REG - Arcadis NVHyder Consulting PLC - RECOMMENDED CASH OFFER FOR HYDER CONSULTING PLC <Origin Href="QuoteRef">ARDS.AS</Origin> <Origin Href="QuoteRef">HYC.L</Origin> - Part 2
06/09/2014 22:42
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of the entire issued and to be issued share capital of
Hyder is effected by way of a Takeover Offer and such Takeover Offer becomes
or is declared unconditional in all respects and sufficient acceptances are
received in respect of such Takeover Offer, AUK Investments intends to: (i)
make an application to the UKLA to cancel listing of the Hyder Shares on the
Official List and to the London Stock Exchange for cancelling of trading of
Hyder Shares on its main market for listed securities; and (ii) exercise its
rights (to the extent such rights are available) to apply the provisions of
Chapter 3 of Part 28 of the Companies Act to acquire compulsorily the
remaining Hyder Shares in respect of which such Takeover Offer has not been
accepted.
The Offer will be made 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
bases and sources of certain financial information contained in this
announcement are set out in Appendix II to this announcement. A summary of the
irrevocable undertakings and letters of intent received by AUK Investments is
contained in Appendix III to this announcement. Certain terms used in this
announcement are defined in Appendix IV to this announcement.
The Offer will be subject to the applicable requirements of the City Code, the
Panel, the London Stock Exchange and the UK Listing Authority.
18. Documents on display
Copies of the following documents will, by no later than 12.00 p.m. (London
time) on 1 August 2014, be made available on ARCADIS' and Hyder's websites at
www.arcadis.com and www.hyderconsulting.com, respectively until the end of the
Offer Period:
· the irrevocable undertakings referred to in paragraph 6 above and
summarised in Appendix III to this announcement;
· the letters of intent referred to in paragraph 6 above and summarised
in Appendix III to this announcement;
· the documents relating to the financing of the Offer referred to in
paragraph 12above;
· the Confidentiality Agreement; and
· the Bid Conduct Agreement.
Neither the contents of ARCADIS' website, nor those of Hyder's website, nor
those of any other website accessible from hyperlinks on either ARCADIS' or
Hyder's website, are incorporated into or form part of this announcement.
Enquiries
ARCADIS+31 (0) 20 201 1083 Hyder+44 (0) 20 3014 9000
Joost Slooten Ivor Catto, Chief ExecutiveRussell Down, Group Finance Director
HSBC Bank plc (Financial Adviser to ARCADIS) Investec Bank plc (Financial Adviser and Rule 3 Adviser to Hyder)
+44 (0) 207 991 8888 +44 (0) 207 597 4000
Jurriaan de MunckJames PincusAlex Thomas Christopher BairdJames IrelandJosh Levy
Rothschild (Financial Adviser to ARCADIS)+44 (0) 207 280 5000 Numis Securities Limited (Broker to Hyder)+44 (0) 207 260 1000
Paul SimpsonNeil ThwaitesJonathan Slaughter David PoutneyJames SerjeantStuart Skinner
Brunswick (Public Relations Adviser to ARCADIS) Citigate Dewe Rogerson (Public Relations Adviser to Hyder)
+44 (0) 207 404 5959 +44 (0) 207 282 2945
Michael HarrisonAzhar KhanMarleen Geerlof Ginny Pulbrook
HSBC Bank plc, which is authorised by the Prudential Regulation Authority and
regulated in the United Kingdom by the Financial Conduct Authority and the
Prudential Regulation Authority, is acting as financial adviser to ARCADIS and
AUK Investments and for no-one else in connection with the subject matter of
this announcement and will not be responsible to anyone other than ARCADIS
andAUK Investments for providing the protections afforded to its clients or
for providing advice in connection with the subject matter of this
announcement.
Rothschild, which is authorised by the Prudential Regulation Authority and
regulated in the United Kingdom by the Financial Conduct Authority and the
Prudential Regulation Authority, is acting as financial adviser to ARCADIS and
AUK Investments and for no-one else in connection with the subject matter of
this announcement and will not be responsible to anyone other than ARCADIS and
AUK Investments for providing the protections afforded to its clients or for
providing advice in connection with the subject matter of this announcement.
Investec Bank plc, which is authorised in the United Kingdom by the Prudential
Regulation Authority and regulated by the Financial Conduct Authority and the
Prudential Regulation Authority, is acting as financial adviser to Hyder and
no-one else in connection with the subject matter of this announcement and
will not be responsible to anyone other than Hyder for providing the
protections afforded to its clients or for providing advice in connection with
the subject matter of this announcement.
This announcement is for information purposes only and is not intended to and
does not constitute or form part of any offer to sell or subscribe for or any
invitation to purchase or subscribe for any securities or the solicitation of
any vote or approval in any jurisdiction, pursuant to the Offer or otherwise.
The Offer will be made solely by means of the Scheme Document, or any other
document by which the Offer is made, which will contain the full terms and
Conditions of the Offer, including details of how to vote in respect of the
Scheme.
Any approval, decision or other response to the Offer should be made only on
the basis of the information in the Scheme Document or any other document by
which the Offer is made. Hyder will prepare the Scheme Document to be
distributed to Hyder Shareholders. Hyder, ARCADIS and AUK Investments urge
Hyder Shareholders to read the Scheme Document when it becomes available
because it will contain important information relating to the Offer. It is
expected that the Scheme Document (including notices of the Shareholder
Meetings) together with the relevant Forms of Proxy, will be posted to Hyder
Shareholders as soon as is reasonably practicable and in any event within 28
days of this announcement, unless otherwise agreed with the Panel.
