REG - Capita PLC Xchanging PLC - Recommended Final Cash Offer for Xchanging plc <Origin Href="QuoteRef">CPI.L</Origin> <Origin Href="QuoteRef">XCH.L</Origin> - Part 3
14/10/2015 07:01
- Part 3: For the preceding part double click ID:nRSN1950Cb
The Offer will be subject to the following conditions:
Acceptance Condition
(a) valid acceptances being received (and not, where permitted,
withdrawn) by no later than 1.00 p.m. (London time) on the First Closing Date
of the Offer (or such later time(s) and/or date(s) as Capita may, with the
consent of the Panel or in accordance with the Code, decide) in respect of
Xchanging Shares which, together with all other Xchanging Shares acquired by
Capita (whether pursuant to the Offer or otherwise), carry not less than 90
per cent. (or such lower percentage as Capita may decide) in nominal value of
the Xchanging Shares to which the Offer relates and represent not less than 90
per cent. (or such lower percentage as Capita may, subject to the Code,
decide) of the voting rights attached to such Xchanging Shares, provided that
this Condition will not be satisfied unless Capita and/or any of its
wholly-owned subsidiaries shall have acquired, or agreed to acquire, pursuant
to the Offer or otherwise, Xchanging Shares carrying more than 50 per cent. of
the voting rights then normally exercisable at a general meeting of Xchanging,
including for this purpose (to the extent, if any, required by the Panel) any
such voting rights attaching to any Xchanging Shares that are unconditionally
allotted or issued before the Offer becomes, or is declared, unconditional as
to acceptances whether pursuant to the exercise of any outstanding
subscription or conversion rights or otherwise and for the purposes of this
Condition:
(i) shares which have been unconditionally allotted but not issued before
the Offer becomes, or is declared, unconditional as to acceptances, whether
pursuant to the exercise of any outstanding subscription or conversion rights
or otherwise, shall be deemed to carry the voting rights they will carry on
issue;
(ii) the expression "Xchanging Shares to which the Offer relates" shall
be construed in accordance with Chapter 3 of Part 28 of the Companies Act
2006;
(iii) Xchanging Shares (if any) that cease to be held in treasury before
the Offer becomes, or is declared, unconditional as to acceptances are
Xchanging Shares to which the Offer relates; and
(iv) valid acceptances shall be deemed to have been received in respect of
Xchanging Shares which are treated for the purposes of Part 28 of the
Companies Act 2006 as having been acquired, or contracted to be acquired, by
Capita and/or any of its wholly-owned subsidiaries by virtue of acceptances of
the Offer;
US and German merger control clearances
(b)
United States
(i) in so far as the Offer is required to be notified under the US merger
control regime, all necessary notifications and filings having been made and
all applicable waiting periods (including any extensions thereof) under the
United States Hart-Scott-Rodino Antitrust Improvements Act of 1976 (as
amended) and the rules and regulations made thereunder having expired, lapsed
or been terminated as appropriate in each case in respect of the Offer without
a request for additional information having been made by the FTC or the
Antitrust Division of the Department of Justice; and
Germany
(ii) in so far as the Offer is required to be notified under the German
merger control regime, the German Bundeskartellamt deciding that the
prohibition criteria in German Act against Restraints of Competition (Gesetz
gegen Wettbewerbsbeschränkungen) are not satisfied, or being deemed to have
made such a decision;
Other regulatory approvals
(c)
United Kingdom
(i) without limitation to the Condition set out at paragraph (d) below:
(A) the FCA having notified in writing any required approval in accordance
with Part XII of FSMA to the proposed acquisition of control over each UK
authorised person in the Wider Xchanging Group by Capita; or
(B) the period of 60 Working Days (as defined in section 191G of FSMA,
excluding any interruption period imposed by the FCA in accordance with
section 190 of FSMA) having elapsed from the date of acknowledgement of
receipt of a complete application by the FCA for the proposed acquisition of
each UK authorised person in the Wider Xchanging Group by Capita without the
FCA having objected to the proposed acquisition of any UK authorised person in
the Wider Xchanging Group,
and, for the purposes of paragraphs (c)(i)(A) and (B) above, "control" shall
have the meaning given to it in Part XII of FSMA and "controller" shall have
the meaning given to it in section 422 of FSMA; and
Germany
(ii) without limitations to the Condition set out at paragraph (d)
below:
(A) the competent regulator under Sec. 2c KWG ("Gesetz über das Kreditwesen",
the German Banking Act) having confirmed in writing that it has no objections
to the proposed acquisition of a substantial holding in a German institution
supervised under the KWG in the Wider Xchanging Group by Capita; or
(B) the period of 60 working days (as defined in section 2c (1a) KWG),
excluding any interruption period imposed by the BaFin ("Bundesanstalt für
Finanzdienstleistungsaufsicht") in accordance with section 2c (1a) KWG having
elapsed from the date of acknowledgement of receipt of a complete notification
under Sec. 2c KWG in connection with the InhKontrollV
("Inhaberkontrollverordnung", the German Regulation on Ownership Control) for
the proposed acquisition by Capita of a substantial holding in a German
institution supervised under the KWG in the Wider Xchanging Group, without the
competent regulator under Sec. 2c KWG having objected to the proposed
acquisition,
and, for the purposes of paragraphs (c)(ii)(A) and (B) above, "substantial
