect the Acquisition. Global Optimisation has not traded prior to
the date of this announcement (except for entering into
transactions relating to the Acquisition).
7. Information on KBC
KBC is a leading provider of software and consultancy to the oil
and gas industry, focused on operational excellence and profit
improvement for both the upstream (oil production) and downstream
(oil refining and refinery-integrated petrochemicals) segments. KBC
was incorporated in the UK in 1978. KBC Shares are admitted to
trading on AIM and it has a current market capitalisation of GBP102
million.
KBC employs more than 300 staff primarily based out of three
main hubs in the UK, USA and Singapore, plus a number of other
smaller offices. KBC's clients include national oil companies
(NOCs), international oil companies (IOCs), independent oil
companies and engineering companies.
KBC deploys an integrated operating model which yields two main
revenue streams:
-- Consulting: technical / engineering and operational effectiveness consulting
-- Technology: proprietary engineering-oriented process optimisation / simulation software
The focus of KBC's consulting offering is operational excellence
and profit improvement programmes for refiners and
refinery-integrated petrochemicals, with the majority of consulting
revenue from downstream clients. The services are delivered via
in-house highly skilled engineering and management consultants,
supported by a small pool of contracted associates. From recent
acquisitions KBC has moved into the upstream oil and gas consulting
space with flow assurance and life of field solutions. KBC's advice
is delivered by consultants with deep industry / domain-specific
knowledge and operating experience and KBC has a strong reputation
for improving the safety and profitability of hydrocarbon
operations.
KBC's technology offering comprises upstream flow assurance,
fluid characterisation and facilities process simulation and
optimisation software, spanning from the wellhead in upstream
through the facilities in midstream and downstream. The technology
is delivered through access to, and implementation of, process
simulation platforms and/or specialised "plug-ins" for upstream and
downstream. KBC's flagship technology product is Petro-SIM(TM) .
Through organic development as well as add-on acquisitions, such as
Infochem Computer Services Limited in 2012 and FEESA Limited in
2014, KBC has added significant intellectual property to its
technology offering. KBC has a clear focus on quality, usability
and innovation in its software products and is particularly
recognised as a leader in PVT (pressure-volume-temperature)
thermodynamics, thermal hydraulics, assay synthesis and reactor
modelling. By the end of 2014, KBC's annual technology revenue had
increased to more than GBP20 million.
For the year ended 31 December 2014, KBC's revenues were GBP76.0
million and its adjusted profit before tax was GBP9.5 million.
For the half year ended 30 June 2015, KBC's revenues were
GBP36.2 million and its adjusted profit before tax was GBP4.2
million.
8. KBC Share Schemes
Appropriate proposals will be made in due course to participants
in the KBC Share Schemes. The Acquisition will extend to any KBC
Shares which are unconditionally allotted or issued as a result of
the exercise of existing options and vesting of awards under the
KBC Share Schemes on or prior to the Scheme Record Time.
9. Financing
The cash consideration payable under the terms of the
Acquisition is being financed through existing cash resources and
from the proceeds of a US$140,000,000 facility agreement (the
"Facility Agreement") which AspenTech (as borrower) has entered
into with J.P.Morgan Chase Bank, N.A. (as administrative agent),
J.P. Morgan Securities LLC (as sole lead arranger and sole
bookrunner) and certain Lenders (as defined in the Facility
Agreement).
Under the Facility Agreement, AspenTech (as borrower) has agreed
on behalf of itself and its affiliates, among other things:
(a) that it shall not without the prior consent of the
Administrative Agent (as defined in the Facility Agreement), amend
or waive any condition of the Scheme in a manner materially adverse
to the interests of the Lenders (as defined in the Facility
Agreement) unless such action is required by the Takeover Panel,
the Code, the Court or other applicable law, regulation or
regulatory body; and
(b) in the event that the Acquisition is implemented by way of a
Takeover Offer, that it shall not without the prior consent of the
Administrative Agent (as defined in the Facility Agreement) declare
the Takeover Offer unconditional as to acceptances until AspenTech
(directly or indirectly) has acquired or unconditionally contracted
to acquire not less than 75 per cent. of the votes attaching to
shares in the capital of KBC.
It is AspenTech's intention to replace the Facility Agreement by
drawing down against a new US$250,000,000 revolving credit facility
proposed to be entered into following the date of this
announcement.
J.P. Morgan, financial adviser to AspenTech, is satisfied that
Global Optimisation has the necessary financial resources available
to it to satisfy in full the cash consideration payable under the
terms of the Acquisition.
10. Management and employees
AspenTech attaches great importance to retaining the skills,
knowledge and expertise of KBC's existing management and employees
and also believes that they will benefit from enhanced career and
business opportunities as part of AspenTech and from the shared
vision of the combined business. AspenTech also recognises that KBC
is a people based business with a solid depth in industry skills
and that retention of key leaders and expertise will be important
to the success of the Combined Group. Whilst no firm retention
arrangements are in place at this stage, AspenTech has reassured
the KBC Board that appropriate measures will be put in place as
part of transaction closure and further integration activities led
by an integration team comprised of key AspenTech and KBC
personnel.
The analysis carried out to date has indicated the potential to
generate cost savings for the Combined Group in areas where there
is an overlap of functions and duplicate facilities, which could
involve some headcount reductions, although AspenTech has not yet
developed proposals as to how or when such headcount reductions or
facilities rationalisation will be implemented. AspenTech has given
assurances to the KBC Directors that the existing contractual and
statutory employment rights, including in relation to pensions, of
KBC's management and employees will be fully observed in accordance
with applicable law.
It is intended that the non-executive KBC Directors will resign
as KBC Directors immediately following the Effective Date.
11. Acquisition related arrangements
Confidentiality Agreement
AspenTech and KBC entered into a confidentiality agreement dated
18 November 2015 (the "Confidentiality Agreement") pursuant to
which each of AspenTech and KBC have agreed to keep confidential
information about the other party and not to disclose to third
parties (other than permitted recipients) confidential information
exchanged by them unless required by law or regulation. These
confidentiality obligations will remain in force until completion
of the Acquisition, or for a period of four years expiring on 17
November 2019. The parties have also agreed not to solicit the
employees of the other for a period expiring on 17 November 2016.
AspenTech has agreed not to acquire any interest in the securities
of KBC or undertake related actions other than pursuant to a
recommended offer for a period expiring on 17 November 2016.
Open Source Audit Agreement
AspenTech and KBC entered into an agreement dated 22 December
2015 in relation to the Open Source Audit Report (the "Open Source
Audit Agreement"). Under the Open Source Audit Agreement, AspenTech
irrevocably undertook to reimburse KBC in relation to all fees and
expenses (subject to a limit of $125,600) due and payable by KBC to
Black Duck Software, Inc. in connection with the Open Source Audit
Report, save in circumstances where any offer (as such term is
defined in the Code) made by a third party is declared wholly
unconditional in all respects or, if structured as a scheme of
arrangement, becomes effective in accordance with its terms.
12. Structure of the Acquisition
Scheme
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It is intended that the Acquisition will be effected by a
Court-sanctioned scheme of arrangement between KBC and the Scheme
Shareholders under Part 26 of the Companies Act. The purpose of the
Scheme is to provide for AspenTech to become the owner of the whole
of the issued and to be issued share capital of KBC. Under the
Scheme, the Acquisition is to be principally achieved by the:
(a) transfer of the Scheme Shares held by Scheme Shareholders to
AspenTech in consideration for which the Scheme Shareholders will
receive the Consideration; and
(b) passing of the Resolutions at the General Meeting.
Approval by Court Meeting and General Meeting
In order to become Effective, the Scheme requires the:
(a) satisfaction (or, where applicable, waiver) of the Conditions;
(b) approval of a majority in number of the Scheme Shareholders
who vote, representing not less than 75 per cent. in value of the
Scheme Shares voted, either in person or by proxy, at the Court
Meeting; and
(c) approval by the requisite majority of the Resolutions at the
General Meeting (to be held directly after the Court Meeting)
necessary in order to implement the Scheme.
Application to Court to sanction the Scheme
Once the approvals have been obtained at the Court Meeting and
the General Meeting, and the other Conditions have been satisfied
or (where applicable) waived, the Scheme must be sanctioned by the
Court at the Court Hearing.
The Scheme will become Effective in accordance with its terms on
delivery of the Court Order to the Registrar of Companies. Upon the
Scheme becoming Effective, it will be binding on all Scheme
Shareholders, irrespective of whether or not they attended or voted
at the Court Meeting or General Meeting, or whether they voted in
favour of or against the Scheme.
Full details of the Scheme to be set out in the Scheme
Document
The Scheme will be subject to the satisfaction (or, where
applicable, waiver) of the Conditions and the full terms and
conditions to be set out in the Scheme Document. Further details of
the Scheme will be set out in the Scheme Document, including the
expected timetable and the action to be taken by Scheme
Shareholders.
The Scheme will be governed by the laws of England and Wales.
The Scheme will be subject to the applicable requirements of the
Code, the Takeover Panel, the London Stock Exchange, the FCA and
the AIM Rules.
It is expected that the Scheme Document will be despatched to
KBC Shareholders and, for information only, to participants in the
KBC Share Schemes within 28 days of the date of this announcement,
unless AspenTech and KBC otherwise agree, and the Takeover Panel
consents, to a later date.
Conditions to the Acquisition
The Acquisition will be subject to the Conditions and further
terms set out in Appendix I to this announcement and to be set out
in the Scheme Document.
The Scheme will be conditional, amongst other things, upon:
(a) the Scheme becoming Effective by the Long Stop Date, failing
which the Scheme will lapse;
(b) the approval of the Scheme by a majority in number
representing not less than 75 per cent. in value of the KBC
Shareholders entitled to vote and present and voting, either in
person or by proxy, at the Court Meeting (or at any adjournment,
postponement or reconvention of such meeting) on or before the
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 as may
be agreed between AspenTech and KBC and the Court may allow);
(c) the passing of the Resolutions by the requisite majority at
the General Meeting or at any adjournment, postponement or
reconvention of that meeting to be held on or before the 22(nd) day
after the expected date of the General Meeting to be set out in the
Scheme Document (or such later date, if any, as AspenTech and KBC
may agree and the Court may allow); and
(d) the sanction of the Scheme on or before the 22(nd) day after
the expected date of the Court Hearing to be set out in the Scheme
Document in due course (or such later date as may be agreed between
AspenTech and KBC and the Court may allow) and the delivery of an
office copy of the Court Order to the Registrar of Companies.
