REG - Thoma Bravo, L.P. Darktrace PLC - Recommended Cash Acquisition of Darktrace plc
26/04/2024 08:15
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RNS Number : 1886M Thoma Bravo, L.P. 26 April 2024
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INDIRECTLY, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE
A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF THAT JURISDICTION
FOR IMMEDIATE RELEASE
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION
26 APRIL 2024
RECOMMENDED CASH ACQUISITION
of
Darktrace plc
by
Luke Bidco Limited
(a newly-formed company indirectly wholly-owned by funds managed and/or
advised by Thoma Bravo, L.P.)
to be implemented by means of a scheme of arrangement
under Part 26 of the Companies Act 2006
Summary
· The boards of directors of Luke Bidco Limited ("Bidco") and Darktrace
plc ("Darktrace") are pleased to announce that they have reached agreement on
the terms and conditions of a recommended all cash acquisition by Bidco of the
entire issued, and to be issued, ordinary share capital of Darktrace. It is
intended that the Acquisition will be implemented by way of a Court-sanctioned
scheme of arrangement under Part 26 of the 2006 Act.
· Under the terms of the Acquisition, each Darktrace Shareholder will
be entitled to receive:
for each Darktrace Share: $7.75 in cash
· The GBP equivalent value of the Acquisition price per Darktrace Share
based on the Announcement Exchange Rate, being 620 pence, represents a premium
of approximately:
o 44.3 per cent. to the volume-weighted average price of 429.9 pence per
Darktrace Share for the three-month period ended 25 April 2024 (being the last
Business Day before the date of this announcement);
o 20.0 per cent. to the Closing Price of 517.0 pence per Darktrace Share on
25 April 2024 (being the last Business Day before the date of this
announcement);
o 19.6 per cent. to the highest closing share price of 518.6 pence per
Darktrace Share for the twelve month period ended 25 April 2024 (being the
last Business Day before the date of this announcement);
o 46.0 per cent. to the 21 March 2024 secondary placing price of 425.0 pence
per Darktrace Share; and
o 148.1 per cent. to the IPO price of 250 pence per Darktrace Share on 30
April 2021.
· The Acquisition values Darktrace's entire issued, and to be issued,
ordinary share capital at approximately $5,315 million on a fully diluted
basis and implies an enterprise value of approximately $4,992 million (which
is equivalent to £4,254 million and £3,995 million respectively based on the
Announcement Exchange Rate) and a multiple of approximately 34 times
Darktrace's Adjusted EBITDA for the twelve months ended 31 December 2023 of
$146 million.
· Bidco will procure that a facility will be made available under which
Scheme Shareholders will be able to elect (subject to the terms and conditions
of the facility) to receive the cash consideration in Sterling (after
deduction of any transaction or dealing costs associated with the conversion)
at the applicable market exchange rate on the latest practicable date for
fixing such rate prior to the relevant payment date. Further details of this
facility and the election by Scheme Shareholders wishing to receive their cash
consideration in Sterling will be set out in the Scheme Document and the Form
of Election. On the basis of the Announcement Exchange Rate, the cash
consideration implies an equivalent value of 620 pence per Darktrace Share.
For any Scheme Shareholder electing to be paid their cash consideration in
Sterling, the amount per Darktrace Share received may, depending on the
prevailing exchange rate, result in a payment below or above 620 pence per
Darktrace Share.
· If, on or after the date of this announcement and prior to the
Acquisition becoming Effective, any dividend and/or other distribution and/or
other return of capital or value is announced, declared, made or paid or
becomes payable in respect of the Darktrace Shares, Bidco reserves the right
to reduce the consideration payable under the terms of the Acquisition for the
Darktrace Shares by an amount up to the aggregate amount of such dividend
and/or distribution and/or other return of capital or value, in which case any
reference in this announcement to the consideration payable under the terms of
the Acquisition will be deemed to be a reference to the consideration as so
reduced. Any exercise by Bidco of its rights referred to in this paragraph
shall be the subject of an announcement and, for the avoidance of doubt, shall
not be regarded as constituting any revision or variation of the terms of the
Scheme or the Acquisition. In such circumstances, Darktrace Shareholders would
be entitled to retain any such dividend, distribution and/or other return of
capital or value.
· Thoma Bravo, L.P. ("Thoma Bravo") firmly believes that the
Acquisition will benefit Darktrace, Darktrace's customers and the wider
technology ecosystem through supporting the development of enhanced products
and Darktrace's cybersecurity capability. Bidco has agreed with Darktrace
under the terms of the Cooperation Agreement that Thoma Bravo will, with
Darktrace's support and involvement, engage proactively and collaboratively
with the competent regulatory authorities and government stakeholders,
recognising the specific importance of Darktrace's contribution to the
technology ecosystem.
Recommendation
· The Darktrace Directors, who have been so advised by Jefferies and
Qatalyst Partners as to the financial terms of the Acquisition, consider the
terms of the Acquisition to be fair and reasonable. In providing their advice,
Jefferies and Qatalyst Partners have taken into account the commercial
assessments of the Darktrace Directors. Jefferies and Qatalyst Partners are
providing independent financial advice to the Darktrace Directors for the
purposes of Rule 3 of the Takeover Code.
· Accordingly, the Darktrace Directors intend to recommend unanimously
that the Darktrace Shareholders vote, or procure voting, in favour of the
Scheme at the Court Meeting and the Resolutions at the General Meeting (or in
the event that the Acquisition is implemented by an Offer, to accept or
procure acceptance of such Offer), as the Darktrace Directors who hold
interests in Darktrace Shares (in a personal capacity or through a nominee)
have irrevocably undertaken to do, or to procure to be done, in respect of
their own beneficial holdings (or those Darktrace Shares over which they have
control), being, in aggregate 6,132,989 Darktrace Shares (representing
approximately 0.88 per cent. of the existing issued ordinary share capital of
Darktrace) as at 25 April 2024, being the Business Day prior to the date of
this announcement. Further details of these undertakings, including the
circumstances in which they cease to be binding, are set out in Appendix 3 to
this announcement.
Background to and reasons for the Acquisition
· Thoma Bravo believes that the acquisition of Darktrace represents an
attractive opportunity to increase its exposure to the large and growing
cybersecurity market, and to invest to accelerate Darktrace's continued
development and further scale the business globally.
· Darktrace is a global leader in cybersecurity artificial
intelligence. Thoma Bravo recognises that Darktrace is a pioneer in using
self-learning artificial intelligence to neutralise cyber threats and automate
responses to cyber incidents, leveraging its long-standing research and
development expertise. Rather than study historic attacks, Darktrace's
technology continuously learns and updates its knowledge of an organisation's
business data and applies that understanding to help transform security
operations to a state of proactive cyber resilience. As a result, Darktrace
has become a leader in cybersecurity artificial intelligence now providing a
full lifecycle approach to cybersecurity enabling its 9,400 customers to
identify, stop and respond to all known and unknown threats, across all
aspects of an organisation's cybersecurity tools. Thoma Bravo recognises the
strength of Darktrace's ActiveAI Security Platform, the expertise of its
Cambridge-based technology team, the track record of its experienced
management team, and the compelling nature of its resilient financial model.
· The cybersecurity market is evolving at pace and the volume and
sophistication of cyber threats and attacks faced is rapidly increasing.
However, the market remains fragmented, with few truly global players. Serving
the world's largest customers and enterprises requires Darktrace to
continually make significant technology investments and further scale
globally, to ensure that its platform can stay ahead of changing cyber
threats.
· Thoma Bravo believes that private ownership can facilitate its
development. Thoma Bravo has a long track record of providing capital and
strategic support to experienced management teams, growing software and
technology companies, and creating highly skilled jobs. A partnership with
Thoma Bravo would give Darktrace a unique opportunity to accelerate
Darktrace's growth and the development of AI augmented cyber solutions for its
customers and grow over time; in particular, through:
o continuing Darktrace's strong organic growth momentum, with help from
Thoma Bravo's deep experience of growing enterprise software businesses as
well as through opportunities and learnings from its large software portfolio;
o utilising Thoma Bravo's M&A expertise to grow the Darktrace platform
in the highly fragmented cybersecurity market; and
o leveraging Thoma Bravo's proprietary operational best practices built over
the course of 40 years of experience to further build a best-in-class software
franchise.
Background to and reasons for the recommendation
· Since its inception in 2013, Darktrace has rapidly grown to become a
successful global leader in cybersecurity artificial intelligence, currently
employing over 2,300 people around the world and protecting over 9,400
customers globally from advanced cyber threats. Rather than study historic
attacks, Darktrace's technology continuously learns and updates its knowledge
of an organisation's business data and applies that understanding to help
transform security operations to a state of proactive cyber resilience. The
Darktrace ActiveAI Security Platform™ provides a full lifecycle approach to
cyber resilience that can autonomously spot and respond to known and unknown
in progress threats within seconds across the entire organisation, including
cloud, apps, email, endpoint, network and operational technology.
· In 2021, Darktrace successfully listed on the London Stock Exchange,
raising capital to support its future growth, including investments in
research and development and product innovation to address the growing threat
of cyber disruption, the hiring of senior leaders with deep functional
expertise who in turn have evolved the business for its next phase of growth,
particularly across its Go-To-Market function alongside investments in the
systems, tools and processes needed to support a rapidly growing business. The
business saw a temporary impact of these changes in the first quarter of the
2024 fiscal year and now these investments are substantially paying off with
Darktrace reporting a strong financial performance in its recent first half
results and third quarter trading update.
· Whilst the Darktrace Board remain confident that Darktrace's strategy
can continue to deliver attractive returns for shareholders and that Darktrace
has a strong future as a public company, the Darktrace Board believes that
Darktrace's operating and financial achievements have not been reflected
commensurately in its valuation with shares trading at a significant discount
to its global peer group. The Darktrace Board recognises that there are risks
to, as well as uncertainty as to the timing and delivery of, shareholder
returns on the public market and the Acquisition provides an opportunity for
Darktrace Shareholders to receive the certainty of cash consideration at a
fair value for their shares at this time in Darktrace's evolution.
· Through its partnership with Thoma Bravo, Darktrace will be further
enabled to deliver on its strategy in a stable and private setting, to create
efficiently developed cybersecurity products, leverage differentiated
technology to drive product adoption and sales growth, and hire and retain
talent to drive innovation and business success.
· Darktrace is a proud contributor to the British technology, AI and
cyber security ecosystem, having substantially gained from the strong academic
heritage of machine learning in the UK and the world-class British
intelligence community. In addition to the financial terms of the Acquisition,
in its evaluation of Thoma Bravo as a suitable owner of Darktrace from the
perspective of all stakeholders, the Darktrace Board have also taken into
account Thoma Bravo's intentions for the business, including its employees,
customers, suppliers and business partners and is encouraged that Thoma Bravo
intends to support the management team as they continue to grow Darktrace as
an independent business, headquartered in the UK.
o This includes Thoma Bravo's intentions that employees are appropriately
incentivised to support the long-term growth of the business, that Darktrace
retains its research and development capabilities in the UK and the
Netherlands, and that there will be no material restructurings or changes to
Darktrace's Cambridge, UK headquarters, or other business operations.
o Darktrace continues to be a British tech champion operating at the
forefront of AI to solve the problem of cyber security in the UK and around
the world and will continue to engage constructively with its stakeholders,
including government, to contribute to AI and cyber security resilience.
o Darktrace will continue to create high skilled jobs in the UK and invest
in building world-class cyber AI capabilities to improve UK resilience. Being
able to draw on Thoma Bravo's resources and expertise will support Darktrace's
continued growth globally, resulting in further opportunities for its people.
· Having carefully considered the Acquisition in accordance with its
fiduciary duties the Darktrace Board believes that the terms of the
Acquisition, including the price, are such that shareholders should be
provided with the opportunity to consider them. The Darktrace Board notes that
it has previously reviewed and rejected unsolicited proposed offers from Thoma
Bravo on the basis that they did not fairly represent the value of the
Darktrace business. The Darktrace Board's recommendation takes into
consideration that:
o the Acquisition is priced at a premium based on the Announcement Exchange
Rate of approximately:
· 44.3 per cent. to the volume-weighted average price of 429.9 pence
per Darktrace Share for the three-month period ended 25 April 2024 (being the
last Business Day before the date of this announcement);
· 20.0 per cent. to the Closing Price of 517.0 pence per Darktrace
Share on 25 April 2024 (being the last Business Day before the date of this
announcement);
· 19.6 per cent. to the highest closing share price of 518.6 pence per
Darktrace Share for the twelve month period ended 25 April 2024 (being the
last Business Day before the date of this announcement);
· 46.0 per cent. to the 21 March 2024 secondary placing price of 425.0
pence per Darktrace Share; and
· 148.1 per cent. to the IPO price of 250 pence per Darktrace Share on
30 April 2021;
o the Acquisition represents an EV / Revenue multiple of 8.1 times, and EV /
Adjusted EBITDA multiple of 34.2 times the Darktrace Group's revenue of $616
million and Adjusted EBITDA of $146 million for the twelve months ending 31
December 2023, respectively;
o feedback received by the Darktrace Board from certain of Darktrace's
largest shareholders that it has consulted on the Acquisition has been
supportive, as reflected by Thoma Bravo having procured irrevocable
commitments to vote in favour of the resolutions relating to the Acquisition
at the Meetings, from KKR DA and Summit Partners in respect of, in aggregate,
79,240,911 Darktrace Shares (representing approximately 11.3 per cent. of the
existing issued ordinary share capital of Darktrace); and
o the Acquisition will provide Darktrace access to a strong financial
partner in Thoma Bravo with deep sector and US markets expertise who can
support Darktrace's growth and investment in continued innovation in
cybersecurity artificial intelligence in order to offer an expanded product
portfolio across a deeper set of segments, industries and markets to deliver
value to customers. This includes Thoma Bravo's deep experience and expertise
in the US market, which remains a key focus geography for Darktrace.
Irrevocable undertakings
· Bidco has received irrevocable undertakings from certain Darktrace
Directors and senior employees who hold Darktrace Shares to vote (or, where
applicable, procure voting) in favour of the Scheme at the Court Meeting and
the Resolutions at the General Meeting (or in the event that the Acquisition
is implemented by an Offer, to accept or procure acceptance of such Offer), in
respect of, in aggregate, 21,627,725 Darktrace Shares (representing
approximately 3.1 per cent. of the existing issued ordinary share capital of
Darktrace as at 25 April 2024, being the last Business Day before the date of
this announcement). These undertakings will remain binding in the event that a
higher competing offer for Darktrace is made.
· Bidco has also received irrevocable undertakings from certain other
Darktrace Shareholders, being KKR DA and Summit Partners, to vote (or, where
applicable, procure voting) in favour of the Scheme at the Court Meeting and
the Resolutions at the General Meeting (or in the event that the Acquisition
is implemented by an Offer, to accept or procure acceptance of such Offer), in
respect of, in aggregate, 79,240,911 Darktrace Shares (representing
approximately 11.3 per cent. of the existing issued ordinary share capital of
Darktrace as at 25 April 2024, being the last Business Day before the date of
this announcement). These undertakings will also remain binding in the event
that a higher competing offer for Darktrace is made.
· Bidco has, therefore, received irrevocable undertakings in respect of
a total of 100,868,636 Darktrace Shares (representing approximately 14.4 per
cent. of the existing issued ordinary share capital of Darktrace as at 25
April 2024, being the last Business Day before the date of this announcement).
· Further details of these irrevocable undertakings, including the
circumstances in which they cease to be binding, are set out in Appendix 3 to
this announcement.
Information on Bidco and Thoma Bravo
· Bidco is a private limited company incorporated in England and Wales
and is indirectly wholly-owned by funds managed and/or advised by Thoma Bravo.
Bidco was formed for the purposes of the Acquisition and has not traded since
its date of incorporation, nor has it entered into any obligations other than
in connection with the Acquisition.
· Thoma Bravo is one of the largest software-focused investors in the
world, with over $138 billion in assets under management as of December 31,
2023. The firm invests in growth-oriented, innovative companies operating in
the software and technology sectors. Leveraging Thoma Bravo's deep sector
expertise and proven strategic and operational capabilities, the firm
collaborates with its portfolio companies to implement operating best
practices and drive growth initiatives. Over the past 20 years, Thoma Bravo
has acquired or invested in more than 465 companies representing approximately
$260 billion in enterprise value (including control and non-control
investments). The firm has offices in Chicago, London, Miami, New York and San
Francisco.
Information on Darktrace
· Darktrace is a global leader in cybersecurity artificial
intelligence, with a mission to free the world from cyber disruption. The
Darktrace ActiveAI Security Platform provides a full lifecycle approach to
cyber resilience that, within seconds, can autonomously spot and respond to
known and unknown in-progress threats across an organisation's entire
ecosystem, including cloud, apps, email, endpoint, network and operational
technology. Darktrace's research and development teams have made breakthrough
innovations resulting in over 175 patent applications filed. The Darktrace
Group employs over 2,300 people around the world and protects over 9,400
customers globally from advanced cyber threats. The Darktrace Group is
headquartered in Cambridge, UK with offices in 24 countries across Europe,
Americas, Asia-Pacific.
· The Darktrace Shares are listed on the Premium Segment of the
Official List and are admitted to trading on the Main Market of the London
Stock Exchange.
Timetable and conditions
· It is intended that the Acquisition will be implemented by way of a
Court‑sanctioned scheme of arrangement under Part 26 of the 2006 Act
(although Bidco reserves the right to effect the Acquisition by way of an
Offer, subject to the consent of the Panel and the terms of the Cooperation
Agreement).
· The Acquisition is conditional on, among other things, the approval
of the requisite majority of Scheme Shareholders at the Court Meeting and
Darktrace Shareholders at the General Meeting. The Court Meeting and the
General Meeting are required to enable Scheme Shareholders and Darktrace
Shareholders, respectively, to consider and, if thought fit, vote in favour of
the Scheme and the Resolutions to implement the Scheme. In order to become
Effective, the Scheme must be approved by a majority in number of Scheme
Shareholders, present and voting at the Court Meeting, whether in person or by
proxy, representing 75 per cent. or more in value of the Scheme Shares voted.
In addition, the Resolutions include a special resolution in connection with
implementing the Scheme which must be passed by Darktrace Shareholders
representing at least 75 per cent. of votes cast at the General Meeting. In
addition, following the Court Meeting, the Scheme must be sanctioned by the
Court.
· The Conditions to the Acquisition are set out in full in Appendix 1
to this announcement along with certain other terms; the full terms and
conditions will be provided in the Scheme Document. The Conditions include the
receipt of regulatory approvals as further described in this announcement.
· It is expected that the Scheme Document, containing further
information about the Acquisition and notices of the Court Meeting and General
Meeting, together with the associated forms of proxy, will be posted to
Darktrace Shareholders as soon as practicable and in any event within 28 days
of this announcement (or such later time as Darktrace, Bidco and the Panel
agree) and the Meetings are expected to be held as soon as reasonably
practicable thereafter. Subject to certain restrictions relating to persons
resident in Restricted Jurisdictions, the Scheme Document will also be made
available on Darktrace's website at https://ir.darktrace.com.
· The Acquisition is currently expected to complete during the third or
fourth quarter of 2024, subject to the satisfaction or (where applicable)
waiver of the Conditions. An expected timetable of key events relating to the
Acquisition will be set out in the Scheme Document.
· Commenting on this announcement, Gordon Hurst, the Chair of Darktrace, said:
"The proposed offer represents an attractive premium and an opportunity for
shareholders to receive the certainty of a cash consideration at a fair value
for their shares.