holding" shall have the meaning given to it in Sec. 1 (9) KWG;
Other third party clearances
(d) other than in relation to the merger control and regulatory
approvals referred to in paragraphs (b) and (c) above, no government or
governmental, quasi-governmental, supranational, statutory, administrative or
regulatory body or association, institution or agency (including any trade
agency) or any court or other body (including any professional or
environmental body) or person in any jurisdiction (each a "Relevant
Authority") having decided to take, institute or threaten any action,
proceeding, suit, investigation, enquiry or reference or enacted, made or
proposed and there not continuing to be outstanding any statute, regulation,
order or decision that would or might reasonably be expected to:
(i) make the acquisition or the proposed acquisition of Xchanging Shares,
or control or management of Xchanging by Capita or any member of the Wider
Capita Group void, unenforceable or illegal in any jurisdiction or, directly
or indirectly, prohibit or otherwise restrict, delay or interfere with the
implementation of, or impose additional conditions or obligations with respect
to, or otherwise challenge or require amendment to the terms of, the Offer or
the proposed acquisition of any Xchanging Shares, or control or management of
Xchanging by Capita or any member of the Wider Capita Group in any case
which is material in the context of the Offer;
(ii) require, prevent or delay the divestiture (or alter the terms of any
proposed divestiture) by the Wider Capita Group or the Wider Xchanging Group
of all or any part of their respective businesses, assets or properties, or
impose any limitation on their ability to conduct all or any part of their
respective businesses and to own, control or manage any of their respective
assets or properties to an extent which is, in any such case, material in the
context of the Wider Capita Group or the Wider Xchanging Group, taken as a
whole;
(iii) impose any limitation on, or result in any delay in, the ability of
any member of the Wider Capita Group to acquire or hold or to exercise
effectively, directly or indirectly, all or any rights of ownership of shares
or other securities (or the equivalent) in, or to exercise management control
over, any member of the Wider Xchanging Group or on the ability of the Wider
Xchanging Group to hold or exercise effectively, directly or indirectly, all
or any rights of ownership of shares or other securities (or the equivalent)
in, or to exercise management control over, any other member of the Wider
Xchanging Group to an extent which is, in any such case, material in the
context of the Wider Xchanging Group, taken as a whole;
(iv) require any member of the Wider Capita Group or of the Wider
Xchanging Group to acquire or offer to acquire any shares or other securities
(or the equivalent) or interest in any member of the Wider Xchanging Group or
any member of the Wider Capita Group owned by a third party (other than in the
implementation of the Acquisition) where such acquisition would be material in
the context of the Wider Capita Group or the Wider Xchanging Group, taken as a
whole;
(v) require the divestiture by any member of the Wider Capita Group of any
shares, securities or other interests in any member of the Wider Xchanging
Group where such divestiture would be material in the context of the Wider
Xchanging Group, taken as whole;
(vi) impose any limitation on, or result in any delay in, the ability of
any member of the Wider Capita Group or the Wider Xchanging Group to integrate
or co-ordinate its business, or any part of it, with the businesses or any
part of the businesses of any other member of the Wider Capita Group and/or
the Wider Xchanging Group to an extent which is, in any such case, material in
the context of the Wider Capita Group or the Wider Xchanging Group, taken as a
whole;
(vii) result in any member of the Wider Capita Group or the Wider Xchanging
Group ceasing to be able to carry on business under any name under which it
presently does so to an extent which is, in any such case, material in the
context of the Wider Capita Group or the Wider Xchanging Group, taken as a
whole; or
(viii) save as Disclosed, otherwise adversely affect the business, assets,
financial or trading position or profits or prospects of any member of the
Wider Capita Group or the Wider Xchanging Group in each case in a manner which
is material in the context of the Wider Capita Group or the Wider Xchanging
Group, taken as a whole,
and all applicable waiting and other time periods (including extensions
thereof) during which any such Relevant Authority could decide to take,
institute or threaten any such action, proceeding, suit, investigation,
enquiry or reference having expired, lapsed or been terminated;
(e) other than in relation to the merger control and regulatory
approvals referred to in paragraphs (b) to (d) above, all filings,
applications and/or notifications which are necessary or reasonably considered
appropriate by Capita having been made and all relevant waiting periods and
other time periods (including any extensions thereof) under any applicable
legislation or regulation of any jurisdiction having expired, lapsed or been
terminated and all applicable statutory or regulatory obligations in any
jurisdiction having been complied with in each case in respect of the Offer
and the acquisition or the proposed acquisition of any shares or other
securities in, or control or management of, Xchanging or any member of the
Wider Xchanging Group by any member of the Wider Capita Group or the carrying
on by any member of the Wider Xchanging Group of its business;
(f) other than in relation to the merger control and regulatory