The statements contained in this announcement are made as at the date of this
announcement, unless some other time is specified in relation to them. Nothing
contained in this announcement shall be deemed to be a forecast, projection or
estimate of the future financial performance of Hyder, ARCADIS or AUK
Investments except where otherwise stated.
Please be aware that addresses, electronic addresses and certain information
provided by Hyder Shareholders, persons with information rights and other
relevant persons for the receipt of communications from Hyder may be provided
to ARCADIS and/or AUK Investments during the Offer Period as requested under
Section 4 of Appendix 4 of the Code to comply with Rule 2.12(c).
Overseas Shareholders
The release, publication or distribution of this announcement in jurisdictions
other than the United Kingdom may be restricted by law. Persons who are not
resident in the United Kingdom or who are subject to the laws of any
jurisdiction other than the United Kingdom should therefore inform themselves
of, and observe, any applicable requirements. In particular, the ability of
persons who are not resident in the United Kingdom to vote their Hyder Shares
with respect to the Scheme at the Court Meeting, or to execute and deliver
Forms of Proxy appointing another to vote at the Court 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 restrictions may constitute a
violation of the securities laws of any such jurisdiction.
This announcement has been prepared for the purposes of complying with the
laws of England and Wales and the City Code and the information disclosed may
not be the same as that which would have been disclosed if this document had
been prepared in accordance with the laws of any jurisdiction outside the
United Kingdom.
The Offer relates to shares of an English public limited company and is
proposed to be effected by means of a scheme of arrangement under the laws of
England and Wales. Accordingly, the Scheme is subject to the disclosure
requirements, rules and practices applicable in the United Kingdom to schemes
of arrangement, which differ from the requirements of tender offer rules or
the laws of other jurisdictions outside the United Kingdom. However, if AUK
Investments elects to implement the Offer by means of a Takeover Offer, such
Takeover Offer will be made in compliance with all applicable laws and
regulations to the extent applicable.
Unless otherwise determined by AUK Investments or required by the City Code,
and permitted by applicable law and regulation, the Offer will not be made
available, directly or indirectly, in, into or from a Restricted Jurisdiction
and no person may vote in favour of the Offer by any such use, means,
instrumentality or form within a Restricted Jurisdiction. Accordingly, copies
of this announcement and all documents relating to the Offer are not being,
and must not be, directly or indirectly, mailed or otherwise forwarded,
distributed or sent in, into or from any Restricted Jurisdiction, and persons
receiving this announcement or any documents relating to the Offer (including
custodians, nominees and trustees) must not mail or otherwise forward,
distribute or send them in, into or from any such jurisdictions. If the Offer
is implemented by way of a Takeover Offer, the Takeover Offer (unless
otherwise permitted by applicable law and regulation) will and may not be
made, directly or indirectly, in or into, or by the use of the mails, or by
any means of instrumentality (including, without limitation, telephonically or
electronically) of interstate or foreign commerce of, or any facilities of a
national, state or other securities exchange of any Restricted Jurisdiction,
and the Takeover Offer will not be capable of acceptance from or within any
Restricted Jurisdiction or by any such use, means, instrumentality or
facilities.
The availability of the Offer to Hyder Shareholders who are not resident in
the United Kingdom may be affected by the laws of the relevant jurisdictions
in which they are resident. Persons who are not resident in the United Kingdom
should inform themselves of, and observe, any applicable legal or regulatory
requirements.
Notice to US investors in Hyder: The Offer relates to the shares of an English
public limited company and is being made by means of a scheme of arrangement
provided for under English company law. A transaction effected by means of a
scheme of arrangement is not subject to the tender offer rules or the proxy
solicitation rules under the US Securities Exchange Act of 1934. Accordingly,
the Offer is subject to the disclosure requirements and practices applicable
in the United Kingdom to schemes of arrangement which differ from the
disclosure requirements of United States tender offer and proxy solicitation
rules. If, in the future, AUK Investments exercises the right to implement the
Offer by way of a Takeover Offer and determines to extend the Offer into the
United States, the Offer will be made in compliance with applicable United
States laws and regulations. Financial information included in this
announcement and which may be included in the Scheme Document (or Takeover
Offer Document, as the case may be) has been or will have been prepared in
accordance with accounting standards applicable in territories outside the
United States that may not be comparable to financial information of US
companies or companies whose financial statements are prepared in accordance
with generally accepted accounting principles in the United States.
It may be difficult for US holders of Hyder Shares to enforce their rights and
any claim arising out of the US federal laws, since ARCADIS, AUK Investments
and Hyder are each located in a non-US jurisdiction, and some or all of their
officers and directors may be residents of a non-US jurisdiction. US holders
of Hyder Shares may not be able to sue a non-US company or its officers or
directors in a non-US court for violations of the US securities laws. Further,
it may be difficult to compel a non-US company and its affiliates to subject
themselves to a US court's judgement.
Forward looking statements
This announcement contains statements about the ARCADIS Group and Hyder Group
that are or may be deemed to be forward looking statements which are
prospective in nature. All statements other than statements of historical
facts included in this announcement may be forward looking statements. Without
limitation, any statements preceded or followed by or that include the words
"targets", "plans", "believes", "expects", "aims", "intends", "will", "may",
"anticipates", "estimates", "projects" or words or terms of similar substance
or the negative thereof, are forward looking statements. Forward looking
statements include statements relating to the following: (i) future capital
expenditures, expenses, revenues, earnings, synergies, economic performance,
indebtedness, financial condition, dividend policy, losses and future
prospects; (ii) business and management strategies and the expansion and
growth of the ARCADIS Group or Hyder Group, operations and potential synergies
resulting from the Offer; and (iii) the effects of government regulation on
the ARCADIS Group's or Hyder Group's businesses.
