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| Share Name | Share Symbol | Market | Type | Share ISIN | Share Description |
|---|---|---|---|---|---|
| Xploite | LSE:XPT | London | Ordinary Share | GB00B037D647 | ORD 10P |
| Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
|---|---|---|---|---|---|---|---|---|---|---|
| 0.00 | 0.00% | 38.50 | 0.00 | 01:00:00 |
| Industry Sector | Turnover | Profit | EPS - Basic | PE Ratio | Market Cap |
|---|---|---|---|---|---|
| 0 | 0 | N/A | 0 |
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RNS Number : 4106I
Avisen PLC
11 March 2010
Not for release, publication or distribution, in whole or in part, in, directly
or indirectly, or into or from any jurisdiction where to do so would constitute
a violation of the relevant laws of such jurisdiction
FOR IMMEDIATE RELEASE
11 March 2010
Recommended proposal for the acquisition of Xploite plc ("Xploite") by Avisen
plc
("Avisen") to be implemented by means of a Scheme of Arrangement
SUMMARY
* The boards of Xploite and Avisen are pleased to announce that they have
reached agreement on terms under which the entire issued share capital of
Xploite will be acquired by Avisen in consideration for the issue of 3.6 New
Avisen Shares for each Scheme Share.
* The Proposal will be implemented by means of a Court-sanctioned Scheme of
Arrangement under Part 26 of the Act, which requires the approval of Scheme
Shareholders and the sanction of the Scheme and confirmation of the Reduction of
Capital by the Court and that, subject to the satisfaction or, where relevant,
waiver of all relevant Conditions, is expected to become Effective by 14 April
2010.
* The Proposal values each Scheme Share at 52.2 pence and values the entire
issued share capital of Xploite at approximately GBP11.38 million, based on the
closing price of 36.5 pence per Xploite share and 14.5 pence per Avisen share on
10 March 2010, the last Business Day prior to the date of this Announcement.
* The Proposal represents a premium of approximately:
(a) 43.01 per cent. to the Closing Price of 36.5 pence per Xploite Share on 10
March 2010, the last Business Day prior to this Announcement; and
(b) 43.80 per cent. to the average Closing Price of 36.3 pence per Xploite
Share over the three month period ended on and including 10 March 2010,
in each case based on a Closing Price for Avisen Shares of 14.5 pence on 10
March 2010.
* The Proposal, assuming exercise of all the Xploite EMI Options and the
surrender and cancellation of the balance of the Xploite Options held under the
Xploite Option Schemes, will result in the issue of approximately 82,814,227 New
Avisen Shares to Scheme Shareholders, representing approximately 36.87 per cent.
of the Enlarged Issued Share Capital following the Scheme becoming effective.
* The Enlarged Group will be led by a team comprising Marcus Hanke as Chief
Executive Officer, Ian Smith as Executive Chairman, Robert Arrowsmith as Chief
Financial Officer, Tony Weaver as Chief Operating Officer and Louis Peacock as
Executive Officer. The non-executive director will be Marcus Yeoman.
* The Xploite Board, who have been so advised by Brewin Dolphin, consider the
terms of the Proposal to be fair and reasonable and in the best interests of
Xploite and the Xploite Shareholders as a whole. In providing advice to the
Xploite Board, Brewin Dolphin has taken into account the commercial assessments
of the Xploite Board.
* The Xploite Directors intend to unanimously recommend that Xploite
Shareholders vote in favour of the Resolutions as they have irrevocably
undertaken to do so in respect of their entire beneficial holdings amounting, in
aggregate, to 4,425,617 Xploite Shares, representing approximately 20.31 per
cent. of the Xploite Shares in issue on 10 March 2010.
* An irrevocable undertaking to vote in favour of the Resolutions has also been
received from Herald Investment Management Limited in respect of 1,976,910
Xploite Shares, representing approximately 9.07 per cent. of the Xploite Shares
in issue on 10 March 2010.
* In addition, non-binding letters of intent to vote in favour of the
Resolutions have been received from certain Xploite Shareholders in respect of
2,318,193 Xploite Shares, representing approximately 10.64 per cent. of the
Xploite Shares in issue on 10 March 2010.
* In aggregate, therefore, irrevocable undertakings and non-binding letters of
intent to vote in favour of the Resolutions have been received in respect of
8,720,720 Xploite Shares, representing approximately 40.01 per cent. of the
Xploite Shares in issue on 10 March 2010.
* Avisen is a business and technology consultancy specialising in performance
management with a focus on strategy creation, development and implementation. It
provides advisory services and software distribution of solutions in the
corporate performance management market. Avisen aims to provide specialist
advice to enable organisations to build more effective capabilities in order to
manage the performance of their businesses and allow them to achieve their
desired targets. The solutions and advice provided by Avisen are used to assist
clients in a number of areas including (i) development and implementation of
improved business strategies, (ii) profitability management and cost reduction
services, and (iii) business or corporate performance management.
* The main operating business of Xploite is that of Storage Fusion, a SRA
software business which comprised part of the business of Itheon before it was
hived out into Storage Fusion. Storage Fusion owns a range of tools that are
focussed on storage analytics. These tools are offered using a Software as a
Service (SaaS) business model and sold to customers both through licensed
resellers and through a direct sales channel. The Storage Fusion marketing and
pricing strategy has recently been altered and the SRA software is now
distributed to customers using resellers, supported by certain direct sales
activity. Since altering its approach Storage Fusion has secured six of the
leading resellers in the market and has a visible pipeline of blue chip
organisations which are beginning to convert into sales, demonstrating the
viability of the SRA product.
Commenting on the Proposal, Marcus Hanke, Chief Executive Officer of Avisen,
said:
"Avisen believes that Xploite offers an excellent strategic fit and synergy
potential for Avisen in the Performance Management market. With this
transaction, Avisen, intends to strengthen its position in the business and
technology consultancy sector and with the expertise and proven track record of
the Proposed Directors, Avisen expects that its ability to identify future
opportunities will be enhanced. Avisen intends to utilise some of the cash
resources in Xploite to significantly extend and enhance Inca's customer support
offerings to its IBM client base. "
Commenting on the Proposal, Ian Smith, Chief Executive Officer of Xploite, said:
"We are delighted to have concluded the transaction with Avisen, which provides
the enlarged group with the perfect platform to execute a buy and build
strategy. We have a very strong and committed management team and we are
currently looking at a number of opportunities which we believe will further
enhance shareholder value."
In accordance with Rule 19.11 of the City Code, a copy of the following
Announcement will be published on Xploite's website at www.xploite.co.uk and
Avisen's website at www.avisenplc.com.
The Scheme Document containing further details of the Proposal (including
notices in respect of the Meetings) will be posted to Xploite Shareholders and,
for information only, to participants in the Xploite Option Schemes as soon as
practicable and, in any event, within 28 days of the Announcement unless
otherwise agreed with the Panel.
This summary should be read in conjunction with, and is subject to, the full
text of the attached Announcement. Appendix I to the Announcement contains the
Conditions to the Scheme and certain further terms of the Proposal. Appendix II
to the Announcement contains definitions of certain expressions used in this
Summary and in the Announcement. The Scheme will be subject to the full terms
and conditions set out in the Scheme Document.
