Scheme of arrangement
23/05/2024 07:00
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RNS Number : 5638P Darktrace PLC 23 May 2024
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
23 MAY 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
On 26 April 2024, the boards of directors of Luke Bidco Limited ("Bidco") and
Darktrace plc ("Darktrace") announced that they had 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 Companies Act 2006.
Publication of the Scheme Document
Darktrace is pleased to announce that the scheme document containing the full
terms and conditions of the Acquisition (the "Scheme Document"), together
with the related Forms of Proxy, is being published and sent today to
Darktrace Shareholders and, for information only, to persons with information
rights and participants in the Darktrace Share Schemes.
The Scheme Document will be made available on Darktrace's website at
https://ir.darktrace.com/ (https://ir.darktrace.com/) . Copies of the Scheme
Document have been submitted to the National Storage Mechanism and will
shortly be available for inspection
at: https://data.fca.org.uk/#/nsm/nationalstoragemechanism
(https://data.fca.org.uk/#/nsm/nationalstoragemechanism) .
Terms defined in the Scheme Document have the same meanings in this
announcement.
Notices of the Court Meeting and General Meeting
As described in the Scheme Document, to become effective the Scheme will
require, amongst other things: (i) the approval of a majority in number of
Scheme Shareholders present and voting either in person or by proxy at the
Court Meeting (or any adjournment thereof), representing not less than 75 per
cent. in value of the Scheme Shares voted by such Scheme Shareholders; (ii)
the passing of the Special Resolution by the requisite majority of Darktrace
Shareholders at the General Meeting (or any adjournment thereof); and (iii)
the subsequent sanction of the Scheme by the Court. The Scheme is also subject
to the satisfaction or waiver of the other Conditions and further terms that
are set out in the Scheme Document.
Notices of the Court Meeting and the General Meeting, both of which will be
held at the offices of Latham & Watkins (London) LLP at 99 Bishopsgate,
London EC2M 3XF, United Kingdom, on 18 June 2024, are set out in the Scheme
Document. The Court Meeting will commence at 2.30 p.m. and the General Meeting
at 2.45 p.m. (or, if later, as soon as the Court Meeting has concluded or been
adjourned).
It is important that, for the Court Meeting in particular, as many votes as
possible are cast, so that the Court may be satisfied that there is a fair and
reasonable representation of the opinion of Scheme Shareholders. Scheme
Shareholders and Darktrace Shareholders are therefore strongly encouraged to
submit proxy appointments and instructions for the Court Meeting and the
General Meeting using any of the methods set out in the Scheme Document as
soon as possible and, in any event, by no later than 2.30 p.m. on 14 June 2024
in the case of the Court Meeting and by no later than 2.45 p.m. on 14 June
2024 in the case of the General Meeting (or, in the case of any adjournment,
not later than 48 hours (excluding non-working days) before the fixed time for
the holding of the adjourned meeting).
Recommendation
The Darktrace Board, which has been so advised by Jefferies and Qatalyst
Partners as to the financial terms of the Acquisition, considers the terms of
the Acquisition to be fair and reasonable. In providing its advice to the
Darktrace Board, Jefferies and Qatalyst Partners have taken into account the
commercial assessments of the Darktrace Board. Jefferies and Qatalyst Partners
are providing independent advice to the Darktrace Board for the purposes of
Rule 3 of the Takeover Code.
Accordingly, the Darktrace Board unanimously recommends that the Darktrace
Shareholders vote or procure votes in favour of the Scheme at the Court
Meeting and the Special Resolution to be proposed at the General Meeting, as
the Darktrace Directors who hold interests in Darktrace Shares (in a personal
capacity or through a nominee) have irrevocably undertaken to do in respect of
their own beneficial holdings (or those Darktrace Shares over which they have
control).
Darktrace Shareholders should read the Scheme Document in its entirety before
making a decision with respect to the Scheme.
Timetable
The Scheme Document contains an expected timetable of principal events
relating to the Scheme, which is also set out in Appendix 1 to this
announcement. The hearing of the Court to sanction the Scheme is currently
expected to be held in the third or fourth quarter of 2024, subject to the
prior satisfaction or waiver of the other Conditions set out in the Scheme
Document.
If any of the key dates set out in the timetable change, Darktrace will give
notice of this change by issuing an announcement through a Regulatory
Information Service and by making such announcement available on Darktrace's
website at https://ir.darktrace.com/ (https://ir.darktrace.com/) .
Shareholder helpline
If Darktrace Shareholders have any questions relating to this announcement,
the Scheme Document, the Court Meeting, the General Meeting or the completion
and return of the Forms of Proxy or the GREEN Form of Election, please call
the Shareholder Helpline operated by Equiniti between 8.30 a.m. and 5.30 p.m.
Monday to Friday (except public holidays in England & Wales) on +44 (0)
333 207 6394 (from outside the UK, international rates apply). Please note
that calls may be monitored or recorded and the Shareholder Helpline cannot
provide advice on the merits of the Acquisition or the Scheme or give any
financial, legal or tax advice. For deaf and speech impaired shareholders,
calls can be made via Relay UK. Please see www.relayuk.bt.com
(http://www.relayuk.bt.com) for more information.