Such forward looking statements involve risks and uncertainties that could
significantly affect expected results and are based on certain key
assumptions. Many factors could cause actual results to differ materially from
those projected or implied in any forward looking statements. Due to such
uncertainties and risks, readers are cautioned not to place undue reliance on
such forward looking statements, which speak only as of the date of this
announcement. Each of the Hyder Group and the ARCADIS Group and each of their
respective members, directors, officers, employees, advisers and any other
persons acting on their behalf, expressly disclaims any obligation to update
any forward looking or other statements contained in this announcement, except
as required by applicable law. Except as expressly provided in this
announcement, statements made in this announcement have not been reviewed by
the auditors of ARCADIS, AUK Investments or Hyder. All subsequent oral or
written forward looking statements attributable to Hyder, ARCADIS or AUK
Investments or any of their respective members, directors, officers,
employees, advisers or any other persons acting on their behalf are expressly
qualified in their entirety by the cautionary statement above. Should one or
more of these risks or uncertainties materialise, or should underlying
assumptions prove incorrect, actual results may vary materially from those
described in this announcement.
Disclosure requirements of the City Code
Under Rule 8.3(a) of the Code, any person who is interested in 1% or more of
any class of relevant securities of an offeree company or of any securities
exchange offeror (being any offeror other than an offeror in respect of which
it has been announced that its offer is, or is likely to be, solely in cash)
must make an Opening Position Disclosure following the commencement of the
Offer Period and, if later, following the announcement in which any securities
exchange offeror is first identified. An Opening Position Disclosure must
contain details of the person's interests and short positions in, and rights
to subscribe for, any relevant securities of each of (i) the offeree company
and (ii) any securities exchange offeror(s). An Opening Position Disclosure by
a person to whom Rule 8.3(a) applies must be made by no later than 3.30 p.m.
(London time) on the 10th business day following the commencement of the Offer
Period and, if appropriate, by no later than 3.30 p.m. (London time) on the
10th business day following the announcement in which any securities exchange
offeror is first identified. Relevant persons who deal in the relevant
securities of the offeree company or of a securities exchange offeror prior to
the deadline for making an Opening Position Disclosure must instead make a
Dealing Disclosure.
Under Rule 8.3(b) of the Code, any person who is, or becomes, interested in 1%
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, save to the extent that these details
have previously been disclosed under Rule 8. A Dealing Disclosure by a person
to whom Rule 8.3(b) applies must be made by no later than 3.30 p.m. (London
time) on the business day following the date of the relevant dealing.
If two or more persons act together pursuant to an agreement or understanding,
whether formal or informal, to acquire or control an interest in relevant
securities of an offeree company or a securities exchange offeror, they will
be deemed to be a single person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree company and by
any offeror and Dealing Disclosures must also be made by the offeree company,
by any offeror and by any persons acting in concert with any of them (see
Rules 8.1, 8.2 and 8.4).
Details of the offeree and offeror companies in respect of whose relevant
securities Opening Position Disclosures and Dealing Disclosures must be made
can be found in the Disclosure Table on the 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 Panel's Market Surveillance Unit on
+44 (0)207 638 0129 if you are in any doubt as to whether you are required to
make an Opening Position Disclosure or a Dealing Disclosure.
Publication on Website and Availability of Hard Copies
A copy of this announcement and the display documents required to be published
pursuant to Rule 26.1 of the Code will be available free of charge, subject to
certain restrictions relating to persons resident in Restricted Jurisdictions,
on ARCADIS' and Hyder's websites at www.arcadis.com and
www.hyderconsulting.com, respectively, by no later than 12.00 p.m. (London
time) on 1 August 2014. Neither the contents of ARCADIS' website, nor those of
Hyder's website, nor those of any other website accessible from hyperlinks on
either ARCADIS' or Hyder's website, are incorporated into or form part of this
announcement.
Any person who is required to be sent this announcement under the City Code
may request a hard copy of this announcement (and any information incorporated
by reference in this announcement) by writing to Capita Registrars of The
Registry, 34 Beckenham Road, Beckenham, Kent BR3 4TU or by calling 0871 664
0300 (or, if calling from outside the UK, on +44 (0) 20 8638 3399). Calls cost
10 pence per minute plus network extras, lines are open 9.00 a.m. - 5.30 p.m.
Monday to Friday. It is important that you note that unless you make such a
request, a hard copy of this announcement and any such information
incorporated by reference in it will not be sent to you. You may also request
that all future documents, announcements and information to be sent to you in
relation to the Offer should be in hard copy form.
Rule 2.10 Requirement
In accordance with Rule 2.10 of the Code, Hyder confirms that as at the date
of this announcement, it has in issue and admitted to trading on the main
market of the London Stock Exchange 38,919,164 ordinary shares of ten pence
each. The International Securities Identification Number (ISIN) of the
ordinary shares is GB003207217.
APPENDIX I
CONDITIONS AND FURTHER TERMS OF THE SCHEME AND THE OFFER
PART A: Conditions of the Scheme
The Offer will be conditional upon the Scheme becoming unconditional and
effective by no later than the Long Stop Date.