"The proposed acquisition will provide Darktrace access to a strong financial
partner in Thoma Bravo, with deep software sector expertise, who can enhance
the Company's position as a best-in-class cyber AI business headquartered in
the UK."
· Commenting on this announcement, Poppy Gustafsson OBE, the CEO of Darktrace, said:
"I am immensely proud of our brilliant business and people. From our base in
Cambridge, we are building a world-leading company using a unique form of
artificial intelligence to address the societal challenge of cybersecurity.
This proposed offer represents the next stage in our growth journey and I am
excited by the many opportunities we have ahead of us. Our technology has
never been more relevant in a world increasingly threatened by AI-powered
cyberattacks. In the face of this, we are expanding our product portfolio,
entering new markets, and focused on delivering for our customers, partners
and colleagues."
· Commenting on this announcement, Andrew Almeida, Partner of Thoma
Bravo, said:
"Darktrace is at the very cutting edge of cybersecurity technology, and we
have long been admirers of its platform and capability in artificial
intelligence. The pace of innovation in cybersecurity is accelerating in
response to cyber threats that are simultaneously complex, global and
sophisticated. Darktrace is driven by a culture of innovation and we are
excited by the opportunity to work alongside Darktrace's team and accelerate
its development into a scaled, global leader, further strengthening its
capability and offer to customers. Thoma Bravo has been investing exclusively
in software for over twenty years and we will bring to bear the full range of
our platform, operational expertise and deep experience of cybersecurity in
supporting Darktrace's growth."
This summary should be read in conjunction with, and is subject to, the full
text of this announcement and the Appendices. The conditions to, and certain
further terms of, the Acquisition are set out in Appendix 1. The bases and
sources for certain financial information contained in this announcement are
set out in Appendix 2. Details of irrevocable undertakings received by Bidco
are set out in Appendix 3. Certain definitions and terms used in this
announcement are set out in Appendix 4.
Enquiries
Thoma Bravo via FGS Global
Megan Frank, Head of Communications and Marketing
Goldman Sachs (Financial Adviser to Thoma Bravo and Bidco) +44 20 7774 1000
Mark Sorrell
Nicholas van den Arend
Chris Emmerson
Cara Pazdon
FGS Global (PR Adviser to Thoma Bravo and Bidco) +44 207 251 3801
Faeth Birch
Sophie Scott
Alastair Elwen
Amanda Healy
Darktrace +44 (0)20 3805 4852
Via Headland
Jefferies (Joint Financial Adviser and Corporate Broker to Darktrace) +44 20 7029 8000
Philip Yates
Dominic Lester
Nandan Shinkre
Paul Bundred
Qatalyst Partners (Joint Financial Adviser to Darktrace) +44 (0)20 3700 8820
Peter Spofforth
Jason DiLullo
Headland (PR Adviser to Darktrace)
Nigel Prideaux +44 (0)20 3805 4852
Henry Wallers +44 (0)20 3805 4839
Kirkland & Ellis International LLP is acting as legal adviser to Bidco
and Thoma Bravo.
Latham & Watkins (London) LLP is acting as legal adviser to Darktrace.
Further information
Goldman Sachs International, which is authorised by the PRA and regulated by
the FCA and the PRA in the United Kingdom, and Goldman Sachs & Co. LLC
(together, "Goldman Sachs") are acting exclusively for Bidco and Thoma Bravo
as financial advisers and no one else in connection with the Acquisition and
other matters set out in this announcement and will not be responsible to
anyone other than Bidco and Thoma Bravo for providing the protections afforded
to clients of Goldman Sachs, nor for providing advice in connection with the
Acquisition, the content of this announcement or any matter referred to
herein. Neither Goldman Sachs nor any of Goldman Sachs' subsidiaries,
affiliates or branches owes or accepts any duty, liability or responsibility
whatsoever (whether direct, indirect, consequential, whether in contract, in
tort, under statute or otherwise) to any person who is not a client of Goldman
Sachs in connection with this announcement, any statement contained herein or
otherwise.
Jefferies International Limited ("Jefferies"), which is authorised and
regulated by the FCA in the United Kingdom, is acting exclusively as financial
adviser to Darktrace and no one else in connection with the matters set out in
this announcement and will not be responsible to anyone other than Darktrace
for providing the protections afforded to clients of Jefferies nor for
providing advice in relation to the matters set out in this announcement.
Neither Jefferies nor any of its affiliates owes or accepts any duty,
liability or responsibility whatsoever (whether direct or indirect, whether in
contract, in tort, under statute or otherwise) to any person who is not a
client of Jefferies in connection with this announcement, any statement
contained herein or otherwise.
Qatalyst Partners Limited ("Qatalyst Partners"), which is authorised in the UK
by the FCA, is acting exclusively as financial adviser to Darktrace and no one
else in connection with the Acquisition and will not be acting for any other
person and will not be responsible to any person other than Darktrace for
providing the protections afforded to clients of Qatalyst Partners or for
advising any other person in respect of the matters referred to in this
announcement. No representation or warranty, express or implied, is made by
Qatalyst Partners as to the contents of this announcement.
This announcement is for information purposes only and is not intended to, and
does not, constitute, or form part of, an offer, invitation or the
solicitation of an offer to purchase, otherwise acquire, subscribe for, sell
or otherwise dispose of, any securities or the solicitation of any vote or
approval in any jurisdiction pursuant to the Acquisition or otherwise, nor
shall there be any sale, issuance or transfer of securities of Darktrace in
any jurisdiction in contravention of applicable law. The Acquisition will be
implemented solely pursuant to the terms of the Scheme Document (or, if the
Acquisition is implemented by way of an Offer, the offer document), which will
contain the full terms and conditions of the Acquisition, including details of
how to vote in respect of the Acquisition. Any vote in respect of the Scheme
or other response in relation to the Acquisition should be made only on the
basis of the information contained in the Scheme Document (or, if the
Acquisition is implemented by way of an Offer, the offer document).
This announcement contains inside information in relation to Darktrace for the
purposes of Article 7 of the Market Abuse Regulation. The person responsible
for arranging the release of this announcement on behalf of Darktrace is James
Sporle, General Counsel and Company Secretary. Darktrace's Legal Entity
Identifier is 213800PC5S5P9CSNFC89.
This announcement does not constitute a prospectus, prospectus equivalent
document or exempted document.
If you are in any doubt about the contents of this announcement or the action
you should take, you are recommended to seek your own independent financial
advice immediately from your stockbroker, bank manager, solicitor, accountant
or independent financial adviser duly authorised under the Financial Services
and Markets Act 2000 (as amended) if you are resident in the United Kingdom
or, if not, from another appropriately authorised independent financial
adviser.
Overseas Shareholders
The release, publication or distribution of this announcement in or into
jurisdictions other than the UK may be restricted by law and therefore any
persons who are subject to the law of any jurisdiction other than the UK
should inform themselves of, and observe, any applicable legal or regulatory
requirements. Any failure to comply with such requirements may constitute a
violation of the securities laws of any such jurisdiction. To the fullest
extent permitted by applicable law, the companies and persons involved in the
Acquisition disclaim any responsibility or liability for the violation of such
restrictions by any person. This announcement has been prepared in accordance
with and for the purpose of complying with English law, the Takeover Code, the
Listing Rules, the Market Abuse Regulation and the Disclosure Guidance and
Transparency Rules and information disclosed may not be the same as that which
would have been prepared in accordance with the laws of jurisdictions outside
England.
The availability of the Acquisition to Darktrace Shareholders who are not
resident in and citizens of the UK may be affected by the laws of the relevant
jurisdictions in which they are located or of which they are citizens. Persons
who are not resident in the UK should inform themselves of, and observe, any
applicable legal or regulatory requirements of their jurisdictions. Any person
(including, without limitation, nominees, trustees and custodians) who would,
or otherwise intends to, forward this announcement, the Scheme Document or any
accompanying document to any jurisdiction outside the UK should refrain from
doing so and seek appropriate professional advice before taking any action. In
particular, the ability of persons who are not resident in the United Kingdom
to vote their Darktrace Shares with respect to the Scheme at the Court
Meeting, or to appoint another person as proxy to vote at the Court Meeting on
their behalf, may be affected by the laws of the relevant jurisdictions in
which they are located. Any failure to comply with the applicable restrictions
may constitute a violation of the securities laws of any such jurisdiction. To
the fullest extent permitted by applicable law, the companies and persons
involved in the Acquisition disclaim any responsibility or liability for the
violation of such restrictions by any person. Further details in relation to
Overseas Shareholders will be contained in the Scheme Document (or, if the
Acquisition is implemented by way of an Offer, the offer document).
Unless otherwise determined by Bidco or required by the Takeover Code, and
permitted by applicable law and regulation, the Acquisition will not be made
available, directly or indirectly, in, into, from, or by the use of mails or
any means or instrumentality (including, but not limited to, facsimile, e-mail
or other electronic transmission, telex or telephone) of interstate or foreign
commerce of, or of any facility of a national, state or other securities
exchange of, any Restricted Jurisdiction where to do so would violate the laws
in that jurisdiction and no person may vote in favour of the Scheme by any
such use, means, instrumentality or from within a Restricted Jurisdiction or
any other jurisdiction if to do so would constitute a violation of the laws of
that jurisdiction. Copies of this announcement and any formal documentation
relating to the Acquisition are not being, and must not be, directly or
indirectly, mailed or otherwise forwarded, distributed or sent in or into or
from any Restricted Jurisdiction and persons receiving such documents
(including, without limitation, agents, custodians, nominees and trustees)
must not mail or otherwise forward, distribute or send it in or into or from
any Restricted Jurisdiction. Doing so may render invalid any related purported
vote in respect of the Acquisition. If the Acquisition is implemented by way
of an Offer (unless otherwise permitted by applicable law and regulation), the
Offer may not be made directly or indirectly, in, into, from, or by the use of
mails or any means or instrumentality (including, but not limited to,
facsimile, e-mail or other electronic transmission, telex or telephone) of
interstate or foreign commerce of, or of any facility of a national, state or
other securities exchange of, any Restricted Jurisdiction and the Offer may
not be capable of acceptance by any such use, means, instrumentality or
facilities.
Further details in relation to Overseas Shareholders will be included in the
Scheme Document (or, if the Acquisition is implemented by way of an Offer, the
offer document).
Notice to U.S. Darktrace Shareholders
The Acquisition relates to the shares of an English company and is being made
by means of a scheme of arrangement provided for under English law. A
transaction effected by means of a scheme of arrangement is not subject to the
tender offer or proxy solicitation rules under the U.S. Securities Exchange
Act of 1934 (the "U.S. Exchange Act"). Accordingly, the Acquisition is subject
to the disclosure requirements and practices applicable in the UK to schemes
of arrangement which differ from the disclosure requirements of the U.S.
tender offer and proxy solicitation rules. The financial information included
in this announcement has been prepared in accordance with generally accepted
accounting principles of the United Kingdom and thus may not be comparable to
financial information of U.S. companies or companies whose financial
statements are prepared in accordance with generally accepted accounting
principles in the United States.
If, in the future, Bidco exercises its right to implement the Acquisition by
way of an Offer, which is to be made into the United States, such Offer will
be made in compliance with the applicable U.S. laws and regulations.
It may be difficult for U.S. holders of Darktrace Shares to enforce their
rights and any claim arising out of the U.S. federal laws, since Bidco and
Darktrace are located in a non-U.S. jurisdiction, and some or all of their
officers and directors may be residents of a non-U.S. jurisdiction. U.S.
holders of Darktrace Shares may not be able to sue a non-U.S. company or its
officers or directors in a non-U.S. court for violations of the U.S.
securities laws. Further, it may be difficult to compel a non-U.S. company and
its affiliates to subject themselves to a U.S. court's judgement.
In accordance with normal UK practice and pursuant to Rule 14e-5(b) of the
U.S. Exchange Act, Thoma Bravo or their nominees, or their brokers (acting as
agents), may from time to time make certain purchases of, or arrangements to
purchase, Darktrace Shares outside of the U.S., other than pursuant to the
Acquisition, until the date on which the Acquisition becomes Effective, lapses
or is otherwise withdrawn. Also, in accordance with Rule 14e-5(b) of the U.S.
Exchange Act, Goldman Sachs will continue to act as an exempt principal trader
in Darktrace shares on the London Stock Exchange. These purchases may occur
either in the open market at prevailing prices or in private transactions at
negotiated prices. Any information about such purchases will be disclosed as
required in the United Kingdom, will be reported to a Regulatory Information
Service and will be available on the London Stock Exchange website,
www.londonstockexchange.com.
U.S. Darktrace Shareholders also should be aware that the transaction
contemplated herein may have tax consequences in the U.S. and, that such
consequences, if any, are not described herein. U.S. Darktrace Shareholders
are urged to consult with legal, tax and financial advisers in connection with
making a decision regarding this transaction.
Forward Looking Statements
This announcement (including information incorporated by reference in this
announcement), oral statements made regarding the Acquisition, and other
information published by Bidco and Darktrace contain statements which are, or
may be deemed to be, "forward-looking statements". Forward-looking statements
are prospective in nature and are not based on historical facts, but rather on
current expectations and projections of the management of Bidco and Darktrace
about future events, and are therefore subject to risks and uncertainties
which could cause actual results to differ materially from the future results
expressed or implied by the forward-looking statements.
The forward-looking statements contained in this announcement include
statements relating to the expected effects of the Acquisition on Bidco and
Darktrace (including their future prospects, developments and strategies), the
expected timing and scope of the Acquisition and other statements other than
historical facts. Often, but not always, forward-looking statements can be
identified by the use of forward-looking words such as "prepares", "plans",
"expects" or "does not expect", "is expected", "is subject to", "budget",
"projects", "synergy", "strategy", "scheduled", "goal", "estimates",
"forecasts", "cost-saving", "intends", "anticipates" or "does not anticipate",
or "believes", or variations of such words and phrases or statements that
certain actions, events or results "may", "could", "should", "would", "might"
or "will" be taken, occur or be achieved. Forward looking statements may
include statements relating to the following: (i) future capital expenditures,
expenses, revenues, earnings, synergies, economic performance, indebtedness,
financial condition, dividend policy, losses and future prospects; (ii)
business and management strategies and the expansion and growth of Bidco's,
Darktrace's, any member of the Bidco Group or any member of the Darktrace
Group's operations and potential synergies resulting from the Acquisition; and
(iii) the effects of global economic conditions and governmental regulation on
Bidco's, Darktrace's, any member of the Bidco Group or any member of the
Darktrace Group's business.
Although Bidco and Darktrace believe that the expectations reflected in such
forward-looking statements are reasonable, Bidco and Darktrace can give no
assurance that such expectations will prove to be correct. By their nature,
forward-looking statements involve risk and uncertainty because they relate to
events and depend on circumstances that will occur in the future. There are a
number of factors that could cause actual results and developments to differ
materially from those expressed or implied by such forward-looking statements.
These factors include, but are not limited to: the ability to complete the
Acquisition; the ability to obtain requisite regulatory and shareholder
approvals and the satisfaction of other Conditions on the proposed terms and
schedule; changes in the global political, economic, business and competitive
environments and in market and regulatory forces; changes in future exchange
and interest rates; changes in tax rates; future business combinations or
disposals; changes in general economic and business conditions; changes in the
behaviour of other market participants; changes in the anticipated benefits
from the proposed transaction not being realised as a result of changes in
general economic and market conditions in the countries in which Bidco and
Darktrace operate, weak, volatile or illiquid capital and/or credit markets,
changes in tax rates, interest rate and currency value fluctuations, the
degree of competition in the geographic and business areas in which Bidco and
Darktrace operate and changes in laws or in supervisory expectations or
requirements. Other unknown or unpredictable factors could cause actual
results to differ materially from those expected, estimated or projected in
the forward-looking statements. If any one or more of these risks or
uncertainties materialises or if any one or more of the assumptions proves
incorrect, actual results may differ materially from those expected, estimated
or projected. Such forward-looking statements should therefore be construed in
the light of such factors. Neither Bidco nor Darktrace, nor any of their
respective associates or directors, officers or advisers, provides any
representation, assurance or guarantee that the occurrence of the events
expressed or implied in any forward-looking statements in this announcement
will actually occur. You are cautioned not to place any reliance on these
forward-looking statements.
Specifically, statements of estimated cost savings and synergies related to
future actions and circumstances which, by their nature, involve risks,
uncertainties and contingencies. As a result, the cost savings and synergies
referred to may not be achieved, may be achieved later or sooner than
estimated, or those achieved could be materially different from those
estimated. Due to the scale of the Darktrace Group, there may be additional
changes to the Darktrace Group's operations. As a result, and given the fact
that the changes relate to the future, the resulting cost synergies may be
materially greater or less than those estimated.
Other than in accordance with their legal or regulatory obligations, neither
Bidco nor Darktrace is under any obligation, and Bidco and Darktrace expressly
disclaim any intention or obligation, to update or revise any forward-looking
statements, whether as a result of new information, future events or
otherwise.
Dealing and Opening Position Disclosure Requirements
Under Rule 8.3(a) of the Takeover 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) of the Takeover Code
applies must be made by no later than 3.30 pm (London time) on the 10th
business day following the commencement of the offer period and, if
appropriate, by no later than 3.30 pm (London time) on the 10th business day
following the announcement in which any securities exchange offeror is first
identified. Relevant persons who deal in the relevant securities of the
offeree company or of a securities exchange offeror prior to the deadline for
making an Opening Position Disclosure must instead make a Dealing Disclosure.
Under Rule 8.3(b) of the Takeover Code, any person who is, or becomes,
interested in 1% or more of any class of relevant securities of the offeree
company or of any securities exchange offeror must make a Dealing Disclosure
if the person deals in any relevant securities of the offeree company or of
any securities exchange offeror. A Dealing Disclosure must contain details of
the dealing concerned and of the person's interests and short positions in,
and rights to subscribe for, any relevant securities of each of (i) the
offeree company and (ii) any securities exchange offeror(s), save to the
extent that these details have previously been disclosed under Rule 8. A
Dealing Disclosure by a person to whom Rule 8.3(b) applies must be made by no
later than 3.30 pm (London time) on the business day following the date of the
relevant dealing.
If two or more persons act together pursuant to an agreement or understanding,
whether formal or informal, to acquire or control an interest in relevant
securities of an offeree company or a securities exchange offeror, they will
be deemed to be a single person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree company and by
any offeror and Dealing Disclosures must also be made by the offeree company,
by any offeror and by any persons acting in concert with any of them (see
Rules 8.1, 8.2 and 8.4).
Details of the offeree and offeror companies in respect of whose relevant
securities Opening Position Disclosures and Dealing Disclosures must be made
can be found in the Disclosure Table on the Panel's website at
www.thetakeoverpanel.org.uk, including details of the number of relevant
securities in issue, when the offer period commenced and when any offeror was
first identified. You should contact the Panel's Market Surveillance Unit on
+44 (0)20 7638 0129 if you are in any doubt as to whether you are required to
make an Opening Position Disclosure or a Dealing Disclosure.
Publication on a website
In accordance with Rule 26.1 of the Takeover Code, a copy of this announcement
and the documents required to be published under Rule 26 of the Takeover Code
will be made available, subject to certain restrictions relating to persons
resident in Restricted Jurisdictions, on Darktrace's website at
https://ir.darktrace.com by no later than 12 noon (London time) on the
Business Day following this announcement. For the avoidance of doubt, neither
the content of this website nor of any website accessible from hyperlinks set
out in this announcement is incorporated by reference or forms part of this
announcement.