Scheme timetable/further information
A full anticipated timetable will be set out in the Scheme
Document which will be posted to KBC Shareholders within 28 days of
the date of this announcement unless AspenTech and KBC otherwise
agree, and the Takeover Panel consents, to a later date. Subject to
certain restrictions relating to persons resident in Restricted
Jurisdictions, the Scheme Document will also be made available on
AspenTech's website at
www.aspentech.com/corporate/press/press-releases.aspx and KBC's
website at http://ir.kbcat.com/home/.
At this stage, subject to the approval and availability of the
Court (which is subject to change), KBC and AspenTech expect the
Meetings to be held in February 2016 and the Acquisition to become
Effective during the first quarter of 2016.
Right to switch to a Takeover Offer
AspenTech reserves the right to elect, with the consent of the
Takeover Panel, to implement the Acquisition by way of a Takeover
Offer for the entire issued and to be issued share capital of KBC
as an alternative to the Scheme. In such an event, the Takeover
Offer will be implemented on the same terms or, if AspenTech so
decides, on such other terms being no less favourable (subject to
appropriate amendments), so far as applicable, as those which would
apply to the Scheme and subject to the amendment referred to in
Appendix I to this announcement.
13. De-listing and compulsory acquisition
Prior to the Scheme becoming Effective and subject to any
applicable requirements of the AIM Rules, AspenTech intends to
procure the making of an application by KBC for cancellation of the
trading in KBC Shares on AIM on the first Business Day following
the Effective Date.
Share certificates in respect of the KBC Shares will cease to be
valid and should be destroyed following the Effective Date. In
addition, entitlements to KBC Shares held within the CREST system
will be cancelled.
As soon as practicable after the Effective Date and after the
KBC Shares are de-listed, it is intended that KBC will be
re-registered as a private limited company under the relevant
provisions of the Companies Act.
14. Disclosure of interests in KBC
AspenTech confirms that it is making on the date of this
announcement an Opening Position Disclosure, setting out the
details required to be disclosed by it under Rule 8.1(a) of the
Code.
As at the close of business on 11 January 2016, being the last
Business Day prior to this announcement, save for the irrevocable
undertakings referred to in paragraph 5 (Irrevocable undertakings)
above, none of AspenTech or any AspenTech Directors or, so far as
AspenTech is aware, any person acting, or deemed to be acting, in
concert with AspenTech:
(a) had an interest in, or right to subscribe for, relevant securities of KBC;
(b) had any short position in (whether conditional or absolute
and whether in the money or otherwise), including any short
position under a derivative, any agreement to sell or any delivery
obligation or right to require another person to purchase or take
delivery of, relevant securities of KBC;
(c) had procured an irrevocable commitment or letter of intent
to accept the terms of the Acquisition in respect of relevant
securities of KBC; or
(d) had borrowed or lent any KBC Shares.
Furthermore, save for the irrevocable undertakings described in
paragraph 5 (Irrevocable undertakings) above, no arrangement exists
between AspenTech or KBC or a person acting in concert with
AspenTech or KBC in relation to KBC Shares. For these purposes, an
"arrangement" includes any indemnity or option arrangement, any
agreement or any understanding, formal or informal, of whatever
nature, relating to KBC Shares which may be an inducement to deal
or refrain from dealing in such securities.
15. General
The Acquisition will be subject to the Conditions and other
terms set out in this announcement and to the full terms and
conditions which will be set out in the Scheme Document. Appendix I
to this announcement contains a summary of the principal terms and
conditions. It is expected that the Scheme Document will be
despatched to KBC Shareholders as soon as practicable and, in any
event, (save with the consent of the Takeover Panel) within 28 days
of this announcement.
In deciding whether or not to vote or procure votes in favour of
the Scheme at the Court Meeting and the Resolutions to be proposed
at the General Meeting, KBC Shareholders should rely on the
information contained, and follow the procedures described, in the
Scheme Document.
J.P. Morgan and Evercore have each given and not withdrawn their
consent to the publication of this announcement with the inclusion
herein of the references to their names in the form and context in
which they appear.
Appendix II contains details of sources and bases of certain
information contained in this announcement. Appendix III contains
certain details relating to the irrevocable undertakings referred
to in this announcement. Appendix IV contains definitions of
certain terms used in this announcement. The appendices form part
of, and should be read in conjunction with, this announcement.
16. Documents on display
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Copies of this announcement and the following documents will, by
no later than 12 noon (London time) on the Business Day following
the date of this announcement, be made available on AspenTech's
website at www.aspentech.com/corporate/press/press-releases.aspx
and KBC's website at http://ir.kbcat.com/home/ until the end of the
Offer Period:
(a) a copy of this announcement;
(b) the Confidentiality Agreement;
(c) the Irrevocable Undertakings;
(d) the Facility Agreement;
(e) the Fee and Syndication Letter; and
(f) the Open Source Audit Agreement.
Neither the contents of KBC's website or the contents of
AspenTech's website, nor the content of any other website
accessible from hyperlinks on either such website, is incorporated
into or forms part of, this announcement.
Conference Call and Webcast
AspenTech will host a conference call and webcast today, 12
January 2016, at 1.00 pm (London time) / 8.00 am (Eastern time), to
discuss the details of the Acquisition.
The live dial-in number is +1 (866) 604-6127 or +1 (706)
634-5625, conference ID code 24843348. Interested parties may also
listen to a live webcast of the call by logging on to the Investor
Relations section of AspenTech's website,
http://www.aspentech.com/corporate/investor.cfm, and clicking on
the "webcast" link. A replay of the call will be archived on
AspenTech's website and will also be available via telephone at +1
(855) 859-2056 or +1 (404) 537-3406, conference ID code 24843348,
until 12 February 2016.
Enquiries
AspenTech KBC
David Grip Tel: +1 781 Eric Dodd, Tel: +44 (0)20
221 5273 Chief Financial 7357 0800
Officer
J.P. Morgan Evercore
(Financial (Financial
Adviser Adviser to Tel: +44 (0)20
to AspenTech) Tel: +1 888 KBC) 7653 6000
Brian Truesdale 963 5089 Edward Banks
Rupert Sadler Tel: +44 (0) Cenkos
James Robinson 20 7742 4000 (Corporate
broker and Tel: +44 (0)20
NOMAD to KBC) 7397 8900
Bobbie Hilliam
Julian Morse
ICR Weber Shandwick
(PR Adviser (PR Adviser
to AspenTech) Tel: +1 646 to KBC) Tel: +44 (0)20
Brian Denyeau 277 1251 Nick Oborne 7067 0000
Tom Jenkins
J.P. Morgan, which conducts its UK investment banking business
as J.P. Morgan Cazenove and which is authorised and regulated in
the United Kingdom by the Financial Conduct Authority, is acting
exclusively for AspenTech in connection with the Acquisition and
the matters set out in this announcement and will not regard any
other person as its client in relation to the matters in this
announcement and will not be responsible to anyone other than
AspenTech for providing the protections afforded to clients of J.P.
Morgan or its affiliates, or for providing advice in relation to
the Acquisition, the contents of this announcement or any other
matters referred to herein.
Evercore Partners International LLP, which is authorised and
regulated in the United Kingdom by the Financial Conduct Authority,
is acting exclusively for KBC and no one else in connection with
the Acquisition and the matters set out in this announcement and
will not regard any other person as its client in connection with
the matters referred to in this announcement and will not be
responsible to anyone other than KBC for providing the protections
afforded to clients of Evercore or its affiliates, or for providing
advice in relation to the Acquisition, the contents of this
announcement or any other matters referred to herein. Neither
Evercore nor any of its subsidiaries, branches or affiliates owes
or accepts any duty, liability or responsibility whatsoever
(whether direct or indirect, whether in contract, in tort, under
statute or otherwise) to any person who is not a client of Evercore
in connection with this announcement, any statement contained
herein or otherwise.
Cenkos Securities Plc, which is authorised and regulated in the
United Kingdom by the Financial Conduct Authority, is acting
exclusively as corporate broker and nominated adviser to KBC and
no-one else in connection with the Acquisition and other matters
described in this announcement and will not be responsible to
anyone other than KBC for providing the protections afforded to
clients of Cenkos Securities Plc or for providing advice in
relation to the Acquisition, the contents of this announcement or
any other matter referred to herein.
This announcement is for information purposes only and is not
intended to and does not constitute, or form any part of, an offer
to sell or an invitation to purchase or subscribe for any
securities or the solicitation of any vote or approval in any
jurisdiction pursuant to the Acquisition or otherwise. The
Acquisition will be made solely by the Scheme Document (or, if
applicable, the Offer Document) which will contain the full terms
and conditions of the Acquisition, including details of how to vote
in respect of the Acquisition. Any decision in respect of, or other
response to, the Acquisition should be made only on the basis of
the information contained in the Scheme Document (or, if
applicable, the Offer Document).
This announcement does not constitute a prospectus or a
prospectus equivalent document.
This announcement has been prepared for the purpose of complying
with English law, the Code and the AIM Rules and the information
disclosed may not be the same as that which would have been
disclosed if this announcement had been prepared in accordance with
the laws of jurisdictions outside the United Kingdom.
Overseas shareholders
The laws of the relevant jurisdictions may affect the
availability of the Acquisition to persons who are not resident in
the United Kingdom. Persons who are not resident in the United
Kingdom or who are subject to laws of any jurisdiction other than
the United Kingdom, should inform themselves about, and observe,
any applicable requirements. Any person (including, without
limitation, nominees, trustees and custodians) who would, or
otherwise intends to, forward this announcement, the Scheme
Document or any accompanying document to any jurisdiction outside
the United Kingdom should refrain from doing so and seek
appropriate professional advice before taking any action. In
particular, the ability of persons who are not resident in the
United Kingdom to vote their KBC Shares at the Court Meeting or the
General Meeting or to execute and deliver Forms of Proxy appointing
another to vote their KBC Shares in respect of the Court Meeting or
the General Meeting on their behalf, may be affected by the laws of
the relevant jurisdiction in which they are located.
Any failure to comply with the applicable legal or regulatory
requirements may constitute a violation of the laws and/or
regulations of any such jurisdiction. To the fullest extent
permitted by applicable law, the companies and persons involved in
the Acquisition disclaim any responsibility and liability for the
violation of such restrictions by any person.
The Acquisition will not be made, directly or indirectly, in or
into or by use of the mails or any other means or instrumentality
(including, without limitation, telephonic or electronic) of
interstate or foreign commerce of, or any facility of a national,
state or other securities exchange of, a Restricted Jurisdiction,
and the Acquisition will not be capable of acceptance by any such
use, means, instrumentality or facility or from within a Restricted
Jurisdiction. Accordingly, copies of this announcement and formal
documentation relating to the Acquisition are not being, and must
not be, directly or indirectly, mailed or otherwise forwarded or
distributed in, into or from a Restricted Jurisdiction and persons
receiving this announcement (including custodians, nominees and
trustees) must not distribute or send it into or from a Restricted
Jurisdiction. In the event that the Acquisition is implemented by
way of a Takeover Offer and extended into the US, AspenTech will do
so in satisfaction of the procedural and filing requirements of the
US securities laws at that time, to the extent applicable
thereto.