approvals referred to in paragraphs (b) to (d) above, all authorisations,
orders, grants, recognitions, confirmations, licences, consents, clearances,
permissions and approvals which are necessary or reasonably considered
appropriate by Capita in any jurisdiction for or in respect of the Acquisition
and the proposed acquisition of Xchanging Shares, or control of Xchanging, by
Capita or any member of the Wider Capita Group being obtained on terms and in
a form reasonably satisfactory to Capita from appropriate Relevant
Authorities, or from any persons or bodies with whom any member of the Wider
Capita Group or the Wider Xchanging Group has entered into contractual
arrangements or other business relationships, and such authorisations, orders,
grants, recognitions, confirmations, licences, consents, clearances,
permissions and approvals, together with all authorisations, orders, grants,
recognitions, confirmations, licences, consents, clearances, permissions and
approvals necessary or reasonably considered appropriate for any member of the
Wider Xchanging Group to carry on its business, remaining in full force and
effect and no intimation of any intention to revoke, suspend, restrict or
modify or not to renew any of the same having been made and all necessary
statutory or regulatory obligations in any jurisdiction having been complied
with;
(g) there being no temporary restraining order, preliminary or
permanent injunction, preliminary or permanent enjoinment, or other order
threatened or issued and being in effect by a court or other Relevant
Authority which has the effect of making the Acquisition or any acquisition or
proposed acquisition of any shares or other securities in, or control or
management of, any member of the Wider Xchanging Group by any member of the
Wider Capita Group or the implementation of either of them, void, voidable,
illegal and/or unenforceable under the laws of any relevant jurisdiction or
otherwise, directly, or indirectly, prohibiting, preventing, restraining,
restricting, delaying or otherwise interfering with the consummation or the
approval of the Acquisition or any matter arising from the proposed
acquisition of any shares of other securities in, or control or management of,
any member of the Wider Xchanging Group by any member of the Wider Capita
Group;
Confirmation of absence of adverse circumstances
(h) save as Disclosed, there being no provision of any authorisation,
agreement, arrangement, licence, permit, lease, franchise or other instrument
to which any member of the Wider Xchanging 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, as a result of the Acquisition or the acquisition or proposed
acquisition by Capita or any member of the Wider Capita Group of any Xchanging
Shares, or change in the control or management of Xchanging or otherwise,
would or might reasonably be expected to result in:
(i) any monies borrowed by or any other indebtedness (actual or
contingent) of, or any grant available to, any member of the Wider Xchanging
Group becoming repayable, or capable of being declared repayable, immediately
or earlier than the stated maturity or repayment date or the ability of such
member to borrow monies or incur any indebtedness being withdrawn or
inhibited;
(ii) the rights, liabilities, obligations, interests or business of any
member of the Wider Xchanging Group under any such authorisation, agreement,
arrangement, licence, permit, lease, franchise or other instrument or the
rights, liabilities, obligations, interests or business of any member of the
Wider Xchanging Group in or with any other firm or company or body or person
(or any agreement or arrangement relating to any such rights, liabilities,
obligations, interests or business) being, or becoming capable of being,
terminated or adversely modified or adversely affected or any onerous
obligation or liability arising or any material adverse action being taken or
arising thereunder;
(iii) the creation or enforcement of any mortgage, charge or other
security interest over the whole or any material part of the business,
property or assets of any member of the Wider Xchanging Group or any such
mortgage, charge or other security interest (whenever arising or having
arisen) becoming enforceable;
(iv) any assets, property or interest of, or any asset the use of which is
enjoyed by, any member of the Wider Xchanging Group being, or falling to be,
disposed of by, or ceasing to be available to, any member of the Wider
Xchanging Group or any right arising under which any such asset or interest
could be required to be disposed of or charged or could cease to be available
to any member of the Wider Xchanging Group;
(v) any member of the Wider Xchanging Group ceasing to be able to carry on
business under any name under which it presently does so to an extent which is
material in the context of the Wider Xchanging Group, taken as a whole;
(vi) the financial or trading or regulatory position or prospects or the
value of any member of the Wider Xchanging Group being materially prejudiced
or materially adversely affected;
(vii) the creation, acceleration or assumption of any liabilities (actual,
contingent or prospective) by any member of the Wider Xchanging Group in a
manner which is material in the context of the Wider Xchanging Group, taken as
a whole;
(viii) any requirement on any member of the Wider Xchanging Group to
acquire, subscribe, pay up or repay any shares or other securities (or the
equivalent) in and/or any indebtedness of any member of the Wider Xchanging
Group owned by any third party to an extent which is material in the context
of the Wider Xchanging Group, taken as a whole;
(ix) any material liability of any member of the Wider Xchanging Group to
make any severance, termination, bonus or other payment to any of its
directors or other officers; and