No profit forecasts, estimates or quantified benefits statements
No statement in this announcement is intended as a profit forecast, profit
estimate or quantified benefits statement for any period and no statement in
this announcement should be interpreted to mean that earnings or earnings per
share for Darktrace for the current or future financial years would
necessarily match or exceed the historical published earnings or earnings per
share for Darktrace.
Requesting hard copy documents
In accordance with Rule 30.3 of the Takeover Code, Darktrace Shareholders,
persons with information rights and participants in Darktrace Share Plans may
request a hard copy of this announcement, free of charge, by contacting
Darktrace's registrar, Equiniti Limited, either in writing to Aspect House,
Spencer Road, Lancing, West Sussex, BN99 6DA, United Kingdom or by calling +44
(0) 333 207 6530. You may also request that all future documents,
announcements and information to be sent to you in relation to the Acquisition
should be in hard copy form. Calls outside the U.K. will be charged at the
applicable international rate. Lines are open between 8.30 a.m. and 5.30 p.m.
(London time) Monday to Friday excluding public holidays in England and Wales.
For persons who receive a copy of this announcement in electronic form or via
a website notification, a hard copy of this announcement will not be sent
unless so requested. In accordance with Rule 30.3 of the Takeover Code, such
persons may also request that all future documents, announcements and
information to be sent to them in relation to the Acquisition should be in
hard copy form.
Electronic Communications
Please be aware that addresses, electronic addresses and certain other
information provided by Darktrace Shareholders, persons with information
rights and other relevant persons for the receipt of communications from
Darktrace may be provided to Bidco during the offer period as required under
Section 4 of Appendix 4 of the Takeover Code to comply with Rule 2.11(c) of
the Takeover Code.
Rounding
Certain figures included in this announcement have been subjected to rounding
adjustments. Accordingly, figures shown for the same category presented in
different tables may vary slightly and figures shown as totals in certain
tables may not be an arithmetic aggregation of figures that precede them.
General
Bidco reserves the right to elect, with the consent of the Panel (where
necessary) and subject to the terms of the Cooperation Agreement, to implement
the Acquisition by way of an Offer as an alternative to the Scheme. In such an
event, an Offer will be implemented on substantially the same terms, so far as
applicable, as those which would apply to the Scheme (subject to appropriate
amendments).
If the Acquisition is effected by way of an Offer, and such an Offer becomes
or is declared unconditional in all respects and sufficient acceptances are
received, Bidco intends to exercise its rights to apply the provisions of
Chapter 3 of Part 28 of the 2006 Act so as to acquire compulsorily the
remaining Darktrace Shares in respect of which the Offer has not been
accepted.
Investors should be aware that Bidco may purchase Darktrace Shares otherwise
than under any Offer or the Scheme, including pursuant to privately negotiated
purchases.
Rule 2.9 of the Takeover Code
For the purposes of Rule 2.9 of the Takeover Code, Darktrace confirms that, as
at 26 April 2024 2024, it had in issue 703,683,540 ordinary shares of 1 pence
each admitted to trading on the Main Market of the London Stock Exchange, and
3,323,886 Treasury Shares. The ISIN for the shares is GB00BNYK8G86.
Disclaimer
The information contained herein does not constitute an offer to sell, nor a
solicitation of an offer to buy, any security, and may not be used or relied
upon in connection with any offer or solicitation. Any offer or solicitation
in respect of Thoma Bravo and Thoma Bravo Funds will be made only through a
confidential private placement memorandum and related documents which will be
furnished to qualified investors on a confidential basis in accordance with
applicable laws and regulations. The information contained herein is not for
publication or distribution to persons in the U.S. Any securities referred to
herein have not been and will not be registered under the U.S. Securities Act
of 1933, as amended, and may not be offered or sold without registration
thereunder or pursuant to an available exemption therefrom. Any offering of
securities to be made in the U.S. would have to be made by means of an
offering document that would be obtainable from the issuer or its agents and
would contain detailed information about the issuer of the securities and its
management, as well as financial information. The securities may not be
offered or sold in the U.S. absent registration or an exemption from
registration.
The Acquisition will be subject to English law, the jurisdiction of the Court,
and the applicable requirements of the Takeover Code, the Panel, the London
Stock Exchange, the FCA, the Listing Rules and the Registrar of Companies.
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR
INDIRECTLY, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE
A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF THAT JURISDICTION
FOR IMMEDIATE RELEASE
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION
26 APRIL 2024
RECOMMENDED CASH ACQUISITION
of
Darktrace plc
by
Luke Bidco Limited
(a newly-formed company indirectly wholly-owned by funds managed and/or
advised by Thoma Bravo, L.P.)
to be implemented by means of a scheme of arrangement
under Part 26 of the Companies Act 2006
1 Introduction
The boards of directors of Bidco and Darktrace are pleased to announce that
they have reached agreement on the terms and conditions of a recommended all
cash acquisition by Bidco of the entire issued, and to be issued, ordinary
share capital of Darktrace.
It is intended that the Acquisition will be implemented by way of a
Court‑sanctioned scheme of arrangement under Part 26 of the 2006 Act
(although Bidco reserves the right to effect the Acquisition by way of an
Offer, subject to the consent of the Panel and the terms of the Cooperation
Agreement). The Conditions to the Acquisition are set out in full in
Appendix 1 to this announcement.
2 The Acquisition
Under the terms of the Acquisition, which will be subject to the Conditions
and further terms set out in Appendix 1 to this announcement and the full
terms and conditions to be set out in the Scheme Document, each Darktrace
Shareholder will be entitled to receive:
for each Darktrace Share: $7.75 in cash
The GBP equivalent value of the Acquisition price per Darktrace Share based on
the Announcement Exchange Rate, being 620 pence, represents a premium of
approximately:
· 44.3 per cent. to the volume-weighted average price of 429.9 pence
per Darktrace Share for the three-month period ended 25 April 2024 (being the
last Business Day before the date of this announcement);
· 20.0 per cent. to the Closing Price of 517.0 pence per Darktrace
Share on 25 April 2024 (being the last Business Day before the date of this
announcement);
· 19.6 per cent. to the highest closing share price of 518.6 pence per
Darktrace Share for the twelve month period ended 25 April 2024 (being the
last Business Day before the date of this announcement);
· 46.0 per cent. to the 21 March 2024 secondary placing price of 425.0
pence per Darktrace Share; and
· 148.1 per cent. to the IPO price of 250 pence per Darktrace Share on
30 April 2021.
The Acquisition values Darktrace's entire issued, and to be issued, ordinary
share capital at approximately $5,315 million on a fully diluted basis and
implies an enterprise value of approximately $4,992 million (which is
equivalent to £4,254 million and £3,995 million respectively based on the
Announcement Exchange Rate) and a multiple of approximately 34 times
Darktrace's Adjusted EBITDA for the twelve months ended 31 December 2023 of
$146 million.
The Darktrace Shares will be acquired pursuant to the Acquisition fully paid
and free from all liens, charges, equities, encumbrances, rights of
pre‑emption and any other interests of any nature whatsoever and together
with all rights attaching thereto, including without limitation voting rights
and the right to receive and retain in full all dividends and other
distributions (if any) announced, declared, made or paid with a record date on
or after the Effective Date.
Bidco will procure that a facility will be made available under which Scheme
Shareholders will be able to elect (subject to the terms and conditions of the
facility) to receive the cash consideration in Sterling (after deduction of
any transaction or dealing costs associated with the conversion) at the
applicable market exchange rate on the latest practicable date for fixing such
rate prior to the relevant payment date. Further details of this facility and
the election by Scheme Shareholders wishing to receive their cash
consideration in Sterling will be set out in the Scheme Document and the Form
of Election. On the basis of the Announcement Exchange Rate, the cash
consideration implies an equivalent value of 620 pence per Darktrace Share.
For any Scheme Shareholder electing to be paid their cash consideration in
Sterling, the amount per Darktrace Share received may, depending on the
prevailing exchange rate, result in a payment below or above 620 pence per
Darktrace Share.
If, on or after the date of this announcement and prior to the Acquisition
becoming Effective, any dividend and/or other distribution and/or other return
of capital or value is announced, declared, made or paid or becomes payable in
respect of the Darktrace Shares, Bidco reserves the right to reduce the
consideration payable under the terms of the Acquisition for the Darktrace
Shares by an amount up to the aggregate amount of such dividend and/or
distribution and/or other return of capital or value, in which case any
reference in this announcement to the consideration payable under the terms of
the Acquisition will be deemed to be a reference to the consideration as so
reduced. Any exercise by Bidco of its rights referred to in this paragraph
shall be the subject of an announcement and, for the avoidance of doubt, shall
not be regarded as constituting any revision or variation of the terms of the
Scheme or the Acquisition. In such circumstances, Darktrace Shareholders would
be entitled to retain any such dividend, distribution and/or other return of
capital or value.
3 Background to and reasons for the Acquisition
Thoma Bravo believes that the acquisition of Darktrace represents an
attractive opportunity to increase its exposure to the large and growing
cybersecurity market, and to invest to accelerate Darktrace's continued
development and further scale the business globally.
Darktrace is a global leader in cybersecurity artificial intelligence. Thoma
Bravo recognises that Darktrace is a pioneer in using self-learning artificial
intelligence to neutralise cyber threats and automate responses to cyber
incidents, leveraging its long-standing research and development expertise.
Rather than study historic attacks, Darktrace's technology continuously learns
and updates its knowledge of an organisation's business data and applies that
understanding to help transform security operations to a state of proactive
cyber resilience. As a result, Darktrace has become a leader in cybersecurity
artificial intelligence now providing a full lifecycle approach to
cybersecurity enabling its 9,400 customers to identify, stop and respond to
all known and unknown threats, across all aspects of an organisation's
cybersecurity tools. Thoma Bravo recognises the strength of Darktrace's
ActiveAI Security Platform, the expertise of its Cambridge-based technology
team, the track record of its experienced management team, and the compelling
nature of its resilient financial model.
The cybersecurity market is evolving at pace and the volume and sophistication
of cyber threats and attacks faced is rapidly increasing. However, the market
remains fragmented, with few truly global players. Serving the world's largest
customers and enterprises requires Darktrace to continually make significant
technology investments and further scale globally, to ensure that its platform
can stay ahead of changing cyber threats.
Thoma Bravo believes that private ownership can facilitate its development.
Thoma Bravo has a long track record of providing capital and strategic support
to experienced management teams, growing software and technology companies,
and creating highly skilled jobs. A partnership with Thoma Bravo would give
Darktrace a unique opportunity to accelerate Darktrace's growth and the
development of AI augmented cyber solutions for its customers and grow over
time; in particular, through:
· continuing Darktrace's strong organic growth momentum, with help from
Thoma Bravo's deep experience of growing enterprise software businesses as
well as through opportunities and learnings from its large software portfolio;
· utilising Thoma Bravo's M&A expertise to grow the Darktrace
platform in the highly fragmented cybersecurity market; and
· leveraging Thoma Bravo's proprietary operational best practices built
over the course of 40 years of experience to further build a best-in-class
software franchise.
4 Recommendation
The Darktrace Directors, who have been so advised by Jefferies and Qatalyst
Partners as to the financial terms of the Acquisition, consider the terms of
the Acquisition to be fair and reasonable. In providing their advice,
Jefferies and Qatalyst Partners have taken into account the commercial
assessments of the Darktrace Directors. Jefferies and Qatalyst Partners are
providing independent financial advice to the Darktrace Directors for the
purposes of Rule 3 of the Takeover Code.
Accordingly, the Darktrace Directors intend to recommend unanimously that the
Darktrace Shareholders vote, or procure voting, in favour of the Scheme at the
Court Meeting and the Resolutions at the General Meeting (or in the event that
the Acquisition is implemented by an Offer, to accept or procure acceptance of
such Offer), as the Darktrace Directors who hold interests in Darktrace Shares
(in a personal capacity or through a nominee) have irrevocably undertaken to
do, or to procure to be done, in respect of their own beneficial holdings (or
those Darktrace Shares over which they have control), being, in aggregate
6,132,989 Darktrace Shares (representing approximately 0.88 per cent. of the
existing issued ordinary share capital of Darktrace) as at 25 April 2024,
being the Business Day prior to the date of this announcement.
5 Background to and reasons for the recommendation
Since its inception in 2013, Darktrace has rapidly grown to become a
successful global leader in cybersecurity artificial intelligence, currently
employing over 2,300 people around the world and protecting over 9,400
customers globally from advanced cyber threats. Rather than study historic
attacks, Darktrace's technology continuously learns and updates its knowledge
of an organisation's business data and applies that understanding to help
transform security operations to a state of proactive cyber resilience. The
Darktrace ActiveAI Security Platform™ provides a full lifecycle approach to
cyber resilience that can autonomously spot and respond to known and unknown
in progress threats within seconds across the entire organisation, including
cloud, apps, email, endpoint, network and operational technology.
In 2021, Darktrace successfully listed on the London Stock Exchange, raising
capital to support its future growth, including investments in research and
development and product innovation to address the growing threat of cyber
disruption, the hiring of senior leaders with deep functional expertise who in
turn have evolved the business for its next phase of growth, particularly
across its Go-To-Market function alongside investments in the systems, tools
and processes needed to support a rapidly growing business. The business saw a
temporary impact of these changes in the first quarter of the 2024 fiscal year
and now these investments are substantially paying off with Darktrace
reporting a strong financial performance in its recent first half results and
third quarter trading update.
Whilst the Darktrace Board remain confident that Darktrace's strategy can
continue to deliver attractive returns for shareholders and that Darktrace has
a strong future as a public company, the Darktrace Board believes that
Darktrace's operating and financial achievements have not been reflected
commensurately in its valuation with shares trading at a significant discount
to its global peer group. The Darktrace Board recognises that there are risks
to, as well as uncertainty as to the timing and delivery of, shareholder
returns on the public market and the Acquisition provides an opportunity for
Darktrace Shareholders to receive the certainty of cash consideration at a
fair value for their shares at this time in Darktrace's evolution.
Through its partnership with Thoma Bravo, Darktrace will be further enabled to
deliver on its strategy in a stable and private setting, to create efficiently
developed cybersecurity products, leverage differentiated technology to drive
product adoption and sales growth, and hire and retain talent to drive
innovation and business success.
Darktrace is a proud contributor to the British technology, AI and cyber
security ecosystem, having substantially gained from the strong academic
heritage of machine learning in the UK and the world-class British
intelligence community. In addition to the financial terms of the Acquisition,
in its evaluation of Thoma Bravo as a suitable owner of Darktrace from the
perspective of all stakeholders, the Darktrace Board have also taken into
account Thoma Bravo's intentions for the business, including its employees,
customers, suppliers and business partners and is encouraged that Thoma Bravo
intends to support the management team as they continue to grow Darktrace as
an independent business, headquartered in the UK.
· This includes Thoma Bravo's intentions that employees are
appropriately incentivised to support the long-term growth of the business,
that Darktrace retains its research and development capabilities in the UK and
the Netherlands, and that there will be no material restructurings or changes
to Darktrace's Cambridge, UK headquarters, or other business operations.
· Darktrace continues to be a British tech champion operating at the
forefront of AI to solve the problem of cyber security in the UK and around
the world and will continue to engage constructively with its stakeholders,
including government, to contribute to AI and cyber security resilience.
· Darktrace will continue to create high skilled jobs in the UK and
invest in building world-class cyber AI capabilities to improve UK resilience.
Being able to draw on Thoma Bravo's resources and expertise will support
Darktrace's continued growth globally, resulting in further opportunities for
its people.
Having carefully considered the Acquisition in accordance with its fiduciary
duties the Darktrace Board believes that the terms of the Acquisition,
including the price, are such that shareholders should be provided with the
opportunity to consider them. The Darktrace Board notes that it has previously
reviewed and rejected unsolicited proposed offers from Thoma Bravo on the
basis that they did not fairly represent the value of the Darktrace business.
The Darktrace Board's recommendation takes into consideration that:
· the Acquisition is priced at a premium based on the Announcement
Exchange Rate of approximately:
o 44.3 per cent. to the volume-weighted average price of 429.9 pence per
Darktrace Share for the three-month period ended 25 April 2024 (being the last
Business Day before the date of this announcement);
o 20.0 per cent. to the Closing Price of 517.0 pence per Darktrace Share on 25
April 2024 (being the last Business Day before the date of this announcement);
o 19.6 per cent. to the highest closing share price of 518.6 pence per
Darktrace Share for the twelve month period ended 25 April 2024 (being the
last Business Day before the date of this announcement);
o 46.0 per cent. to the 21 March 2024 secondary placing price of 425.0 pence
per Darktrace Share; and
o 148.1 per cent. to the IPO price of 250 pence per Darktrace Share on 30
April 2021;
· the Acquisition represents an EV / Revenue multiple of 8.1 times, and
EV / Adjusted EBITDA multiple of 34.2 times the Darktrace Group's revenue of
$616 million and Adjusted EBITDA of $146 million for the twelve months ending
31 December 2023, respectively;
· feedback received by the Darktrace Board from certain of Darktrace's
largest shareholders that it has consulted on the Acquisition has been
supportive, as reflected by Thoma Bravo having procured irrevocable
commitments to vote in favour of the resolutions relating to the Acquisition
at the Meetings, from KKR DA and Summit Partners in respect of, in aggregate,
79,240,911 Darktrace Shares (representing approximately 11.3 per cent. of the
existing issued ordinary share capital of Darktrace); and
· the Acquisition will provide Darktrace access to a strong financial
partner in Thoma Bravo with deep sector and US markets expertise who can
support Darktrace's growth and investment in continued innovation in
cybersecurity artificial intelligence in order to offer an expanded product
portfolio across a deeper set of segments, industries and markets to deliver
value to customers. This includes Thoma Bravo's deep experience and expertise
in the US market, which remains a key focus geography for Darktrace.
6 Information relating to Bidco AND Thoma Bravo
Bidco
Bidco is a private limited company incorporated in England and Wales and is
indirectly wholly-owned by funds managed and/or advised by Thoma Bravo. Bidco
was formed for the purposes of the Acquisition and has not traded since its
date of incorporation, nor has it entered into any obligations other than in
connection with the Acquisition.
The current directors of Bidco are Seth Boro, Andrew Almeida, Nabil Hamade and
Sacha May. Further details in relation to Bidco will be contained in the
Scheme Document.
Thoma Bravo
Thoma Bravo is one of the largest software-focused investors in the world,
with over $138 billion in assets under management as of December 31, 2023. The
firm invests in growth-oriented, innovative companies operating in the
software and technology sectors. Leveraging Thoma Bravo's deep sector
expertise and proven strategic and operational capabilities, the firm
collaborates with its portfolio companies to implement operating best
practices and drive growth initiatives. Over the past 20 years, Thoma Bravo
has acquired or invested in more than 465 companies representing approximately
$260 billion in enterprise value (including control and non-control
investments). The firm has offices in Chicago, London, Miami, New York and San
Francisco.
7 Information relating to Darktrace
Darktrace is a global leader in cybersecurity artificial intelligence, with a
mission to free the world from cyber disruption. The Darktrace ActiveAI
Security Platform provides a full lifecycle approach to cyber resilience that,
within seconds, can autonomously spot and respond to known and unknown
in-progress threats across an organisation's entire ecosystem, including
cloud, apps, email, endpoint, network and operational technology. Darktrace's
research and development teams have made breakthrough innovations resulting in
over 175 patent applications filed. The Darktrace Group employs over 2,300
people around the world and protects over 9,400 customers globally from
advanced cyber threats. The Darktrace Group is headquartered in Cambridge, UK
with offices in 24 countries across Europe, Americas, Asia-Pacific.