Enquiries:
+-----------------------------------------+-------------------------+
| Avisen plc | 0870 880 2978 |
+-----------------------------------------+-------------------------+
| Marcus Hanke (Chief Executive Officer) | |
+-----------------------------------------+-------------------------+
| | |
+-----------------------------------------+-------------------------+
| Zeus Capital Limited (financial adviser | 0161 831 1512 |
| to Avisen) | |
+-----------------------------------------+-------------------------+
| Ross Andrews | |
+-----------------------------------------+-------------------------+
| Nick Cowles | |
+-----------------------------------------+-------------------------+
| | |
+-----------------------------------------+-------------------------+
| Bishopsgate Communications (PR adviser | 020 7562 3355 |
| to Avisen) | |
+-----------------------------------------+-------------------------+
| Robyn Samuelson | |
+-----------------------------------------+-------------------------+
| Siobhra Murphy | |
+-----------------------------------------+-------------------------+
| | |
+-----------------------------------------+-------------------------+
| Xploite plc | 0870 737 2001 |
+-----------------------------------------+-------------------------+
| Ian Smith (Chief Executive Officer) | |
+-----------------------------------------+-------------------------+
| Robert Arrowsmith (Chief Financial | |
| Officer) | |
+-----------------------------------------+-------------------------+
| | |
+-----------------------------------------+-------------------------+
| Brewin Dolphin Investment Banking | 0845 213 1000 |
| (financial adviser to Xploite) | |
+-----------------------------------------+-------------------------+
| Matt Davis | |
+-----------------------------------------+-------------------------+
| Neil McDonald | |
+-----------------------------------------+-------------------------+
| | |
+-----------------------------------------+-------------------------+
| Hansard Communications (PR adviser to | 020 7245 1100 |
| Xploite) | |
+-----------------------------------------+-------------------------+
| Justine James | |
+-----------------------------------------+-------------------------+
| Adam Reynolds | |
+-----------------------------------------+-------------------------+
The following Announcement does not constitute, or form part of, any offer to
sell or invitation to purchase any securities of the Company or the solicitation
of any vote for approval in any jurisdiction. Any acceptance or other response
to the Proposal should be made only on the basis of information referred to in
the Scheme Document which the Company intends to despatch to Shareholders as
soon as practicable and, in any event, within 28 days of the Announcement unless
otherwise agreed with the Panel.
Unless otherwise determined by Avisen and permitted by applicable law and
regulation, the Proposal will not be made, directly or indirectly, in, into or
from, or by use of the mails of, or by any means or instrumentality (including,
without limitation, facsimile transmission, telex, telephone or email) of
interstate or foreign commerce of, or by any facility of a national securities
exchange of, nor will it be made in, into or from any jurisdiction if to do so
would constitute a violation of the relevant laws of such jurisdiction and the
offer will not be capable of acceptance by any such use, means, instrumentality
or facilities. Accordingly, copies of any documents relating to the Proposal
must not be, directly or indirectly, mailed, transmitted or otherwise forwarded,
distributed or sent, in whole or in part, in, into or from any jurisdiction if
to do so would constitute a violation of the relevant laws of such jurisdiction
and persons receiving such documents (including custodians, nominees and
trustees) must not directly or indirectly mail, transmit or otherwise forward,
distribute or send them in, into or from any such jurisdiction as to do so may
invalidate any purported acceptance of the offer.
The availability of the Consideration Shares under the terms of the Scheme, if
made, to persons who are not resident in the United Kingdom may be affected by
the laws of the jurisdiction in which they are resident. Persons who are not
resident in the United Kingdom should inform themselves about, and observe,
applicable requirements.
Brewin Dolphin Investment Banking, a division of Brewin Dolphin Limited, which
is authorised and regulated by the Financial Services Authority in the United
Kingdom, is acting for Xploite and no one else in relation to the offer and will
not be responsible to anyone other than Xploite for providing the protections
afforded to clients of Brewin Dolphin Limited nor for providing advice in
relation to the contents of the Announcement or any offer or arrangement
referred to herein.
Zeus Capital Limited, which is authorised and regulated by the Financial
Services Authority in the United Kingdom, is acting for Avisen and no one else
in relation to the offer and will not be responsible to anyone other than Avisen
for providing the protections afforded to clients of Zeus Capital Limited nor
for providing advice in relation to the contents of the Announcement or any
offer or arrangement referred to herein.
The Xploite Directors (all of whose names will be set out in the Scheme
Document) accept responsibility for all information contained in the
Announcement, except for the information for which the Avisen Directors or the
Proposed Directors, together with Marcus Hanke, Marcus Yeoman and Louis Peacock,
in relation to Enlarged Group, as the case may be, take responsibility. To the
best of the knowledge and belief of the Xploite Directors (who have taken all
reasonable care to ensure that such is the case), the information contained in
the Announcement for which they are responsible is in accordance with the facts
and does not omit anything likely to affect the import of such information.
The Avisen Directors (all of whose names will be set out in the Scheme Document)
accept responsibility for all information contained in the Announcement insofar
as it relates to the Avisen Group, the Avisen Directors and their interests. To
the best of the knowledge and belief of the Avisen Directors (who have taken all
reasonable care to ensure that such is the case), the information contained in
the Announcement for which they are responsible is in accordance with the facts
and does not omit anything likely to affect the import of such information.
The Proposed Directors, together with Marcus Hanke, Marcus Yeoman and Louis
Peacock, accept responsibility for all information contained in the Announcement
insofar as it relates to the Enlarged Group. To the best of the knowledge and
belief of the Proposed Directors and each of Marcus Hanke, Marcus Yeoman and
Louis Peacock (who have taken all reasonable care to ensure that such is the
case), the information contained in the Announcement for which they are
responsible is in accordance with the facts and does not omit anything likely to
affect the import of such information.
The Xploite Directors accept responsibility for the recommendation of the
Scheme.
Forward looking statements
The following Announcement (including information incorporated by reference in
the Announcement) may contain "forward-looking statements" concerning the
Enlarged Group. The forward-looking statements contained herein include
statements about the expected effects of the Proposal, the expected timing and
scope of the Proposal and other statements other than in relation to historical
facts. Forward-looking statements including, without limitation, statements
typically containing words such as "intends", "anticipates" "targets",
"estimates", "believes", "should", "plans", "will", "expects" and similar
expressions or statements that are not historical facts are intended to identify
those expressions or statements as forward-looking statements. The statements
are based on the assumptions and assessments by the boards of Avisen and Xploite
and are naturally subject to uncertainty and changes in circumstances. By their
nature, forward-looking statements involve risk and uncertainty and the factors
described in the context of such forward-looking statements in this document
could cause actual results and developments to differ materially from those
expressed in or implied by such forward-looking statements. There are a number
of factors that could cause actual results or developments to differ materially
from those expressed or implied by such forward-looking statements. These
factors include, but are not limited to, the satisfaction or waiver of the
conditions to the Scheme, local and global political and economic conditions,
future revenues of Avisen and/or Xploite being lower than expected, expected
cost savings from the Proposal or other future transactions not being realised
fully or in line with expected timeframes, competitive pressures in the industry
increasing, foreign exchange rate fluctuations and interest rate fluctuations
(including those from any potential credit rating decline) and legal or
regulatory developments and changes. Given these risks and uncertainties,
investors should not place undue reliance on forward-looking statements.
Neither Xploite nor Avisen, 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 by any forward-looking
statements contained herein will actually occur. Other than in accordance with
their legal or regulatory obligations (including under the AIM Rules, the
Disclosure and Transparency Rules of the Financial Services Authority and the
City Code), neither Xploite nor Avisen is under any obligation and each of them
expressly disclaims any intention or obligation to update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise.
Dealing Disclosure Requirements
Under the provisions of Rule 8.3 of the Code, if any person is, or becomes,
"interested" (directly or indirectly) in one per cent. or more of any class of
"relevant securities" of Xploite or Avisen, all "dealings" in any "relevant
securities" of that company (including by means of an option in respect of, or a
derivative referenced to, any such "relevant securities") must be publicly
disclosed by no later than 3.30 p.m. (London time) on the Business Day following
the date of the relevant transaction. This requirement will continue until the
date on which the Scheme becomes Effective, (or, if implemented by way of an
offer, the offer becomes, or is declared, unconditional as to acceptances,
lapses) or otherwise lapses or is withdrawn or on which the "offer period"
otherwise ends. If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire an "interest" in "relevant
securities" of Xploite or Avisen, they will be deemed to be a single person for
the purpose of Rule 8.3.
Under the provisions of Rule 8.1 of the Code, all "dealings" in "relevant
securities" of Xploite or Avisen by Avisen or Xploite, or by any of their
respective "associates", must be disclosed by no later than 12.00 noon (London
time) on the Business Day following the date of the relevant transaction.
A disclosure table, giving details of the companies in whose "relevant
securities" "dealings" should be disclosed, and the number of such securities in
issue, can be found on the Takeover Panel's website at
www.thetakeoverpanel.org.uk.