The Acquisition relates to the shares of a UK company and it is
proposed to be made by means of a scheme of arrangement provided
for under the laws of England and Wales. The Scheme will relate to
the shares of a UK company that is a "foreign private issuer" as
defined under Rule 3b-4 under the US Securities Exchange Act of
1934, as amended (the "Exchange Act"). A transaction effected by
means of a scheme of arrangement is not subject to the shareholder
vote, proxy solicitation and tender offer rules under the Exchange
Act. Accordingly, the Acquisition is subject to the disclosure
requirements and practices applicable in the UK to schemes of
arrangement, which differ from the disclosure requirements and
practices of US shareholder vote, proxy solicitation and tender
offer rules. Financial information included in the relevant
documentation will have been prepared in accordance with accounting
standards applicable in the UK and may not be comparable to the
financial statements of US companies. However, if AspenTech were to
elect to implement the Acquisition by means of a Takeover Offer,
such Takeover Offer shall be made in compliance with all applicable
laws and regulations, including Section 14(e) of the Exchange Act
and Regulation 14E thereunder. Such Takeover Offer would be made in
the US by AspenTech and no one else. In addition to any such
Takeover Offer, AspenTech, certain affiliated companies and the
nominees or brokers (acting as agents) may make certain purchases
of, or
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arrangements to purchase, shares in KBC outside such Takeover
Offer during the period in which such Takeover Offer would remain
open for acceptance. If such purchases or arrangements to purchase
are made they would be made outside the United States in compliance
with applicable law, including the Exchange Act.
Forward looking statements
This announcement contains certain forward-looking statements
with respect to AspenTech, Global Optimisation and KBC. These
forward-looking statements can be identified by the fact that they
do not relate only to historical or current facts. Forward-looking
statements often use words such as "anticipate", "target",
"expect", "estimate", "intend", "plan", "goal", "believe", "aim",
"will", "may", "would", "could" or "should" or other words of
similar meaning or the negative thereof. Forward-looking statements
include statements relating to the following: (i) future capital
expenditures, expenses, revenues, economic performance, financial
conditions, dividend policy, losses and future prospects; (ii)
business and management strategies and the expansion and growth of
the operations of the AspenTech Group or the KBC Group; and (iii)
the effects of government regulation on the business of the
AspenTech Group or the KBC Group.
These forward-looking statements involve known and unknown
risks, uncertainties and other factors which may cause the actual
results, performance or achievements of any such person, or
industry results, to be materially different from any results,
performance or achievements expressed or implied by such
forward-looking statements. These forward-looking statements are
based on numerous assumptions regarding the present and future
business strategies of such persons and the environment in which
each will operate in the future. You are cautioned not to place
undue reliance on these forward-looking statements, which speak
only as of the date hereof. All subsequent oral or written
forward-looking statements attributable to AspenTech, Global
Optimisation or KBC or any persons acting on their behalf are
expressly qualified in their entirety by the cautionary statement
above. None of AspenTech, Global Optimisation or KBC undertake any
obligation to update publicly or revise forward-looking or other
statements contained in this announcement, whether as a result of
new information, future events or otherwise, except to the extent
legally required.
No profit forecasts or estimates
No statement in this announcement is intended as a profit
forecast or estimate for any period and no statement in this
announcement should be interpreted to mean that earnings or
earnings per ordinary share, for AspenTech or KBC, respectively for
the current or future financial years would necessarily match or
exceed the historical published earnings or earnings per ordinary
share for AspenTech or KBC, respectively.
Right to switch to a Takeover Offer
AspenTech reserves the right to elect, with the consent of the
Takeover Panel, to implement the Acquisition by way of a Takeover
Offer for the entire issued and to be issued share capital of KBC
as an alternative to the Scheme. In such an event, the Takeover
Offer will be implemented on the same terms or, if AspenTech so
decides, on such other terms being no less favourable (subject to
appropriate amendments), so far as applicable, as those which would
apply to the Scheme and subject to the amendment referred to in
Appendix I to this announcement.
Publication on website
In accordance with Rule 26.1 of the Code, a copy of this
announcement will be made available (subject to certain
restrictions relating to persons resident in Restricted
Jurisdictions), free of charge, at AspenTech's website at
www.aspentech.com/corporate/press/press-releases.aspx and KBC's
website at http://ir.kbcat.com/home/ by no later than 12 noon on 13
January 2016.
Neither the contents of these websites nor the content of any
other website accessible from hyperlinks on such websites is
incorporated into, or forms part of, this announcement.
In accordance with Rule 30.2 of the Code, a person so entitled
may request a hard copy of this announcement, free of charge, by
contacting J.P. Morgan on +44 (0)20 7742 4000 or Evercore on +44
(0)20 7653 6000. For persons who receive a copy of this
announcement in electronic form or via a website notification, a
hard copy of this announcement will not be sent unless so
requested. In accordance with Rule 30.2 of the Code, a person so
entitled may also request that all future documents, announcements
and information to be sent to them in relation to the Acquisition
should be in hard copy form.
Information relating to KBC Shareholders
Please be aware that addresses, electronic addresses and certain
other information provided by KBC Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from KBC may be provided to AspenTech during the
Offer Period as required under Section 4 of Appendix 4 of the Code
to comply with Rule 2.12(c) of the Code.
Rounding
Certain figures included in this announcement have been
subjected to rounding adjustments. Accordingly, figures shown for
the same category presented in different tables may vary slightly
and figures shown as totals in certain tables may not be an
arithmetic aggregation of the figures that precede them.
Disclosure Requirements of the Code
Under Rule 8.3(a) of the Code, any person who is interested in
1% or more of any class of relevant securities of an offeree
company or of any securities exchange offeror (being any offeror
other than an offeror in respect of which it has been announced
that its offer is, or is likely to be, solely in cash) must make an
Opening Position Disclosure following the commencement of the offer
period and, if later, following the announcement in which any
securities exchange offeror is first identified. An Opening
Position Disclosure must contain details of the person's interests
and short positions in, and rights to subscribe for, any relevant
securities of each of (i) the offeree company and (ii) any
securities exchange offeror(s). An Opening Position Disclosure by a
person to whom Rule 8.3(a) applies must be made by no later than
3.30 pm (London time) on the 10th business day following the
commencement of the offer period and, if appropriate, by no later
than 3.30 pm (London time) on the 10th business day following the
announcement in which any securities exchange offeror is first
identified. Relevant persons who deal in the relevant securities of
the offeree company or of a securities exchange offeror prior to
the deadline for making an Opening Position Disclosure must instead
make a Dealing Disclosure.
Under Rule 8.3(b) of the Code, any person who is, or becomes,
interested in 1% or more of any class of relevant securities of the
offeree company or of any securities exchange offeror must make a
Dealing Disclosure if the person deals in any relevant securities
of the offeree company or of any securities exchange offeror. A
Dealing Disclosure must contain details of the dealing concerned
and of the person's interests and short positions in, and rights to
subscribe for, any relevant securities of each of (i) the offeree
company and (ii) any securities exchange offeror(s), save to the
extent that these details have previously been disclosed under Rule
8. A Dealing Disclosure by a person to whom Rule 8.3(b) applies
must be made by no later than 3.30 pm (London time) on the business
day following the date of the relevant dealing.
If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
interest in relevant securities of an offeree company or a
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree
company and by any offeror and Dealing Disclosures must also be
made by the offeree company, by any offeror and by any persons
acting in concert with any of them (see Rules 8.1, 8.2 and
8.4).
Details of the offeree and offeror companies in respect of whose
relevant securities Opening Position Disclosures and Dealing
Disclosures must be made can be found in the Disclosure Table on
the Takeover Panel's website at www.thetakeoverpanel.org.uk,
including details of the number of relevant securities in issue,
when the offer period commenced and when any offeror was first
identified. You should contact the Takeover Panel's Market
Surveillance Unit on +44 (0)20 7638 0129 if you are in any doubt as
to whether you are required to make an Opening Position Disclosure
or a Dealing Disclosure.
Rule 2.10 Requirement
In accordance with Rule 2.10 of the Code, KBC confirms that as
at the close of business on 11 January 2016, being the last
Business Day prior to this announcement, it had 82,341,156 ordinary
shares in issue and admitted to trading on AIM under ISIN reference
GB0004804646.
APPENDIX I
CONDITIONS AND CERTAIN FURTHER TERMS OF THE OFFER
The Acquisition will be subject to the applicable requirements
of the Code, the Takeover Panel, the London Stock Exchange, the AIM
Rules and the FCA. The Acquisition will be governed by the laws of
England and Wales and will be subject to the exclusive jurisdiction
of the English courts and to the Conditions and further terms set
out in this Appendix I and to be set out in the Scheme
Document.
AspenTech reserves the right to elect (with the consent of the
Takeover Panel) to implement the Acquisition by way of a Takeover
Offer.
Each of the Conditions shall be regarded as a separate Condition
and shall not be limited by reference to any other Condition.
1. Conditions of the Acquisition
The Acquisition will be conditional upon the Scheme becoming
unconditional and effective, subject to the Code, by no later than
6.00 pm on the Long Stop Date, or such later date (if any) as
AspenTech and KBC may (with the consent of the Takeover Panel)
agree and, if required, the Takeover Panel and the Court may
allow.
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The Acquisition will be subject to the satisfaction of, or (to
the extent permitted by the Takeover Panel) waiver of, the
following Conditions:
Scheme approval
(A) The Scheme will be conditional upon:
(i) its approval by a majority in number representing not less
than 75 per cent. in value of the KBC Shareholders entitled to vote
and present and voting, either in person or by proxy, at the Court
Meeting and at any separate class meeting which may be required by
the Court (or at any adjournment, postponement or reconvention of
such meeting) on or before the 22(nd) day after the expected date
of the Court Meeting to be set out in the Scheme Document (or such
later date, if any, as AspenTech and KBC may agree and the Court
may allow);
(ii) the passing of the Resolutions by the requisite majority at
the General Meeting or at any adjournment, postponement or
reconvention of that meeting to be held on or before the 22(nd) day
after the expected date of the General Meeting to be set out in the
Scheme Document (or such later date, if any, as AspenTech and KBC
may agree and the Court may allow);
(iii) the sanction of the Scheme by the Court without
modification or with modification on terms acceptable to AspenTech
and KBC, on or before the 22(nd) day after the expected date of the
Court Hearing to be set out in the Scheme Document (or such later
date, if any, as AspenTech and KBC may agree and the Court may
allow) and the delivery of a copy of the Court Order to the
Registrar of Companies; and
(iv) the Scheme becoming Effective on or before 6.00 pm on the Long Stop Date.