1. The Scheme will be conditional upon:
(A) its approval by a majority in number of the Scheme Shareholders
(or the relevant class or classes thereof, if applicable) representing not
less than three-fourths in value of the Scheme Shares, who are on the register
of members of Hyder at the Scheme Voting Record Time and who are 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 of any
such meeting on or before the 22nd day after the expected date of the Court
Meeting to be set out in the Scheme Document in due course (or such later
date, if any, as AUK Investments and Hyder may agree and the Court may
allow);
(B) all resolutions necessary to approve and implement the Scheme
being duly passed by the requisite majority or majorities at the General
Meeting or at any adjournment of that meeting on or before the 22nd day after
the expected date of the General Meeting to be set out in the Scheme Document
in due course (or such later date, if any, as AUK Investments and Hyder may
agree and the Court may allow); and
(C) the sanction of the Scheme and the confirmation of the Capital
Reduction by the Court with or without modification (but subject to any such
modification being acceptable to AUK Investments and Hyder) on or before the
22nd day after the expected date of the Scheme Court Hearing to be set out in
the Scheme Document in due course (or such later date, if any, as AUK
Investments and Hyder may agree and the Court may allow) and:
(i) the delivery of a copy of each of the Court Orders and of the
requisite statement of capital to the Registrar of Companies; and
(ii) if the Court so orders for it to become effective, the
registration of the Reduction Court Order and the statement of capital by the
Registrar of Companies.
2. In addition to the Conditions set out in paragraph 1 above, AUK
Investments and Hyder have agreed that, subject to the provisions of paragraph
3, the Offer will be conditional upon the following Conditions and,
accordingly, the necessary actions to make the Scheme effective will not be
taken unless the following Conditions have been satisfied or waived:
(A) Following the confirmed receipt and acceptance by the German
Federal Cartel Office (the "FCO") of a satisfactory notification in respect of
the Transaction, either:
(i) the FCO confirming in terms satisfactory to AUK Investments
that the proposed acquisition of Hyder by AUK Investments or any matter
arising therefrom or related thereto or any part of it does not satisfy the
conditions for prohibition pursuant to Section 36(1) of the German Gesetz
gegen Wettbewerbsbeschränkungen of 1957 (as amended) (the "GWB"); or
(ii) the expiry of all applicable waiting periods under the GWB,
such that the proposed acquisition of Hyder by AUK Investments or any matter
arising therefrom or related thereto or any part of it is deemed not to be
prohibited pursuant to the GWB.
(B) save as Disclosed, there being no provision of any agreement,
arrangement, licence, permit or other instrument to which any member of the
Wider Hyder Group is a party or by or to which any such member or any of its
assets is or may be bound, entitled or subject, which in consequence of the
Offer or the proposed acquisition of any shares or other securities in Hyder
or because of a change in the control or management of Hyder, would or might
reasonably be expected to result in (in each case to an extent which is
material in the context of the Wider Hyder Group taken as a whole):
(i) any moneys borrowed by or any other indebtedness (actual or
contingent) of, or grant available to, any such member of the Wider Hyder
Group, being or becoming repayable or capable of being declared repayable
immediately or earlier than their or its stated maturity date or repayment
date or the ability of any such member to borrow moneys or incur any
indebtedness being withdrawn or inhibited or being capable of becoming or
being withdrawn or inhibited;
(ii) any such agreement, arrangement, licence, permit or instrument
or the rights, liabilities, obligations or interests of any such member
thereunder being terminated or adversely modified or affected or any
obligation or liability arising or any adverse action being taken or arising
thereunder;
(iii) any assets or interests of any such member being or falling to
be disposed of or charged or any right arising under which any such asset or
interest could be required to be disposed of or charged;
(iv) the creation 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;
(v) the rights, liabilities, obligations or interests of any such
member in, or the business of any such member with, any person, firm or body
(or any arrangement or arrangements relating to any such interest or business)
being terminated, adversely modified or adversely affected;
(vi) the value of any such member or its financial or trading
position or prospects being prejudiced or adversely affected;
(vii) any such member ceasing to be able to carry on business under
any name under which it presently does so; or
(viii) the creation of any liability, actual or contingent, by any
such member (other than trade creditors in the ordinary and usual course of
business),
and no event having occurred which, under any provision of any agreement,
arrangement, licence, permit or other instrument to which any member of the
Wider Hyder Group is a party or by or to which any such member or any of its
assets is or may be bound, entitled or subject, would result in any of the
events or circumstances as are referred to in sub-paragraphs (i) to (viii) of
this Condition (in each case to an extent which is material in the context of
the Wider Hyder Group taken as a whole);
(C) no government or governmental, quasi-governmental, supranational,
statutory, regulatory, environmental or investigative body, court, trade
agency, association, institution or any other body or person whatsoever in any
jurisdiction (each a "Third Party") having taken, instituted, implemented or
threatened in writing any action, proceeding, suit, investigation, enquiry or
reference (and, in each case, not having formally and irrevocably withdrawn
the same), or enacted, made or proposed any statute, regulation, decision or
order or having taken any other steps (and, in each case, not having formally
and irrevocably withdrawn the same) which would:
(i) require, prevent or materially delay the divestiture, or
materially alter the terms envisaged for any proposed divestiture, by any
member of the Wider ARCADIS Group or any member of the Wider Hyder Group of
all or a material portion of its business, assets or property or impose any
material limitation on its ability to conduct its business or to own any
material proportion of its assets or properties;
(ii) require, prevent or materially delay the divestiture by any