"Interests in securities" arise, in summary, when a person has long economic
exposure, whether conditional or absolute, to changes in the price of
securities. In particular, a person will be treated as having an "interest" by
virtue of the ownership or control of securities, or by virtue of any option in
respect of, or derivative referenced to, securities.
Terms in quotation marks are defined in the Code, which can also be found on the
Panel's website. If you are in any doubt as to whether or not you are required
to disclose a "dealing" under Rule 8, you should consult the Panel.
In accordance with Rule 2.10 of the Code, Xploite confirms that it has
21,797,054 ordinary shares of 10 pence in issue as at the date of the
Announcement.
11 March 2010
Not for release, publication or distribution, in whole or in part, in, directly
or indirectly, or into or from any jurisdiction where to do so would constitute
a violation of the relevant laws of such jurisdiction
FOR IMMEDIATE RELEASE
11 March 2010
RECOMMENDED PROPOSAL FOR THE ACQUISITION OF
XPLOITE PLC
BY
AVISEN PLC
to be implemented by means of a Scheme of Arrangement
UNDER PART 26 OF THE COMPANIES ACT 2006
1. Introduction
The boards of Xploite and Avisen are pleased to announce that they have reached
agreement on terms under which the entire issued share capital of Xploite will
be acquired by Avisen in consideration for the issue of 3.6 New Avisen Shares
for each Scheme Share.
The Proposal will be implemented by means of a Court-sanctioned Scheme of
Arrangement under Part 26 of the Act, which requires the approval of Scheme
Shareholders and the sanction of the Scheme and confirmation of the Reduction of
Capital by the Court and that, subject to the satisfaction or, where relevant,
waiver of all relevant Conditions, is expected to become Effective by 14 April
2010.
The Scheme provides that, if it becomes effective, all of the Scheme Shares will
be cancelled under the Reduction of Capital and a like number of New Xploite
Shares will be issued, fully paid, to Avisen. The reserve arising from the
cancellation of the Scheme Shares will be used in paying up in full such New
Xploite Shares. In exchange, under the Proposal, all Scheme Shareholders will be
entitled to receive:
For each Scheme Share: 3.6 fully paid New Avisen Shares
Xploite will become a wholly-owned subsidiary of Avisen on the Effective Date.
The Proposal represents a premium of approximately:
(a) 43.01 per cent. to the Closing Price of 36.5 pence per Xploite Share on 10
March 2010, the last Business Day prior to this Announcement; and
(b) 43.80 per cent. to the average Closing Price of 36.3 pence per Xploite
Share over the three month period ended on and including 10 March 2010,
in each case based on a Closing Price for Avisen Shares of 14.5 pence on 10
March 2010.
The Proposal values the entire issued share capital of Xploite at approximately
GBP11.38 million.
Entitlements to New Avisen Shares will be rounded down to the nearest whole
number of Avisen Shares. Fractions of New Avisen Shares will not be allotted or
issued to Scheme Shareholders. Fractional entitlements of new Avisen Shares will
be aggregated and sold in the market and the net cash proceeds of the sale
distributed to the Scheme Shareholders entitled thereto.
Scheme becoming effective
It is expected that subject to the satisfaction (or, where applicable, waiver)
of the Conditions, including passing of the Avisen Resolutions, the Scheme Court
Hearing to sanction the Scheme will be held on 13 April 2010, the Reduction
Court Hearing to confirm the Reduction of Capital will be held on 13 April 2010
and that the Effective Date will be 14 April 2010. The Proposal is conditional
upon the Scheme becoming effective by no later than 14 July 2010, or such later
date as Xploite and Avisen may agree (with, where applicable, the consent of the
Panel and (if required) the approval of the Court), failing which it will lapse.
It is expected that the admission of the Xploite Shares to trading on AIM and
dealings in such shares will be suspended from 7.00 a.m. on 13 April 2010.
The Scheme requires the approval of a majority in number of the Scheme
Shareholders representing at least seventy-five per cent. in nominal value of
the Scheme Shares present and voting (either in person or by proxy) at the Court
Meeting (voting at which shall be conducted by way of a poll). In addition, the
Reduction of Capital will require the approval of Xploite Shareholders at the
General Meeting.
If the Scheme becomes effective, it will be binding on all Scheme Shareholders,
irrespective of whether or not they attended or voted at the Court Meeting or
the General Meeting.
Avisen intends to make an application to the LSE for admission to trading on AIM
of its New Avisen Shares as soon as possible and, in any event, not later than
15 April 2010.
Interests in the Enlarged Group
Following the Scheme becoming effective, existing Avisen Shareholders will hold
141,799,928 Avisen Shares representing approximately 64.38 per cent. of the
enlarged issued share capital of Avisen and existing Scheme Shareholders will
hold approximately 82,814,227 Avisen Shares representing approximately 36.87 per
cent. of the enlarged issued share capital of Avisen.
The New Avisen Shares shall rank pari passu with all other Avisen Shares in
issue on the date on which the New Avisen Shares are issued and shall have the
right to receive all dividends, distributions and other entitlements made or
paid on the Avisen Shares for which the record date occurs after such date.
Statistics
+------------------------------------------+------------------+
| Proposed number of New Xploite Shares to | 23,003,952 |
| be acquired by Avisen * | |
+------------------------------------------+------------------+
| | |
+------------------------------------------+------------------+
| Number of Avisen Shares in issue at the | 141,799,928 |
| date of this Announcement | |
+------------------------------------------+------------------+
| | |
+------------------------------------------+------------------+
| Number of Consideration Shares * | approximately |
| | 82,814,227 |
| | |
+------------------------------------------+------------------+
| | |
+------------------------------------------+------------------+
| Enlarged Issued Share Capital | approximately |
| | 224,614,155 |
| | |
+------------------------------------------+------------------+
| | |
+------------------------------------------+------------------+
| Consideration Shares as a percentage of | approximately |
| the Enlarged Issued Share Capital | 36.87 per cent |
+------------------------------------------+------------------+
| | |
+------------------------------------------+------------------+
| Market capitalisation of the Enlarged | GBP32,569,052 |
| Group immediately following Admission ** | |
+------------------------------------------+------------------+
| | |
+------------------------------------------+------------------+
| AIM trading symbol | AVI.L |
+------------------------------------------+------------------+
| | |
+------------------------------------------+------------------+
| ISIN | GB00B09LQS3 |
+------------------------------------------+------------------+
| | |
+------------------------------------------+------------------+
| * Based on 21,797,054 Xploite Shares in issue on 10 March |
| 2010 (being the latest practicable date prior to the |
| publication of this Announcement) and the number of New |
| Xploite Shares in issue following the exercise of the |
| Xploite EMI Options. The exact number of Consideration |
| Shares shall be determined on 13 April 2010, prior to the |
| Scheme Record Time. |
+-------------------------------------------------------------+
| |
+-------------------------------------------------------------+
| ** Based on the closing price of Avisen Shares of 14.5 |
| pence on 10 March 2010 (being the latest practicable date |
| prior to the publication of this Announcement) |
+------------------------------------------+------------------+
2. Background and Reasons for the Proposals
Avisen is a business and technology consultancy specialising in performance
management with a focus on strategy creation, development and implementation. It
provides advisory services and software distribution of solutions in the
corporate performance management market. Avisen aims to provide specialist
advice to enable organisations to build more effective capabilities to manage
the performance of their businesses and allow them to achieve their desired
targets.
Avisen was admitted to trading on AIM on 2 February 2009 following its reverse
takeover of Z Group plc. Since its admission, Avisen has pursued a "buy and
build" strategy in the Corporate Performance Management market and to date has
completed five acquisitions.
The Avisen management team has demonstrated its ability to rapidly absorb the
new businesses in order to achieve cost savings and to grow the recurring income
base of the Avisen Group through software and solution support.
Avisen now provides advisory services and software distribution to a growing
number of blue chip corporations. Examples include: Tesco, Kettle Foods and
Heineken.
The boards of Avisen and Xploite believe that Avisen's acquisition of Xploite
will allow the Enlarged Group to:
* establish a more experienced management team with a broader skill set through
the appointment of Ian Smith, Robert Arrowsmith and Tony Weaver to the Avisen
Board. This will further enhance the Enlarged Group's ability to identify future
opportunities to enhance shareholder value;
* utilise the cash resources of Xploite in order to accelerate the growth of the
Enlarged Group, both organically and by further acquisitions in the business and
technology sector; and
* optimise the Storage Fusion Business as part of Avisen's existing performance
management services.