In addition, subject to the requirements of the Takeover Panel,
the Acquisition will be conditional upon the following Conditions
and, accordingly, the Court Order shall not be delivered to the
Registrar of Companies unless the following Conditions (as amended
if appropriate) have been satisfied (and continue to be satisfied
pending the commencement of the Court Hearing) or, where relevant,
waived in writing prior to the Scheme being sanctioned by the
Court:
General regulatory
(B) No Third Party having decided, threatened or given notice of
its decision to take, institute, implement or threaten any action,
proceeding, suit, investigation, enquiry or reference or withdrawal
of a clearance decision, or having required any action or step to
be taken or otherwise having done anything or having enacted, made
or proposed any statute, regulation, decision or order (and in each
case, not having withdrawn the same) and there not continuing to be
outstanding any statute, regulation, decision or order which would
or might reasonably be expected to (in any case to an extent or in
a manner which is material in the context of, and adverse to, the
Acquisition):
(i) make the Acquisition, its implementation or the acquisition
or proposed acquisition of any shares or other securities in, or
control or management of, KBC by any member of the Wider AspenTech
Group, void, illegal and/or unenforceable under the laws of any
relevant jurisdiction, or otherwise directly or indirectly prevent,
prohibit, or restrain, restrict, materially delay or otherwise to a
material extent interfere with the implementation of, or impose
material additional conditions or obligations with respect to, or
otherwise impede, challenge, interfere, hinder the Acquisition or
its implementation or require material amendment to the terms of
the Acquisition or the acquisition or proposed acquisition of any
shares or other securities in, or control or management of, KBC by
any member of the Wider AspenTech Group, or otherwise challenge or
interfere therewith;
(ii) require any member of the Wider AspenTech Group or any
member of the Wider KBC Group to sell, divest, hold separate, or
otherwise dispose of all or any material part of their respective
businesses, operations, product lines or assets or property or to
prevent or materially delay any of the above;
(iii) require, prevent or materially delay the divestiture or
materially alter the terms envisaged for any proposed divestiture
by any member of the Wider AspenTech Group or by any member of the
Wider KBC Group of all or any material part of their respective
businesses, assets or property or impose any material limitation on
the ability of all or any of them to conduct their respective
businesses (or any part thereof) or to own, control or manage any
of their material assets or material properties (or any part
thereof);
(iv) impose any material limitation on, or result in a material
delay in, the ability of any member of the Wider AspenTech Group
directly or indirectly to acquire, hold or to exercise effectively
all or any rights of ownership in respect of shares or loans or
securities convertible into shares or any other securities (or the
equivalent) in KBC or on the ability of any member of the Wider KBC
Group or any member of the Wider AspenTech Group directly or
indirectly to hold or exercise effectively all or any rights of
ownership in respect of shares or loans or securities convertible
into shares or any other securities (or the equivalent) in, or to
exercise voting or management control over, any member of the Wider
KBC Group;
(v) require, prevent or materially delay a divestiture, or
materially alter the terms envisaged for any proposed divestiture
by any member of the Wider AspenTech Group or the Wider KBC Group
of any shares or other securities (or the equivalent) in any member
of the Wider KBC Group or any member of the Wider AspenTech
Group;
(vi) except pursuant to Chapter 3 of Part 28 of the Companies
Act in the event that AspenTech elects to implement the Acquisition
by way of a Takeover Offer, require any member of the Wider
AspenTech Group or the Wider KBC Group to acquire, or offer to
acquire any shares or other securities (or the equivalent) or
interest in any member of the Wider KBC Group or any asset owned by
any third party (other than in connection with the implementation
of the Acquisition);
(vii) impose any material limitation on, or result in a material
delay in, the ability of any member of the Wider AspenTech Group or
any member of the Wider KBC Group to integrate all or any part of
its business with all or any part of the business of any other
member of the Wider AspenTech Group and/or the Wider KBC Group;
(viii) require any member of the Wider KBC Group to relinquish,
terminate or amend in any material way any material contract to
which any member of the Wider KBC Group or the Wider AspenTech
Group is a party;
(ix) result in any member of the Wider KBC Group or any member
of the Wider AspenTech Group ceasing to be able to carry on
business under any name under which it currently does so in any
jurisdiction;
(x) require any member of the Wider AspenTech Group or any
member of the Wider KBC Group or any of their respective affiliates
to: (A) invest, contribute or loan any capital or assets to; or (B)
guarantee or pledge capital assets for the benefit of any member of
the Combined Group, which in each such case or together is material
and adverse in the context of the Combined Group or in the context
of the Acquisition; or
(xi) otherwise materially adversely affect all or any of the
business, assets, liabilities, profits, financial or trading
position or prospects of any member of the Wider KBC Group or any
member of the Wider AspenTech Group,
and all applicable waiting and other time periods (including any
extensions thereof) during which any such Third Party could decide
to take, institute, implement or threaten any such action,
proceeding, suit, investigation, enquiry or reference or take any
other step under the laws of any jurisdiction in respect of the
Acquisition or the acquisition or proposed acquisition of any KBC
Shares or other securities in, or control or management of, KBC or
otherwise intervene having expired, lapsed or been terminated, in
any case where the absence of the expiry, lapse or termination of
such waiting or other time period, would have a material adverse
effect on the Wider AspenTech Group or the Wider KBC Group, in each
case taken as a whole;
Other regulatory approvals
(C) Each Governmental Entity (other than any anti-trust
authority) which regulates or licences any member of the KBC Group
or any other body corporate in which any member of the KBC Group
has an interest in shares, and whose prior approval, consent or
non-objection to any change in control, or acquisition of (or
increase in) control in respect of that or any other member of the
KBC Group is required, or any Governmental Entity (other than any
anti-trust authority) whose prior approval, consent or
non-objection to the Acquisition is otherwise required, or from
whom one or more material licences or permissions are required in
order to complete the Acquisition, having given its approval,
non-objection or legitimate deemed consent or consent in writing
thereto and, as the case may be, having granted such licences and
permissions (in each case where required and on terms reasonably
satisfactory to AspenTech) and where a failure to receive such
approval, non-objection or legitimate consent or to be granted such
licences and permissions would be material and adverse in the
context of the Acquisition;
Notifications, waiting periods and Authorisations
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(D) All material notifications, filings or applications which
are necessary having been made in connection with the Acquisition
and all necessary waiting and other time periods (including any
extensions thereof) under any applicable legislation or regulations
of any relevant jurisdiction having expired, lapsed or been
terminated (as appropriate) and all applicable statutory and
regulatory obligations in any jurisdiction having been complied
with in each case in respect of the Acquisition in each case where
the absence of such notification, filing or application would have
a material effect on the Wider KBC Group or the Wider AspenTech
Group, as the case may be, in each case taken as a whole, and all
Authorisations which are necessary in any relevant jurisdiction for
or in respect of the Acquisition or the acquisition or the proposed
acquisition of any shares or other securities in, or control or
management of, KBC or any other member of the Wider KBC Group by
any member of the Wider AspenTech Group having been obtained in
terms and in a form reasonably satisfactory to AspenTech from all
relevant Third Parties or (without prejudice to the generality of
the foregoing) from any persons or bodies with whom any member of
the Wider KBC Group or the Wider AspenTech Group has entered into
contractual arrangements, in each case where the absence of an
Authorisation from such a person would have a material adverse
effect on the Wider KBC Group taken as a whole, and all such
Authorisations necessary to carry on the business of any member of
the Wider KBC Group in any jurisdiction having been obtained and
all such Authorisations remaining in full force and effect at the
time at which the Acquisition becomes Effective and there being no
written notice of any intention to revoke, suspend, restrict,
impede, modify or not to renew such Authorisations in each such
case to an extent or in a manner which is material and adverse in
the context of the Wider KBC Group or the Wider AspenTech Group, as
the case may be, in each case, taken as a whole or is material and
adverse in the context of the Acquisition;
KBC Shareholder resolutions
(E) No resolution of KBC Shareholders in relation to any
acquisition or disposal of assets or shares (or the equivalent
thereof) in any undertaking or undertakings (or in relation to any
merger, consolidation, demerger, reconstruction, amalgamation or
scheme) being passed at a meeting of KBC Shareholders other than in
relation to the implementation of the Acquisition or the Scheme
and, other than with the consent or the agreement of AspenTech, no
member of the KBC Group having taken (or agreed or proposed to
take) any action that requires, or would require, the consent of
the Takeover Panel or the approval of KBC Shareholders in general
meeting in accordance with, or as contemplated by, Rule 21.1 of the
Code;
Certain matters arising as a result of any arrangement,
agreement, etc.