For the twelve months ended 31 December 2023, the Darktrace Group generated
revenue of $616 million and Adjusted EBITDA of $146 million. Darktrace
currently has annualised recurring revenues of $702 million and holds
approximately $1,254 million of remaining performance obligations (RPO) on
balance sheet as of 31 December 2023.
Darktrace is a public limited company registered in England and Wales. The
Darktrace Shares are listed on the Premium Segment of the Official List and
are admitted to trading on the Main Market of the London Stock Exchange, with
a fully diluted capitalisation of £3,540 million as at 25 April 2024 (being
the last Business Day before the date of this announcement).
8 Irrevocable undertakings
As described above, Bidco has received irrevocable undertakings from certain
Darktrace Directors and senior employees who hold Darktrace Shares to vote
(or, where applicable, procure voting) in favour of the Scheme at the Court
Meeting and the Resolutions at the General Meeting (or in the event that the
Acquisition is implemented by an Offer, to accept or procure acceptance of
such Offer), in respect of, in aggregate, 21,627,725 Darktrace Shares
(representing approximately 3.1 per cent. of the existing issued ordinary
share capital of Darktrace as at 25 April 2024, being the last Business Day
before the date of this announcement). These undertakings will remain binding
in the event that a higher competing offer for Darktrace is made.
Bidco has also received irrevocable undertakings from certain other Darktrace
Shareholders, being KKR DA and Summit Partners, to vote (or, where applicable,
procure voting) in favour of the Scheme at the Court Meeting and the
Resolutions at the General Meeting (or in the event that the Acquisition is
implemented by an Offer, to accept or procure acceptance of such Offer), in
respect of, in aggregate, 79,240,911 Darktrace Shares (representing
approximately 11.3 per cent. of the existing issued ordinary share capital of
Darktrace as at 25 April 2024, being the last Business Day before the date of
this announcement). These undertakings will also remain binding in the event
that a higher competing offer for Darktrace is made.
Bidco has, therefore, received irrevocable undertakings in respect of a total
of 100,868,636 Darktrace Shares (representing approximately 14.4 per cent. of
the existing issued ordinary share capital of Darktrace as at 25 April 2024,
being the last Business Day before the date of this announcement).
Further details of these irrevocable undertakings, including the circumstances
in which they cease to be binding, are set out in Appendix 3 to this
announcement.
9 Financing of the Acquisition
The cash consideration payable to Darktrace Shareholders under the terms of
the Acquisition will be financed by: (i) equity to be invested by Thoma Bravo
Funds; and (ii) third party financing provided by certain third party
providers of (A) an interim first lien term facility in an aggregate amount
principal amount of $1,685,000,000 and (B) an interim second lien term
facility in an aggregate principal amount of $460,000,000 to be provided under
the Interim Facilities Agreement.
Goldman Sachs International, in its capacity as financial adviser to Bidco, is
satisfied that sufficient resources are available to Bidco to satisfy in full
the cash consideration payable to Darktrace Shareholders under the terms of
the Acquisition.
Further information on the financing of the Acquisition will be set out in the
Scheme Document.
10 Offer‑related arrangements
Confidentiality Agreement
On 27 March 2024, Thoma Bravo and Darktrace entered into a Confidentiality
Agreement in relation to the Acquisition, pursuant to which, amongst other
things, Thoma Bravo has undertaken to: (i) subject to certain exceptions, keep
information relating to Darktrace and the Acquisition confidential and not to
disclose it to third parties; and (ii) use such confidential information only
in connection with the Acquisition. These confidentiality obligations will
remain in force until the earlier of (a) the Acquisition becoming Effective
(if implemented through the Scheme) or is declared wholly unconditional (if
implemented as an Offer); and (b) 27 March 2026. The Confidentiality Agreement
contains standstill provisions which restricted Thoma Bravo from acquiring or
offering to acquire interests in certain securities of Darktrace; those
restrictions ceased to apply on the making of this announcement. The
Confidentiality Agreement also contains restrictions on Thoma Bravo soliciting
or employing certain of Darktrace's senior or key employees.
Cooperation Agreement
Pursuant to the Cooperation Agreement, Bidco and Darktrace have, amongst other
things, each agreed to: (i) cooperate in relation to obtaining any consents,
clearances, permissions, waivers and/or approvals as may be necessary, and the
making of all filings as may be necessary, from or under the law, regulations
or practices applied by any applicable regulatory authority, in connection
with the Acquisition; and (ii) cooperate in preparing and implementing
appropriate proposals in relation to the Darktrace Share Plans.
In addition, Bidco has agreed to certain provisions if the Scheme should
switch to an Offer. The Cooperation Agreement will terminate in certain
circumstances, including (in respect of (ii) to (iv), upon service of written
notice): (i) if the Acquisition is, with the permission of the Panel,
withdrawn, terminates or lapses in accordance with its terms prior to the Long
Stop Date, subject to certain limited exclusions; (ii) if a third party
announces a firm intention to make an offer for Darktrace which is recommended
in whole or in part by the Darktrace Board or which completes, becomes
effective or becomes unconditional; (iii) if prior to the Long Stop Date any
Condition has been invoked by Bidco (with the consent of the Panel, if
required); (iv) if the Darktrace Directors withdraw their recommendation of
the Acquisition; (v) unless otherwise agreed by Bidco and Darktrace in writing
or required by the Panel, if the Scheme does not become Effective in
accordance with its terms by the Long Stop Date; or (vi) otherwise as agreed
in writing between Bidco and Darktrace.
Pursuant to the terms of the Cooperation Agreement and the requirements of
Paragraph 3(g)(i) of Appendix 7 to the Takeover Code, Bidco undertakes that it
will deliver a notice in writing to Darktrace and the Panel by no later than
the Business Day prior to the Sanction Hearing confirming either: (i) the
satisfaction or waiver of the Conditions (other than the Scheme Conditions (as
defined therein)); or (ii) to the extent permitted by the Panel, that it
intends to invoke or treat as unsatisfied or incapable of satisfaction one or
more Conditions.
Panel Clean Team Agreement
Darktrace, Thoma Bravo and their respective legal advisers have entered into
the Panel Clean Team Agreement dated 12 April 2024, the purpose of which is to
set out the terms governing the disclosure of competitively sensitive
information by Darktrace or Darktrace's external legal counsel to Thoma
Bravo's external legal counsel and external experts, as well as the related
collection and analysis and potential destruction of such competitively
sensitive information.
11 Disclosure of interests in Darktrace securities
Except for the irrevocable undertakings referred to in paragraph 8 above and
Appendix 3, as at 25 April 2024 (being the last Business Day before the date
of this announcement) neither Bidco, nor any of its directors, nor, so far as
Bidco is aware, any person treated as acting in concert (within the meaning of
the Takeover Code) with it for the purposes of the Acquisition (i) had any
interest in or right to subscribe for or had borrowed or lent any Darktrace
Shares or securities convertible or exchangeable into Darktrace Shares, or
(ii) had any short positions in respect of relevant securities of Darktrace
(whether conditional or absolute and whether in the money or otherwise),
including any short position under a derivative, any agreement to sell or any
delivery obligation or right to require another person to purchase or take
delivery, or (iii) has borrowed or lent any relevant securities of Darktrace
(including, for these purposes, any financial collateral arrangements of the
kind referred to in Note 3 on Rule 4.6 of the Takeover Code) save for any
borrowed shares which have been either on-lent or resold, or (iv) is a party
to any dealing arrangement of the kind referred to in Note 11 on the
definition of acting in concert in the Takeover Code.
It has not been practicable for Bidco to make enquiries of all of its concert
parties in advance of the release of this announcement. Therefore, if Bidco
becomes aware, following the making of such enquiries, that any of its concert
parties have any additional interests or dealings in the relevant securities
of Darktrace, all relevant details in respect of Bidco's concert parties will
be included in Bidco's Opening Position Disclosure in accordance with Rule
8.1(a) and Note 2(a)(i) on Rule 8 of the Code which must be made on or before
12 noon (London time) on 13 May 2024.
12 REGULATORY ENGAGEMENT
Thoma Bravo firmly believes that the Acquisition will benefit Darktrace,
Darktrace's customers and the wider technology ecosystem through supporting
the development of enhanced products and Darktrace's cybersecurity capability.
Bidco has agreed with Darktrace under the terms of the Cooperation Agreement
that Thoma Bravo will, with Darktrace's support and involvement, engage
proactively and collaboratively with the competent regulatory authorities and
government stakeholders, recognising the specific importance of Darktrace's
contribution to the technology ecosystem.
13 Directors, management, employees, pensions, research and development and locations
Strategic plans for Darktrace
Thoma Bravo has an extensive history of partnering with management teams to
build leading businesses that create value for all stakeholders.
Thoma Bravo believes that a partnership with Thoma Bravo would give Darktrace
the unique opportunity to grow and develop, leveraging Thoma Bravo's access to
capital, proprietary operational best practices and long history of helping
companies to continue their strong organic growth momentum and successfully
pursue M&A opportunities.
In line with market practice for a public offer process, Bidco completed a
period of confirmatory due diligence on Darktrace prior to this announcement.
Following completion of the Acquisition, Bidco intends to review the entirety
of Darktrace's business and operations over a period of six months, leveraging
its expertise and the deep experience of the Darktrace management team.
Immediately following completion of the Acquisition, Bidco will focus on:
· continuing to invest in innovation, growth, and Darktrace's research
and development organisation;
· implementing operational best practices to create a best-in-class
software franchise;
· evaluating opportunities to accelerate top-line growth; and
· the reduction of non-critical administrative expenses and spending in
areas related to Darktrace's status as a listed company.
Employees, management and research and development
Bidco attaches great importance to the skills, knowledge, and expertise of
Darktrace's management and employees and, subject to this paragraph 13,
expects that the existing management and employees of Darktrace will be key to
the success of Darktrace going forward and will continue to contribute to the
long-term success of Darktrace.
Following completion of the Acquisition, certain functions which have
historically been related to Darktrace's status as a listed company may no
longer be required or will be reduced in size to reflect Darktrace ceasing to
be a listed company. It is expected that the non-executive directors of
Darktrace will resign as directors of Darktrace with effect from completion of
the Acquisition.
As set out above, following completion of the Acquisition, Bidco intends to
complete a detailed review of the Darktrace business, leveraging its expertise
and the deep experience of the Darktrace management team. The results of the
review are uncertain and no firm decisions have been made in relation to
specific actions which may be taken. However, Bidco does not intend to make
any material changes to Darktrace's research and development organisation,
which it believes will continue to be a key driver of innovation and growth.
Furthermore, based on its experience relating to previous transactions, Bidco
does not expect its review to result in a material headcount reduction. Any
headcount reductions will be carried out in accordance with applicable law
(including, in jurisdictions where relevant, informing and consulting
obligations). Nevertheless, Bidco believes that it is well-positioned to
accelerate Darktrace's growth and performance, which will in turn create
greater employment opportunities for existing and future employees over the
long term.
Existing rights and pensions
Bidco confirms that, following the Scheme becoming Effective, the existing
contractual and statutory employment rights, including in relation to
pensions, of all Darktrace management and employees will be fully safeguarded
in accordance with applicable law and as specified further in the Cooperation
Agreement. Bidco does not intend to make any material change to the conditions
of employment of the employees of Darktrace.
Incentive arrangements
Bidco has not entered into, and has not discussed any form of incentivisation
arrangements, with any of Darktrace's employees. Bidco intends to put in place
appropriate arrangements for Darktrace employees following completion of the
Acquisition.
Headquarters, locations and fixed assets
Bidco does not intend to make any changes in the location of Darktrace's
headquarters in Cambridge, operations or places of business. Bidco does not
intend to undertake any material restructurings, nor changes with respect to
the redeployment of Darktrace's fixed asset base.
Following the Acquisition, Bidco intends that Darktrace will continue to
operate as a standalone business group.
Trading Facilities
Darktrace Shares are currently listed on the Official List and admitted to
trading on the London Stock Exchange. As set out in paragraph 16, applications
will be made for the cancellation of the listing of Darktrace Shares on the
Official List and the cancellation of trading of the Darktrace Shares on the
London Stock Exchange.
Rule 19.5 of the Takeover Code
No statements in this paragraph 13 are "post-offer undertakings" for the
purposes of Rule 19.5 of the Takeover Code.
14 Darktrace Share Plans
Participants in the Darktrace Share Plans will be contacted regarding the
effect of the Acquisition on their options and awards under the Darktrace
Share Plans and an appropriate proposal will be made to such participants
which reflects their options and awards under the Darktrace Share Plans in due
course. Details of the impact of the Scheme on each of the Darktrace Share
Plans and the proposals will be set out in the Scheme Document.
15 Scheme process
The Acquisition is subject to the Conditions and certain further terms
referred to in Appendix 1 to this announcement and to the full terms and
conditions to be set out in the Scheme Document, and will only become
Effective if, among other things, the following events occur on or before the
Long Stop Date (or such later date as the Bidco and Darktrace may, with the
consent of the Panel, agree and, if required, the Court may approve):
· a resolution to approve the Scheme is passed by a majority in number
of Scheme Shareholders present and voting (and entitled to vote) at the Court
Meeting, either in person or by proxy, representing 75 per cent. or more in
value of each class of the Scheme Shares held by those Scheme Shareholders;
· the Resolutions necessary to implement the Scheme and the Acquisition
are passed by the requisite majority of Darktrace Shareholders at the General
Meeting;
· following the Court Meeting and General Meeting and satisfaction
and/or waiver (where applicable) of the other Conditions, the Scheme is
sanctioned by the Court (without modification, or with modification on terms
agreed by the Bidco and Darktrace); and
· following such sanction, an office copy of the Court Order is
delivered to the Registrar of Companies.
The Conditions in paragraphs 1 and 2 of Appendix 1 to this announcement
provide that the Scheme will lapse (under the authority of Rule 13.5(b) of the
Takeover Code) if:
· the Court Meeting and the General Meeting are not held by the 22nd
day after the expected date of the Court Meeting and the General Meeting to be
set out in the Scheme Document in due course (or such later date as may be
agreed between Bidco and Darktrace);
· the Sanction Hearing to approve the Scheme is not held by the 22nd
day after the expected date of the Sanction Hearing to be set out in the
Scheme Document in due course (or such later date as may be agreed between
Bidco and Darktrace); or
· the Scheme does not become Effective by 11.59 p.m. on the Long Stop
Date (or such later date as Bidco and Darktrace may, with the consent of the
Panel, agree and (if required) the Court may allow).
If any Condition in paragraph 2 of Part A of Appendix 1 to this announcement
is not capable of being satisfied by the date specified therein, Bidco shall
make an announcement through a Regulatory Information Service as soon as
practicable and, in any event, by not later than 8.00 a.m. on the Business Day
following the date so specified, stating whether Bidco has invoked that
Condition, (where applicable) waived that Condition or, with the agreement of
Darktrace, specified a new date by which that Condition must be satisfied.
Once the necessary approvals from Darktrace Shareholders have been obtained
and the other Conditions have been satisfied or (where applicable) waived and
the Scheme has been approved by the Court, the Scheme will become Effective
upon delivery of a copy of the Court Order to the Registrar of Companies.
Subject to the satisfaction of the Conditions, the Scheme is expected to
become Effective during the third or fourth quarter of 2024.
Upon the Scheme becoming Effective: (i) it will be binding on all Scheme
Shareholders, irrespective of whether or not they attended or voted at the
Court Meeting (and if they attended and voted, whether or not they voted in
favour); and (ii) share certificates in respect of Scheme Shares will cease to
be valid and entitlements to Scheme Shares held within the CREST system will
be cancelled. In accordance with the applicable provisions of the Takeover
Code, the consideration for the transfer of the Scheme Shares to Bidco will be
despatched no later than 14 days after the Effective Date.
Any Scheme Shares issued before the Scheme Record Time will be subject to the
terms of the Scheme. The Resolutions to be proposed at the General Meeting
will, amongst other matters, provide that the Articles be amended to
incorporate provisions requiring any Scheme Shares issued after the Scheme
Record Time (including in satisfaction of an option exercised under the
Darktrace Share Plans, and other than to Bidco and/or their nominees) to be
automatically transferred to Bidco on the same terms as the Acquisition (other
than terms as to timings and formalities). The provisions of the Articles (as
amended) will avoid any person (other than Bidco and their nominees) holding
shares in the capital of Darktrace after the Effective Date.
Further details of the Scheme, including expected times and dates for each of
the Court Meeting, the General Meeting and the Sanction Hearing, together with
notices of the Court Meeting and the General Meeting, will be set out in the
Scheme Document. It is expected that the Scheme Document and the Forms of
Proxy accompanying the Scheme Document will be published as soon as
practicable and in any event within 28 days of this announcement (or such
later date as the Bidco and Darktrace may, with the consent of the Panel,
agree and, if required, the Court may approve).
16 Delisting, and cancellation of trading and re‑registration
It is intended that the London Stock Exchange and the FCA will be requested
respectively to cancel trading of Darktrace Shares on the London Stock
Exchange's Main Market and the listing of Darktrace Shares from the Premium
Segment of the Official List on or shortly after the Effective Date.
It is expected that the last day of dealings in Darktrace Shares on the Main
Market of the London Stock Exchange will be the Business Day immediately prior
to the Effective Date and no transfers will be registered after 6.00 p.m.
(London time) on that date.
It is intended that Darktrace will be re-registered as a private limited
company and for this to take effect as soon as practicable on or following the
Effective Date.
17 Documents
Copies of the following documents will be available promptly on Darktrace's
website, subject to certain restrictions relating to persons resident in
Restricted Jurisdictions, at https://ir.darktrace.com (http://www.ibis.com)
and in any event by no later than noon on the Business Day following this
announcement:
· this announcement;
· the Confidentiality Agreement;
· the Cooperation Agreement;
· the Panel Clean Team Agreement;
· the irrevocable undertakings referred to in paragraph 8 above and
summarised in Appendix 3 to this announcement;
· the documents entered into for the financing of the Acquisition
referred to in paragraph 9 above, including the Interim Facility Agreement;
and
· the consents from financial advisers to being named in this
announcement.
Neither the content of the website referred to in this announcement, nor any
website accessible from hyperlinks set out in this announcement, is
incorporated into or forms part of this announcement.
18 General
Bidco reserves the right to elect (with the consent of the Panel and subject
to the terms of the Cooperation Agreement) to implement the acquisition of the
Darktrace Shares by way of an Offer as an alternative to the Scheme. In such
event, the Offer will be implemented on substantially the same terms, so far
as is applicable, as those which would apply to the Scheme.
If the Acquisition is effected by way of an Offer, and such an Offer becomes
or is declared unconditional in all respects and sufficient acceptances are
received, Bidco intends to: (i) make a request to the FCA to cancel the
listing of the Darktrace Shares from the Official List; (ii) make a request to
the London Stock Exchange to cancel the trading of Darktrace Shares on its
Main Market; and (iii) exercise its rights to apply the provisions of Chapter
3 of Part 28 of the 2006 Act so as to acquire compulsorily the remaining
Darktrace Shares in respect of which the Offer has not been accepted.