(x) no event having occurred which, under any provision of any such
authorisation, agreement, arrangement, licence, permit, lease, franchise or
other instrument to which any member of the Wider Xchanging Group is a party
or by or to which any such member or any of its assets may be bound or be
subject, could result in any of the events or circumstances as are referred to
in this paragraph (h);
No material transactions, claims or changes in the conduct of the business of
Xchanging:
(i) save as Disclosed, no member of the Wider Xchanging Group has
since 31 December 2014:
(i) issued, agreed to issue, authorised or proposed the issue of,
additional shares of any class, or securities convertible into, or
exchangeable for, or rights, warrants or options to subscribe for or acquire,
any such shares or convertible or exchangeable securities or transferred or
sold (or agreed to transfer or sell) any shares out of treasury (except, where
relevant, as between Xchanging and its wholly-owned subsidiaries or between
its wholly-owned subsidiaries and except in connection with the ongoing
operation of the Xchanging Share Schemes (in accordance with their respective
terms);
(ii) recommended, declared, paid or made or proposed or resolved to
recommend, declare, pay or make any bonus issue, dividend or other
distribution, whether payable in cash or otherwise, other than a distribution
to Xchanging or one of its wholly-owned subsidiaries;
(iii) other than pursuant to the Offer, implemented or authorised any
merger or demerger or (except for transactions between Xchanging and its
wholly-owned subsidiaries, or between its wholly-owned subsidiaries or
transactions in the ordinary course of business) acquired or disposed of or
transferred, mortgaged or charged, or created any other security interest
over, any asset or any right, title or interest in any asset or authorised,
proposed or announced any intention to do so;
(iv) (except for transactions between Xchanging and its wholly-owned
subsidiaries, or between its wholly-owned subsidiaries or transactions in the
ordinary course of business) entered into, or authorised, proposed or
announced the entry into, any joint venture, asset or profit-sharing
arrangement, partnership or merger of businesses or corporate entities;
(v) (except for transactions between Xchanging and its wholly-owned
subsidiaries, or between its wholly-owned subsidiaries or transactions in the
ordinary course of business) other than pursuant to the Offer, implemented or
authorised any reconstruction, amalgamation, scheme or other transaction or
arrangement with a substantially equivalent effect;
(vi) (except for transactions between Xchanging and its wholly-owned
subsidiaries, or between its wholly-owned subsidiaries or transactions in the
ordinary course of business) purchased, redeemed or repaid any of its own
shares or other securities or reduced or made or authorised any other change
in its share capital;
(vii) (except for transactions between Xchanging and its wholly-owned
subsidiaries or between its wholly-owned subsidiaries) made or authorised any
change in its loan capital or issued or authorised the issue of any debentures
or incurred or increased any indebtedness or contingent liability;
(viii) entered into, varied or terminated, or authorised the entry into,
variation or termination of, any contract, commitment or arrangement (whether
in respect of capital expenditure, real estate or otherwise) which is outside
the ordinary course of business or which is of a long term, onerous or unusual
nature or magnitude or which involves, or might reasonably be expected to
involve, an obligation of a material nature or magnitude which is restrictive
on the business of any member of the Wider Xchanging Group;
(ix) been unable or deemed unable, or admitted in writing that it is
unable, to pay its debts as they fall due 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;
(x) commenced negotiations with any of its creditors or taken any step
with a view to rescheduling or restructuring any of its indebtedness or
entered into a composition, compromise, assignment or arrangement with any of
its creditors whether by way of a voluntary arrangement, scheme of
arrangement, deed of compromise or otherwise;
(xi) (other than in respect of a subsidiary of Xchanging which is dormant
and solvent at the relevant time) taken any corporate action or had any legal
proceedings started, served or threatened against it or any documents filed or
faxed in court for its winding-up (voluntary or otherwise), dissolution or
reorganisation (or for any analogous proceedings or steps in any jurisdiction)
or for the appointment of a liquidator, provisional liquidator, receiver,
administrator, administrative receiver, trustee or similar officer (or for the
appointment of any analogous person in any jurisdiction) of all or any of its
assets and revenues or had notice given of the intention to appoint any of the
foregoing to it;
(xii) except in the ordinary course of business, waived, compromised,
settled, abandoned or admitted any material dispute, claim or counter-claim
whether made or potential and whether by or against any member of the Wider
Xchanging Group;
(xiii) made any material alteration or amendment to its constitutional
documents;
(xiv) entered into, or varied the terms of, or terminated or given notice of
termination of, any service agreement or arrangement with any director or
senior executive of the Wider Xchanging Group;
(xv) proposed, agreed to provide, or agreed to modify 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
Xchanging Group, other than in accordance with the terms of the Offer;
(xvi) made or consented to any material change to the terms of the trust
deeds constituting the pension scheme(s) established for its directors and/or