(F) Except as Disclosed, there being no provision of any
agreement, arrangement, lease, licence, franchise, permit or other
instrument to which any member of the Wider KBC Group is a party,
or by or to which any such member or any of its assets is or are or
may be bound, entitled or subject or any event or circumstance,
which, in each case as a consequence of the Acquisition, or the
acquisition or proposed acquisition of any shares in, or because of
a change in the control or management of KBC or any other member of
the Wider KBC Group or otherwise, would or might reasonably be
expected to result in (in any case to an extent that is or would be
material and adverse in the context of the Wider KBC Group taken as
a whole):
(i) any monies borrowed by, or any other indebtedness or
liabilities (actual or contingent) of, or any grant available to,
any such member being or becoming repayable or capable of being
declared repayable immediately or prior to its or their stated
maturity date or repayment date, or the ability of any such member
to borrow monies or incur any indebtedness being withdrawn or being
capable of becoming or being withdrawn;
(ii) any such agreement, arrangement, lease, licence, franchise,
permit or other instrument or the rights, liabilities, obligations,
interests or business of any such member thereunder, or the
interests or business of any such member in or with any other
person (or any arrangement or arrangements relating to any such
interests or business) being, or becoming capable of being
terminated or adversely affected or any onerous obligation or
liability arising or any adverse action occurring thereunder;
(iii) any such member ceasing to be able to carry on its
business under any name under which it currently does so;
(iv) any material assets or material interests of or used by any
such member being or being required to be disposed of or charged or
ceasing to be available to any such member or any right arising
under which any such material asset or material interest could be
required to be disposed of or charged or could cease to be
available to any such member, in each case otherwise than in the
ordinary course of business;
(v) the creation, save in the ordinary course of business, or
enforcement of any mortgage, charge or other security interest over
the whole or any part of the business, property or assets of any
such member or any such mortgage, charge or other security interest
(whenever created, arising or having arisen) becoming
enforceable;
(vi) the creation or acceleration of any liability, actual or
contingent, by any such member (other than creation of trade
creditors or other liabilities incurred in the ordinary course of
business);
(vii) any material liability of any such member to make any
severance, termination, bonus or other payment to any of its
directors or other officers;
(viii) any requirement on any such member to acquire, subscribe,
pay up or repay any shares or other securities;
(ix) the rights, liabilities, obligations or interests of any
such member in, or the business of any such member with, any
person, firm, company or body (or any arrangement or arrangements
relating to any such interest or business) being or becoming
capable of being terminated, or adversely modified or affected or
any onerous obligation or liability arising or any adverse action
being taken thereunder; or
(x) the value of any such member or its financial or trading
position or prospects being prejudiced or adversely affected,
and no event having occurred which, under any provision of any
agreement, arrangement, lease, licence, franchise, permit or other
instrument to which any member of the Wider KBC Group is a party or
by or to which any such member or any of its assets are or may be
bound, entitled or subject, would or might reasonably be expected
to result in any of the events or circumstances as are referred to
in sub-paragraphs (i) to (x) of this Condition (F) (Certain matters
arising a result of any arrangement, agreement, etc.);
Certain events occurring since 31 December 2014
(G) Since 31 December 2014, except as Disclosed, no member of the Wider KBC Group having:
(i) save for transactions between KBC and any of its
wholly-owned subsidiaries or between the wholly-owned subsidiaries
of KBC or upon the exercise of rights to subscribe for KBC Shares
pursuant to the vesting of awards or the exercise of options
granted under any of the KBC Share Schemes in the ordinary course
of business consistent with past practice on or prior to 31
December 2014, issued or agreed to issue or authorised or proposed
or announced its intention to authorise or propose the issue of
additional shares (or other securities) of any class, or securities
or securities convertible into or exchangeable for, or rights,
warrants or options to subscribe for or acquire, any such shares,
securities or convertible securities or transferred or sold, or
agreed to transfer or sell or authorised or proposed the transfer
or sale of any shares out of treasury (except to satisfy awards or
the exercise of options under the KBC Share Schemes) or purchased,
redeemed or repaid or announced any proposal to purchase, redeem or
repay any of its own shares or other securities or reduced or made
any other change to any part of its share capital;
(ii) other than dividends (or other distributions whether
payable in cash or otherwise) lawfully paid or made by any
wholly-owned subsidiary of KBC to KBC or any of its wholly-owned
subsidiaries, recommended, declared, paid or made or proposed to
recommend, declare, pay or make any bonus issue, dividend or other
distribution whether payable in cash or otherwise;
(iii) save for transactions between KBC and any of its
wholly-owned subsidiaries or between the wholly-owned subsidiaries
of KBC or pursuant to the Acquisition, merged or demerged with any
body corporate or acquired or disposed of or transferred, mortgaged
or charged or created any security interest over any material
assets or any right, title or interest in any material asset
(including shares or loan capital (or the equivalent thereof) in
any undertaking or undertakings and further including trade
investments) or implemented, effected, authorised or proposed or
announced any intention to implement, effect, authorise or propose
any such merger, demerger, reconstruction, amalgamation, scheme,
commitment, acquisition, disposal, transfer, mortgage, charge or
security interest (which, in the case of an acquisition or disposal
is material in the context of the Wider KBC Group taken as a whole
or in the context of the Acquisition and in the case of any
transfer, mortgage, charge or security interest, is other than in
the ordinary course of business);
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(iv) save for transactions between KBC and any of its
wholly-owned subsidiaries or between the wholly-owned subsidiaries
of KBC, made or authorised or proposed or announced an intention to
propose any change to the terms of any of its loan capital,
debentures or other indebtedness, which in any case is material and
adverse in the context of the Wider KBC Group taken as a whole or
material and adverse in the context of the Acquisition;
(v) entered into, implemented or authorised the entry into of,
or amended, terminated or permitted to be terminated, any joint
venture, asset or profit sharing arrangement, partnership or merger
of business or corporate entities which in any case is material and
adverse in the context of the Wider KBC Group taken as a whole or
material and adverse in the context of the Acquisition;
(vi) save for transactions between KBC and any of its
wholly-owned subsidiaries or between the wholly-owned subsidiaries
of KBC, issued or agreed to issue, authorised or proposed or
announced an intention to authorise or propose the issue of, any
debentures or (except in the ordinary course of business), incurred
or increased, or agreed to incur or increase, any indebtedness
which is material and adverse in the context of the Wider KBC Group
taken as a whole or material and adverse in the context of the
Acquisition, or become, or agreed to become, subject to any
liability (actual or contingent) to an extent which is material and
adverse in the context of the Wider KBC Group taken as a whole or
material and adverse in the context of the Acquisition;
(vii) implemented, effected, authorised or proposed or announced
its intention to implement, effect, authorise or propose any
composition, assignment, reconstruction, amalgamation, scheme,
commitment or other transaction or arrangement otherwise than in
the ordinary course of business or in respect of the Acquisition or
entered into or materially varied, or made any offer to enter into
or materially vary, the terms of any contract, agreement or
arrangement with any director or senior executive of any member of
the Wider KBC Group other than in the ordinary course of business
or in respect of the Acquisition, in each case other than with the
agreement of AspenTech or the Takeover Panel;
(viii) entered into or varied or authorised, proposed or
announced its intention to enter into or vary any material
agreement, contract, transaction, arrangement or commitment
(whether in respect of capital expenditure or otherwise) other than
in the ordinary course of business which is of a long-term, onerous
or unusual nature or magnitude or which is or involves or would or
might reasonably be expected to involve an obligation of a nature
or magnitude which is or would be or might reasonably be likely to
be materially restrictive or onerous on the business of any member
of the Wider KBC Group or the Wider AspenTech Group which taken
together with any other such material agreement, contract,
transaction, arrangement or commitment is or would be or might
reasonably be expected to be material and adverse in the context of
the Wider KBC Group taken as a whole or material and adverse in the
context of the Acquisition;
(ix) other than in respect of a member which is dormant and was
solvent at the relevant time, taken or proposed any step or
corporate action, or had any legal proceedings instituted or
threatened against it or petition presented or order made, in
relation to the suspension of payments, a moratorium of any
indebtedness, its winding-up (voluntary or otherwise), dissolution
or reorganisation or for the appointment of a receiver,
administrative receiver, administrator, manager, trustee or similar
officer of all or any material part of its assets or revenues or
any analogous or equivalent steps or proceedings in any
jurisdiction or appointed any analogous person in any jurisdiction
or had any such person appointed, which in any case is material in
the context of the Wider KBC Group taken as a whole;
(x) been unable, or admitted in writing that it is unable, to
pay its debts as they fall due or commenced negotiations with one
or more of its creditors with a view to rescheduling or
restructuring any of its indebtedness, or having stopped or
suspended (or threatened to stop or suspend) payment of its debts
generally or ceased or threatened to cease carrying on all or a
substantial part of its business, which in any case is material in
the context of the Wider KBC Group taken as a whole;
(xi) entered into or changed the terms of, or made any offer
(which remains open for acceptance) to enter into or vary the terms
of, any contract, service agreement, commitment, transaction or
arrangement which would be materially restrictive on the business
of any member of the Wider KBC Group or the Wider AspenTech Group
other than in the ordinary course of the business concerned;
(xii) waived, compromised or settled any claim which is material
and adverse in the context of the Wider KBC Group taken as a whole
or material and adverse in the context of the Acquisition otherwise
than in the ordinary course of business;
(xiii) terminated or varied the terms of any agreement or
arrangement between any member of the Wider KBC Group and any other
person in a manner which would or might reasonably be expected to
have a material adverse effect on the financial position of the
Wider KBC Group taken as a whole;
(xiv) except in relation to changes made or agreed as a result
of, or arising from, legislation or changes to legislation, made or
agreed or consented to any change in any material respect to:
(a) the terms of the trust deeds (or other terms) constituting
the pension scheme(s) established by any member of the Wider KBC
Group for its directors, officers, employees or their
dependants;
(b) the contributions payable to any such scheme(s) or to the
benefits which accrue or to the pensions which are payable
thereunder;
(c) the basis on which qualification for, or accrual or
entitlement to, such benefits or pensions are calculated or
determined;
(d) the basis upon which the liabilities (including pensions) of
such pension schemes are funded, valued or made, or agreed or
consented to; or
(e) the trustees involving the appointment of a trust corporation,
in a manner which, in any such case or together, is material and
adverse in the context of the Wider KBC Group taken as a whole or
material and adverse in the context of the Acquisition;
(xv) save as agreed in writing by AspenTech, proposed, agreed to
provide or modified the terms of any share option scheme, incentive
scheme or other benefit relating to the employment or termination
of employment of any person employed by the Wider KBC Group which
are material and adverse in the context of the Wider KBC Group
taken as a whole or material and adverse in the context of the
Acquisition;
(xvi) (except as disclosed on publicly available registers) made
any material alteration to the articles of association or other
incorporation documents of KBC or any material alteration to the
memorandum or articles of association of any other member of the
KBC Group (in each case, other than an alteration in connection
with the Acquisition) which in any such case or together is
material and adverse in the context of the KBC Group taken as a
whole or material and adverse in the context of the Acquisition;