member of the Wider ARCADIS Group of any shares or other securities in Hyder;
(iii) impose any material limitation on, or result in a material
delay in, the ability of any member of the Wider ARCADIS Group directly or
indirectly to acquire or to hold or to exercise effectively any rights of
ownership in respect of shares or securities convertible into shares or any
other securities (or the equivalent) in any member of the Wider Hyder Group or
to exercise management control over any such member;
(iv) make the Offer or its implementation or the acquisition or
proposed acquisition by AUK Investments or by any member of the Wider ARCADIS
Group of any shares or other securities in, or control of, Hyder void,
illegal, and/or unenforceable under the laws of any jurisdiction, or
otherwise, directly or indirectly, prohibit or materially restrain, materially
restrict, materially delay or otherwise materially interfere with the same, or
impose material additional conditions or obligations with respect thereto, or
otherwise materially challenge or interfere therewith;
(v) require any member of the Wider ARCADIS Group or the Wider
Hyder Group to offer to acquire any shares or other securities (or the
equivalent) or interest in any member of the Wider Hyder Group or the Wider
ARCADIS Group owned by any third party (other than, if ARCADIS elects to
implement the Offer by way of a Takeover Offer, in respect of the
'squeeze-out' procedure in accordance with the provisions of Part 28 of the
Companies Act);
(vi) impose any material limitation on the ability of any member of
the Wider Hyder Group to co-ordinate its business, or any material part of it,
with the businesses of any other members; or
(vii) result in any member of the Wider Hyder Group ceasing to be
able to carry on business under any name under which it presently does so; or
(viii) otherwise materially adversely affect the business, assets,
profits or financial or trading position or prospects of any member of the
Wider Hyder Group,
and all applicable waiting and other time periods (including any extensions
thereof) during which any such Third Party could institute, implement or
threaten any action, proceeding, suit, investigation, enquiry or reference
under the laws of any jurisdiction in respect of the Offer or the acquisition
or proposed acquisition of any Hyder Shares having expired, lapsed or been
terminated;
(D) all material filings or applications which are necessary under
any applicable legislation or regulation of any relevant jurisdiction having
been made in connection with the Offer and all material statutory or
regulatory obligations in any jurisdiction having been complied with in
connection with the Offer or the acquisition by any member of the Wider
ARCADIS Group of any shares or other securities in, or control of, Hyder and
all authorisations, orders, recognitions, grants, consents, licences,
confirmations, clearances, permissions and approvals (together
"authorisations") necessary for or in respect of the Offer or the proposed
acquisition of any shares or other securities in, or control of, Hyder by any
member of the Wider ARCADIS Group having been obtained in terms and in a form
reasonably satisfactory to AUK Investments from all appropriate Third Parties
or persons with whom any member of the Wider Hyder Group has entered into
contractual arrangements and all such authorisations together with all
authorisations necessary to carry on the business of any member of the Wider
Hyder Group remaining in full force and effect and all material filings
necessary for such purpose having been made and there being no notice or
intimation of any intention to revoke or not to renew any of the same at the
time at the Effective Date and all necessary statutory or regulatory
obligations in any jurisdiction having been complied with in all material
respects;
(E) save as Disclosed, no member of the Wider Hyder Group having,
since 31 March 2014:
(i) save as between Hyder and wholly-owned subsidiaries of Hyder or
for Hyder Shares issued pursuant to the exercise of options granted or awards
made under the Hyder Share Option Schemes, issued, authorised or proposed the
issue of additional shares of any class;
(ii) save as between Hyder and wholly-owned subsidiaries of Hyder or
for the grant of options or the making of awards under the Hyder Share Option
Schemes, issued or agreed to issue, authorised or proposed the issue of
securities convertible or exchangeable into shares of any class or rights,
warrants or options to subscribe for, or acquire, any such shares or
convertible securities;
(iii) other than to another member of the Hyder Group, 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, save for the Hyder Final Dividend;
(iv) save for intra-Hyder Group transactions, merged or demerged
with any body corporate or acquired or disposed of or transferred, mortgaged
or charged or created any security interest over any assets or any right,
title or interest in any asset (including shares and trade investments) or
authorised or proposed or announced any intention to propose any of the
aforementioned actions, in each case, other than in the ordinary course of
business and to an extent which is material in the context of the Wider Hyder
Group taken as a whole;
(v) save for intra-Hyder Group transactions, made or authorised or
proposed or announced an intention to propose any change in its loan capital;
(vi) issued, authorised or proposed the issue of any debentures or
(save for intra-Hyder Group transactions or in the ordinary course of
business) incurred or increased any indebtedness or become subject to any
contingent liability to an extent which is material in the context of the
Wider Hyder Group taken as a whole;
(vii) (except for intra-Hyder Group transactions) purchased, redeemed
or repaid or announced any proposal to purchase, redeem or repay any of its
own shares or other securities or reduced or, save in respect of the matters
mentioned in sub-paragraph (i) above, made any other change to any part of its
share capital;
(viii) implemented, or authorised, proposed or announced its intention
to implement, any reconstruction, amalgamation, scheme, commitment or other
transaction or arrangement otherwise than in the ordinary course of business
or entered into or changed the terms of any contract with any director or
senior executive of the Wider Hyder Group;
(ix) entered into or varied or authorised, proposed or announced its
intention to enter into or vary any contract, transaction or commitment
(whether in respect of capital expenditure or otherwise) which is of a long
term, onerous or unusual nature or magnitude or which is or could be
restrictive on the business of any member of the Wider Hyder Group or the