3. Recommendation
The Xploite Board, who have been so advised by Brewin Dolphin, consider the
terms of the Proposal to be fair and reasonable and in the best interests of
Xploite and the Xploite Shareholders as a whole. In providing advice to the
Xploite Board, Brewin Dolphin has taken into account the commercial assessments
of the Xploite Board.
Accordingly, the Xploite Directors intend to unanimously recommend that the
Xploite Shareholders vote in favour of the Resolutions to be proposed at the
Meetings as they have irrevocably undertaken to do in relation to their entire
beneficial holdings amounting, in aggregate, to 4,425,617 Xploite Shares,
representing, in aggregate, approximately 20.31 per cent. of the Xploite Shares
in issue on 10 March 2010 (being the latest practicable date prior to the
publication of this Announcement).
4. Background and Reasons for the Recommendation
The Xploite Board has considered the terms of the Proposal and unanimously
recommends that Xploite Shareholders vote in favour of the Resolutions to be
proposed at the Meetings.
The Xploite Board advises that each Xploite Shareholder should consider
carefully the information set out below in making a decision as to whether to
approve the Proposal. This is not intended to be an exhaustive list of relevant
factors and Xploite Shareholders should consider their individual circumstances
carefully before deciding whether to vote in favour of the Resolutions to be
proposed at the Meetings.
Significant premium to current Xploite share price
The Proposal represents a premium of approximately:
* 43.01 per cent. to the Closing Price of 36.5 pence per Xploite Share on 10
March 2010, the last Business Day prior to this Announcement; and
* 43.80 per cent. to the average Closing Price of 36.3 pence per Xploite Share
over the three month period ended on and including 10March 2010,
in each case based on a Closing Price for Avisen Shares of 14.5 pence on 10
March 2010.
Continued exposure to 'Buy and Build' strategy under Xploite management team
As outlined below, the Company, under the leadership of the current executive
management team, headed by Ian Smith, our Chief Executive Officer, has
successfully executed a buy and build strategy and has been able to return a
total of GBP19.8 million in cash to shareholders since 2003.
Most recently, in October 2009, the Xploite Board proposed a tender offer to
allow the Xploite Shareholders at the time the opportunity to realise part of
their investment in Xploite by tendering their shares for sale and announced the
Company's intention to purchase up to 19 million shares (46.57 per cent. of the
then issued share capital) at 50 pence per share.
As stated in the tender offer circular, since the Company disposed of Anix in
June 2009, the Xploite Directors had not been able to identify suitable
acquisitions of scale which would allow the Company to continue to implement its
'buy and build' strategy, and it was therefore proposed that the Company's focus
shift to the sourcing of smaller acquisitions with a lesser requirement for
significant cash investment. Accordingly, it was decided that 'surplus' cash
totalling GBP9.5 million would be returned to shareholders through a tender
offer.
On 20 November 2009 it was announced that approximately 70 per cent. of the
Company's share capital had been tendered, representing a clear vindication of
the Xploite Board's decision to make the tender offer.
The Xploite Board believes that the structure of the Proposal allows existing
Xploite Shareholders to continue to participate in a buy and build strategy led
by an experienced board of directors which will include the current executive
management team of Xploite and, further, that the Company will benefit from the
ability to execute that strategy from a larger platform.
Positive impact on Storage Fusion
As outlined below, since the sale of Anix in June 2009, the main operating
business of the Company has been Storage Fusion.
The Xploite Board remains confident that the measures adopted to date to address
Storage Fusion's underperformance will have the effect of significantly
increasing the revenue and cash generation of the Storage Fusion Business over
time and it remains the Xploite Board's objective to ensure that the Storage
Fusion Business is cash positive on a month-to-month basis.
Nevertheless, the Xploite Directors believe that Storage Fusion would benefit
further from increased scale and cost efficiencies gained from being part of a
larger operator and one with a mutually beneficial client base such as Avisen.
The Xploite Board is confident that Avisen is a sound strategic fit for Storage
Fusion and will provide an appropriate platform on which to further develop its
revenue generating activities. The Xploite Directors believe that exposure to
Avisen's customer base will increase market awareness of the SRA software and,
in turn, increase customer volumes, supporting the continued growth of the
business and maintaining its recent improved levels of performance.
The Xploite Board has worked hard to position Storage Fusion to allow it to
exploit the market opportunities for its product and the Board remains confident
about the prospects for this business, particularly as part of the Enlarged
Group.
The Xploite Directors believe that the combination of Avisen and Storage Fusion
will deliver improved performance of the existing trading business whilst
maintaining a strategy to identify, acquire, consolidate and develop businesses
in the IT services sector.
5. Information on Xploite
Corporate History
Xploite floated on the AIM market of the London Stock Exchange in 2001, under
the name Offshore Telecom plc, as a provider of satellite communication for the
global leisure marine market. Having conducted a strategic review in April 2003,
the Xploite Board withdrew from the satellite communication market and focused
its attention on high performance IT network solutions.
Between 2003 and 2006, Xploite acquired nine businesses in the network
integration sector of the IT industry. These businesses were consolidated into
two operating divisions and in February 2006 and June 2006 Xploite disposed of
these two operating divisions realising a profit of GBP19.2 million. In November
2006 Xploite returned GBP10.3 million to Shareholders through a reduction of
share capital.
In February 2007, Xploite embarked on a new strategic development phase by
announcing its plans to acquire and consolidate in the managed services sector
of the IT industry. In the year ended 31 October 2007, Xploite acquired four
businesses pursuant to this strategy which were all rebranded as "Anix" and, in
December 2008, acquired Blue River Systems Limited which was fully integrated
with the existing Anix businesses by 30 April 2009.
In October 2007, Xploite purchased the software business, Itheon Ltd. Itheon was
acquired for its software development skills rather than monitoring software,
which then represented the majority of its activities. The monitoring software
business was sold in October 2008 whilst Xploite retained the SRA software
business, which is now operated by Storage Fusion.
Since February 2007 the Xploite Group has disposed of three businesses: in
September 2007, Fujin Technology Trading Limited; in October 2008, Itheon (less
the SRA software business); and, in June 2009, Anix for GBP31.5 million (less a
deduction for debt and working capital of c. GBP3 million).
When Xploite announced the disposal of Anix, it also announced that the Xploite
Group would continue to seek further ways to create shareholder value through
acquisitions in the Information Communications market.
Storage Fusion
Since the sale of Anix, the main operating business of Xploite is that of
Storage Fusion, a SRA software business which comprised part of the business of
Itheon before it was hived out into Storage Fusion.
Storage Fusion owns a range of tools that are focussed on storage analytics.
These tools are offered using a Software as a Service (SaaS) business model and
sold to customers both through licensed resellers and through a direct sales
channel.
In the most recent reported results, announced on 2 February 2010, your board
reported that Storage Fusion recorded a loss of GBP0.4 million for the twelve
months to 31 October 2009 with sales momentum being slower to develop than
originally envisaged, due in part to the software being sold on an enterprise
licence basis. In addition, the Xploite Directors believe that the recent
economic climate has hindered purchasing decisions at the large corporate
organisations targeted by Storage Fusion and that, as a result, the Storage
Fusion Business has not achieved the levels of profitability that the Xploite
Directors believe it has the potential to achieve.
The Storage Fusion marketing and pricing strategy has recently been altered to
address this and the SRA software is now distributed to customers using
resellers, supported by certain direct sales activity. Since altering its
approach Storage Fusion has secured six of the leading resellers in the market
and has a visible pipeline of opportunities with blue chip organisations which
are beginning to convert into sales, demonstrating the viability of the SRA
product.
The Xploite Board is confident that, as demonstrated by the series of contract
wins announced on 26 October 2009, early indications are positive and in line
with the revised business plan for the Storage Fusion Business.