employees and/or their dependants or to the benefits which accrue, or to the
pensions which are payable thereunder, or to the basis on which qualification
for or accrual or entitlement to such benefits or pensions are calculated or
determined, or to the basis upon which the liabilities (including pensions) of
such pension schemes are funded or made, or agreed or consented to, any change
to the trustees, other than in accordance with applicable law;
(xvii) save as between Xchanging and its wholly-owned subsidiaries, granted
any lease in respect of any of the leasehold or freehold property owned or
occupied by it or transferred or otherwise disposed of any such property; or
(xviii) entered into any contract, commitment or arrangement or passed any
resolution or made any offer (which remains open for acceptance) with respect
to, or proposed or announced any intention to effect or propose, any of the
transactions, matters or events referred to in this paragraph (i);
(j) save as Disclosed, since 31 December 2014:
(i) no adverse change or deterioration having occurred and no events,
matters or circumstances having arisen which would or might reasonably be
expected to result in any adverse change or deterioration in the business,
assets, financial, trading or regulatory position or profits or prospects or
operational performance or legal or regulatory position of any member of the
Wider Xchanging Group (in each case, to an extent which is material in the
context of the Wider Xchanging Group, taken as a whole or in the context of
the Offer); and
(ii) no litigation, arbitration proceedings, prosecution or other legal
proceedings in any jurisdiction having been threatened, announced, instituted
or remaining outstanding by, against or in respect of any member of the Wider
Xchanging Group or to which any member of the Wider Xchanging Group is a party
(whether as claimant or defendant or otherwise) and no investigation by any
Relevant Authority or other investigative body against or in respect of any
member of the Wider Xchanging Group having been threatened, announced,
instituted or remaining outstanding by, against or in respect of any member of
the Wider Xchanging Group (in each case, to an extent which is material in the
context of the Wider Xchanging Group taken as a whole or in the context of the
Offer);
(k) save as Disclosed, no contingent or other liability having arisen
outside the ordinary course of business which would or might reasonably be
expected to adversely affect Xchanging (in each case to an extent which is
material in the context of the Wider Xchanging Group taken as a whole or in
the context of the Offer); and
(l) save as Disclosed, Capita not having discovered:
(i) that any financial, business or other information concerning any
member of the Wider Xchanging Group publicly disclosed prior to the date of
this announcement at any time by any member of the Wider Xchanging Group is
misleading, contains a misrepresentation of fact or omits to state a fact
necessary to make the information contained therein not misleading and which
was not subsequently corrected before the date of this announcement by
disclosure by, or on behalf of, the Wider Xchanging Group through the
publication of an announcement via a Regulatory Information Service;
(ii) that any member of the Wider Xchanging Group is subject to any
liability, actual, contingent, prospective or otherwise, other than in the
ordinary course of business (in each case to an extent which is material in
the context of the Wider Xchanging Group taken as a whole or in the context of
the Offer); or
(iii) any information which materially adversely affects the import of any
information Disclosed at any time;
(m) save as Disclosed, Capita not having discovered that:
(i) any past or present member of the Wider Xchanging Group has not
complied with any applicable legislation or regulations, notices or other
requirements of any jurisdiction or Relevant Authority with regard to
environmental matters or the health and safety of any person, or that there
has otherwise been any breach of environmental or health and safety law or
that there is any environmental condition which, in any case, would be likely
to give rise to any liability (whether actual, contingent or prospective) or
cost on the part of any member of the Wider Xchanging Group which, in any
case, is material in the context of the Wider Xchanging Group, taken as a
whole; or
(ii) there is, or is likely to be, any liability, whether actual,
contingent or prospective, to make good, repair, reinstate or clean up any
property now or previously owned, occupied or made use of by any past or
present member of the Wider Xchanging Group or any controlled waters under any
environmental law or which has or could result in the closure of any property
required by any member of the Wider Xchanging Group which, in any case, is
material in the context of the Wider Xchanging Group, taken as a whole; and
(n) no circumstance having arisen or event having occurred in
relation to any intellectual property owned or used by any member of the Wider
Xchanging Group, which would have a material adverse effect on the Wider
Xchanging Group, taken as a whole, including:
(i) any member of the Wider Xchanging Group losing its title to any of
its intellectual property, or any intellectual property owned by the Wider
Xchanging Group being revoked, cancelled or declared invalid;
(ii) any claim being asserted or threatened by any person challenging the
ownership of any member of the Wider Xchanging Group to, or the validity or
effectiveness of, any of its intellectual property; or
(iii) any agreement regarding the use of any intellectual property
licensed to or by any member of the Wider Xchanging Group being terminated or
varied.