Investors should be aware that Bidco may purchase Darktrace Shares otherwise
than under the Scheme or any Offer, including pursuant to privately negotiated
purchases.
The Acquisition will be on the terms and subject to the conditions set out
herein and in Appendix 1, and to be set out in the Scheme Document. The bases
and sources for certain financial information contained in this announcement
are set out in Appendix 2. Details of undertakings received by Bidco are set
out in Appendix 3. Certain definitions and terms used in this announcement
are set out in Appendix 4. The formal Scheme Document will be sent to
Darktrace Shareholders within 28 days of this announcement (or on such later
date as may be agreed with Darktrace and the Panel).
Goldman Sachs (as financial adviser to Thoma Bravo and Bidco) and Jefferies
and Qatalyst Partners (as joint financial advisers to Darktrace) have each
given and not withdrawn their consent to the publication of this announcement
with the inclusion herein of the references to their names in the form and
context in which they appear.
This announcement does not constitute an offer or an invitation to purchase or
subscribe for any securities.
Enquiries
Thoma Bravo via FGS Global
Megan Frank, Managing Director, Head of Communications and Marketing
Goldman Sachs (Financial Adviser to Thoma Bravo and Bidco) +44 20 7774 1000
Mark Sorrell
Nicholas van den Arend
Chris Emmerson
Cara Pazdon
FGS Global (PR Adviser to Thoma Bravo and Bidco) +44 207 251 3801
Faeth Birch
Sophie Scott
Alastair Elwen
Amanda Healy
Darktrace +44 (0)20 3805 4852
Via Headland
Jefferies (Joint Financial Adviser and Corporate Broker to Darktrace) +44 20 7029 8000
Philip Yates
Dominic Lester
Nandan Shinkre
Paul Bundred
Qatalyst Partners (Joint Financial Adviser to Darktrace) +44 (0)20 3700 8820
Peter Spofforth
Jason DiLullo
Headland (PR Adviser to Darktrace)
Nigel Prideaux +44 (0)20 3805 4852
Henry Wallers +44 (0)20 3805 4839
Kirkland & Ellis International LLP is acting as legal adviser to Bidco and
Thoma Bravo.
Latham & Watkins (London) LLP is acting as legal adviser to Darktrace.
Further information
Goldman Sachs International, which is authorised by the PRA and regulated by
the FCA and the PRA in the United Kingdom, and Goldman Sachs & Co. LLC
(together, "Goldman Sachs") are acting exclusively for Bidco and Thoma Bravo
as financial advisers and no one else in connection with the Acquisition and
other matters set out in this announcement and will not be responsible to
anyone other than Bidco and Thoma Bravo for providing the protections afforded
to clients of Goldman Sachs, nor for providing advice in connection with the
Acquisition, the content of this announcement or any matter referred to
herein. Neither Goldman Sachs nor any of Goldman Sachs' subsidiaries,
affiliates or branches owes or accepts any duty, liability or responsibility
whatsoever (whether direct, indirect, consequential, whether in contract, in
tort, under statute or otherwise) to any person who is not a client of Goldman
Sachs in connection with this announcement, any statement contained herein or
otherwise.
Jefferies International Limited ("Jefferies"), which is authorised and
regulated by the FCA in the United Kingdom, is acting exclusively as financial
adviser to Darktrace and no one else in connection with the matters set out in
this announcement and will not be responsible to anyone other than Darktrace
for providing the protections afforded to clients of Jefferies nor for
providing advice in relation to the matters set out in this announcement.
Neither Jefferies nor any of its affiliates owes or accepts any duty,
liability or responsibility whatsoever (whether direct or indirect, whether in
contract, in tort, under statute or otherwise) to any person who is not a
client of Jefferies in connection with this announcement, any statement
contained herein or otherwise.
Qatalyst Partners Limited ("Qatalyst Partners"), which is authorised in the UK
by the FCA, is acting exclusively as financial adviser to Darktrace and no one
else in connection with the Acquisition and will not be acting for any other
person and will not be responsible to any person other than Darktrace for
providing the protections afforded to clients of Qatalyst Partners or for
advising any other person in respect of the matters referred to in this
announcement. No representation or warranty, express or implied, is made by
Qatalyst Partners as to the contents of this announcement.
This announcement is for information purposes only and is not intended to, and
does not, constitute, or form part of, an offer, invitation or the
solicitation of an offer to purchase, otherwise acquire, subscribe for, sell
or otherwise dispose of, any securities or the solicitation of any vote or
approval in any jurisdiction pursuant to the Acquisition or otherwise, nor
shall there be any sale, issuance or transfer of securities of Darktrace in
any jurisdiction in contravention of applicable law. The Acquisition will be
implemented solely pursuant to the terms of the Scheme Document (or, if the
Acquisition is implemented by way of an Offer, the offer document), which will
contain the full terms and conditions of the Acquisition, including details of
how to vote in respect of the Acquisition. Any vote in respect of the Scheme
or other response in relation to the Acquisition should be made only on the
basis of the information contained in the Scheme Document (or, if the
Acquisition is implemented by way of an Offer, the offer document).
This announcement contains inside information in relation to Darktrace for the
purposes of Article 7 of the Market Abuse Regulation. The person responsible
for arranging the release of this announcement on behalf of Darktrace is James
Sporle, General Counsel and Company Secretary. Darktrace's Legal Entity
Identifier is 213800PC5S5P9CSNFC89.
This announcement does not constitute a prospectus, prospectus equivalent
document or exempted document.
If you are in any doubt about the contents of this announcement or the action
you should take, you are recommended to seek your own independent financial
advice immediately from your stockbroker, bank manager, solicitor, accountant
or independent financial adviser duly authorised under the Financial Services
and Markets Act 2000 (as amended) if you are resident in the United Kingdom
or, if not, from another appropriately authorised independent financial
adviser.
Overseas Shareholders
The release, publication or distribution of this announcement in or into
jurisdictions other than the UK may be restricted by law and therefore any
persons who are subject to the law of any jurisdiction other than the UK
should inform themselves of, and observe, any applicable legal or regulatory
requirements. Any failure to comply with such requirements may constitute a
violation of the securities laws of any such jurisdiction. To the fullest
extent permitted by applicable law, the companies and persons involved in the
Acquisition disclaim any responsibility or liability for the violation of such
restrictions by any person. This announcement has been prepared in accordance
with and for the purpose of complying with English law, the Takeover Code, the
Listing Rules, the Market Abuse Regulation and the Disclosure Guidance and
Transparency Rules and information disclosed may not be the same as that which
would have been prepared in accordance with the laws of jurisdictions outside
England.
The availability of the Acquisition to Darktrace Shareholders who are not
resident in and citizens of the UK may be affected by the laws of the relevant
jurisdictions in which they are located or of which they are citizens. Persons
who are not resident in the UK should inform themselves of, and observe, any
applicable legal or regulatory requirements of their jurisdictions. Any person
(including, without limitation, nominees, trustees and custodians) who would,
or otherwise intends to, forward this announcement, the Scheme Document or any
accompanying document to any jurisdiction outside the UK should refrain from
doing so and seek appropriate professional advice before taking any action. In
particular, the ability of persons who are not resident in the United Kingdom
to vote their Darktrace Shares with respect to the Scheme at the Court
Meeting, or to appoint another person as proxy to vote at the Court Meeting on
their behalf, may be affected by the laws of the relevant jurisdictions in
which they are located. Any failure to comply with the applicable restrictions
may constitute a violation of the securities laws of any such jurisdiction. To
the fullest extent permitted by applicable law, the companies and persons
involved in the Acquisition disclaim any responsibility or liability for the
violation of such restrictions by any person. Further details in relation to
Overseas Shareholders will be contained in the Scheme Document (or, if the
Acquisition is implemented by way of an Offer, the offer document).
Unless otherwise determined by Bidco or required by the Takeover Code, and
permitted by applicable law and regulation, the Acquisition will not be made
available, directly or indirectly, in, into, from, or by the use of mails or
any means or instrumentality (including, but not limited to, facsimile, e-mail
or other electronic transmission, telex or telephone) of interstate or foreign
commerce of, or of any facility of a national, state or other securities
exchange of, any Restricted Jurisdiction where to do so would violate the laws
in that jurisdiction and no person may vote in favour of the Scheme by any
such use, means, instrumentality or from within a Restricted Jurisdiction or
any other jurisdiction if to do so would constitute a violation of the laws of
that jurisdiction. Copies of this announcement and any formal documentation
relating to the Acquisition are not being, and must not be, directly or
indirectly, mailed or otherwise forwarded, distributed or sent in or into or
from any Restricted Jurisdiction and persons receiving such documents
(including, without limitation, agents, custodians, nominees and trustees)
must not mail or otherwise forward, distribute or send it in or into or from
any Restricted Jurisdiction. Doing so may render invalid any related purported
vote in respect of the Acquisition. If the Acquisition is implemented by way
of an Offer (unless otherwise permitted by applicable law and regulation), the
Offer may not be made directly or indirectly, in, into, from, or by the use of
mails or any means or instrumentality (including, but not limited to,
facsimile, e-mail or other electronic transmission, telex or telephone) of
interstate or foreign commerce of, or of any facility of a national, state or
other securities exchange of, any Restricted Jurisdiction and the Offer may
not be capable of acceptance by any such use, means, instrumentality or
facilities.
Further details in relation to Overseas Shareholders will be included in the
Scheme Document (or, if the Acquisition is implemented by way of an Offer, the
offer document).
Notice to U.S. Darktrace Shareholders
The Acquisition relates to the shares of an English company and is being made
by means of a scheme of arrangement provided for under English law. A
transaction effected by means of a scheme of arrangement is not subject to the
tender offer or proxy solicitation rules under the U.S. Securities Exchange
Act of 1934 (the "U.S. Exchange Act"). Accordingly, the Acquisition is subject
to the disclosure requirements and practices applicable in the UK to schemes
of arrangement which differ from the disclosure requirements of the U.S.
tender offer and proxy solicitation rules. The financial information included
in this announcement has been prepared in accordance with generally accepted
accounting principles of the United Kingdom and thus may not be comparable to
financial information of U.S. companies or companies whose financial
statements are prepared in accordance with generally accepted accounting
principles in the United States.
If, in the future, Bidco exercises its right to implement the Acquisition by
way of an Offer, which is to be made into the United States, such Offer will
be made in compliance with the applicable U.S. laws and regulations.
It may be difficult for U.S. holders of Darktrace Shares to enforce their
rights and any claim arising out of the U.S. federal laws, since Bidco and
Darktrace are located in a non-U.S. jurisdiction, and some or all of their
officers and directors may be residents of a non-U.S. jurisdiction. U.S.
holders of Darktrace Shares may not be able to sue a non-U.S. company or its
officers or directors in a non-U.S. court for violations of the U.S.
securities laws. Further, it may be difficult to compel a non-U.S. company and
its affiliates to subject themselves to a U.S. court's judgement.
In accordance with normal UK practice and pursuant to Rule 14e-5(b) of the
U.S. Exchange Act, Thoma Bravo or their nominees, or their brokers (acting as
agents), may from time to time make certain purchases of, or arrangements to
purchase, Darktrace Shares outside of the U.S., other than pursuant to the
Acquisition, until the date on which the Acquisition becomes Effective, lapses
or is otherwise withdrawn. Also, in accordance with Rule 14e-5(b) of the U.S.
Exchange Act, Goldman Sachs will continue to act as an exempt principal trader
in Darktrace shares on the London Stock Exchange. These purchases may occur
either in the open market at prevailing prices or in private transactions at
negotiated prices. Any information about such purchases will be disclosed as
required in the United Kingdom, will be reported to a Regulatory Information
Service and will be available on the London Stock Exchange website,
www.londonstockexchange.com.
U.S. Darktrace Shareholders also should be aware that the transaction
contemplated herein may have tax consequences in the U.S. and, that such
consequences, if any, are not described herein. U.S. Darktrace Shareholders
are urged to consult with legal, tax and financial advisers in connection with
making a decision regarding this transaction.
Forward Looking Statements
This announcement (including information incorporated by reference in this
announcement), oral statements made regarding the Acquisition, and other
information published by Bidco and Darktrace contain statements which are, or
may be deemed to be, "forward-looking statements". Forward-looking statements
are prospective in nature and are not based on historical facts, but rather on
current expectations and projections of the management of Bidco and Darktrace
about future events, and are therefore subject to risks and uncertainties
which could cause actual results to differ materially from the future results
expressed or implied by the forward-looking statements.
The forward-looking statements contained in this announcement include
statements relating to the expected effects of the Acquisition on Bidco and
Darktrace (including their future prospects, developments and strategies), the
expected timing and scope of the Acquisition and other statements other than
historical facts. Often, but not always, forward-looking statements can be
identified by the use of forward-looking words such as "prepares", "plans",
"expects" or "does not expect", "is expected", "is subject to", "budget",
"projects", "synergy", "strategy", "scheduled", "goal", "estimates",
"forecasts", "cost-saving", "intends", "anticipates" or "does not anticipate",
or "believes", or variations of such words and phrases or statements that
certain actions, events or results "may", "could", "should", "would", "might"
or "will" be taken, occur or be achieved. Forward looking statements may
include statements relating to the following: (i) future capital expenditures,
expenses, revenues, earnings, synergies, economic performance, indebtedness,
financial condition, dividend policy, losses and future prospects; (ii)
business and management strategies and the expansion and growth of Bidco's,
Darktrace's, any member of the Bidco Group or any member of the Darktrace
Group's operations and potential synergies resulting from the Acquisition; and
(iii) the effects of global economic conditions and governmental regulation on
Bidco's, Darktrace's, any member of the Bidco Group or any member of the
Darktrace Group's business.
Although Bidco and Darktrace believe that the expectations reflected in such
forward-looking statements are reasonable, Bidco and Darktrace can give no
assurance that such expectations will prove to be correct. By their nature,
forward-looking statements involve risk and uncertainty because they relate to
events and depend on circumstances that will occur in the future. There are a
number of factors that could cause actual results and developments to differ
materially from those expressed or implied by such forward-looking statements.
These factors include, but are not limited to: the ability to complete the
Acquisition; the ability to obtain requisite regulatory and shareholder
approvals and the satisfaction of other Conditions on the proposed terms and
schedule; changes in the global political, economic, business and competitive
environments and in market and regulatory forces; changes in future exchange
and interest rates; changes in tax rates; future business combinations or
disposals; changes in general economic and business conditions; changes in the
behaviour of other market participants; changes in the anticipated benefits
from the proposed transaction not being realised as a result of changes in
general economic and market conditions in the countries in which Bidco and
Darktrace operate, weak, volatile or illiquid capital and/or credit markets,
changes in tax rates, interest rate and currency value fluctuations, the
degree of competition in the geographic and business areas in which Bidco and
Darktrace operate and changes in laws or in supervisory expectations or
requirements. Other unknown or unpredictable factors could cause actual
results to differ materially from those expected, estimated or projected in
the forward-looking statements. If any one or more of these risks or
uncertainties materialises or if any one or more of the assumptions proves
incorrect, actual results may differ materially from those expected, estimated
or projected. Such forward-looking statements should therefore be construed in
the light of such factors. Neither Bidco nor Darktrace, nor any of their
respective associates or directors, officers or advisers, provides any
representation, assurance or guarantee that the occurrence of the events
expressed or implied in any forward-looking statements in this announcement
will actually occur. You are cautioned not to place any reliance on these
forward-looking statements.
Specifically, statements of estimated cost savings and synergies related to
future actions and circumstances which, by their nature, involve risks,
uncertainties and contingencies. As a result, the cost savings and synergies
referred to may not be achieved, may be achieved later or sooner than
estimated, or those achieved could be materially different from those
estimated. Due to the scale of the Darktrace Group, there may be additional
changes to the Darktrace Group's operations. As a result, and given the fact
that the changes relate to the future, the resulting cost synergies may be
materially greater or less than those estimated.
Other than in accordance with their legal or regulatory obligations, neither
Bidco nor Darktrace is under any obligation, and Bidco and Darktrace expressly
disclaim any intention or obligation, to update or revise any forward-looking
statements, whether as a result of new information, future events or
otherwise.
Dealing and Opening Position Disclosure Requirements
Under Rule 8.3(a) of the Takeover 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) of the Takeover Code
applies must be made by no later than 3.30 pm (London time) on the 10th
business day following the commencement of the offer period and, if
appropriate, by no later than 3.30 pm (London time) on the 10th business day
following the announcement in which any securities exchange offeror is first
identified. Relevant persons who deal in the relevant securities of the
offeree company or of a securities exchange offeror prior to the deadline for
making an Opening Position Disclosure must instead make a Dealing Disclosure.
Under Rule 8.3(b) of the Takeover Code, any person who is, or becomes,
interested in 1% or more of any class of relevant securities of the offeree
company or of any securities exchange offeror must make a Dealing Disclosure
if the person deals in any relevant securities of the offeree company or of
any securities exchange offeror. A Dealing Disclosure must contain details of
the dealing concerned and of the person's interests and short positions in,
and rights to subscribe for, any relevant securities of each of (i) the
offeree company and (ii) any securities exchange offeror(s), save to the
extent that these details have previously been disclosed under Rule 8. A
Dealing Disclosure by a person to whom Rule 8.3(b) applies must be made by no
later than 3.30 pm (London time) on the business day following the date of the
relevant dealing.
If two or more persons act together pursuant to an agreement or understanding,
whether formal or informal, to acquire or control an interest in relevant
securities of an offeree company or a securities exchange offeror, they will
be deemed to be a single person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree company and by
any offeror and Dealing Disclosures must also be made by the offeree company,
by any offeror and by any persons acting in concert with any of them (see
Rules 8.1, 8.2 and 8.4).
Details of the offeree and offeror companies in respect of whose relevant
securities Opening Position Disclosures and Dealing Disclosures must be made
can be found in the Disclosure Table on the Panel's website at
www.thetakeoverpanel.org.uk, including details of the number of relevant
securities in issue, when the offer period commenced and when any offeror was
first identified. You should contact the Panel's Market Surveillance Unit on
+44 (0)20 7638 0129 if you are in any doubt as to whether you are required to
make an Opening Position Disclosure or a Dealing Disclosure.
Publication on a website
In accordance with Rule 26.1 of the Takeover Code, a copy of this announcement
and the documents required to be published under Rule 26 of the Takeover Code
will be made available, subject to certain restrictions relating to persons
resident in Restricted Jurisdictions, on Darktrace's website at
https://ir.darktrace.com by no later than 12 noon (London time) on the
Business Day following this announcement. For the avoidance of doubt, neither
the content of this website nor of any website accessible from hyperlinks set
out in this announcement is incorporated by reference or forms part of this
announcement.
No profit forecasts, estimates or quantified benefits statements
No statement in this announcement is intended as a profit forecast, profit
estimate or quantified benefits statement for any period and no statement in
this announcement should be interpreted to mean that earnings or earnings per
share for Darktrace for the current or future financial years would
necessarily match or exceed the historical published earnings or earnings per
share for Darktrace.
Requesting hard copy documents
In accordance with Rule 30.3 of the Takeover Code, Darktrace Shareholders,
persons with information rights and participants in Darktrace Share Plans may
request a hard copy of this announcement, free of charge, by contacting
Darktrace's registrar, Equiniti Limited, either in writing to Aspect House,
Spencer Road, Lancing, West Sussex, BN99 6DA, United Kingdom or by calling +44
(0) 333 207 6530. You may also request that all future documents,
announcements and information to be sent to you in relation to the Acquisition
should be in hard copy form. Calls outside the U.K. will be charged at the
applicable international rate. Lines are open between 8.30 a.m. and 5.30 p.m.