Current Trading and Prospects
Xploite released its preliminary results for the 12 months ended 31 October 2009
on 2 February 2010. Xploite reported total turnover for the year of GBP27.8
million (2008: GBP48.0 million) and total profit for the year (after tax) of
GBP4.4 million (2008: GBP1.5 million) although it was highlighted that those
results should be reviewed in the context of significant change for the Xploite
Group both in the 2009 financial year (and in the months that followed) and the
reporting requirements for continuing and discontinued operations.
The Xploite Board is mindful that, further to the announcement by the Company on
16 March 2009, the dispute between VBHG Limited and Cantono is continuing. The
Xploite Board continues to believe that the unparticularised potential claims of
Cantono are opportunistic, speculative and lack merit and, were proceedings to
be issued, they would be vigorously defended.
Further details on the potential claim will be set out in paragraph 9.1.1 of
Part VI of the Scheme Document and are set out at paragraph 6 of this
Announcement under "Effect of the Proposal on Avisen".
6. Information on Avisen
Avisen is a business and technology consultancy specialising in Performance
Management with a focus on strategy creation, development and implementation. It
provides advisory services and software distribution of solutions in the
corporate Performance Management market.
Avisen aims to provide specialist advice to enable organisations to build more
effective capabilities in order to manage the performance of their businesses
and allow them to achieve their desired targets. The solutions and advice
provided by Avisen are used to assist clients in a number of areas including:
* Development and implementation of improved business strategies;
* Profitability management and cost reduction services; and
* Business or corporate performance management.
Through its expertise, Avisen's objective is to deliver the following 'hard' and
'soft' benefits to its clients:
+------------------------------+------------------------------+
| 'Hard' Benefits | 'Soft' benefits |
+------------------------------+------------------------------+
| | |
+------------------------------+------------------------------+
| * Improved and more | * Higher levels of customer |
| effective process | satisfaction management |
| * Resource optimisation | * Goal-focused processes |
| * Timely access to data and | * Operational efficiencies |
| insight | and higher employee |
| * Reduced time/costs to plan | satisfaction |
| and report | * Demonstrable regulatory |
| * Reduced time/costs to | compliance performance |
| inform | * Alignment between all |
| | levels of the |
| | internal/external |
| | stakeholders of business |
| | organisation in relation to |
| | company performance purpose, |
| | values and goals |
+------------------------------+------------------------------+
Avisen Group's Existing Operations
Avisen Group's current operations are divided under the following brands,
"Avisen" and "Inca".
"Avisen"
The Avisen brand is the Avisen Group's advisory services and traditional
consulting brand, which is served by two trading entities in the UK and the
Netherlands. Client work undertaken by these entities is positioned as
"technology independent" (i.e. not reliant on software applications) and the
team utilised for these types of engagement have broad skills across business
disciplines ranging from strategic planning, operational planning, Balanced
Scorecard and operational excellence change programmes alongside an awareness of
multiple technology platforms.
Avisen's primary offering is a framework methodology called 'Keeping Strategy
Alive'. It is underpinned by a process called PlanPoint and, in the future, it
is intended that it will be served by a proprietary software solution called
StrategyGPSTM. It is intended that StrategyGPSTM will be rolled out to clients
during 2010 and will be focused on providing them with a greater strategic
insight into their own businesses.
The basic principles behind PlanPoint and Strategy GPSTM can be summarised as
follows:
* PlanPoint - this is Avisen's methodology to manage the strategic planning
process.
* StrategyGPSTM - this is Avisen's proprietary software which is intended to
enable clients to effectively and constantly measure their performance against
predetermined goals or actions. The software will utilise the Planpoint
methodology to manage the planning cycle.
"Inca"
Avisen announced the acquisition of Inca Holdings Limited ("Inca") on 17 July
2009. Inca is the largest EMEA IBM Cognos partner, providing customers with the
full suite of IBM Cognos products.
IBM Cognos solutions are made up of 'planning and consolidation' to plan and
drive performance and BI to analyse, create reports and understand the 'why'
behind performance. When integrated within an organisation, all three components
deliver Corporate Performance Management, enabling senior level executives to
manage and monitor an organisation's performance.
Inca's professional services division has implemented IBM Cognos solutions for
over 400 companies across a range of industry sectors, many of which are
supported by Inca's application support centre.
The trading businesses of Eon Enterprises Limited, Inca Holdings Limited and
Quadrum Consulting Limited (all of which have been acquired by Avisen following
its admission to AIM and described in more detail in Part III of the Scheme
Document) have now been consolidated under the "Inca" brand.
In addition, Solution Minds (UK) Limited, which was acquired by Avisen prior to
its admission to AIM has also been consolidated under the "Inca" brand.
The consolidation of these businesses has strengthened the Avisen Group's
customer base and resulted in significantly improved recurring revenue streams.
Effect of the Proposal on Avisen
Following the Scheme becoming effective, Xploite will become a wholly owned
subsidiary of Avisen. Existing Avisen Shareholders will hold 141,799,928 Avisen
Shares, representing approximately 63.13 per cent. of the Enlarged Issued Share
Capital of Avisen.
As at the date of this Announcement, Xploite has cash resources of approximately
GBP3 million and is due to receive up to GBP3.65 million in cash by September
2010 by way of deferred consideration. As will be summarised in the Scheme
Document, certain members of the Xploite Group or former members of the Xploite
Group have entered into agreements under which the relevant company has
provided, and Xploite has guaranteed, certain warranties, representations,
indemnities and undertakings. Any successful claims (including the potential
claim referred to below and in paragraph 9.1.1 of Part VI of the Scheme
Document) made under the terms of these agreements could significantly impact on
the existing cash resources of the Enlarged Group and on the timing and amount
of any deferred consideration (or amounts held in escrow) to be paid to Xploite
or its subsidiaries.
In particular, on 19 February 2010, Xploite received details of potential claims
amounting to GBP4,538,000 in relation to a dispute between VBHG Limited and
Cantono. The Xploite Board continues to believe that the unparticularised
potential claims of Cantono are opportunistic, speculative and lack merit and,
were proceedings to be issued, they would be vigorously defended.
The Enlarged Group will utilise the cash resources of Xploite to accelerate
growth, both organically and by further acquisitions in the business and
technology sector.
The Enlarged Group will also look to optimise the Storage Fusion Business as
part of Avisen's existing Performance Management services.
Current Trading and Prospects
Following a period of significant growth both organically and through
acquisition, Avisen now provides advisory services and software distribution to
a growing number of blue chip corporations in the performance management market.
Avisen released its unaudited half yearly results for the six months ended 31
July 2009 on 30 October 2009.
Avisen reported turnover of GBP2.23 million and pre tax profit of GBP91,641. It
was highlighted that due to the number and size of acquisitions completed since
Avisen's admission to AIM on 2 February 2009 (through the reverse takeover of Z
Group plc) that the Avisen board anticipated that the Avisen Group's revenues
would improve significantly in the six months to 31 January 2010. Avisen now has
over 400 clients in software support with an order book of over GBP1.5 million
of higher margin recurring software support renewals.
As anticipated, the Avisen Group experienced improved revenue growth in the
second half of the financial year and trading for the year ended 31 January 2010
was satisfactory. The results for the period to 31 January 2010 will be released
following the Effective Date and no later than 31 July 2010.
7. Strategy of the Enlarged Group
The Proposed Directors, Marcus Hanke, Marcus Yeoman and Louis Peacock intend to
create shareholder value both through further acquisitions and organic growth.
The Proposed Directors and Marcus Hanke, Marcus Yeoman and Louis Peacock will be
focused on acquiring additional businesses that either extend the customer base
of Avisen's current offering or provide complementary services and support that
can be delivered to the current client base or sold through its sales channels.
The Enlarged Group's strategy will be to:
* continue to increase market share in the CPM market through an increased
service offering to a growing number of large corporate customers;
* optimise the Storage Fusion Business as part of Avisen's existing Performance
Management services; and
* utilise the cash resources of Xploite in order to accelerate the growth of the
Enlarged Group both organically and by further acquisitions in the business and
technology sector.
In the opinion of the Proposed Directors and Marcus Hanke, Marcus Yeoman and
Louis Peacock, having made due and careful enquiries, the working capital
available to the Enlarged Group will be sufficient for its present requirements
that is, for at least the twelve months following the Effective Date.