or
(xvii) entered into any contract, commitment, arrangement or
agreement otherwise than in the ordinary course of business or
passed any resolution or made any offer (which remains open for
acceptance) with respect to or announced any intention to, or to
propose to, effect any of the transactions, matters or events
referred to in this Condition G (Certain events occurring since 31
December 2014), which in any case is material in the context of the
Wider KBC Group taken as a whole or in the context of the
Acquisition;
No adverse change, litigation or regulatory enquiry
(H) Since 31 December 2014, except as Disclosed, there having been:
(i) no material adverse change or deterioration in the business,
assets, liabilities, shareholders' equity, financial or trading
position or profits, operational performance or prospects of any
member of the Wider KBC Group which, in any such case or together,
is material in the context of the Wider KBC Group taken as a whole
and no circumstance having arisen which would or might reasonably
be expected to result in any such adverse change or
deterioration;
(ii) no agreement or arrangement between any member of the Wider
KBC Group and any other person has been terminated or varied in a
manner which, in any such case or together, would or might
reasonably be expected to have a material adverse effect on the
financial position of the Wider KBC Group taken as a whole;
(iii) no litigation, arbitration proceedings, prosecution or
other legal proceedings to which any member of the Wider KBC Group
is or may become a party (whether as a claimant, defendant or
otherwise) and no enquiry, review or investigation by, or complaint
or reference to, any Third Party against or in respect of any
member of the Wider KBC Group (or any person in respect of which
any such member has or may have responsibility or liability) having
been threatened in writing, announced, implemented or instituted by
or against or remaining outstanding against or in respect of any
member of the Wider KBC Group which, in any such case or together,
has had, or might reasonably be expected to have, a material
adverse effect on the Wider KBC Group taken as a whole or material
and adverse in the context of the Acquisition;
(MORE TO FOLLOW) Dow Jones Newswires
January 12, 2016 02:00 ET (07:00 GMT)
(iv) no contingent or other material liability having arisen or
become apparent to AspenTech or increased other than in the
ordinary course of business which has had, or might reasonably be
expected to have, a material adverse effect on the business,
assets, financial or trading position or profits or prospects of
any member of the Wider KBC Group to an extent which, in any such
case or together, is material and adverse in the context of the
Wider KBC Group taken as a whole or material and adverse in the
context of the Acquisition; and
(v) no action having been taken and no omissions having been
made which are reasonably likely to lead to or result in the
withdrawal, cancellation, termination, modification or variation of
any Authorisation held by or on behalf of any member of the Wider
KBC Group which is necessary for the proper carrying on of its
business and the withdrawal, cancellation, termination or
modification of which has had, or would reasonably be expected to
have, a material adverse effect on the Wider KBC Group taken as a
whole or in the context of the Acquisition;
No discovery of certain matters regarding information and
liabilities
(I) Except as Disclosed, AspenTech not having discovered:
(i) that any financial, business or other information concerning
the Wider KBC Group as contained in the information publicly
disclosed prior to the date of this announcement at any time by or
on behalf of any member of the Wider KBC Group or disclosed in the
information contained in the data rooms established by KBC for the
purposes of the Acquisition is materially misleading, contains a
misrepresentation of any material fact or omits to state a fact
necessary to make that information not misleading in any material
respect where in each case the relevant information has not
subsequently been corrected prior to the date of this announcement
by disclosure either publicly or otherwise to AspenTech, in each
case to an extent which is in any case, material and adverse in the
context of the Wider KBC Group taken as a whole or material and
adverse in the context of the Acquisition; or
(ii) that any member of the Wider KBC Group or any partnership,
company or other entity in which any member of the Wider KBC Group
has a significant economic interest and which is not a subsidiary
undertaking of KBC is, otherwise than in the ordinary course of
business, subject to any liability (contingent or otherwise) which,
in any such case or together, is material and adverse in the
context of the Wider KBC Group taken as a whole or material and
adverse in the context of the Acquisition; and
Anti-corruption, sanctions and criminal property
(J) Except as Disclosed, AspenTech not having discovered:
(i) any past or present member, director, officer or employee of
the Wider KBC Group, or any other person for whom any such person
may be liable or responsible, has not (in the course of the
business of the Wider KBC Group or their engagement on it) complied
with the OECD Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions and any laws
implementing the same, the UK Bribery Act 2010 and/or the US
Foreign Corrupt Practices Act of 1977;
(ii) any past or present member, director, officer or employee
of the Wider KBC Group, or any other person for whom any such
person may be liable or responsible, has (in the course of the
business of the Wider KBC Group or their engagement on it) engaged
in any business with or made any investments in, or made any
payments to, (a) any government, entity or individual with which US
or EU persons are prohibited from engaging in activities or doing
business by US or EU laws or regulations, including the economic
sanctions administered by the United States Office of Foreign
Assets Control, or (b) any government, entity or individual
targeted by any of the economic sanctions of the United Nations or
the European Union or any of their respective member states;
and
(iii) any asset of any member of the Wider KBC Group constitutes
criminal property as defined by section 340(3) of the Proceeds of
Crime Act 2002 (but disregarding paragraph (b) of that
definition).
2. Waiver and amendment of Conditions
Subject to the requirements of the Takeover Panel, AspenTech
reserves the right in its sole discretion to waive (if capable of
waiver) in whole or in part:
(A) any of the Conditions set out in the above Condition (A)
relating to the dates of the Court Meeting, General Meeting, the
Court Hearing and the sanctioning of the Scheme. If any of the
deadlines for those events are not met, AspenTech shall release an
announcement via a Regulatory Information Service by 8.00 am on the
Business Day following such deadline confirming whether it has
invoked or waived the relevant Condition or agreed with KBC to
extend the relevant deadline in respect of all or any of the above
Conditions; and
(B) any of the above Conditions (B) (General regulatory) to (J)
(Anti-corruption, sanctions and criminal property) (inclusive).
Conditions (B) (General regulatory) to (J) (Anti-corruption,
sanctions and criminal property) (inclusive) must be fulfilled or
waived by no later than 11.59 pm on the date immediately preceding
the date of the Court Hearing, failing which the Scheme will lapse
or if the Acquisition is implemented by way of a Takeover Offer, no
later than as permitted by the Takeover Panel. AspenTech shall be
under no obligation to waive or treat as satisfied any of
Conditions by a date earlier than the latest date specified above
for the fulfilment or waiver thereof, notwithstanding that any such
Condition or the other Conditions of the Scheme and the Acquisition
may at such earlier date have been waived or fulfilled and that
there are at such earlier date no circumstances indicating that any
of such Conditions may not be capable of fulfilment.
If AspenTech is required by the Takeover Panel to make an offer
for KBC Shares under the provisions of Rule 9 of the Code,
AspenTech may make such alterations to the Conditions and further
terms of the Acquisition as are necessary to comply with the
provisions of that Rule.
3. Implementation by Way of a Takeover Offer
AspenTech may, with the consent of the Takeover Panel, implement
the Acquisition by making, directly or indirectly through a
subsidiary or nominee of AspenTech a Takeover Offer as an
alternative to the Scheme. In such event, the Takeover Offer will
be implemented on the same terms or, if AspenTech so decides, on
such other terms being no less favourable, subject to appropriate
amendments, so far as applicable, as those which would apply to the
Scheme. The acceptance condition would be set at 90 per cent. of
the shares to which such Takeover Offer relates (or such lesser
percentage (being more than 50 per cent.) as AspenTech may decide
with the consent of the Takeover Panel). Further, if sufficient
acceptances of the Takeover Offer are received and/or sufficient
KBC Shares are otherwise acquired, it is the intention of AspenTech
to apply the provisions of the Companies Act to compulsorily
acquire any outstanding KBC Shares to which such Takeover Offer
relates.
4. Certain further terms of the Acquisition
(A) The Acquisition will lapse (unless otherwise agreed with the Takeover Panel) if:
(i) in so far as the Acquisition or any matter arising from or
relating to the Scheme or Acquisition constitutes a concentration
with a Community dimension within the scope of the Regulation, the
European Commission either initiates proceedings under Article
6(1)(c) of the Regulation or makes a referral to a competent
authority in the United Kingdom under Article 9(1) of the
Regulation and there is then a CMA Phase 2 Reference; or
(ii) in so far as the Acquisition or any matter arising from the
Scheme or Acquisition does not constitute a concentration with a
Community dimension within the scope of the Regulation, the Scheme
or Acquisition or any matter arising from or relating to the
Acquisition becomes subject to a CMA Phase 2 Reference,
in each case, before the date of the Court Meeting.
(B) AspenTech reserves the right for any other member of the
AspenTech Group from time to time to implement the Acquisition.
(C) The availability of the Acquisition to KBC Shareholders who
are not resident in the United Kingdom may be affected by the laws
of relevant jurisdictions. Therefore any persons who are subject to
the laws of any jurisdiction other than the United Kingdom and any
KBC Shareholders who are not resident in the United Kingdom will
need to inform themselves about, and observe, any applicable
requirements.
(D) Unless otherwise determined by AspenTech or required by the
Code and permitted by applicable law and regulation, the
Acquisition is not being, and will not be, made, directly or
indirectly, in or into or by the use of the mails of, or by any
other means or instrumentality (including, without limitation,
facsimile transmission, telex, telephone, internet or other forms
of electronic transmission) of interstate or foreign commerce of,
or by any facility of a national, state or other securities
exchange of, any Restricted Jurisdiction and will not be capable of
acceptance by any such use, means, instrumentality or facility or
from within any Restricted Jurisdiction.
(E) KBC Shares which will be acquired under the Acquisition will
be acquired with full title guarantee, fully paid and free from all
liens, equities, charges, encumbrances, options, rights of
pre-emption and any other third party rights and interests of any
nature and together with all rights now or hereafter attaching or
accruing to them, including voting rights and the right to receive
and retain in full all dividends and other distributions (if any),
and any other return of capital (whether by way of reduction of
share capital or share premium account or otherwise), declared,
made or paid on or after the date of this announcement.
(MORE TO FOLLOW) Dow Jones Newswires
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APPENDIX II
SOURCES OF INFORMATION AND BASES OF CALCULATION
In this announcement:
(i) Unless otherwise stated, financial information concerning
KBC has been extracted from the Annual Report and Accounts of KBC
or KBC's half-year report for the six months ended 30 June
2015.
(ii) The value of the Acquisition is based upon the following share count:
-- 82,341,156 KBC Shares in issue on 11 January 2016 (net of 214,000 Treasury Shares)
-- Plus 3,756,699 KBC Shares which are the subject of the
expected vesting of awards and the exercise of options granted and
to be granted under the KBC Share Schemes
-- Less 507,790 KBC Shares currently held in KBC's employee
benefit trusts and included in the existing issued share capital
which may be utilised to satisfy awards under the KBC Share
Schemes
-- Resulting in a fully diluted share capital of 85,590,065 KBC Shares.
(iii) Unless otherwise stated, all prices for KBC Shares are the
Closing Price for the relevant date.
(iv) The exchange rate of 0.6881 for the conversion of US
dollars into pounds sterling has been derived from Bloomberg and is
based on the exchange rate as at 4:00 pm (London time) on 11
January 2016 (being the last Business Day prior to this
announcement).
(v) The premia implied by the Acquisition price have been
calculated with reference to prices of:
-- 124 pence per KBC Share on 11 January 2016 (being the last
Business Day prior to this announcement);
-- the volume weighted average Closing Price of 135 pence per
KBC Share for the one month ended on 11 January 2016 (being the
last Business Day prior to this announcement); and
-- the volume weighted average Closing Price of 132 pence per
KBC Share for the three months ended on 11 January 2016 (being the
last Business Day prior to this announcement).
(vi) Total Shareholder Return has been derived from Bloomberg.