(London time) Monday to Friday excluding public holidays in England and Wales.
For persons who receive a copy of this announcement in electronic form or via
a website notification, a hard copy of this announcement will not be sent
unless so requested. In accordance with Rule 30.3 of the Takeover Code, such
persons may also request that all future documents, announcements and
information to be sent to them in relation to the Acquisition should be in
hard copy form.
Electronic Communications
Please be aware that addresses, electronic addresses and certain other
information provided by Darktrace Shareholders, persons with information
rights and other relevant persons for the receipt of communications from
Darktrace may be provided to Bidco during the offer period as required under
Section 4 of Appendix 4 of the Takeover Code to comply with Rule 2.11(c) of
the Takeover Code.
Rounding
Certain figures included in this announcement have been subjected to rounding
adjustments. Accordingly, figures shown for the same category presented in
different tables may vary slightly and figures shown as totals in certain
tables may not be an arithmetic aggregation of figures that precede them.
General
Bidco reserves the right to elect, with the consent of the Panel (where
necessary) and subject to the terms of the Cooperation Agreement, to implement
the Acquisition by way of an Offer as an alternative to the Scheme. In such an
event, an Offer will be implemented on substantially the same terms, so far as
applicable, as those which would apply to the Scheme (subject to appropriate
amendments).
If the Acquisition is effected by way of an Offer, and such an Offer becomes
or is declared unconditional in all respects and sufficient acceptances are
received, Bidco intends to exercise its rights to apply the provisions of
Chapter 3 of Part 28 of the 2006 Act so as to acquire compulsorily the
remaining Darktrace Shares in respect of which the Offer has not been
accepted.
Investors should be aware that Bidco may purchase Darktrace Shares otherwise
than under any Offer or the Scheme, including pursuant to privately negotiated
purchases.
Rule 2.9 of the Takeover Code
For the purposes of Rule 2.9 of the Takeover Code, Darktrace confirms that, as
at 26 April 2024 2024, it had in issue 703,683,540 ordinary shares of 1 pence
each admitted to trading on the Main Market of the London Stock Exchange, and
3,323,886 Treasury Shares. The ISIN for the shares is GB00BNYK8G86.
Disclaimer
The information contained herein does not constitute an offer to sell, nor a
solicitation of an offer to buy, any security, and may not be used or relied
upon in connection with any offer or solicitation. Any offer or solicitation
in respect of Thoma Bravo and Thoma Bravo Funds will be made only through a
confidential private placement memorandum and related documents which will be
furnished to qualified investors on a confidential basis in accordance with
applicable laws and regulations. The information contained herein is not for
publication or distribution to persons in the U.S. Any securities referred to
herein have not been and will not be registered under the U.S. Securities Act
of 1933, as amended, and may not be offered or sold without registration
thereunder or pursuant to an available exemption therefrom. Any offering of
securities to be made in the U.S. would have to be made by means of an
offering document that would be obtainable from the issuer or its agents and
would contain detailed information about the issuer of the securities and its
management, as well as financial information. The securities may not be
offered or sold in the U.S. absent registration or an exemption from
registration.
The Acquisition will be subject to English law, the jurisdiction of the Court,
and the applicable requirements of the Takeover Code, the Panel, the London
Stock Exchange, the FCA, the Listing Rules and the Registrar of Companies.
Appendix 1
Conditions and Further Terms of the Transaction
Part A
Conditions to the Scheme and Acquisition
1. The Acquisition will be conditional upon the Scheme
becoming unconditional and becoming Effective, subject to the provisions of
the Takeover Code, by no later than 11.59 p.m. on the Long Stop Date.
Conditions of the Scheme
2. The Scheme will be subject to the following Conditions:
2.1 (i) its approval by a majority in number of the Scheme
Shareholders who are on the register of members of Darktrace (or the relevant
class or classes thereof) at the Voting Record Time, present and voting,
whether in person or by proxy, at the Court Meeting and at any separate class
meeting which may be required (or any adjournment thereof) and who represent
not less than 75 per cent. in value of Scheme Shares held by Scheme
Shareholders; and (ii) such Court Meeting (and any separate class meeting
which may be required) being held on or before the 22nd day after the expected
date of the Court Meeting to be set out in the Scheme Document in due course
(or such later date as may be agreed between Bidco and Darktrace with the
consent of the Panel (and that the Court may approve if required));
2.2 (i) the Resolutions being duly passed at the General Meeting
(or any adjournment thereof); and (ii) such General Meeting being held 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 as may be agreed
between Bidco and Darktrace with the consent of the Panel (and that the Court
may approve if required)); and
2.3 (i) the sanction of the Scheme by the Court (with or without
modification (but subject to such modification being acceptable to Bidco and
Darktrace)); and (ii) the Sanction Hearing being held on or before the 22nd
day after the expected date of the Sanction Hearing to be set out in the
Scheme Document in due course (or such later date as may be agreed between
Bidco and Darktrace with the consent of the Panel (and that the Court may
approve if required)); and
2.4 the delivery of a copy of the Court Order to the Registrar of
Companies.
General Conditions
3. In addition, subject as stated in Part B of this
Appendix 1, Bidco and Darktrace have agreed that the Acquisition 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 (as amended if appropriate) have been satisfied or, where relevant,
waived:
Antitrust approvals
Australia
3.1 the ACCC:
3.1.1 not having notified Bidco that it objects to or proposes to
take any steps to oppose the Acquisition under section 50 of the Australian
Competition and Consumer Act 2010 (Cth); or
3.1.2 having given notice in writing stating, or stating to the
effect, that it does not propose to intervene in or seek to prevent the
Acquisition under section 50 of the Australian Competition and Consumer Act
2010 (Cth), on terms satisfactory to Bidco, and that notice has not been
withdrawn, revoked or adversely amended;
Austria
3.2 (i) expiry of the statutory waiting period pursuant to a the
Austrian Cartel Act (Kartellgesetz); or (ii) the waiver by the Federal
Competition Authority (Bundeswettbewerbsbehörde) and the Federal Cartel
Attorney (Bundeskartellanwalt), pursuant to the Austrian Cartel Act
(Kartellgesetz) of their right to request an in-depth investigation of the
Acquisition by the Cartel Court; or
3.3 (i) a legally binding decision by the Cartel Court
(Kartellgericht) to terminate an in-depth investigation of the Acquisition,
pursuant to the Austrian Cartel Act (Kartellgesetz); or (ii) a legally binding
decision by the Cartel Court (Kartellgericht) or the Appellate Cartel Court
(Kartellobergericht), pursuant to the Austrian Cartel Act (Kartellgesetz), not
to prohibit the Acquisition or finding that the Acquisition does not qualify
as a notifiable concentration;
South Africa
3.4 written approval having been obtained from the South African
Competition Commission or the South African Competition Tribunal, or the
Acquisition having been deemed approved in terms of the South African
Competition Act, No. 89 of 1998 (as amended);
United Kingdom
3.5 in so far as the Acquisition satisfies the thresholds for
notification and premerger authorisation under the United Kingdom Enterprise
Act 2002, either:
3.5.1 (i) the CMA having indicated, in terms satisfactory to Bidco
acting reasonably, and in response to a briefing paper submitted by Bidco,
that it has no further questions or that it does not intend to open a CMA
Merger Investigation in relation to the Acquisition or any matters arising
therefrom; or (ii) if the CMA opens such an investigation, confirmation having
been received in writing from the CMA, in terms satisfactory to Bidco acting
reasonably, that the CMA does not intend to make a CMA Phase 2 Reference in
connection with the Acquisition or any matters arising there from; or
3.5.2 the period within which the CMA is required to decide whether
the duty to make a CMA Phase 2 Reference applies with respect to the
Acquisition or any matters arising therefrom has expired without such a
decision having been made;
United States
3.6 all applicable filings having been made under the HSR Act and
all waiting periods under the HSR Act applicable to Acquisition, and any
extensions thereto (including pursuant to an agreement with a United States
governmental authority), having expired, lapsed or been terminated;
Regulatory approvals
3.7 the receipt of any required foreign investment approvals, on
terms reasonably satisfactory to Bidco, by the competent authorities (or
confirmation, on terms satisfactory to Bidco, that the Acquisition does not
fall within the scope thereof) in:
3.7.1 Australia, the Treasurer of the Commonwealth of Australia (or
his or her delegate):
(a) provides written notice under the Australian Foreign
Acquisitions and Takeovers Act 1975 (Cth) (FATA) that there are no objections
to the acquisition contemplated by this Agreement, either on an unconditional
basis or subject only to such conditions acceptable to Bidco, acting
reasonably; or
(b) becomes precluded by passage of time from making any order
or decision under Division 2 of Part 3 of the FATA in respect of the
acquisition contemplated by this Agreement,
whichever first occurs;
3.7.2 France, pursuant to the foreign investment regime under
Articles L.151-1 et seq. and R. 151-1 et seq. of the French Monetary and
Financial Code (Code monétaire et financier);
3.7.3 Italy, any action, decision or omission of the Italian Prime
Minister office as a result of which consummation of the Acquisition shall
have been, or deemed to have been, approved, cleared or otherwise permitted
pursuant to the applicable provisions of Law Decree 21/2012 ("Golden Power
Law"), as subsequently amended and integrated, including (i) the expiry of any
applicable waiting period or extension thereof, (ii) having resolved not to
perform the special powers contemplated by the Golden Power Law, (iii) issuing
a decision accompanied by conditions; or (iv) having declined jurisdiction
over the Acquisition considering that the Acquisition does not fall within the
scope of Golden Power Law.
3.7.4 the Netherlands, all filings, applications, registrations and
notifications (and similar actions) with the Dutch Investment Screening
Authority (Bureau Toetsing Investeringen) (the "BTI") which are required in
connection with the Acquisition having been made, and (ii) all consents,
approvals, authorisations, clearances and waivers which are required from BTI
for the consummation of the Acquisition having been granted or being deemed to
have been granted, whether by means of the expiry of any applicable waiting
period or otherwise;
3.7.5 Sweden, having (i) given their approval to the consummation of
the Acquisition (with or without conditions) or waived such approval; or (ii)
the applicable waiting periods for such approval having expired without any
decision having been taken by the Swedish Inspectorate of Strategic Products;
3.7.6 the United Kingdom, following the notification of the
Acquisition in accordance with the requirements of the UK National Security
and Investment Act 2021 (the "NSI Act"), either:
(a) the Secretary of State notifies Bidco (before the expiry of
the relevant assessment period within which the Secretary of State may give a
call-in notice under the NSI Act) that no further action will be taken in
relation to the Acquisition; or
(b) in the event that a call-in notice is given in relation to
the Acquisition, the Secretary of State either:
(i) gives a final notification pursuant to section 26(1)(b) of
the NSI Act confirming that no further action will be taken in relation to the
Acquisition under the NSI Act; or
(ii) makes a final order pursuant to section 26(1)(a) of the NSI
Act permitting the Acquisition to proceed subject to remedies or requirements;
Third Party clearances
3.8 other than in relation to the matters referred to in
Conditions 3.1 to 3.7, no central bank, government or governmental,
quasi‑governmental, supranational, statutory, regulatory, environmental,
administrative, fiscal or investigative body, court, trade agency,
association, institution, environmental body, employee representative body or
any other body or person whatsoever in any jurisdiction (each a "Third Party")
having given notice of a decision to take, institute, implement or threaten
any action, proceeding, suit, investigation, enquiry or reference, or having
required any action to be taken or otherwise having done anything or having
enacted, made or proposed any statute, regulation, decision, order or change
to published practice and there not continuing to be outstanding any statute,
regulation, decision or order which would or might:
3.8.1 make the Acquisition, its implementation or the acquisition or
proposed acquisition of any shares or other securities in, or control or
management of, any member of the Wider Darktrace Group by any member of the
Bidco Group void, illegal and/or unenforceable under the laws of any relevant
jurisdiction, or otherwise directly or indirectly prevent, prohibit, or
restrain, restrict, impede, challenge, delay or otherwise interfere with the
implementation of, or impose material additional conditions or obligations
with respect to, the Acquisition or require amendment of the Scheme;
3.8.2 require, prevent or materially delay the divestiture or alter
the terms envisaged for such divestiture by any member of the Wider Bidco
Group or by any member of the Wider Darktrace Group of all or any part of
their businesses, assets or property or impose any limitation on the ability
of all or any of them to conduct their businesses (or any part thereof) or to
own, control or manage any of their assets or properties (or any part thereof)
to an extent which is material in the context of the Wider Darktrace Group
taken as a whole or in the context of the Acquisition;
3.8.3 impose any material limitation on, or result in a material
delay in, the ability of any member of the Wider Bidco Group directly or
indirectly to acquire or hold or to exercise effectively all or any rights of
ownership in respect of shares or other securities in Darktrace (or any member
of the Wider Darktrace Group) or on the ability of any member of the Wider
Darktrace Group or any member of the Wider Bidco Group directly or indirectly
to hold or exercise effectively any rights of ownership in respect of shares
or other securities (or the equivalent) in, or to exercise management control
over, any member of the Wider Darktrace Group to an extent which is material
in the context of the Wider Darktrace Group taken as a whole or in the context
of the Acquisition;
3.8.4 other than pursuant to the implementation of the Scheme or, if
applicable, sections 974 to 991 of the 2006 Act, require any member of the
Wider Bidco Group or the Wider Darktrace Group to acquire or offer to acquire
any shares, other securities (or the equivalent) or interest in any member of
the Wider Darktrace Group or any asset owned by any third party which is
material in the context of the Wider Darktrace Group or the Wider Bidco Group,
in either case, taken as a whole;
3.8.5 require, prevent or delay a divestiture by any member of the
Wider Bidco Group of any shares or other securities (or the equivalent) in any
member of the Wider Darktrace Group;
3.8.6 result in any member of the Wider Darktrace Group ceasing to
be able to carry on business under any name under which it presently carries
on business to an extent which is material in the context of the Wider
Darktrace Group taken as a whole or in the context of the Acquisition;
3.8.7 impose any limitation on the ability of any member of the
Wider Bidco Group or any member of the Wider Darktrace Group to conduct,
integrate or co‑ordinate all or any part of their respective businesses with
all or any part of the business of any other member of the Wider Bidco Group
and/or the Wider Darktrace Group in a manner which is adverse and material to
the Wider Bidco Group and/or the Wider Darktrace Group, in either case, taken
as a whole or in the context of the Acquisition; or
3.8.8 except as Disclosed, otherwise affect the business, assets,
value, profits, prospects or operational performance of any member of the
Wider Darktrace Group or any member of the Wider Bidco Group in each case in a
manner which is adverse to and material in the context of the Wider Darktrace
Group taken as a whole or of the financing of the Acquisition;
and all applicable waiting and other time periods (including any extensions
thereof) during which any such Third Party could decide to take, institute,
implement or threaten any such action, proceeding, suit, investigation,
enquiry or reference or take any other step under the laws of any jurisdiction
in respect of the Acquisition or proposed acquisition of any Darktrace Shares
or otherwise intervene having expired, lapsed, or been terminated;
3.9 to the extent not already covered by Conditions 3.1 to 3.7,
all other notifications, filings or applications which are necessary under any
applicable legislation or regulation or reasonably considered to be
appropriate in any relevant jurisdiction having been made in connection with
the Acquisition and all necessary waiting and other time periods (including
any extensions thereof) under any applicable legislation or regulation of any
jurisdiction having expired, lapsed or been terminated (as appropriate) and
all statutory and regulatory obligations in any jurisdiction having been
complied with and all Authorisations which are deemed to be reasonably
necessary or appropriate by Bidco in any jurisdiction for or in respect of the
Scheme and the Acquisition or the proposed acquisition of any shares or other
securities in, or control of, Darktrace by any member of the Wider Bidco Group
having been obtained on terms and in a form reasonably satisfactory to Bidco
(acting reasonably) from all appropriate Third Parties or (without prejudice
to the generality of the foregoing) from any person or bodies with whom any
member of the Wider Darktrace Group or the Wider Bidco Group has entered into
contractual arrangements in each case where the direct consequence of a
failure to make such notification or filing or to wait for the expiry, lapse
or termination of any such waiting or other time period or to comply with such
obligation or obtain such Authorisation would be unlawful in any relevant
jurisdiction or have a material adverse effect on the Wider Darktrace Group,
any member of the Wider Bidco Group or the ability of Bidco to implement the
Scheme and all such Authorisations remaining in full force and effect at the
time at which the Scheme becomes otherwise unconditional in all respects and
there being no notice or intimation of an intention to revoke, suspend,
restrict, modify or not to renew such Authorisations;
3.10 no temporary restraining order, preliminary or permanent
injunction, preliminary or permanent enjoinment, or other law or order issued
and being in effect by a court or other Third Party which has the effect of
making the Acquisition or any acquisition or proposed acquisition of any
shares or other securities or control or management of, any member of the
Wider Darktrace Group by any member of the Wider Bidco 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 completion or the approval of the Acquisition
or any matter arising from the proposed acquisition of any shares or other
securities in, or control or management of, any member of the Wider Darktrace
Group by any member of the Wider Bidco Group;
Confirmation of absence of adverse circumstances
3.11 except as Disclosed, there being no provision of any arrangement,
agreement, licence, permit, franchise, lease or other instrument to which any
member of the Wider Darktrace Group is a party or by or to which any such
member or any of its assets is or may be bound, entitled or be subject or any
event or circumstance which, as a consequence of the Acquisition or the
proposed acquisition by any member of the Wider Bidco Group of any shares or
other securities in Darktrace or because of a change in the control or
management of any member of the Wider Darktrace Group or otherwise, would or
might reasonably be expected to result in, in each case, to an extent which is
material in the context of the Wider Darktrace Group taken as a whole or in
the context of the Acquisition:
3.11.1 any monies borrowed by, or any other indebtedness, actual or
contingent of, or any grant available to, any member of the Wider Darktrace
Group being or becoming repayable, or capable of being declared repayable,
immediately or prior to its or their stated maturity date or repayment date,
or the ability of any such member to borrow monies or incur any indebtedness
being withdrawn or inhibited or being capable of becoming or being withdrawn
or inhibited;
3.11.2 the rights, liabilities, obligations, interests or business of
any member of the Wider Darktrace Group or any member of the Wider Bidco Group
under any such arrangement, agreement, licence, permit, lease or instrument or
the interests or business of any member of the Wider Darktrace Group or any
member of the Wider Bidco Group in or with any other firm or company or body
or person (or any agreement or arrangement relating to any such business or
interests) being or becoming capable of being terminated or adversely modified
or affected or any onerous obligation or liability arising or any adverse
action being taken or arising thereunder;
3.11.3 any member of the Wider Darktrace Group ceasing to be able to
carry on business under any name under which it presently carries on business
to an extent which is material in the context of the Darktrace Group taken as
a whole or in the context of the Acquisition;
3.11.4 any assets or interests of, or any asset the use of which is
enjoyed by, any member of the Wider Darktrace Group 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 or could cease to be
available to any member of the Wider Darktrace Group otherwise than in the
ordinary course of business;
3.11.5 other than in the ordinary course of business, 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 member of the Wider
Darktrace Group or any such mortgage, charge or other security interest
(whenever created, arising or having arisen), becoming enforceable;
3.11.6 the business, assets, value, financial or trading position,
profits, prospects or operational performance of any member of the Wider
Darktrace Group being prejudiced or adversely affected;
3.11.7 the creation or acceleration of any material liability (actual or
contingent) by any member of the Wider Darktrace Group other than trade