8. Directors, management, employees and location of the Enlarged
Group
The Enlarged Group will be led by a team comprising Marcus Hanke as Chief
Executive Officer, Ian Smith as Executive Chairman, Robert Arrowsmith as Chief
Financial Officer, Tony Weaver as Chief Operating Officer and Louis Peacock as
Executive Officer. The non-executive director will be Marcus Yeoman.
Following the Scheme becoming effective, Keith Jones will step down from the
Avisen Board. In addition, Jonathan Claydon will resign as a non-executive
chairman of Avisen. John Standen and Richard Ramsay will resign as directors of
Xploite immediately following the Scheme becoming effective.
Pending any agreement to the contrary, and subject to the approval of Avisen's
remuneration committee, the current terms of service of Ian Smith, Tony Weaver
and Robert Arrowsmith will continue to apply.
Avisen intends to safeguard fully the existing employment rights of employees of
both the Xploite Group and the Avisen Group.
The Enlarged Group will be headquartered in London.
9. The effect of the Scheme on the Xploite Option Schemes
The Scheme will extend to any Xploite Shares which are unconditionally allotted,
issued and fully paid prior to the Scheme Record Time to satisfy the exercise of
options and vesting of awards under the Xploite Option Schemes, but the Scheme
will not extend to any Xploite Shares allotted or issued at any time on or after
the Scheme Record Time. By virtue of the new article (details of which are set
out in the notice of General Meeting) which is proposed to be inserted into
Xploite's Articles, Xploite Shares issued after the Scheme Record Time, if any,
will be automatically transferred to Avisen and/or its nominee(s) in return for
the same consideration as Scheme Shareholders are entitled to receive under the
Scheme.
Certain Xploite Directors, namely Ian Smith, Robert Arrowsmith and Tony Weaver,
together with one other participant, an ex-employee of Xploite who retains
options which remain exercisable, are the only holders of Xploite Options. In
accordance with the rules of the Xploite Option Schemes, outstanding options
will become exercisable during the six month period from the date on which the
Scheme takes effect and will then lapse. The holders of Xploite Options have
indicated to Xploite that they intend to exercise their Xploite EMI Options
prior to and conditional upon the grant of the Scheme Court Order. The Scheme
will extend to Xploite Shares allotted pursuant to the exercise of Xploite
Options prior to the Scheme Record Time. In addition, these same holders of
Xploite Options have agreed with Xploite that they will surrender and agree to
the cancellation of all their rights in the balance of their Xploite Options
over 2,250,000 Xploite Shares, representing all the options granted under the
Xploite Unapproved Share Option Scheme, for nil consideration, conditional upon
the delivery of the Scheme Court Order to the Registrar of Companies for England
and Wales, and that accordingly the balance of the Xploite Options will lapse
with effect from the Effective Date of the Scheme.
No further grants will be made to Xploite employees or other participants under
the Xploite Option Schemes before the Scheme Court Hearing, nor thereafter,
provided the Scheme becomes effective in accordance with its terms.
The holders of the Xploite Options have undertaken to Avisen that they shall not
exercise any Xploite Options which they hold under the Xploite Unapproved Share
Option Scheme at any time from the date of this Announcement.
In light of the above, Avisen does not intend to make any proposals to the
holders of Xploite Options pursuant to Rule 15 of the City Code.
Save as set out above, the effect of the Scheme on the interests of the Xploite
Directors does not differ from its effect on the interests of any other Xploite
Shareholder.
10. Irrevocable Undertakings and letters of Intent
Avisen has received irrevocable undertakings from each of the Xploite Directors
to vote or procure the vote in favour of the Resolutions in respect of their
entire beneficial holdings of Xploite Shares amounting, in aggregate, to
4,425,167 Xploite Shares (representing approximately 20.31 per cent. of the
existing issued share capital of Xploite).
Avisen has also received an irrevocable undertaking from Herald Investment
Management Limited to vote or procure the vote in favour of the Resolutions in
respect of its entire beneficial holding of Xploite Shares amounting to
1,976,910 Xploite Shares (representing approximately 9.07 per cent. of the
existing issued share capital of Xploite);
In addition, Avisen has received non-binding letters of intent to vote in favour
of the Resolutions from:
· Cazenove Capital Management Limited in respect of its entire beneficial
holding of Xploite Shares amounting to 868,193 Xploite Shares (representing
approximately 3.98 per cent. of the existing issued share capital of Xploite)
and ;
· Paul Bailey in respect of his entire beneficial holding of Xploite
Shares amounting to 1,450,000 Xploite Shares (representing approximately 6.65
per cent. of the existing issued share capital of Xploite).
In aggregate, Avisen has received irrevocable undertakings to vote in favour of
the Resolutions in respect of8,720,720 Xploite Shares, representing
approximately 40.01 per cent. of the existing issued share capital of Xploite.
Irrevocable undertakings to vote in favour of the Avisen Resolutions at the
Avisen General Meeting have been secured from the holders of 67,669,457 Avisen
Shares (including all members of the Avisen Board) representing approximately
47.72 per cent. of the Avisen Shares in issue at the date of this Announcement.
11. Inducement Fee
Xploite entered into a Non-Solicitation Agreement with Avisen on 18 January 2010
under which Xploite has agreed, in certain circumstances, to pay to Avisen an
Inducement Fee of approximately GBP115,000 being an amount equal to 1 per cent.
of the aggregate value of the issued share capital of Xploite at this offer
price per Xploite Share at the time of the Announcement.
Pursuant to the terms of the Non-Solicitation Agreement, Xploite unconditionally
and irrevocably undertook with Avisen (on behalf of itself and as trustee for
its associates (as such term is defined in the Code)) that it shall not solicit,
initiate, encourage, negotiate or otherwise seek to procure and that it shall
use reasonable endeavours to procure that none of its directors or professional
advisers or agents or employees shall solicit, initiate, encourage, negotiate or
otherwise seek to procure any discussions or negotiations with any third party
in contemplation of an Independent Competing Offer for a period commencing on 18
January 2010 and expiring at midnight on 31 March 2010.
In the event that Xploite does receive an Independent Competing Offer during the
period to 31 March 2010, Xploite has undertaken to Avisen that it shall:
* not recommend any such Independent Competing Offer for a period of three
business days from the date the Independent Competing Offer is made to enable
Avisen to match the value of any such offer or revise its Proposal; and
* in the event Xploite does make a revised proposal at a price per Xploite Share
equal to or greater than the Independent Competing Offer or makes a revised
proposal which would in the reasonable opinion of Brewin Dolphin, provides equal
or superior financial value to Xploite Shareholders give a unanimous and
unqualified recommendation of such revised Proposal provided Avisen announces
its revised proposal within seven business days from the date of the Independent
Competing Offer.
In addition, Xploite unconditionally and irrevocably undertook with Avisen not
to directly or indirectly offer or agree or enter into any work fee, inducement
or break fee or other similar arrangement with any party other than Avisen until
after 31 March 2010.
The Inducement Fee shall be payable by Xploite if it breaches any of the above
provisions.
12. Conditions
The Conditions to the Proposal are set out in full in Appendix I to this
Announcement. The implementation of the Scheme is conditional, inter alia, upon:
* the approvals of the Xploite Shareholders and Scheme Shareholders;
* the sanction and confirmation of the Court;
* the Scheme becoming effective by no later than 14 July 2010 or such later date
as Xploite and Avisen may agree with (where applicable) the consent of the Panel
and the approval of the Court, failing which the Scheme will lapse;
* approval by the Avisen Shareholders of the Avisen Resolutions; and
* admission of the New Avisen Shares to trading on AIM.
13. Meetings
The Scheme and the Proposal are subject to the satisfaction (or, where
applicable, waiver) of the Conditions set out in the Scheme Document. In
addition, the implementation of the Scheme will require approval by a special
resolution of Xploite Shareholders to be proposed at the General Meeting. In
order to become effective, the Scheme must be approved by Scheme Shareholders at
the Court Meeting (at which voting will be conducted by way of a poll). The
approval required at the Court Meeting is a majority in number of those Scheme
Shareholders present and voting, whether in person or by proxy, representing not
less than 75 per cent. in value of the Scheme Shares held by such Scheme
Shareholders.