APPENDIX III
IRREVOCABLE UNDERTAKINGS
KBC Directors' Irrevocable Undertakings
Global Optimisation has received irrevocable commitments from
each of the members of the KBC Board who hold KBC Shares (in a
personal capacity or through a nominee[5]), as listed below, in
respect of their own beneficial holdings of KBC Shares and (to the
extent relevant) the beneficial holdings of each KBC Board member's
spouse, civil partner, de facto partner, or similarly-related
person, representing in aggregate approximately 0.51 per cent. of
KBC's issued share capital as at 11 January 2016 (being the last
Business Day prior to this announcement). These commitments require
each relevant member of the KBC Board to vote or procure that the
registered holder votes in favour of the Scheme at the Court
Meeting and the Resolutions to be proposed at the General Meeting
(or, in the event the Acquisition is implemented by means of a
Takeover Offer, to accept, or procure acceptance of, the Takeover
Offer).
Name of KBC Director Number of KBC Shares Approximate % of KBC issued share capital
Ian Godden 276,000 0.34
Andrew Howell 83,164 0.10
Kevin Smith 57,842 0.07
TOTAL 417,006 0.51
These irrevocable commitments will continue to be binding in the
event that a higher competing offer is made for KBC.
These irrevocable commitments will cease to be binding on the
earliest to occur of the following events:
-- if the Scheme does not become Effective, or if AspenTech
elects to implement the Acquisition by way of a Takeover Offer, the
Takeover Offer does not become unconditional as to acceptances, in
each case by 12 May 2016 (or such later date as AspenTech and KBC
agree in writing);
-- if the Acquisition lapses or is withdrawn, except in
circumstances where such lapse or withdrawal is solely as a result
of AspenTech exercising its right to implement the Acquisition by
way of a Takeover Offer rather than the Scheme or vice versa;
or
-- if AspenTech announces, with the consent of the Takeover
Panel and before the Scheme Document or Offer Document is posted,
that it does not intend to proceed with the Acquisition and no new,
revised or replacement Scheme or Takeover Offer is
contemporaneously announced by AspenTech.
KBC Shareholder Irrevocable Undertakings
Global Optimisation has received irrevocable commitments from
the following KBC Shareholders in respect of their beneficial
holdings of KBC Shares representing in aggregate approximately 42.1
per cent. of KBC's issued share capital as at 11 January 2016
(being the last Business Day prior to this announcement). These
commitments are subject to certain limitations and exceptions as
described below.
These commitments require each such shareholder to vote or
procure that the registered holder votes in favour of the Scheme at
the Court Meeting and the Resolutions to be proposed at the General
Meeting.
Name of KBC Shareholder Number of Approximate
KBC Shares % of KBC issued
share capital
Kestrel Partners LLP 13,006,871 15.8
AXA Investment Management
UK Limited 8,106,000 9.8
Hargreave Hale Limited 4,750,000 5.8
Herald Investment Trust
plc 3,955,000 4.8
Killik & Co LLP 3,724,271 4.5
Ari Zaphiriou-Zarifi 1,145,000 1.4
TOTAL 34,687,142 42.1
Kestrel Partners LLP
The irrevocable commitments given by Kestrel Partners LLP will
cease to be binding on the earliest to occur of the following:
-- AspenTech announces that the Acquisition will not proceed;
-- the Takeover Panel announces that it has released AspenTech
from its obligation under the Code to make or proceed with the
Acquisition or the Takeover Panel confirms to AspenTech or its
financial advisers or Kestrel Partners LLP that it has released
AspenTech from that obligation;
-- a majority of the KBC Directors cease to recommend on an
unqualified basis that holders of KBC Shares vote in favour of the
Resolutions;
-- AspenTech ceases to be permitted under the Code to proceed with the Acquisition;
-- an announcement is released by any person of a firm intention
to make a competing offer for KBC at a value that is (in the
opinion of Kestrel Partners LLP) in excess of that set out in this
announcement; and
-- the Long Stop Date.
AXA Investment Management UK Limited
The irrevocable commitments given by AXA Investment Management
UK Limited will cease to be binding on the earliest to occur of the
following:
-- AspenTech announces that the Acquisition will not proceed;
-- the Takeover Panel announces that it has released AspenTech
from its obligation under the Code to make or proceed with the
Acquisition or the Takeover Panel confirms to AspenTech or its
financial advisers or AXA Investment Management UK Limited that it
has released AspenTech from that obligation;
-- a majority of the KBC Directors cease to recommend on an
unqualified basis that holders of KBC Shares vote in favour of the
Resolutions;
-- AspenTech ceases to be permitted under the Code to proceed with the Acquisition;
-- an announcement is released by any person of a firm intention
to make a competing offer for KBC at a value that is reasonably
considered by AXA Investment Management UK Limited to be in excess
of that set out in this announcement;
-- the Long Stop Date; and
-- the date falling six months from the date of this announcement.
Hargreave Hale Limited
The irrevocable commitments given by Hargreave Hale Limited will
cease to be binding on the earliest to occur of the following:
-- AspenTech announces that the Acquisition will not proceed;
-- the Takeover Panel announces that it has released AspenTech
from its obligation under the Code to make or proceed with the
Acquisition or the Takeover Panel confirms to AspenTech or its
financial advisers or Hargreave Hale Limited that it has released
AspenTech from that obligation;
-- a majority of the KBC Directors cease to recommend on an
unqualified basis that holders of KBC Shares vote in favour of the
Resolutions;
-- AspenTech ceases to be permitted under the Code to proceed with the Acquisition;
-- an announcement is released by any person of a firm intention
to make a competing offer for KBC at a value that is (in the
opinion of Hargreave Hale Limited) in excess of that set out in
this announcement; and
-- the Long Stop Date.
Herald Investment Trust plc
The irrevocable commitments given by Herald Investment Trust plc
will cease to be binding on the earliest to occur of the
following:
-- AspenTech announces that the Acquisition will not proceed;
-- the Takeover Panel announces that it has released AspenTech
from its obligation under the Code to make or proceed with the
Acquisition or the Takeover Panel confirms to AspenTech or its
financial advisers or Herald Investment Trust plc that it has
released AspenTech from that obligation;
-- a majority of the KBC Directors cease to recommend on an
unqualified basis that holders of KBC Shares vote in favour of the
Resolutions;
-- AspenTech ceases to be permitted under the Code to proceed with the Acquisition;
-- an announcement is released by any person of a firm intention
to make a competing offer for KBC at a value that is (in the
opinion of Herald Investment Trust plc) in excess of that set out
in this announcement; and
-- the Long Stop Date.
Killik & Co LLP
The irrevocable commitments given by Killik & Co LLP will
cease to be binding on the earliest to occur of the following:
-- AspenTech announces that the Acquisition will not proceed (or
will proceed otherwise than by way of a scheme of arrangement);
(MORE TO FOLLOW) Dow Jones Newswires
January 12, 2016 02:00 ET (07:00 GMT)
-- the Takeover Panel announces that it has released AspenTech
from its obligation under the Code to make or proceed with the
Acquisition or the Takeover Panel confirms to AspenTech or its
financial advisers or Killik & Co LLP that it has released
AspenTech from that obligation;
-- a majority of the KBC Directors cease to recommend on an
unqualified basis that holders of KBC Shares vote in favour of the
Resolutions;
-- AspenTech ceases to be permitted under the Code to proceed with the Acquisition;
-- an announcement is released by any person of a firm intention
to make a competing offer for KBC at a value that is (in the
opinion of Killik & Co LLP) in excess of that set out in this
announcement; and
-- 22 May 2016.
Ari Zaphiriou-Zarifi
The irrevocable commitments given by Ari Zaphiriou-Zarifi will
cease to be binding on the earliest to occur of the following:
-- AspenTech announces that the Acquisition will not proceed (or
will proceed otherwise than by way of a scheme of arrangement);
-- the Takeover Panel announces that it has released AspenTech
from its obligation under the Code to make or proceed with the
Acquisition or the Takeover Panel confirms to AspenTech or its
financial advisers or Ari Zaphiriou-Zarifi that it has released
AspenTech from that obligation;
-- a majority of the KBC Directors cease to recommend on an
unqualified basis that holders of KBC Shares vote in favour of the
Resolutions;
-- AspenTech ceases to be permitted under the Code to proceed with the Acquisition;
-- an announcement is released by any person of a firm intention
to make a competing offer for KBC at a value that is (in the
opinion of Ari Zaphiriou-Zarifi) in excess of that set out in this
announcement; and
-- the Long Stop Date.