Wider ARCADIS Group or which involves or could reasonably be expected to
involve an obligation of such a nature or magnitude;
(x) (other than in respect of a member of the Wider Hyder Group
which was and remains dormant and was solvent at the relevant time) taken any
corporate action or had any legal proceedings started or threatened in writing
against it for its winding-up, dissolution or reorganisation or for the
appointment of a receiver, administrative receiver, administrator, trustee or
similar officer of all or any of its assets or revenues (or any analogous
proceedings in any jurisdiction) or had any such person appointed, in each
case to an extent which is material in the context of the Wider Hyder Group
taken as a whole;
(xi) other than of a nature and to an extent which is normal in the
context of the business concerned, entered into any contract, transaction or
arrangement which would be restrictive on the business of any member of the
Wider Hyder Group or the Wider ARCADIS Group and in each case to an extent
which is material in the context of the Wider Hyder Group or the Wider ARCADIS
Group (as applicable) taken as a whole;
(xii) waived or compromised any claim otherwise than in the ordinary
course of business and in each case to an extent which is material in the
context of the Wider Hyder Group taken as a whole;
(xiii) 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;
(xiv) having made or agreed or consented to any change to:
(a) the terms of the trust deeds constituting the pension scheme(s)
established by any member of the Wider Hyder Group for its directors,
employees or their dependents;
(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; or
(d) the basis upon which the liabilities (including pensions) of
such pension schemes are funded, valued or made;
(xv) proposed, agreed to provide or modified the terms of any share
option scheme, incentive scheme, pension arrangements or other benefit
relating to the employment or termination of employment of any person employed
by the Wider Hyder Group; or
(xvi) having taken (or agreed or proposed to take) any action which
requires, or would require, the consent of the Panel or the approval of Hyder
Shareholders in general meeting in accordance with, or as contemplated by,
Rule 21.1 of the City Code,
and, for the purposes of paragraphs (iii), (iv), (v), (vi) and (vii) of this
Condition, the term "Hyder Group" shall mean Hyder and its wholly-owned
subsidiaries;
(F) save as Disclosed, since 31 March 2014:
(i) no adverse change or deterioration having occurred in the
business, assets, financial or trading position or profits or prospects of any
member of the Wider Hyder Group to an extent which is material in the context
of the Wider Hyder Group taken as a whole;
(ii) no litigation, arbitration proceedings, prosecution or other
legal proceedings to which any member of the Wider Hyder Group is or may
become a party (whether as a claimant, defendant or otherwise) and no
investigation by any Third Party against or in respect of any member of the
Wider Hyder Group having been instituted, announced or threatened in writing
by or against, or remaining outstanding in respect of, any member of the Wider
Hyder Group which in any such case might reasonably be expected to adversely
affect any member of the Wider Hyder Group to an extent which is material in
the context of the Wider Hyder Group taken as a whole;
(iii) no contingent or other liability (other than trade creditors
arising in the ordinary and usual course of business) having arisen which
would reasonably be expected to adversely affect any member of the Wider Hyder
Group to an extent which is material in the context of the Wider Hyder Group
taken as a whole; and
(iv) no steps having been taken which are reasonably likely to
result in the withdrawal, cancellation, termination or modification of any
licence held by any member of the Wider Hyder Group which is necessary for the
proper carrying on of its business and the absence of which would be material
in the context of the Wider Hyder Group taken as a whole;
(G) save as Disclosed, AUK Investments not having discovered:
(i) that any financial, business or other information concerning
the Wider Hyder Group contained in the information Publicly Announced at any
time by or on behalf of any member of the Wider Hyder Group is misleading,
contains a misrepresentation of fact or omits to state a fact necessary to
make that information not misleading which misrepresentation or omission is
material in the context of the Wider Hyder Group taken as a whole;
(ii) that any member of the Wider Hyder Group or any partnership in
which any member of the Wider Hyder Group has a significant economic interest
is subject to any liability (contingent or otherwise) which is not disclosed
in the annual report and accounts of Hyder for the year ended 31 March 2014
and which is material in the context of the Wider Hyder Group taken as a
whole; and
(H) save as Disclosed, AUK Investments not having discovered that:
(i) any past or present member of the Wider Hyder Group has failed
to comply with any and/or all applicable legislation or regulation, of any
jurisdiction with regard to, or has any actual, contingent, prospective or
potential liability in respect of, the disposal, spillage, release, discharge,
leak or emission of any waste or hazardous substance or any substance likely
to impair the environment or harm human health or animal health or otherwise
relating to environmental matters, or that there has otherwise been any such
disposal, spillage, release, discharge, leak or emission (whether or not the
same constituted a non-compliance by any person with any such legislation or
regulations, and wherever the same may have taken place) any of which
disposal, spillage, release, discharge, leak or emission would be reasonably
expected to give rise to any liability (actual or contingent) on the part of
any member of the Wider Hyder Group which is material in the context of the
Wider Hyder Group taken as a whole; or
(ii) there is, or is reasonably likely to be, for that or any other
reason whatsoever, any liability (actual or contingent) which is material in
the context of the Wider Hyder Group taken as a whole of any past or present
member of the Wider Hyder Group to make good, repair, reinstate, decommission
or clean up any property or any controlled waters now or previously owned,
occupied, operated or made use of or controlled by any such past or present
member of the Wider Hyder Group, under any environmental legislation,
regulation, notice, circular or order of any government, governmental,
quasi-governmental, state or local government, supranational, statutory or
other regulatory body, agency, court, association or any other person or body
in any jurisdiction.