14. Overseas Shareholders
The provisions of the Scheme shall be subject to any prohibition or condition
imposed by law. If, in respect of any holder of Scheme Shares with a registered
address in a jurisdiction outside the United Kingdom, Avisen is advised that the
allotment and/or issue of New Avisen Shares pursuant to the terms of the Scheme
would infringe any laws of such jurisdiction or would require Avisen to observe
any governmental or other consent or any registration, filing or other
formality, Avisen may determine that no New Avisen Shares shall be allotted
and/or issued to such holder but shall instead be allotted and issued to a
nominee appointed by Avisen as trustee for such holder, on terms that the
nominee shall, as soon as practicable following the Effective Date, sell the New
Avisen Shares so allotted and issued at the best price which can reasonably be
obtained and shall account for the net proceeds of such sale (after deduction of
all related expenses and commissions) to the holder of such Xploite Shares.
15. General
The Scheme Document setting out the full details of the Proposal will be sent to
Xploite Shareholders and persons with information rights as soon as and, in any
event (save with the consent of the Panel), within 28 days of the date of this
Announcement.
In accordance with Rule 2.10 of the Code, the current issued share capital of
Xploite comprises 21,797,054 ordinary shares of 10 pence each (ISIN number
GB00B037D647).
The current issued share capital of Avisen comprises 141,799,928 ordinary shares
of 5 pence each (ISIN number GB00B09LQS34).
In accordance with Rule 19.11 of the City Code, a copy of this Announcement will
be published on Xploite's website at www.xploite.co.uk and Avisen's website at
www.avisenplc.com.
This Announcement does not constitute an offer or an invitation to purchase any
securities.
Appendix I to this Announcement contains the Conditions to the implementation of
the Scheme and the further terms of the Proposal.
Appendix II to this Announcement contains definitions of certain expressions
used herein.
Enquiries:
+-----------------------------------------+-------------------------+
| Avisen plc | 0870 880 2978 |
+-----------------------------------------+-------------------------+
| Marcus Hanke (Chief Executive Officer) | |
+-----------------------------------------+-------------------------+
| | |
+-----------------------------------------+-------------------------+
| | |
+-----------------------------------------+-------------------------+
| Zeus Capital Limited (financial adviser | 0161 831 1512 |
| to Avisen) | |
+-----------------------------------------+-------------------------+
| Ross Andrews | |
+-----------------------------------------+-------------------------+
| Nick Cowles | |
+-----------------------------------------+-------------------------+
| | |
+-----------------------------------------+-------------------------+
| Bishopsgate Communications (PR adviser | 020 7562 3355 |
| to Avisen) | |
+-----------------------------------------+-------------------------+
| Robyn Samuelson | |
+-----------------------------------------+-------------------------+
| Siobhra Murphy | |
+-----------------------------------------+-------------------------+
| | |
+-----------------------------------------+-------------------------+
| Xploite plc | 0870 737 2001 |
+-----------------------------------------+-------------------------+
| Ian Smith (Chief Executive Officer) | |
+-----------------------------------------+-------------------------+
| Robert Arrowsmith (Chief Financial | |
| Officer) | |
+-----------------------------------------+-------------------------+
| | |
+-----------------------------------------+-------------------------+
| Brewin Dolphin Investment Banking | 0845 213 1000 |
| (financial adviser to Xploite) | |
+-----------------------------------------+-------------------------+
| Matt Davis | |
+-----------------------------------------+-------------------------+
| Neil McDonald | |
+-----------------------------------------+-------------------------+
| | |
+-----------------------------------------+-------------------------+
| Hansard Communications (PR adviser to | 020 7245 1100 |
| Xploite) | |
+-----------------------------------------+-------------------------+
| Justine James | |
+-----------------------------------------+-------------------------+
| Adam Reynolds | |
+-----------------------------------------+-------------------------+
This Announcement does not constitute, or form part of, any offer to sell or
invitation to purchase any securities of the Company or the solicitation of any
vote for approval in any jurisdiction. Any acceptance or other response to the
offer should be made only on the basis of information referred to in the Scheme
Document which the Company intends to despatch to Shareholders as soon as
practicable and, in any event, within 28 days of this Announcement unless
otherwise agreed with the Panel.
Unless otherwise determined by Avisen and permitted by applicable law and
regulation, the Proposal will not be made, directly or indirectly, in, into or
from, or by use of the mails of, or by any means or instrumentality (including,
without limitation, facsimile transmission, telex, telephone or email) of
interstate or foreign commerce of, or by any facility of a national securities
exchange of, nor will it be made in, into or from any jurisdiction if to do so
would constitute a violation of the relevant laws of such jurisdiction and the
offer will not be capable of acceptance by any such use, means, instrumentality
or facilities. Accordingly, copies of any documents relating to the Proposal
must not be, directly or indirectly, mailed, transmitted or otherwise forwarded,
distributed or sent, in whole or in part, in, into or from any jurisdiction if
to do so would constitute a violation of the relevant laws of such jurisdiction
and persons receiving such documents (including custodians, nominees and
trustees) must not directly or indirectly mail, transmit or otherwise forward,
distribute or send them in, into or from any such jurisdiction as to do so may
invalidate any purported acceptance of the offer.
The availability of the Consideration Shares under the terms of the Scheme, if
made, to persons who are not resident in the United Kingdom may be affected by
the laws of the jurisdiction in which they are resident. Persons who are not
resident in the United Kingdom should inform themselves about, and observe,
applicable requirements.
Brewin Dolphin Investment Banking, a division of Brewin Dolphin Limited, which
is authorised and regulated by the Financial Services Authority in the United
Kingdom, is acting for Xploite and no one else in relation to the offer and will
not be responsible to anyone other than Xploite for providing the protections
afforded to clients of Brewin Dolphin Limited nor for providing advice in
relation to the contents of this Announcement or any offer or arrangement
referred to herein.
Zeus Capital Limited, which is authorised and regulated by the Financial
Services Authority in the United Kingdom, is acting for Avisen and no one else
in relation to the offer and will not be responsible to anyone other than Avisen
for providing the protections afforded to clients of Zeus Capital Limited nor
for providing advice in relation to the contents of this Announcement or any
offer or arrangement referred to herein.
The Xploite Directors (all of whose names will be set out in the Scheme
Document) accept responsibility for all information contained in this
Announcement, except for the information for which the Avisen Directors or the
Proposed Directors, together with Marcus Hanke, Marcus Yeoman and Louis Peacock,
in relation to Enlarged Group, as the case may be, take responsibility. To the
best of the knowledge and belief of the Xploite Directors (who have taken all
reasonable care to ensure that such is the case), the information contained in
this Announcement for which they are responsible is in accordance with the facts
and does not omit anything likely to affect the import of such information.
The Avisen Directors (all of whose names will be set out in the Scheme Document)
accept responsibility for all information contained in this Announcement insofar
as it relates to the Avisen Group, the Avisen Directors and their interests. To
the best of the knowledge and belief of the Avisen Directors (who have taken all
reasonable care to ensure that such is the case), the information contained in
this Announcement for which they are responsible is in accordance with the facts
and does not omit anything likely to affect the import of such information.
The Proposed Directors, together with Marcus Hanke, Marcus Yeoman and Louis
Peacock, accept responsibility for all information contained in this
Announcement insofar as it relates to the Enlarged Group. To the best of the
knowledge and belief of the Proposed Directors and each of Marcus Hanke, Marcus
Yeoman and Louis Peacock (who have taken all reasonable care to ensure that such
is the case), the information contained in this Announcement for which they are
responsible is in accordance with the facts and does not omit anything likely to
affect the import of such information.
The Xploite Directors accept responsibility for the recommendation of the
Scheme.
Forward looking statements
This Announcement (including information incorporated by reference in this
Announcement) may contain "forward-looking statements" concerning the Enlarged
Group. The forward-looking statements contained herein include statements about
the expected effects of the Proposal, the expected timing and scope of the
Proposal and other statements other than in relation to historical facts.