PART 2
CERTAIN FURTHER TERMS OF THE OFFER
Capita reserves the right (subject to the requirements of the Code and the
Panel) to waive, in whole or in part, all or any of the Conditions in
paragraphs (b), (c)(ii) and (d) to (n) (inclusive) of Part 1, in whole or in
part, at its absolute discretion.
Capita shall be under no obligation to waive or treat as fulfilled any of the
Conditions in paragraphs (b), (c)(ii) and (d) to (n) (inclusive) of Part 1 by
a date earlier than the latest date specified below for the fulfilment of them
notwithstanding that the other Conditions may at such earlier date have been
waived or fulfilled and that there are at such earlier date no circumstances
indicating that any of such Conditions may not be capable of fulfilment.
At such time as the Conditions in paragraphs (a) and (c) of Part 1 have been
satisfied, Capita will declare the Offer unconditional in all respects unless
it has at that time notified the Panel and Xchanging of some fact or
circumstance which entitles (or might reasonably be expected with further
investigation to entitle) it to declare the Offer to have lapsed in reliance
on some other condition.
The Offer will lapse unless all Conditions to the Offer are fulfilled or (if
capable of waiver) waived or, where appropriate, determined by Capita to have
been or remain satisfied by midnight (London time) on the date which is 21
days after the later of the First Closing Date and the date on which the Offer
becomes, or is declared, unconditional as to acceptances (or such later date
(if any) as Capita may, with the consent of the Panel or in accordance with
the Code, decide).
The Offer will lapse if there is a CMA Phase 2 Reference before the later of
1.00 p.m. on the First Closing Date and the date on which the Offer becomes,
or is declared, unconditional as to acceptances. If the Offer does so lapse,
not only will the Offer cease to be capable of further acceptance but also
Xchanging Shareholders and Capita will thereafter cease to be bound by prior
acceptances.
If Capita is required by the Panel to make a mandatory offer for Xchanging
Shares under Rule 9 of the Code, Capita may make such alterations to the above
Conditions as are necessary to comply with the provisions of that Rule.
With respect to the Clearances that are required for the satisfaction of the
Merger Control Conditions, it is agreed that Capita shall use its best
endeavours to procure that the Merger Control Conditions are fulfilled as soon
as is reasonably practicable after the date of this announcement and, in any
event, in order to obtain such Clearances during the first phase of such
merger control processes. Such endeavours will, if necessary, include, but are
not limited to, proposing, negotiating, offering and agreeing with any
relevant Merger Control Authority at the earliest appropriate opportunity (and
in any event before any applicable deadline to offer remedies) to effect (and
if such offer is accepted, undertaking to effect), by agreement, order or
otherwise, the sale, divestiture, licence or disposition of any necessary
assets or businesses of Xchanging or the Xchanging Group and/or Capita or the
Capita Group.
The Xchanging Shares will be acquired by Capita fully paid and free from all
liens, charges, encumbrances, rights of pre-emption and any other third party
rights of any nature whatsoever and together with all rights attaching to them
as at the date of this announcement or subsequently attaching or accruing to
them, including, without limitation, voting rights and 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. Accordingly, insofar as a dividend and/or distribution
and/or a return of capital is proposed, declared, made, paid or payable by
Xchanging in respect of an Xchanging Share on or after the date of this
announcement, Capita reserves the right to reduce by the amount of the
dividend and/or distribution and/or return of capital, the price payable under
the Offer in respect of an Xchanging Share, except insofar as the Xchanging
Share is or will be transferred pursuant to the Offer on a basis which
entitles Capita alone to receive the dividend and/or distribution and/or
return of capital but if that reduction in price has not been effected, the
person to whom the Offer Price is paid in respect of that Xchanging Share,
will be obliged to account to Capita for the amount of such dividend and/or
distribution and/or return of capital.
Save in respect of the Conditions contained in paragraph (a) of Part 1, under
Rule 13.5 of the Code, Capita may not invoke a Condition so as to cause the
Offer not to proceed, to lapse or to be withdrawn unless the circumstances
that give rise to the right to invoke the Condition are of material
significance to Capita in the context of the Offer. The Condition contained in
paragraph (a) of Part 1 is not subject to this provision of the Code.
Capita reserves the right, subject to the prior consent of the Panel, to
implement the Offer by way of a Scheme. In such event, the Offer will be
implemented on the same terms, so far as applicable, as those which would
apply under a contractual offer, subject to appropriate amendments to reflect
the change in method of effecting the Offer.
Each of the Conditions shall be regarded as a separate Condition and shall not
be limited by reference to any other Condition.
The Offer will be governed by the laws of England and Wales and will be
subject to the jurisdiction of the Courts of England and Wales and to the
Conditions and further terms set out in this announcement and to be set out in
the Offer Document. The Offer will be subject to the applicable requirements
of the UK Listing Authority, the PRA, the FCA, the Financial Services
Commission, the CMA, FSMA, the London Stock Exchange and the Code. This
announcement does not constitute, or form part of, an offer or invitation to
purchase Xchanging Shares or any other securities.