3. Subject to the requirements of the Panel, AUK Investments
reserves the right to waive, in whole or in part, all or any of the above
Conditions, except for Condition (1) which cannot be waived.
4. Conditions 2(A) to 2(H) (inclusive) must be fulfilled or waived
by AUK Investments, no later than 11.59 p.m. (London time) on the date
immediately preceding the date of the Scheme Court Hearing, failing which the
Scheme will lapse. AUK Investments shall be under no obligation to waive or
treat as satisfied any of Conditions 2(A) to 2(H) (inclusive) by a date
earlier than the latest date specified above for the fulfilment or waiver
thereof, notwithstanding that the other Conditions of the Offer 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.
5. If AUK Investments is required by the Panel to make an offer
for Hyder Shares under the provisions of Rule 9 of the City Code, AUK
Investments may make such alterations to any of the above Conditions as are
necessary to comply with the provisions of that Rule.
6. Unless the Panel otherwise consents, the Offer will lapse and
the Scheme will not proceed if there is a Phase 2 CMA reference in respect of
the Offer (a) before the Court Meeting and the General Meeting or (b) (if AUK
Investments elects to implement the Offer by way of Takeover Offer) before
1.00 p.m. (London time) on the first closing date of the Takeover Offer or the
date on which the Takeover Offer becomes or is declared unconditional as to
acceptances, whichever is the later.
Part B: Certain further terms of the Offer
Unless otherwise determined by AUK Investments or required by the Code and
permitted by applicable law and regulation, the Offer is not being, and will
not be, made, directly or indirectly, in or into, or by use of the mails of,
or by any means or instrumentality (including, without limitation, facsimile
transmission, telex, telephone, internet or e-mail) of interstate or foreign
commerce of, or of any facility of a national securities exchange of, any
Restricted Jurisdiction and the Offer will not be capable of acceptance by any
such use, means, instrumentality or facility or from within any Restricted
Jurisdiction. The availability of the Offer to persons not resident in the
United Kingdom may be affected by the laws of the relevant jurisdictions.
Persons who are not resident in the United Kingdom should inform themselves
about and observe any applicable requirements.
Hyder Shares which will be acquired under the Offer will be acquired 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) declared, made or paid on or after
the date of this announcement, save for the Hyder Final Dividend.
AUK Investments reserves the right to elect (with the consent of the Panel) to
implement the Offer by way of a Takeover Offer. In such event, such Takeover
Offer will be implemented on the same terms, so far as applicable, as those
which would apply to the Scheme, subject to appropriate amendments to reflect
the change in method of effecting the Offer, including (without limitation and
subject to the consent of the Panel) an acceptance condition that is set at 90
per cent. (or such lesser percentage, as AUK Investments may decide) (i) in
nominal value of the shares to which such Takeover Offer relates; and (ii) of
the voting rights attached to those shares, and that is subject to AUK
Investments and/or (with the consent of the Panel) any members of the ARCADIS
Group having acquired or agreed to acquire, whether pursuant to the offer or
otherwise, shares carrying more than 50 per cent. of the voting rights
normally exercisable at a general meeting of Hyder, including, for this
purpose, any such voting rights attaching to Hyder Shares that are
unconditionally allotted or issued before the takeover offer becomes or is
declared unconditional as to acceptances, whether pursuant to the exercise of
any outstanding subscription or conversion rights or otherwise.
Under Rule 13.5 of the Code, AUK Investments may not invoke a Condition so as
to cause the Offer not to proceed, to lapse or any offer to be withdrawn
unless the circumstances which give rise to the right to invoke the Condition
are of material significance to AUK Investments in the context of the Offer.
Condition 1 and, if applicable, the acceptance condition in any Takeover Offer
implemented by AUK Investments on the basis described in the preceding
paragraph, is not subject to this provision of the Code.
This Offer will be governed by English law and be subject to the jurisdiction
of the English courts, to the Conditions set out above and in the formal
Scheme Document and related Forms of Proxy. The Offer will be subject to the
applicable requirements of the City Code, the Panel, the London Stock Exchange
and the UK Listing Authority.
Each of the Conditions shall be regarded as a separate Condition and shall not
be limited by reference to any other Condition.
APPENDIX II
SOURCES OF INFORMATION AND BASES OF CALCULATION
i. The value of the Offer is calculated on the basis of the fully diluted
share capital of Hyder as set out in paragraph (iii below.
ii. As at the close of business on 30 July 2014, being the last dealing
day prior to the date of this announcement, Hyder had in issue 38,919,164
Hyder Shares.
iii. The fully diluted share capital of Hyder (being 39,422,928 Hyder
Shares) is calculated on the basis of:
(a) the number of issued Hyder Shares referred to in paragraph (ii)
above; and
(b) any further Hyder Shares which may be issued on or after the
date of this announcement following the exercise of options or vesting of
awards under the Hyder Share Option Schemes, amounting in aggregate to up to
503,764 Hyder Shares.
iv. Unless otherwise stated, all Closing Prices of Hyder Shares are closing
middle market quotations of a Hyder Share derived from the Daily Official List
for the relevant dates.
v. All share prices expressed in pence have been rounded to the nearest
penny and all percentages have been rounded to one decimal place (other than
the percentages in Appendix III which have been rounded to the nearest two
decimal places).
vi. Unless otherwise stated, the financial information relating to Hyder is
extracted or derived (without any adjustment save for rounding) from the
audited consolidated financial statements of Hyder for the financial year
ended 31 March 2014, prepared in accordance with IFRS.