creditors or other liabilities incurred in the ordinary course of business; or
3.11.8 any liability of any member of the Wider Darktrace Group to make
any severance, termination, bonus or other payment to any of its directors or
other officers other than in the ordinary course of business;
No material transactions, claims or changes in the conduct of the business of
the Darktrace Group
3.12 except as Disclosed, no member of the Wider Darktrace Group
having since 30 June 2023:
3.12.1 save as between Darktrace and its wholly‑owned subsidiaries or
between such wholly‑owned subsidiaries and save for the issue or transfer
out of treasury of Darktrace Shares on the exercise of options or vesting of
awards granted in the ordinary course under the Darktrace Share Plans, issued
or agreed to issue or authorised or proposed or announced its intention to
authorise or propose the issue of additional shares of any class, or
securities or securities convertible into, or exchangeable for, or rights,
warrants or options to subscribe for or acquire, any such shares or
convertible securities or transferred or sold or agreed to transfer or sell or
authorised or proposed the transfer or sale of Darktrace Shares out of
treasury;
3.12.2 recommended, declared, paid or made or agreed to recommend,
declare, pay or make any bonus issue, dividend or other distribution (whether
payable in cash or otherwise) other than to Darktrace or one of its
wholly‑owned subsidiaries;
3.12.3 save as between Darktrace and its wholly‑owned subsidiaries or
between such wholly‑owned subsidiaries, merged with (by statutory merger or
otherwise) or demerged from or acquired any body corporate, partnership or
business or acquired or disposed of, or, other than in the ordinary course of
business, 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, proposed or announced any
intention to do so, in each case to an extent which is material in the context
of the Wider Darktrace Group taken as a whole;
3.12.4 save as between Darktrace and its wholly‑owned subsidiaries or
between such wholly‑owned subsidiaries, made, authorised, proposed or
announced an intention to propose any change in its loan capital other than in
the ordinary course of business and to an extent which is material in the
context of the Wider Darktrace Group taken as a whole;
3.12.5 issued, authorised or proposed or announced an intention to
authorise or propose the issue of, or made any change in or to the terms of,
any debentures or (save in the ordinary course of business and save as between
Darktrace and its wholly‑owned subsidiaries or between such wholly‑owned
subsidiaries) incurred or increased any indebtedness or become subject to any
contingent liability to an extent which is material in the context of the
Wider Darktrace Group taken as a whole or in the context of the Acquisition;
3.12.6 entered into, varied, authorised or proposed entry into or
variation of, or announced its intention to enter into or vary, any contract,
transaction, arrangement or commitment (whether in respect of capital
expenditure or otherwise) (otherwise than in the ordinary course of business)
which is of a long-term, unusual or onerous nature, or which involves or could
reasonably be expected to involve an obligation of a nature or magnitude which
is materially restrictive on the business of any member of the Wider Darktrace
Group to an extent which is or is reasonably likely to be material to the
Wider Darktrace Group taken as a whole;
3.12.7 entered into any licence or other disposal of intellectual
property rights of any member of the Wider Darktrace Group which are material
in the context of the Wider Darktrace Group taken as a whole and outside the
normal course of business;
3.12.8 entered into, varied, authorised or announced its intention to
enter into or vary the terms of or made any offer (which remains open for
acceptance) to enter into or vary the terms of, any contract, commitment,
arrangement or any service agreement with any director or senior executive of
the Wider Darktrace Group save for salary increases, bonuses or variations of
terms in the ordinary course of business, which is material in the context of
the Wider Darktrace Group taken as a whole;
3.12.9 proposed, agreed to provide or modified the terms of any share
option scheme, incentive scheme, or other benefit relating to the employment
or termination of employment of any employee of the Wider Darktrace Group
which, taken as a whole, are material in the context of the Wider Darktrace
Group taken as a whole;
3.12.10 (i) (excluding the trustee of any pension scheme(s) established by a
member of the Wider Darktrace Group other than Darktrace itself) made, agreed
or consented to or procured any material change to: (a) the terms of any
existing trust deeds, rules, policy or other governing documents, or entered
into or established any new trust deeds, rules, policy or other governing
documents, constituting any pension scheme or other retirement or death
benefit arrangement established for the directors, former directors, employees
or former employees of any entity in the Wider Darktrace Group or their
dependants and established by a member of the Wider Darktrace Group (a
"Relevant Pension Plan"); (b) the basis on which benefits accrue, pensions
which are payable or the persons entitled to accrue or be paid benefits, under
any Relevant Pension Plan; (c) the basis on which the liabilities of any
Relevant Pension Plan are funded or valued; or (d) the basis or rate of
employer contribution to a Relevant Pension Plan, in each case to the extent
which is material in the context of the Wider Darktrace Group taken as a whole
or in the context of the Acquisition and other than as required in accordance
with applicable law; (ii) enter into or propose to enter into one or more
bulk annuity contracts in relation to any Relevant Pension Plan; or
(iii) carried out any act: (a) which would or could reasonably be expected
to lead to the commencement of the winding up of any Relevant Pension Plan;
(b) which would or is reasonably likely to create a material debt owed by an
employer to any Relevant Pension Plan; (c) which would or might accelerate any
obligation on any employer to fund or pay additional contributions to any
Relevant Pension Plan; or (d) which would, having regard to the published
guidance of the Pensions Regulator give rise directly or indirectly to a
liability in respect of a Relevant Pension Plan arising out of the operation
of sections 38 and 38A of the Pensions Act 2004 in relation to a Relevant
Pension Plan, in each case to the extent which is material in the context of
the Wider Darktrace Group taken as a whole or in the context of the
Acquisition and other than as required in accordance with applicable law;
3.12.11 entered into, implemented or effected, or authorised, or announced
its intention to implement or effect, any joint venture, asset or profit
sharing arrangement, partnership, composition, assignment, reconstruction,
amalgamation, commitment, scheme or other transaction or arrangement (other
than the Scheme) otherwise than in the ordinary course of business which is
material in the context of the Wider Darktrace Group taken as a whole or in
the context of the Acquisition;
3.12.12 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 3.12.1 above, made any
other change to any part of its share capital to an extent which (other than
in the case of Darktrace) is material in the context of the Wider Darktrace
Group taken as a whole (except, in each case, where relevant, as between
Darktrace and wholly-owned subsidiaries of Darktrace or between the
wholly-owned subsidiaries of Darktrace);
3.12.13 other than with respect to claims between Darktrace and its
wholly-owned subsidiaries (or between such subsidiaries), waived, compromised
or settled any claim otherwise than in the ordinary course of business which
is material in the context of the Wider Darktrace Group taken as a whole or in
the context of the Acquisition;
3.12.14 made any alteration to its articles of association or other
constitutional documents (in each case, other than in connection with the
Scheme) which is material in the context of the Acquisition;
3.12.15 (other than in respect of a member of the Wider Darktrace Group
which is dormant and was solvent at the relevant time) taken or proposed any
steps, corporate action or had any legal proceedings instituted or threatened
against it in relation to the suspension of payments, a moratorium of any
indebtedness, its winding‑up (voluntary or otherwise), dissolution,
reorganisation or for the appointment of any administrator, receiver, manager,
administrative receiver, trustee or similar officer of all or any of its
assets or revenues or any analogous proceedings in any jurisdiction or
appointed any analogous person in any jurisdiction or had any such person
appointed which is material in the context of the Wider Darktrace Group taken
as a whole or in the context of the Acquisition;
3.12.16 been unable, or admitted in writing that it is unable, to pay its
debts or commenced negotiations with one or more of its creditors with a view
to rescheduling or restructuring any of its indebtedness, or having stopped or
suspended (or threatened to stop or suspend) payment of its debts generally or
ceased or threatened to cease carrying on all or a substantial part of its
business which is material in the context of the Wider Darktrace Group taken
as a whole or in the context of the Acquisition;
3.12.17 entered into any contract, commitment, agreement or arrangement
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 an intention to, or to propose to, effect any of the transactions,
matters or events referred to in this Condition;
3.12.18 terminated or varied the terms of any agreement or arrangement
between any member of the Wider Darktrace Group and any other person in a
manner which would or might be expected to have a material adverse effect on
the financial position of the Wider Darktrace Group taken as a whole; or
3.12.19 taken (or agreed or proposed to take) any action which requires, or
would require, the consent of the Panel or the approval of Darktrace
Shareholders in general meeting in accordance with, or as contemplated by,
Rule 21.1 of the Takeover Code;
No material adverse change
3.13 since 30 June 2023, and except as Disclosed, there having been:
3.13.1 no adverse change and no circumstance having arisen which would
be expected to result in any adverse change or deterioration in the business,
assets, value, financial or trading position, profits, prospects or
operational performance of any member of the Wider Darktrace Group to an
extent which is material to the Wider Darktrace Group taken as a whole or in
the context of the Acquisition;
3.13.2 no litigation, arbitration proceedings, prosecution or other
legal proceedings including, without limitation, with regard to intellectual
property rights used by the Wider Darktrace Group having been threatened,
announced or instituted by or against or remaining outstanding against any
member of the Wider Darktrace Group or to which any member of the Wider
Darktrace Group is or may become a party (whether as claimant or defendant or
otherwise) which, in any such case, might reasonably be expected to have a
material adverse effect on the Wider Darktrace Group taken as a whole, and no
enquiry, review, investigation or enforcement proceedings by, or complaint or
reference to, any Third Party against or in respect of any member of the Wider
Darktrace Group having been threatened, announced or instituted by or against,
or remaining outstanding in respect of, any member of the Wider Darktrace
Group which, in any such case, might reasonably be expected to have a material
adverse effect on the Wider Darktrace Group taken as a whole;
3.13.3 no contingent or other liability having arisen, increased or
become apparent which is reasonably likely to adversely affect the business,
assets, financial or trading position, profits, prospects or operational
performance of any member of the Wider Darktrace Group to an extent which is
material to the Wider Darktrace Group taken as a whole;
3.13.4 no steps having been taken and no omissions having been made
which are reasonably likely to result in the withdrawal, cancellation,
termination or modification of any licence held by any member of the Wider
Darktrace Group, which is necessary for the proper carrying on of its business
and the withdrawal, cancellation, termination or modification of which is
material and reasonably be expected to have a material adverse effect on the
Wider Darktrace Group taken as a whole; and
3.13.5 no member of the Wider Darktrace Group having conducted its
business in material breach of any applicable laws and regulations which in
any case is material in the context of the Wider Darktrace Group taken as a
whole;
3.14 since 30 June 2023, except as Disclosed, Bidco not having
discovered:
3.14.1 that any financial, business or other information concerning the
Wider Darktrace Group publicly announced or disclosed to any member of the
Wider Bidco Group at any time after 30 June 2023 prior to the date of this
announcement by or on behalf of any member of the Wider Darktrace Group or to
any of their advisers is misleading, contains a misrepresentation of fact or
omits to state a fact necessary to make that information not misleading and
which is, in any case, material in the context of the Wider Darktrace Group
taken as a whole or in the context of the Acquisition; or
3.14.2 that any member of the Wider Darktrace Group is subject to any
liability, contingent or otherwise and which is material in the context of the
Wider Darktrace Group taken as a whole;
Environmental liabilities
3.15 except as Disclosed, Bidco not having discovered that, in
relation to any release, emission, accumulation, discharge, disposal or other
similar circumstance which has impaired or is likely to impair the environment
(including property) or harmed or is likely to harm the health of humans,
animals or other living organisms or eco‑systems, no past or present member
of the Wider Darktrace Group, in a manner or to an extent which is material in
the context of the Wider Darktrace Group, (i) having committed any violation
of any applicable laws, statutes, regulations, Authorisations, notices or
other requirements of any Third Party giving rise to a material liability;
and/or (ii) having incurred any material liability (whether actual or
contingent) to any Third Party; and/or (iii) being likely to incur any
material liability (whether actual or contingent), or being required, to make
good, remediate, repair, re‑instate or clean up the environment (including
any property), in each case of (i), (ii) or (iii), which such liability or
requirement would be material to the Wider Darktrace Group taken as a whole;
Intellectual Property
3.16 no circumstance having arisen or event having occurred in
relation to any intellectual property owned or used by any member of the Wider
Darktrace Group which would be reasonably expected to have a material adverse
effect on the Wider Darktrace Group taken as a whole or is otherwise material
in the context of the Acquisition, including:
3.16.1 any member of the Wider Darktrace Group losing its title to any
intellectual property material to its business, or any intellectual property
owned by the Wider Darktrace Group and material to its business being revoked,
cancelled or declared invalid;
3.16.2 any claim being asserted in writing or threatened in writing by
any person challenging the ownership of any member of the Wider Darktrace
Group to, or the validity or effectiveness of, any of its intellectual
property; or
3.16.3 any agreement regarding the use of any intellectual property
licensed to or by any member of the Wider Darktrace Group being terminated or
varied;
Anti‑corruption and sanctions
3.17 except as Disclosed, Bidco not having discovered that (to an
extent that is material in the context of the Wider Darktrace Group taken as a
whole):
3.17.1 any past or present member of the Wider Darktrace Group or any
person that performs or has performed services for or on behalf of any such
company is or has at any time engaged in any activity, practice or conduct (or
omitted to take any action) in contravention of the UK Bribery Act 2010, the
U.S. Foreign Corrupt Practices Act of 1977 (so far as is applicable), as
amended or any other applicable anti‑corruption legislation;
3.17.2 any member of the Wider Darktrace Group is ineligible to be
awarded any contract or business under section 23 of the Public Contracts
Regulations 2006 or section 26 of the Utilities Contracts Regulations 2006
(each as amended);
3.17.3 any past or present member of the Wider Darktrace Group has
engaged in any activity or business with, or made any investments in, or made
any payments to any government, entity or individual covered by any of the
economic sanctions administered by the United Nations or the European Union
(or any of their respective member states) or the United States Office of
Foreign Assets Control or any other governmental or supranational body or
authority in any jurisdiction (so far as is applicable); or
3.17.4 a member of the Darktrace Group has engaged in a transaction
which would cause the Wider Bidco Group to be in breach of any law or
regulation on completion of the Acquisition, including the economic sanctions
administered by the United States Office of Foreign Assets Control or HM
Treasury & Customs or any government, entity or individual targeted by
any of the economic sanctions of the United Nations, United States or the
European Union or any of its member states; or
No criminal property
3.18 except as Disclosed, Bidco not having discovered that any asset
of any member of the Wider Darktrace Group constitutes criminal property as
defined by section 340(3) of the Proceeds of Crime Act 2002 (but
disregarding paragraph (b) of that definition).
Part B
Further terms of the Acquisition
1. Subject to the requirements of the Panel, Bidco reserves
the right in its sole discretion to waive, in whole or in part, all or any of
the Conditions set out in Part A of Appendix 1, except Conditions 1, 2.1(i),
2.2(i), 2.3(i) and 2.4 which cannot be waived. If any of Conditions 2.1(ii),
2.2(ii) or 2.3(ii) is not satisfied by the relevant deadline specified in the
relevant Condition, Bidco shall make an announcement by 8.00 a.m. on the
Business Day following such deadline confirming whether it has invoked the
relevant Condition, waived the relevant deadlines or agreed with Darktrace to
extend the relevant deadline.
2. Bidco shall be under no obligation to waive (if capable of
waiver), to determine to be or remain satisfied or to treat as fulfilled any
of the Conditions in Part A of Appendix 1 above that are capable of waiver
by a date earlier than the latest date for the fulfilment of that Condition
notwithstanding that the other Conditions of the Acquisition may at such
earlier date have been waived or fulfilled and that there are at such earlier
date no circumstances indicating that any of such Conditions may not be
capable of fulfilment.
3. Under Rule 13.5(a) of the Takeover Code and subject to
paragraph 4, Bidco may only invoke a Condition so as to cause the Acquisition
not to proceed, to lapse or to be withdrawn with the consent of the Panel. The
Panel will normally only give its consent if the circumstances which give rise
to the right to invoke the Condition are of material significance to Bidco in
the context of the Acquisition. This will be judged by reference to the facts
of each case at the time that the relevant circumstances arise.
4. Condition 1, Conditions 2.1(i), 2.2(i), 2.3(i) and 2.4 in
Part A of Appendix 1 above, and, if applicable, any acceptance condition if
the Acquisition is implemented by means of an Offer, are not subject to Rule
13.5(a) of the Takeover Code.
5. Any Condition that is subject to Rule 13.5(a) of the
Takeover Code may be waived by Bidco.
6. If the Panel requires Bidco to make an offer or offers for
Darktrace Shares under the provisions of Rule 9 of the Takeover Code, Bidco
may make such alterations to the Conditions as are necessary to comply with
the provisions of that Rule.
7. Bidco reserves the right to elect to implement the
Acquisition by way of an Offer as an alternative to the Scheme, subject to the
Panel's consent and (while the Cooperation Agreement is continuing) to the
terms of the Cooperation Agreement. In such event, such Offer will be
implemented on the same terms and conditions so far as is applicable, as those
which would apply to the Scheme (subject to appropriate amendments, including
(without limitation and for so long as the Cooperation Agreement is continuing
and the Offer arises as a result of an Agreed Switch (as defined therein)) an
acceptance condition set at not more than 75 per cent. of the Darktrace Shares
on a fully diluted basis (or such other percentage as Bidco and Darktrace may
agree in accordance with the terms of the Cooperation Agreement, and, to the
extent necessary with the consent of the Panel, being in any case more than 50
per cent. of the voting rights attaching to the Darktrace Shares)). If the
Acquisition is effected by way of an Offer, and such Offer becomes or is
declared unconditional and sufficient acceptances are received in respect of
such Offer, Bidco intends to exercise its rights to apply the provisions of
Chapter 3 of Part 28 of the 2006 Act so as to acquire compulsorily the
remaining Darktrace Shares in respect of which the Offer has not been
accepted.
8. The Acquisition will be subject, inter alia, to the
Conditions and certain further terms which are set out in this Appendix 1 and
to the full terms which will be set out in the Scheme Document and such
further terms as may be required to comply with the provisions of the Listing
Rules, the provisions of the Takeover Code and the applicable requirements of
the Panel and the London Stock Exchange.
9. Darktrace Shares will be acquired by Bidco fully paid and
free from all liens, charges, encumbrances and other third party rights of any
nature whatsoever and together with all rights attaching to them as at the
Effective Date, including the right to receive and retain all dividends and
distributions (if any) declared, made or paid after the Acquisition becomes
Effective.
10. If, on or after the date of this announcement and prior to the
Acquisition becoming Effective, any dividend and/or other distribution and/or
other return of capital or value is announced, declared, made or paid or
becomes payable in respect of the Darktrace Shares, Bidco reserves the right
to reduce the consideration payable under the terms of the Acquisition for the
Darktrace Shares by an amount up to the aggregate amount of such dividend
and/or distribution and/or other return of capital or value, in which case any
reference in this announcement to the consideration payable under the terms of
the Acquisition will be deemed to be a reference to the consideration as so
reduced. Any exercise by Bidco of its rights referred to in this paragraph
shall be the subject of an announcement and, for the avoidance of doubt, shall
not be regarded as constituting any revision or variation of the terms of the
Scheme or the Acquisition. In such circumstances, Darktrace Shareholders would
be entitled to retain any such dividend, distribution and/or other return of
capital or value.