Additional irrevocable undertaking
Bidco has received a further irrevocable undertaking dated 23 May 2024 from
Nicholas Trim to vote (or, where applicable, procure voting) in favour of the
Scheme at the Court Meeting and the Special Resolution to be proposed 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 2,146,460
Darktrace Shares (representing approximately 0.30 per cent. of the existing
issued ordinary share capital of Darktrace as at 22 May 2024, being the last
Business Day before the date of this announcement). This undertaking will
remain binding in the event that a higher competing offer for Darktrace is
made. Further details of this irrevocable undertaking are set out in Appendix
2 to this announcement.
Bidco has, therefore, received irrevocable undertakings in respect of a total
of 103,032,108 Darktrace Shares (representing approximately 14.71 per cent. of
the existing issued ordinary share capital of Darktrace as at 22 May 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 paragraph 6 of part VII
(Additional Information) of the Scheme Document.
Entry into Amended and Restated Financing Agreements
It is also announced that, among others, Bidco as bidco, Leia Finco US LLC as
borrower and guarantor, Goldman Sachs Bank US as interim facilities agent and
interim security agent, and the Acceding Finance Parties (as defined in the
A&R IFA) have entered into an amended and restated Interim Facilities
Agreement (the "A&R IFA"). In connection with the A&R IFA, some or all
of such parties have also entered into amended and restated versions of
financing documents relating thereto, including an amended and restated
commitment letter, an amended and restated commitment fee letter and an
amended and restated CP satisfaction letter (together with the A&R IFA,
the "A&R Finance Documents"). Other than the accession of the Acceding
Finance Parties, the A&R Finance Documents are on substantively the same
terms as the financing documents entered into on or around the same date as
the Announcement.
On 20 May 2024, Goldman Sachs Bank USA and Thoma Bravo Credit Fund III, L.P.
entered into a back-to-back commitment letter whereby Thoma Bravo Credit Fund
III, L.P. committed to purchase part of the financing commitment under the
A&R Finance Documents on the terms and conditions set out therein (the
"B2B Commitment Letter").
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.
A copy of the A&R Finance Documents and the B2B Commitment Letter will be
available on Darktrace's website at https://ir.darktrace.com
(https://ir.darktrace.com) .
Enquiries
Darktrace +44 (0)20 3805 4852
via Headland
Jefferies (Joint Financial Adviser and Corporate Broker to Darktrace) +44 (0)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
Berenberg (Corporate Broker and Connected Adviser to Darktrace) +44 (0)20 3207 7800
Ben Wright
Mark Whitmore
Miles Cox
Milo Bonser
Headland (PR Adviser to Darktrace)
Nigel Prideaux +44 (0)20 3805 4852
Henry Wallers +44 (0)20 3805 4839
Thoma Bravo via FGS Global
Megan Frank, Head of Communications and Marketing
Goldman Sachs (Financial Adviser to Thoma Bravo and Bidco) +44 (0)20 7774 1000
Mark Sorrell
Nicholas van den Arend
Chris Emmerson
Cara Pazdon
FGS Global (PR Adviser to Thoma Bravo and Bidco) +44 (0)207 251 3801
Faeth Birch
Sophie Scott
Alastair Elwen
Amanda Healy
Latham & Watkins (London) LLP is acting as legal adviser to Darktrace.
Kirkland & Ellis International LLP is acting as legal adviser to Bidco
and Thoma Bravo.
Important notices relating to financial advisers
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.
Joh. Berenberg, Gossler & Co. KG, London Branch ("Berenberg"), which is
authorised by the German Federal Financial Supervisory Authority and is
authorised and subject to limited regulation by the FCA in the United Kingdom,
is acting exclusively as a corporate broker and a connected adviser to
Darktrace and no one else in connection with the Acquisition and will not be
responsible to anyone other than Darktrace for providing the protections
afforded to clients of Berenberg nor for providing advice in relation to the
Acquisition or any other matters referred to in this announcement. Neither
Berenberg nor any of its affiliates owes or accepts any duty, liability or
responsibility to any person who is not a client of Berenberg in connection
with this announcement, any statement contained herein or otherwise.
Further information
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
A copy of this announcement 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 such website nor of any website
accessible from hyperlinks set out in this announcement is incorporated by
reference or forms part of this announcement.
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 Schemes
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 6394. 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.
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.
Appendix 1
Expected timetable of principal events
All times shown are London, United Kingdom times unless otherwise stated. All
dates and times are based on Darktrace's and Bidco's current expectations and
are subject to change. If any of the dates and/or times in this expected
timetable change, the revised dates and/or times will be notified to Darktrace
Shareholders by announcement through a Regulatory Information Service, with
such announcement being made available on Darktrace's website at
https://ir.darktrace.com/ (https://ir.darktrace.com/) .