vii. Unless otherwise stated, the financial information relating to ARCADIS
is extracted or derived (without any adjustment save for rounding) from the
audited consolidated financial statements of ARCADIS for the financial year
ended 31 December 2013, prepared in accordance with IFRS.
viii. The Enterprise Value of Hyder is calculated as diluted equity value
(based on the fully diluted share capital as set out in paragraph (iii) above)
plus Hyder's financial net cash of £13.2m and the Acer Group Pension Scheme
deficit of £21.8m as at 31 March 2014.
ix. Pre transaction and refinancing, ARCADIS' net debt to EBITDA ratio of
1.3x is based on net debt of E268 million as at 30 June 2014 and annualised
EBITDA of E214 million for the twelve months ended
30 June 2014. Post transaction and pre-refinancing, the target net debt to
EBITDA ratio of 2.4x is based on pro-forma net debt of E592 million and EBITDA
of E244 million, comprised of ARCADIS EBITDA of
E214 million for the twelve months ended 30 June 2014 and Hyder EBITDA of E30
million (converted at an exchange rate of £1: E1.262 based on Bloomberg on 30
July 2014) for the financial year ending in
31 March 2014.
x. EBITDA excludes acquisition costs, contingent consideration adjustments
and exceptional items.
xi. Operating EBITA excludes restructuring, integration and acquisition
costs.
xii. The synergy numbers are unaudited and are based on analysis conducted
by ARCADIS' management. There are several material assumptions underlying the
calculation of these synergy numbers which therefore might be materially
greater or less than estimated. The synergy statements included in this
announcement are not intended as a profit forecast.
APPENDIX III
IRREVOCABLE UNDERTAKINGS AND LETTERS OF INTENT
Part A: Director Irrevocable Undertakings
The following Hyder Directors and (in the case of Sir Alan Thomas and Ivor
Catto, their wives) have irrevocably undertaken to AUK Investments to vote in
favour of (or, where applicable, to procure that votes are cast in favour of)
the resolutions relating to the Scheme at the Court Meeting and at the General
Meeting (or, if AUK Investments decides to implement the Offer by means of a
Takeover Offer instead of by way of the Scheme, to accept (or procure
acceptances of) such Takeover Offer) in respect of the following interests in
Hyder Shares:
Name Number of Hyder Shares % of Hyder Shares in issue (excluding shares under option or award) Number of Hyder Shares under option
or award
Sir Alan Thomas 209,557 0.54 -
Lady Thomas (Angela) 667,223 1.71 -
Ivor Catto 7,132 0.02 254,870
Mary-Anne Catto 163,515 0.42 -
Russell Down 45,000 0.12 161,899
Jeffrey Hume 10,000 0.03 -
Paul Withers 50,000 0.13 -
Kevin Taylor 7,490 0.02 -
TOTAL 1,159,917 2.98 416,769
These irrevocable undertakings will cease to be binding:
(a) if the Scheme Document or Takeover Offer Document (as the case
may be) has not been posted within 28 days of the issue of this announcement
(or within such longer period as ARCADIS, with the consent of the Panel,
determines), provided that if ARCADIS elects to exercise its right to
implement the Offer by way of a Takeover Offer, this period will be extended
to refer to within 28 days of the issue of the press announcement announcing
the change in structure (or such other date for the posting of the Takeover
Offer Document as the Panel may require); and
(b) on the earlier of: (i) the Long Stop Date; and (ii) the date on
which the Scheme or Takeover Offer lapses in accordance with its terms, save
where the Scheme has lapsed but AUK Investments has switched to a Takeover
Offer in accordance with the City Code.
Part B: Letters of Intent
AUK Investments has received letters of intent from Aberforth and T. Rowe to
vote in favour of the resolutions relating to the Scheme at the Court Meeting
and at the General Meeting (or, in the case of Aberforth, if AUK Investments
decides to implement the Offer by means of a Takeover Offer instead of by way
of the Scheme, to accept or procure acceptance of the Takeover Offer) in
respect of the following interests in Hyder Shares:
Name Number of Hyder Shares % of Hyder Shares in issue
Aberforth 3,065,940 7.88
T. Rowe 1,897,673 4.88
APPENDIX IV
DEFINITIONS
The following definitions apply throughout this announcement unless the
context requires otherwise:
"Aberforth" Aberforth Partners LLP;
"Acer Group Pension Scheme" Hyder's principal UK defined benefit scheme, for which the sponsoring employer is Hyder Consulting (UK) Limited;
"ARCADIS" ARCADIS N.V., a public company with limited liability incorporated in the Netherlands, registered with the Dutch Chambers of Commerce under number 09051284;
"ARCADIS Directors" the directors appointed to the Board of ARCADIS;
"ARCADIS Group" ARCADIS and its subsidiaries and subsidiary undertakings (including AUK Investments);
"ARCADIS Parties" ARCADIS and AUK Investments;
"AUK Investments" ARCADIS UK Investments B.V., a private company incorporated in The Netherlands, registered with the Dutch Chambers of Commerce under number 61170321;
"Board of ARCADIS" executive board of directors of ARCADIS;
"Board of Hyder" board of directors of Hyder;
"Business Day" a day (other than Saturdays, Sundays and public or bank holidays in the UK) on which banks are open for business in the City of London;
"Capital Reduction" the proposed reduction of Hyder's share capital provided for by the Scheme;
"City Code" or "Code" the City Code on Takeovers and Mergers;
"Closing Price" the closing middle market price of a Hyder Share on a particular dealing day as derived from the Daily Official List;
"Companies Act" the Companies Act 2006, as amended from time to time;
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