The ability to effect the Offer in respect of persons resident in certain
jurisdictions may be affected by the laws of those jurisdictions. Before
taking any action in relation to the Offer, holders of Xchanging Shares should
inform themselves about and observe any applicable requirements.
Unless otherwise determined by Capita or required by the Code and permitted by
applicable law and regulation:
• the Offer is not being, and will not be, made available, 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 no person may
vote using any such use, means, instrumentality or facility or from within any
Restricted Jurisdiction; and
• this announcement should not be forwarded or transmitted in or into
any jurisdiction in which such act would constitute a violation of the
relevant laws in such jurisdiction.
APPENDIX 2
GENERAL SOURCES OF INFORMATION AND BASES OF CALCULATION
In this announcement, unless otherwise stated, or the context otherwise
requires, the following bases and sources have been used:
· Unless otherwise stated, the financial information relating to Capita
is extracted (without material adjustment) from the audited consolidated
financial statements of Capita for the relevant financial years or from the
unaudited interim consolidated financial statements of Capita for the relevant
financial periods, prepared in accordance with IFRS.
· Unless otherwise stated, the financial information relating to
Xchanging is extracted (without material adjustment) from the audited
consolidated financial statements of Xchanging for the relevant financial
years or from the unaudited interim consolidated financial statements of
Xchanging for the relevant financial periods, prepared in accordance with
IFRS.
· The financial data relating to synergies, cost savings and other
financial benefits of the Acquisition are unaudited and are based on analysis
by Capita's management and on Capita's and Xchanging's internal records.
· Any references to the value of the Offer for the whole of the issued
ordinary share capital of Xchanging assume the number of Xchanging Shares
currently in issue to be 247,851,399.
· Any references to the availability to Capita of the necessary resources
to implement the Offer in full also assume that there are currently options
and/or awards outstanding in respect of 9,796,980 unissued Xchanging Shares
(excluding options and/or awards whose exercise price is above the Offer Price
or where the relevant performance criteria have not been met).
· Any references to the existing issued share capital of Xchanging are
based on 247,851,399 Xchanging Shares in issue as at 13 October 2015 (being
the last Business Day prior to the date of this announcement).
· Unless otherwise stated, all prices and closing prices for Xchanging
Shares are closing middle market quotations derived from the London Stock
Exchange Daily Official List (SEDOL).
APPENDIX 3
DEFINITIONS
The following definitions apply throughout this announcement, unless the
context otherwise requires:
"Accounting Date" 31 December 2014
"Acquisition" the acquisition of the entire issued, and to be issued, share capital of Xchanging to be effected pursuant to the Offer or, if Capita so elects and the Panel agrees, by way of a scheme of arrangement of Xchanging under Part 26 of the Companies Act 2006
"Apollo" Apollo Global Management LLC
"BaFin" Bundesanstalt für Finanzdienstleistungsaufsicht, the German Federal Financial Supervisory Authority
"BPM" customer and business process management
"BSE" BSE Ltd. (Bombay Stock Exchange)
"Bridge Facility Agreement" has the meaning given to it paragraph 10 of this announcement
"Business Day" a day (excluding Saturdays, Sundays and public holidays) on which banks are generally open for business in the City of London
"Capita" Capita plc, a public limited company incorporated in England and Wales with registered number 02081330 and the ultimate parent company of the Capita Group
"Capita Board" or "Capita Directors" the board of directors of Capita
"Capita Group" Capita, its subsidiaries and subsidiary undertakings
"Capita Share Issue" an intended secondary issue of New Capita Shares, the net proceeds of which would be utilised to refinance the credit facility made available to Capita under the Bridge Facility Agreement, to the extent drawn at such time
"Citi" Citigroup Global Markets Limited
"Clearances" all consents, clearances, permissions, waivers and/or filings that are necessary or desirable in order to satisfy the Conditions and all waiting periods that may need to have expired, from or under the laws, regulations or practices applied by any relevant
Merger Control Authority (including, without limitation, the CMA) and/or relevant Regulatory Authority in connection with the implementation of the Acquisition (including, without limitation, the CMA Merger Clearance), and any references to Clearances
having been "satisfied" shall be construed as meaning that the foregoing have been obtained or, where appropriate, made or expired in accordance with the relevant Condition
"Closing Price" the closing middle market quotation of an Xchanging Share as derived from the London Stock Exchange Daily Official List (SEDOL)
"CMA" the Competition and Markets Authority
"CMA Merger Clearance" in so far as the Acquisition creates a relevant merger situation within the meaning of section 23 of the Enterprise Act 2002, the CMA indicating that it does not intend to make a CMA Phase 2 Reference of the Acquisition or any other matter arising from or