Event Expected time/date
Publication of the Scheme Document 23 May 2024
Latest time for lodging Forms of Proxy for:
Court Meeting (BLUE form) 2.30 p.m. on 14 June 2024((1))
General Meeting (WHITE form) 2.45 p.m. on 14 June 2024((1))
Voting Record Time 6.30 p.m. on 14 June 2024((2))
Court Meeting 2.30 p.m. on 18 June 2024
General Meeting 2.45 p.m. on 18 June 2024((3))
The following dates are indicative only and subject to change; please see note
(4) below
Court Hearing As soon as reasonably practicable after the satisfaction or waiver of
Conditions 3(a) to 3(g)( set out in Part A of Part III(Conditions to and
further terms of the Acquisition and the Scheme) of the Scheme Document
("D")((4))
Last day of dealings in, and for registration of transfer of Darktrace Shares D + 1 Business Day ((4))
Last day for receipt of GREEN Form of Election or TTE Instruction for Currency 1.00 p.m. on D+1 Business Day ((4)(5))
Election / Election Return Time
Disablement of CREST in respect of Darktrace Shares 6.00 p.m. on D + 1 Business Day(()(4))
Scheme Record Time 6.00 p.m. on D + 1 Business Day((4))
Suspension of listing of and dealings in Darktrace Shares by 8.00 a.m. on D + 2 Business Days(()(4))
Effective Date of the Scheme D + 2 Business Days((4))
Cancellation of listing and admission to trading of Darktrace Shares by 8.00 a.m. on D + 3 Business Days((4))
Latest date for dispatch of cheques/settlement through CREST and processing 14 days after the Effective Date
electronic transfers for Consideration due under the Scheme
Long Stop Date 27 January 2025((6))
Notes:
(1) The BLUE Form of Proxy for the Court Meeting, if not
received by the time stated above (or, if the Court Meeting is adjourned, 48
hours (excluding non-working days) before the adjourned Court Meeting), may be
(i) handed to representatives of Equiniti or the Chair of the Court Meeting
before the start of that Meeting, or (ii) scanned and emailed to Equiniti and
received before the start of that meeting at the following email address:
proxyvotes@equiniti.com (mailto:proxyvotes@equiniti.com) , and will still be
valid. However, in order to be valid, the WHITE Form of Proxy for the General
Meeting must be received no later than 2.45 p.m. on 14 June 2024 (or, if the
General Meeting is adjourned, 48 hours (excluding non-working days) before
the time fixed for the adjourned Meeting). Please see "Action to be taken" on
pages 9 to 12 of the Scheme Document.
(2) If either the Court Meeting or the General Meeting is
adjourned, the Voting Record Time for the relevant adjourned Meeting will be
6.30 p.m. on the date which is two Business Days before the date set for such
adjourned Meeting.
(3) To commence at 2.45 p.m. or, as soon thereafter as the
Court Meeting shall have concluded or adjourned.
(4) These times and dates are indicative only and will
depend on, among other things, the dates upon which (i) the Conditions are
satisfied or (where applicable) waived, (ii) the Court sanctions the Scheme,
and (iii) the Court Order sanctioning the Scheme is delivered to the Registrar
of Companies. If the expected dates of the Court Hearing are changed,
Darktrace will give adequate notice of the changes by issuing an announcement
through a Regulatory Information Service (with such announcement being made
available on Darktrace's website at https://ir.darktrace.com/
(https://ir.darktrace.com/) ) and, if required by the Panel, send notice of
the change(s) to Darktrace Shareholders and, for information only, to
participants in the Darktrace Share Schemes and persons with information
rights. Further updates and changes to these times will be notified in the
same way.
(5) The latest time for Equiniti to receive your GREEN
Form of Election or for a TTE Instruction to be made is expected to be 1.00
p.m. on the Business Day immediately prior to the Effective Date (which is
currently expected to take place in the third or fourth quarter of 2024). You
should allow sufficient time for posting for your GREEN Form of Election or
TTE Instruction to be received.
(6) The latest date by which the Scheme must become
Effective, which may be extended by agreement between Darktrace and Bidco with
the prior consent of the Panel and (if required) the approval of the Court.
Appendix 2
Details of Irrevocable Undertakings
Bidco has received an irrevocable undertaking dated 23 May 2024 from Nicholas
Trim to vote (or, where applicable, procure voting) in favour of the Scheme at
the Court Meeting and the Special Resolution to be proposed 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 the following
number of Darktrace Shares that be beneficially owns or controls:
Name Percentage of existing issued share capital (excluding treasury shares) Number of
Darktrace Shares
Nicholas Trim 2,146,460 0.30%
This irrevocable undertakings also extend to any Darktrace Shares acquired by
Nicholas Trim, whether as a result of the exercise of options or the vesting
of awards under the Darktrace Share Schemes or otherwise.
The irrevocable undertaking referred to in this Appendix 2 ceases to be
binding on the earlier of the following occurrences: (i) 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 the announcement released by Bidco on
26 April 2024 pursuant to Rule 2.7 of the Takeover Code in relation to the
Acquisition; (ii) 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; (iii) 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; (iv) 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 (v) 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.
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