APPENDIX IV
DEFINITIONS
The following definitions apply throughout this announcement,
unless the context otherwise requires:
"Acquisition" the recommended all-cash acquisition
of the entire issued and to
be issued share capital of
KBC by Global Optimisation
to be effected by the Scheme
as described in this announcement
(or by a Takeover Offer under
certain circumstances as described
in this announcement) on the
terms and subject to the conditions
to be set out in the Scheme
Document including, where the
context requires, any subsequent
revision, variation, extension
or renewal of such offer and
includes any election available
thereunder
"AIM" the Alternative Investment
Market of the London Stock
Exchange
"AIM Rules" the AIM Rules for Companies
as published by the London
Stock Exchange (as amended
from time to time)
"Annual Report the annual report and audited
and Accounts of financial statements of KBC
KBC" for the year ended 31 December
2014
"AspenTech" Aspen Technology, Inc., a Delaware
corporation with its headquarters
at 20 Crosby Drive, Bedford,
MA 01730 USA
"AspenTech Directors" the directors of AspenTech
and "AspenTech Director" means
any one of them
"AspenTech Group" AspenTech and its subsidiary
undertakings and associated
undertakings
"associated undertaking" has the meaning given by the
Companies Act
"Authorisations" for the purposes of the Conditions,
means authorisations, orders,
grants, recognitions, determinations,
confirmations, consents, licences,
clearances, permissions, exemptions
and approvals
"Business Day" a day on which banks are generally
open for business in the United
Kingdom and New York, USA,
not including Saturdays, Sundays
or any public holiday
"Cenkos" Cenkos Securities Plc
"Closing Price" the closing middle market price
of an KBC Share on a particular
trading day as derived from
the AIM appendix to the Daily
Official List
"CMA" the independent public body
which conducts second phase,
in-depth inquiries into mergers,
markets and the regulation
of the major regulated industries
in the United Kingdom (or any
successor body or bodies carrying
out the same functions in the
United Kingdom from time to
time)
"Code" the City Code on Takeovers
and Mergers
"Combined Group" the enlarged group following
the Acquisition, comprising
the AspenTech Group and the
KBC Group
"Community" the European Community
"Companies Act" the UK Companies Act 2006,
as amended from time to time
"Conditions" the conditions of the Acquisition,
as set out in Appendix I to
this announcement and to be
set out in the Scheme Document
"Confidentiality has the meaning given to that
Agreement" term in paragraph 11 of this
announcement (Acquisition related
arrangements)
"Consideration" the cash payment of 185 pence
per Scheme Share to be made
pursuant to the Scheme to the
Scheme Shareholders
"Court" the High Court of Justice in
England and Wales
"Court Hearing" the hearing of the Court to
sanction the Scheme under section
899 of the Companies Act and
if such hearing is adjourned
references to commencement
of any such hearing shall mean
the commencement of the final
adjournment thereof
"Court Meeting" the meeting or meetings of
the Scheme Shareholders (or
the relevant class or classes
thereof) as may be convened
pursuant to an order of the
Court under section 896 of
the Companies Act for the purposes
of considering and, if thought
fit, approving the Scheme (with
or without amendment) including
any adjournment thereof, notice
of which is to be contained
in the Scheme Document
"Court Order" the order of the Court sanctioning
the Scheme under section 899
of the Companies Act
"CREST" the relevant system (as defined
in the Uncertificated Securities
Regulations 2001 (SI 2001/3755))
in respect of which Euroclear
UK & Ireland Limited is the
Operator (as defined in the
CREST Regulations)
"CREST Regulations" the Uncertificated Securities
Regulations 2001 (SI 2001/3755)
"Daily Official the Daily Official List of
List" the London Stock Exchange
"Dealing Disclosure" an announcement pursuant to
Rule 8 of the Code containing
details of dealings in interests
in relevant securities of a
party to an offer
"Disclosed" (i) matters fairly disclosed
in the information made available
to AspenTech (or AspenTech's
advisers) in the data rooms
established by KBC for the
purposes of the Acquisition;
(ii) any other information
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that is fairly disclosed by
or on behalf of KBC to AspenTech
or AspenTech's financial, accounting,
tax or legal advisers (specifically
as AspenTech's advisers in
relation to the Acquisition);
(iii) information included
in KBC's annual report and
audited accounts for the relevant
financial period or periods
referred to in the relevant
Condition and published prior
to the date of this announcement;
(iv) information included in
KBC's half-year report for
the six months ended 30 June
2015; (v) disclosed in a public
announcement to a Regulatory
Information Service made by
KBC prior to the date of this
announcement; or (vi) disclosed
in this announcement
"Disclosure Table" the disclosure table on the
Takeover Panel's website at
www.thetakeoverpanel.org.uk,
including details of the offeree
and offeror companies in respect
of whose relevant securities
any Opening Position Disclosures
and Dealing Disclosures must
be made
"Effective" in the context of the Acquisition:
(i) if the Acquisition is implemented
by way of a Scheme, the Scheme
having become effective in
accordance with its terms,
upon the delivery of the Court
Order to the Registrar of Companies
and, if the Court so orders,
registration by the Registrar
of Companies; or (ii) if the
Acquisition is implemented
by way of a Takeover Offer,
the Takeover Offer having been
declared or become unconditional
in all respects in accordance
with the requirements of the
Code
"Effective Date" the date upon which:
(a) the Scheme becomes Effective;
or
(b) if AspenTech elects and
the Takeover Panel consents
to implement the Acquisition
by way of a Takeover Offer,
the Takeover Offer becomes
Effective
"EU" European Union
"Evercore" Evercore Partners International
LLP
"Exchange Act" the US Securities Exchange
Act of 1934, as amended
"Facility Agreement" has the meaning given to that
term in paragraph 9 of this
announcement (Financing)
"FCA" or "Financial the UK Financial Conduct Authority
Conduct Authority" or its successor from time
to time
"Fee and Syndication the fee and syndication letter
Letter" entered into in connection
with the Facility Agreement
between J.P. Morgan Securities
LLC (as sole bookrunning agent
and sole lead arranger), J.P.
Morgan Chase Bank, N.A. (as
administrative agent) and AspenTech
(as borrower)
"Forms of Proxy" the forms of proxy in connection
with the Court Meeting and
the General Meeting respectively,
which shall accompany the Scheme
Document
"Free Cash Flow" cash flow from operations less
(1) purchases of property,
equipment and leasehold improvements
and (2) capitalised software
development costs, plus non-capitalised
acquired technology and excess
tax benefits from stock based
compensation
"General Meeting" the general meeting (or any
adjournment, postponement or
reconvention thereof) of KBC
Shareholders to be convened
to consider and if thought
fit pass, inter alia, the Resolutions
"Global Optimisation" ATI Global Optimisation Ltd,
a wholly-owned subsidiary of
AspenTech, incorporated for
the purpose of effecting the
Acquisition, with company number
09941172
"Governmental Entity" any supranational, national,
state, municipal, local or
foreign government, any instrumentality,
subdivision, court, arbitrator
or arbitrator panel, regulatory
or administrative agency or
commission, or other authority
thereof, or any regulatory
or quasi-regulatory organisation
or private body exercising
any regulatory, taxing, importing
or other governmental or quasi-governmental
authority
"Irrevocable Undertakings" the irrevocable undertakings
to vote (to procure votes)
in favour of the Scheme at
the Court Meeting and the Resolutions
to be proposed at the General
Meeting from the KBC Directors
who hold KBC Shares(in a personal
capacity or through a nominee)
and certain other KBC Shareholders
received by Global Optimisation,
details of which are set out
in Appendix III to this announcement
"ISIN" International Securities Identification
Number
"J.P. Morgan" J.P. Morgan Limited
"KBC" KBC Advanced Technologies plc,
a public limited company incorporated
in England and Wales with company
number 01357958 and its registered
office at 42-50 Hersham Road,
Walton on Thames, Surrey KT12
1RZ
"KBC Board" the Board of Directors of KBC
"KBC Directors" the directors of KBC and "KBC
Director" means any one of
them
"KBC Group" KBC and its subsidiary undertakings
and associated undertakings
and, where the context permits,
each of them
"KBC Share Schemes" the Long Term Incentive Plan
2006, the Discretionary Share
Option Plan 2013 and a deed
made between KBC and Godden
Associates Limited granting
an option to acquire KBC Shares
to Godden Associates Limited
dated 26 June 2013 (as amended)
"KBC Shareholders" holders of KBC Shares
"KBC Shares" the ordinary shares of 2.5
pence each in the capital of
KBC
"Kestrel Opportunities" The Kestrel Opportunities Fund
(a cell of Guernsey Portfolios
PCC Limited)
"London Stock Exchange" London Stock Exchange plc
"Long Stop Date" 12 May 2016, or such later
date, if any, as AspenTech
and KBC may agree and, if required,
the Court and the Takeover
Panel may allow
"Meetings" the Court Meeting and the General
Meeting
"Non-GAAP EPS" Generally Accepted Accounting
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Principles (GAAP) diluted income
per share plus (1) stock base
compensation, (2) non-capitalised
acquired technology, (3) restructuring
charges and (4) amortisation
of purchase technology intangibles;
less (1) income tax effect
on non-GAAP items
"Offer Document" in the event AspenTech elects
to implement the Acquisition
by means of a Takeover Offer,
the document containing the
Takeover Offer to be sent to
KBC Shareholders
"Offer Period" the period which commenced
on the date of this announcement
and ending on the date on which
the Acquisition becomes Effective,
lapses or is withdrawn (or
such other date as the Takeover
Panel may decide)
"Official List" the Official List of the FCA
"Open Source Audit has the meaning given to that
Agreement" term in paragraph 11 of this
announcement (Acquisition related
arrangements)
"Open Source Audit a report dated 31 December
Report" 2015 from Black Duck Software,
Inc. to KBC (and subsequently
made available by KBC to AspenTech)
that sets out the results of
the following services undertaken
by Black Duck Software, Inc.
for KBC in relation to certain
software code of KBC:
(a) an open source and third
party software code audit;
and
(b) an open source risk assessment
"Opening Position has the meaning given to that
Disclosure" term in the Code
"Registrar of Companies" the Registrar of Companies
in England and Wales
"Regulation" Council Regulation (EC) No139/2004
"Regulatory Information any information service authorised
Service" from time to time by the FCA
for the purpose of disseminating
regulatory announcements
"Resolutions" the resolutions to be proposed
by KBC at the General Meeting
in connection with, amongst
other things, the approval
of the Scheme, the amendment
of KBC's articles of association
and such other matters as may
be necessary to implement the
Scheme and the de-listing of
the KBC Shares
"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
Acquisition is sent or made
available to KBC Shareholders
(or other persons with information
rights) in that jurisdiction
"Scheme" the proposed acquisition of
the KBC Shares by AspenTech
by way of a scheme of arrangement
of KBC under Part 26 of the
Companies Act proposed to be
entered into between KBC and
the Scheme Shareholders to
be described in the Scheme
Document, the principal terms
of which are set out in this
announcement (with or subject
to any modification, addition
or condition which KBC and
AspenTech may agree and, if
required, the Court may approve
or impose) subject to the Conditions
set out in this announcement
and to be set out in the Scheme
Document
"Scheme Document" the document to be despatched
to (among others) KBC Shareholders
containing the terms and conditions
of the Acquisition, the notices
convening the Court Meeting
and the General Meeting and
the particulars required by
section 897 of the Companies
Act
"Scheme Record the time and date to be specified
Time" in the Scheme Document, expected
to be 6.00 pm (London time)
on the Business Day immediately
prior to the Effective Date
"Scheme Shareholders" holders of Scheme Shares
"Scheme Shares" shall mean:
(i) KBC Shares in issue at
the date of the Scheme Document;
(ii) any KBC Shares issued
after the date of the Scheme
Document and prior to the Voting
Record Time; and
(iii) any KBC Shares issued
at or after the Voting Record
Time but at or prior to the
Scheme Record Time in respect
of which the original or any
subsequent holder thereof is
bound by the Scheme or shall
by such time have agreed in
writing to be bound by the
Scheme,
in each case, save for:
(A) any KBC Shares legally
or beneficially held by any
member of the AspenTech Group;
or
(B) any Treasury Shares
"subsidiary undertaking" has the meaning given by the
Companies Act
"Takeover Offer" should the Acquisition be implemented
by way of a takeover offer
as defined in Chapter 3 of
Part 28 of the Companies Act,
the recommended offer to be
made by or on behalf of AspenTech
to acquire the entire issued
and to be issued share capital
of KBC and, where the context
requires, any subsequent revision,
variation, extension or renewal
of such offer and includes
any election available thereunder
"Takeover Panel" the UK Panel on Takeovers and
Mergers
"Third Party" a central bank, government
or governmental, quasi-governmental,
supranational, statutory, regulatory,
professional, or investigative
body or authority (including
any anti-trust or merger control
authority), court, trade agency,
professional association, institution,
works council, employee representative
body or any other similar body
or person whatsoever in any
jurisdiction
"Total Shareholder the total return of a stock
Return" to an investor (capital gains
and dividends)
"Treasury Shares" any KBC Shares which are for
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