relating to the Acquisition
"CMA Phase 2 Reference" the CMA making a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise And Regulatory Reform Act 2013 pursuant to Clause 33 of the Enterprise Act 2002 (as amended) or a public interest intervention notice being issued by
the Secretary of State for Business, Innovation and Skills under Section 42(2) of the Enterprise Act 2002 (as amended)
"Code" or "City Code" the City Code on Takeovers and Mergers as from time to time interpreted by the Panel
"Companies Act 2006" the Companies Act 2006, as amended
"Conditions" the conditions to the Offer which are set out in Appendix 1 to this announcement
"Confidentiality Agreement" has the meaning given thereto in paragraph 13 of this announcement
"Co-operation Agreement" has the meaning given thereto in paragraph 13 of this announcement
"Court" the High Court of Justice in England and Wales
"Daily Official List" the daily official list of the London Stock Exchange
"Dealing Disclosure" a dealing disclosure made in accordance with Rule 8 of the Code
"Delisting Threshold" has the meaning given thereto in paragraph 11.4 of this announcement
"Deutsche Bank" Deutsche Bank AG, London Branch
"Disclosed" information which has been fairly disclosed:· by Xchanging in its published annual report and account for the period ended 31 December 2014 or interim results for the six month period ended 30 June 2015;· in any public announcement made by, or on
behalf of, Xchanging in accordance with the Listing Rules or the Disclosure and Transparency Rules prior to the second Business Day before the date of this announcement;· in this announcement; or· in writing by Xchanging to Capita during the due
diligence process or otherwise
"Disclosure and Transparency Rules" the Disclosure and Transparency Rules of the FCA in its capacity as the UK Listing Authority under FSMA and contained in the UK Listing Authority's publication of the same name
"Enlarged Group" the Capita Group following completion of the Acquisition (which will include the Xchanging Group)
"FCA" the Financial Conduct Authority
"FSMA" the Financial Services and Markets Act 2000 (as amended)
"First Closing Date" the date which is 20 Business Days after the date of posting of the Offer Document
"Form of Acceptance" the form of acceptance and authority relating to the Offer for use by Xchanging Shareholders holding their Xchanging Shares in certificated form which will accompany the Offer Document
"FTC" the US Federal Trade Commission
"FY2016" the financial year ending 31 December 2016
"FY2017" the financial year ending 31 December 2017
"IFRS" international accounting standards and international financial reporting standards and interpretations thereof, approved or published by the International Accounting Standards Board and adopted by the European Union
"InhKontrollV" Inhaberkontrollverordnung, the German Regulation on Ownership Control
"KWG" Gesetz über das Kreditwesen, the German Banking Act
"Lazard" Lazard & Co., Limited
"Listing Rules" the rules made by the Financial Conduct Authority under Part VI of the Financial Services and Markets Act 2000
"London Stock Exchange" London Stock Exchange plc
"Merger Control Authority" any national or supranational competition, anti-trust or merger control agency or body, in each case, in any jurisdiction, including without limitation, the CMA, German Bundeskartellamt and the US Federal Trade Commission
"Merger Control Conditions" the Conditions set out in paragraph (b) of Appendix 1 to this announcement
"New Capita Shares" the new ordinary shares of 2.066666 pence each in the capital of Capita to be issued pursuant to the Capita Share Issue (if effected)
"NSE" National Stock Exchange of India Ltd.
"Offer" the recommended cash offer to be made by Capita to acquire the entire issued and to be issued share capital of Xchanging on the terms and subject to the Conditions set out in this announcement and to be set out in the Offer Document and (in respect of
Xchanging Shares held in certificated form) in the Form of Acceptance and, where the context so requires, any subsequent revision, variation, extension or renewal thereof
"Offer Document" the document to be sent to Xchanging Shareholders containing the terms and Conditions applicable to the Offer
"Offer Period" the period commencing on 4 October 2015 until whichever of the following dates shall be the later (a) 1.00 p.m. on the First Closing Date; and (b) the date on which the Offer lapses or is withdrawn; and (c) the date on which the Offer becomes, or is
declared, unconditional as to acceptances
"Offer Price" 160 pence per Xchanging Share
"Official List" the Official List of the FCA
"Opening Position Disclosure" an opening position disclosure made in accordance with Rule 8 of the Code
"Panel" the Panel on Takeovers and Mergers
"PRA" the UK Prudential Regulatory Authority
"PUSU Deadline" 5.00 p.m. on the 53rd day following the posting of the Offer Document
"Regulatory Authority" any court, national, supranational or supervisory body or other government, governmental or regulatory agency or body, in each case, in any jurisdiction, including, without limitation, the CMA, the Bundeskartellamt, the FTC, FCA and the BaFin
"Regulatory Conditions" the Conditions set out in paragraph (c) of Appendix 1 to this announcement
"Regulatory Information Service" A Regulatory Information Service
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