11. The availability of the Acquisition to persons not resident in
the United Kingdom may be affected by the laws or regulatory requirements of
the relevant jurisdictions. Persons who are not resident in the United Kingdom
should inform themselves about and observe any applicable requirements.
12. The Scheme will be governed by English law and be subject to
the jurisdiction of the Court, to the Conditions set out above and full terms
to be set out in the Scheme Document. The Acquisition will be subject to the
applicable requirements of the Takeover Code, the Panel, the London Stock
Exchange, the FCA, the Listing Rules and the Registrar of Companies.
13. Each of the Conditions shall be regarded as a separate
Condition and shall not be limited by reference to any other Condition.
Appendix 2
Sources and Bases of Information
In this announcement, unless otherwise stated or the context otherwise
requires, the following sources and bases have been used.
1. The fully diluted issued ordinary share capital of
685,792,880 Darktrace Shares as at 25 April 2024 (being the last Business Day
before the date of this announcement) is based on:
1.1 703,683,540 Darktrace Shares in issue; plus
1.2 a maximum of 40,843,192 net Darktrace Shares which may be
issued on or after the date of this announcement pursuant to the Darktrace
Share Plans, adjusted for the relevant strike prices using the Treasury Stock
Method; less
1.3 55,409,966 Darktrace Shares held in the Darktrace Employee
Benefit Trust; less
1.4 3,323,886 Treasury Shares.
2. A value of approximately $5,315 million for the entire
issued and to be issued share capital of Darktrace is based on:
2.1 an offer price of $7.75 per Darktrace Share; and
2.2 Darktrace's fully diluted issued ordinary share capital of
685,792,880 Darktrace Shares, as set out in paragraph 1 above.
3. The implied enterprise value for Darktrace of approximately
$4,992 million is calculated by reference to the valuation of the Acquisition
referenced in paragraph 2 above, plus reported operating lease liabilities of
$60 million, less reported cash and cash equivalents of $383 million as at 31
December 2023.
4. Unless otherwise stated, the financial information of
Darktrace is extracted (without material adjustment) from the 2023 Darktrace
Annual Report, the audited accounts of the Darktrace Group for the 12 months
ended 30 June 2023 and the unaudited, consolidated financial statements of
Darktrace for the six months ended 31 December 2023.
5. Darktrace's Adjusted EBITDA for the twelve months ended 31
December 2023 being $146 million;
6. All prices and Closing Prices for Darktrace Shares are
based on closing middle market quotations derived from the Daily Official List
of the London Stock Exchange.
7. The volume-weighted average prices and total shareholder
returns have been derived from Bloomberg data and have been rounded to the
nearest whole number.
8. Exchange rates have been derived from Bloomberg and have
been rounded to the nearest four decimal places.
9. The exchange rate used for the conversion of GBP into USD
to calculate the value of the Acquisition cash consideration and value of the
Acquisition is 1.2494, the Announcement Exchange Rate, which is based on the
exchange rate as at 4.30 p.m. on 25 April 2024 (being the last Business Day
before the date of this announcement).
10. Certain figures included in this announcement have been
subject to rounding adjustments.
Appendix 3
Details of Irrevocable Undertakings
1. Darktrace Directors and Senior Employees
The following Darktrace Directors have given irrevocable undertakings to vote
(or, where applicable, procure the voting) in favour of the Scheme at the
Court Meeting and the Resolutions at the General Meeting (or in the event that
the Acquisition is implemented by way of an Offer, to accept, or procure the
acceptance of, the Offer) in respect of their own beneficial holdings (or
those Darktrace Shares over which they have control) of Darktrace Shares:
Name Total Number of Percentage of existing issued share capital Percentage of existing Darktrace Shares eligible to vote at Court Meeting
Darktrace Shares
Gordon Hurst (Chair) 697,368 0.10% 0.10%
Poppy Gustafsson OBE (CEO) 3,849,967 0.55% 0.55%
Catherine Graham (CFO) 1,438,654 0.21% 0.21%
Jack Stockdale (CTO) 4,307,250 0.62% 0.62%
Nicole Eagan (CSO) 11,187,486 1.60% 1.60%
Lord David Willetts (Senior Independent NED and Chair of Nomination Committee) 49,000 0.01% 0.01%
Sir Peter Bonfield CBE FREng (NED and Chair of Remuneration Committee) 49,000 0.01% 0.01%
Paul Harrison (NED and Chair of Audit & Risk Committee) 49,000 0.01% 0.01%
Total 21,627,725 3.1% 3.1%
These irrevocable undertakings also extend to any Darktrace Shares acquired by
the Darktrace Directors, whether as a result of the exercise of options or the
vesting of awards under the Darktrace Share Plans or otherwise.
The irrevocable undertakings referred to in this paragraph 1 cease to be
binding on the earlier of the following occurrences: (i) this announcement not
having been released by 10.00 a.m. (London time) on the date that is one
Business Day from the date of the undertaking (or such later date as Bidco and
Darktrace may agree); (ii) the Scheme Document is not sent to Darktrace
Shareholders within 28 days (or such later period as the Panel may agree)
after the date of this announcement; (iii) Bidco announces, with the consent
of the Panel, that it does not intend to make or proceed with the Acquisition
and no new, revised or replacement offer or scheme is announced in accordance
with Rule 2.7 of the Takeover Code at the same time; (iv) the Scheme lapses or
is withdrawn in accordance with its terms unless, by or prior to such time,
Bidco has elected to exercise its right to proceed by way of an Offer and
announced the same in accordance with the requirements of Paragraph 8 of
Appendix 7 to the Takeover Code, and such Offer has not lapsed or been
withdrawn; (v) the Scheme has not become Effective by 11.59 p.m. on the Long
Stop Date (or such later time and/or date as agreed between Bidco and
Darktrace, with the approval of the Court and/or the Panel, if required (other
than in circumstances where Bidco has, prior to such date, elected to exercise
its right to proceed by way of an Offer and announced the same in accordance
with the requirements of Paragraph 8 of Appendix 7 to the Takeover Code, and
such Offer has not lapsed or been withdrawn)); or (vi) the date on which any
competing offer for the entire issued, and to be issued, share capital of
Darktrace is declared wholly unconditional or, if proceeding by way of a
scheme of arrangement, becomes Effective.
2. Darktrace Shareholders
The following Darktrace Shareholders have given irrevocable undertakings to
vote (or, where applicable, procure the voting) in favour of the Scheme at the
Court Meeting and the Resolutions at the General Meeting (or in the event that
the Acquisition is implemented by way of an Offer, to accept, or procure the
acceptance of, the Offer) in respect of their own beneficial holdings (or
those Darktrace Shares over which they have control) of Darktrace Shares:
Name Total Number of Percentage of existing issued share capital Percentage of existing Darktrace Shares eligible to vote at Court Meeting
Darktrace Shares
KKR DA 51,250,881 7.3% 7.3%
Summit Partners 27,990,030 4.0% 4.0%
Total 79,240,911 11.3% 11.3%
These irrevocable undertakings also extend to any Darktrace Shares acquired by
such Darktrace Shareholders.
The irrevocable undertakings referred to in this paragraph 2 cease to be
binding on the earlier of the following occurrences: (i) this announcement not
having been released by 9.00 a.m. (London time) on the date of the
undertaking; (ii) in the event that the Acquisition proceeds by way of a
Scheme, (a) the Scheme Document not being posted to Darktrace Shareholders
within the permitted period under the Takeover Code or as otherwise agreed
with the Panel; or (b) the Scheme or any resolution to be proposed not being
approved by the requisite majority of the Darktrace Shareholders or Scheme
Shareholders at the General Meeting or the Court Meeting; (iii) in the event
the Acquisition proceeds by way of an Offer, the offer document not being
posted to Darktrace Shareholders within the permitted period under the
Takeover Code or as otherwise agreed with the Panel; (iv) the Scheme not
becoming effective by 6.00 p.m. on the Long Stop Date (or such later time or
date as agreed between Bidco and Darktrace, with the approval of the Court
and/or the Panel if required); (v) the Acquisition lapsing or being withdrawn
in accordance with its terms or Bidco publicly confirming that it does not
intend to proceed with the Acquisition or to implement the Acquisition by way
of an Offer or otherwise; or (vi) any competing offer for Darktrace becoming
unconditional as to acceptances (if made as a takeover offer) or becoming
effective (if made through a scheme of arrangement).
Appendix 4
Definitions
The following definitions apply throughout this document unless the context
otherwise requires:
"2006 Act" the Companies Act 2006, as amended from time to time
"2023 Darktrace Annual Report" the annual report and audited accounts of the Darktrace Group for the year
ended 30 June 2023
"Acquisition" the proposed acquisition by Bidco of the entire issued, and to be issued,
share capital of Darktrace by means of the Scheme, or should Bidco so elect
(subject to the Panel's consent and the terms of the Cooperation Agreement),
by means of an Offer
"Adjusted EBITDA" EBITDA pre-IFRS 16 adjustment and exceptional charges;
"Announcement Exchange Rate" the £:$ exchange rate of £1:$ 1.2494 as at 4.30 p.m. on 25 April 2024 (being
the last Business Day before the date of this announcement) as derived from
data provided by Bloomberg
"Articles" the articles of association of Darktrace from time to time
"associated undertaking" shall be construed in accordance with paragraph 19 of Schedule 6 to The Large
and Medium sized Companies and Groups (Accounts and Reports) Regulations 2008
(SI 2008/410) but for this purpose ignoring paragraph 19(1)(b) of Schedule 6
to those regulations
"Authorisations" authorisations, orders, grants, recognitions, confirmations, consents,
licences, clearances, certificates, permissions or approvals, in each case of
a Third Party
"Bidco" Luke Bidco Limited
"Bidco Group" Bidco and its subsidiary undertakings and where the context permits, each of
them
"Business Day" a day, not being a public holiday, Saturday or Sunday, on which clearing banks
in London are open for normal business
"certificated" or "certificated form" in relation to a share or other security, a share or other security title to
which is recorded in the relevant register of the share or other security as
being held in certificated form (that is, not in CREST)
"Closing Price" the closing middle market price of a Darktrace Share as derived from the Daily
Official List on any particular date
"Condition" each of the conditions listed in Part A of Appendix 1 and any reference to a
numbered Condition shall be a reference to the Condition set out in the
paragraph of Part A of Appendix 1 bearing such number
"Confidentiality Agreement" the confidentiality agreement dated 27 March 2024 between Thoma Bravo and
Darktrace
"Cooperation Agreement" the cooperation agreement dated on or around the date of this announcement
between Bidco and Darktrace
"Court" the High Court of Justice in England and Wales
"Court Meeting" the meeting of Scheme Shareholders to be convened at the direction of the
Court pursuant to Part 26 of the 2006 Act at which a resolution will be
proposed to approve the Scheme, including any adjournment thereof
"Court Order" the order of the Court sanctioning the Scheme under Part 26 of the 2006 Act
"CREST" the relevant system (as defined in the Regulations) in respect of which
Euroclear is the operator (as defined in CREST)
"Daily Official List" the daily official list of the London Stock Exchange
"Darktrace" Darktrace plc
"Darktrace Directors" the directors of Darktrace
"Darktrace Group" Darktrace and its subsidiary undertakings and where the context permits, each
of them
"Darktrace Share Plans" means each of (i) the Darktrace Holdings Limited Company Discretionary Share
Option Scheme 2013; (ii) the Darktrace Growth Share Arrangement; and (iii) the
Darktrace plc 2021 Award Incentive Plan
"Darktrace Share(s)" ordinary shares of £0.01 each in the capital of Darktrace
"Darktrace Shareholder(s)" holders of Darktrace Shares
"Dealing Disclosure" an announcement by a party to an offer or a person acting in concert as
required by Rule 8 of the Takeover Code
"Disclosed" the information fairly disclosed by or on behalf of Darktrace: (i) in the 2023
Darktrace Annual Report; (ii) in the half-year results for the six-months
period ended 31 December 2023; (iii) in this announcement; (iv) in any other
announcement to a Regulatory Information Service prior to the publication of
this announcement; (v) in writing (including via the virtual data room
operated by or on behalf of Darktrace in respect of the Acquisition) or orally
in meetings and calls by Darktrace management prior to the date of this
announcement to Bidco or Bidco's advisers (in their capacity as such)
"Disclosure Guidance and Transparency Rules" the Disclosure Guidance and Transparency Rules sourcebook issued by the FCA
"Effective" in the context of the Acquisition: (i) if the Acquisition is implemented by
way of the Scheme, the Scheme having become effective pursuant to its terms;
or (ii) if the Acquisition is implemented by way of the Offer, the Offer
having been declared or having become unconditional in all respects in
accordance with the requirements of the Takeover Code
"Effective Date" the date on which the Acquisition becomes Effective
"Euroclear" Euroclear UK & Ireland Limited
"Excluded Shares" (i) any Darktrace Shares legally or beneficially held by Bidco or any member
of the Wider Bidco Group; and (b) any Treasury Shares
"FCA" the Financial Conduct Authority or its successor from time to time
"FCA Handbook" the FCA's Handbook of rules and guidance as amended from time to time
"Form of Election" the form of election for use by Darktrace Shareholders electing to receive
their Acquisition cash consideration in Sterling
"General Meeting" the general meeting of Darktrace Shareholders to be convened to consider and
if thought fit pass, inter alia, the Resolutions in relation to the Scheme
including any adjournments thereof
"Goldman Sachs" together, Goldman Sachs International and Goldman Sachs & Co. LLC
"HSR Act" the United States Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations thereunder
"Interim Facilities Agreement" the interim facilities agreement dated on or around the date of this
announcement and made between, among others, Bidco as bidco, Leia Finco US LLC
as borrower and guarantor and Goldman Sachs Bank USA as interim facilities
agent and interim security agent, pursuant to which, inter alia, (i) an
interim first lien term facility in an aggregate amount principal amount of
$1,685,000,000 and (ii) an interim second lien term facility in an aggregate
principal amount of $460,000,000 were made available to, among others, Leia
Finco US LLC
"Jefferies" Jefferies International Limited
"KKR DA" KKR Dark Aggregator L.P.
"London Stock Exchange" the London Stock Exchange plc or its successor
"Long Stop Date" 27 January 2025 or such later date as may be agreed between Bidco and
Darktrace and, if required, the Panel and the Court may allow
"Meetings" the Court Meeting and the General Meeting
"Offer" subject to the consent of the Panel and the terms of the Cooperation
Agreement, should the Acquisition be implemented by way of a takeover offer as
defined in Chapter 3 of Part 28 of the 2006 Act, the offer to be made by or on
behalf of Bidco to acquire the entire issued, and to be issued, share capital
of Darktrace, and, where the context admits, any subsequent revision,
variation, extension or renewal of such offer
"Official List" the Official List of the FCA
"Opening Position Disclosure" an announcement pursuant to Rule 8 of the Takeover Code containing details of
interests or short positions in, or rights to subscribe for, any relevant
securities of a party to the Acquisition
"Overseas Shareholders" holders of Scheme Shares who are resident in, ordinarily resident in, or
citizens of, jurisdictions outside the United Kingdom
"Panel" the Panel on Takeovers and Mergers
"Panel Clean Team Agreement" the Panel clean team agreement entered into by Darktrace, Thoma Bravo and
their respective legal advisers on 12 April 2024
"PRA" the Prudential Regulation Authority or its successor from time to time
"Qatalyst Partners" Qatalyst Partners Limited
"Registrar of Companies" the Registrar of Companies in England and Wales
"Regulations" means the Uncertificated Securities Regulations 2001
"Regulatory Information Service" a regulatory information service as defined in the FCA Handbook
"relevant securities" as the context requires, Darktrace Shares, other Darktrace share capital and
any securities convertible into or exchangeable for, and rights to subscribe
for, any of the foregoing
"Resolutions" the resolution(s) to be proposed at the General Meeting necessary to implement
the Scheme, including, amongst other things, a special resolution proposed in
connection with, inter alia, implementation of the Scheme and certain
amendments to be made to the articles of association of Darktrace
"Restricted Jurisdiction" any jurisdiction where local laws or regulations may result in a significant
risk of civil, regulatory or criminal exposure if information concerning the
Acquisition (or Offer if applicable) is sent or made available to Darktrace
Shareholders in that jurisdiction
"Sanction Hearing" the Court hearing to sanction the Scheme
"Scheme" the proposed scheme of arrangement under Part 26 of the 2006 Act between
Darktrace and the holders of the Scheme Shares, with or subject to any
modification, addition or condition approved or imposed by the Court and
agreed by Darktrace and Bidco
"Scheme Document" the document to be sent to Darktrace Shareholders and persons with information
rights containing, amongst other things, the Scheme and notices of the
Meetings and proxy forms in respect of the Meetings
"Scheme Record Time" the time and date to be specified in the Scheme Document, expected to be 6.00
p.m. on the Business Day immediately prior to the Effective Date
"Scheme Shareholders" holders of Scheme Shares
"Scheme Shares" all Darktrace Shares:
(i) in issue at the date of the Scheme Document;
(ii) (if any) issued after the date of the Scheme Document but before
the Voting Record Time; and
(iii) (if any) issued at or after the Voting Record Time and before the
Scheme Record Time in respect of which the original or any subsequent holders
thereof are, or shall have agreed in writing to be, bound by the Scheme,
in each case, other than any Excluded Shares
"subsidiary", "subsidiary undertaking" and "undertaking" shall be construed in accordance with the 2006 Act
"Summit Partners" Summit DT Equity Holdings 3 LP and Summit DT CLN Holdings 4
"Takeover Code" the Takeover Code issued by the Panel on Takeovers and Mergers, as amended
from time to time
"Thoma Bravo" Thoma Bravo, L.P.
"Thoma Bravo Funds" investment funds managed and/or advised by Thoma Bravo and/or its affiliates
"Treasury Shares" any Darktrace Shares which are for the time being held by Darktrace as
treasury shares (within the meaning of the 2006 Act)
"UK" or "United Kingdom" the United Kingdom of Great Britain and Northern Ireland
"uncertificated" or "in uncertificated form" a share or other security title to which is recorded in the relevant register
of the share or security as being held in uncertificated form, in CREST, and
title to which, by virtue of the Regulations may be transferred by means of
CREST
"Voting Record Time" the time and date to be specified in the Scheme Document by reference to which
entitlement to vote on the Scheme will be determined
"Wider Bidco Group" the Bidco Group and associated undertakings and any other body corporate,
partnership, joint venture or person in which Bidco and such undertakings
(aggregating their interests) have an interest of more than 30 per cent. of
the voting or equity capital or the equivalent
"Wider Darktrace Group" Darktrace and associated undertakings and any other body corporate,
partnership, joint venture or person in which Darktrace and such undertakings
(aggregating their interests) have an interest of more than 30 per cent. of
the voting or equity capital or the equivalent (excluding, for the avoidance
of doubt, Thoma Bravo and all of its associated undertakings which are not
members of the Darktrace Group)
References to an enactment include references to that enactment as amended,
replaced, consolidated or re-enacted by or under any other enactment before or
after the date of this announcement.
All references to "pounds", "pounds Sterling", "Sterling", "GBP", "£",
"pence", "penny" and "p" are to the lawful currency of the United Kingdom.
All references to "dollars", "USD", "$", "US$", "cents" and "c" are to the
lawful currency of the United States.
All times referred to are London time unless otherwise stated.
A reference to "includes" shall mean "includes without limitation", and
references to "including" and any other similar term shall be construed
accordingly.
Words in the singular shall include the plural and vice versa.
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