Forward-looking statements including, without limitation, statements typically
containing words such as "intends", "anticipates" "targets", "estimates",
"believes", "should", "plans", "will", "expects" and similar expressions or
statements that are not historical facts are intended to identify those
expressions or statements as forward-looking statements. The statements are
based on the assumptions and assessments by the Boards of Avisen and Xploite and
are naturally subject to uncertainty and changes in circumstances. By their
nature, forward-looking statements involve risk and uncertainty and the factors
described in the context of such forward-looking statements in this document
could cause actual results and developments to differ materially from those
expressed in or implied by such forward-looking statements. There are a number
of factors that could cause actual results or developments to differ materially
from those expressed or implied by such forward-looking statements. These
factors include, but are not limited to, the satisfaction or waiver of the
conditions to the Scheme, local and global political and economic conditions,
future revenues of Avisen and/or Xploite being lower than expected, expected
cost savings from the Proposal or other future transactions not being realised
fully or in line with expected timeframes, competitive pressures in the industry
increasing, foreign exchange rate fluctuations and interest rate fluctuations
(including those from any potential credit rating decline) and legal or
regulatory developments and changes. Given these risks and uncertainties,
investors should not place undue reliance on forward-looking statements.
Neither Xploite nor Avisen, 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 by any forward-looking
statements contained herein will actually occur. Other than in accordance with
their legal or regulatory obligations (including under the AIM Rules, the
Disclosure and Transparency Rules of the Financial Services Authority and the
City Code), neither Xploite nor Avisen is under any obligation and each of them
expressly disclaims any intention or obligation to update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise.
Dealing Disclosure Requirements
Under the provisions of Rule 8.3 of the Code, if any person is, or becomes,
"interested" (directly or indirectly) in one per cent. or more of any class of
"relevant securities" of Xploite or Avisen, all "dealings" in any "relevant
securities" of that company (including by means of an option in respect of, or a
derivative referenced to, any such "relevant securities") must be publicly
disclosed by no later than 3.30 p.m. (London time) on the Business Day following
the date of the relevant transaction. This requirement will continue until the
date on which the Scheme becomes Effective, (or, if implemented by way of an
offer, the offer becomes, or is declared, unconditional as to acceptances,
lapses) or otherwise lapses or is withdrawn or on which the "offer period"
otherwise ends. If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire an "interest" in "relevant
securities" of Xploite or Avisen, they will be deemed to be a single person for
the purpose of Rule 8.3.
Under the provisions of Rule 8.1 of the Code, all "dealings" in "relevant
securities" of Xploite or Avisen by Avisen or Xploite, or by any of their
respective "associates", must be disclosed by no later than 12.00 noon (London
time) on the Business Day following the date of the relevant transaction.
A disclosure table, giving details of the companies in whose "relevant
securities" "dealings" should be disclosed, and the number of such securities in
issue, can be found on the Takeover Panel's website at
www.thetakeoverpanel.org.uk.
"Interests in securities" arise, in summary, when a person has long economic
exposure, whether conditional or absolute, to changes in the price of
securities. In particular, a person will be treated as having an "interest" by
virtue of the ownership or control of securities, or by virtue of any option in
respect of, or derivative referenced to, securities.
Terms in quotation marks are defined in the Code, which can also be found on the
Panel's website. If you are in any doubt as to whether or not you are required
to disclose a "dealing" under Rule 8, you should consult the Panel.
In accordance with Rule 2.10 of the Code, Xploite confirms that it has
21,797,054 ordinary shares of 10 pence in issue as at the date of this
Announcement.
11 March 2010
APPENDIX I
CONDITIONS TO THE IMPLEMENTATION OF THE SCHEME AND FURTHER TERMS OF THE PROPOSAL
1. The Proposal will be conditional upon the Scheme becoming
unconditional and becoming effective, subject to the City Code, by no later than
14 July 2010 or such later date (if any) as Avisen and Xploite may, with the
consent of the Panel, agree and (if required) the Court may approve.
2. The Scheme will be conditional upon the following Conditions:
(a) approval of the Scheme by a majority in number of the Scheme
Shareholders entitled to vote and present and voting, either in person or
by proxy, at the Court Meeting or at any adjournment of any such
meeting, representing no less than 75 per cent. in value of the
Scheme Shares so voted;
(b) the resolutions in connection with, or necessary to approve and
implement, the Scheme as set out in the notice of the General Meeting
in this document being duly passed by the requisite majority at the
General Meeting or at any adjournment thereof;
(c) the sanction of the Scheme and the confirmation of the Reduction of
Capital by the Court (in each case without modification or with modification as
agreed by Avisen and Xploite) and the delivery for registration of each of
the Court Orders to the Registrar of Companies in England and Wales and
the registration by the Registrar of Companies in England and Wales of the
Reduction Court Order;
(d) the Avisen Resolutions being duly passed at the Avisen General
Meeting, or any adjournment thereof; and
(e) admission of the New Avisen Shares to trading on AIM becoming
effective in accordance with the AIM Rules or if Avisen so determines
(subject to consent of the Panel) the London Stock Exchange agreeing
to admit such shares to trading on AIM subject to the allotment of
such New Avisen Shares and/or the Scheme becoming or being declared
unconditional in all respects.
3. In addition, Xploite and Avisen have agreed that the Scheme
will also be conditional upon the following Conditions and, accordingly,
the necessary actions to make the Scheme effective will not be taken unless
such Conditions (as amended, if appropriate) have been satisfied, (or,
where applicable, waived) (or, in each case, any other customary pre-admission
conditions with the consent of the Panel):
(a) no Third Party (as defined below) having intervened and
there not continuing to be outstanding any statute, regulation or order of
any Third Party in each case which is or is likely to be material in the
context of the Proposal which would or might reasonably be expected to:
(i) make the Scheme, its implementation or the acquisition or proposed
acquisition by Avisen of any shares or other securities in, or control of,
Xploite or any member of the Xploite Group void, illegal or unenforceable
in any jurisdiction, or otherwise, directly or indirectly, restrain,
prevent, prohibit, restrict or delay the same or impose additional conditions or
obligations with respect to the Scheme or such acquisition, or otherwise impede,
challenge or interfere with the Scheme or such acquisition, or require
amendment to the terms of the Scheme or the acquisition or proposed
acquisition of any Xploite Shares or the acquisition of control or
management of Xploite or the Xploite Group by Avisen or any member of the
Avisen Group;
(ii) limit or delay, or impose any material limitations on, the ability
of any member of the Avisen Group to acquire or to hold or to exercise
effectively, directly or indirectly, all or any rights of ownership in
respect of shares, loans or other securities convertible into Xploite Shares in,
or to exercise voting or management control over, any member of the Xploite
Group;
(iii) require, prevent or delay the divestiture or alter the terms
envisaged for any proposed divestiture by any member of the Avisen Group of any
shares or other securities in Avisen;
(iv) require, prevent or delay the divestiture or alter the terms
envisaged for any proposed divestiture by any member of the Xploite Group or by
any member of the Avisen Group of all or any portion of their respective
businesses, assets or properties or limit the ability of any of them to
conduct any of their respective businesses or to own or control any of their
respective assets or properties or any part thereof;
(v) except pursuant to the Scheme or sections 974-991 of the Act,
require any member of the Avisen Group or of the Xploite Group to acquire, or to
offer to acquire, any shares or other securities (or the equivalent) in any
member of the Xploite Group or the Avisen Group owned by any third party;
(vi) limit the ability of any member of the Avisen Group to conduct or
integrate or co- ordinate its business, or any material part of it, with the
businesses or any part of the businesses of any other member of the Avisen Group
or of the Xploite Group;
(vii) otherwise adversely affect any or all of the business,
assets, profits, financial or trading position or prospects of any member of
the Avisen Group or of the Xploite Group in each such case to the extent that it
is material in the context of the Xploite Group and/or the Avisen Group taken as
a whole,
and all applicable waiting and other time periods during which any Third Party
could intervene under the laws of any relevant jurisdiction having expired,
lapsed or been terminated;
(b) all notifications and filings which are necessary or are
reasonably considered appropriate by Avisen having been made, all appropriate
waiting and other time periods (including any extensions of such waiting and
other time periods) under any applicable legislation or regulation of any
relevant jurisdiction having expired, lapsed or been terminated (as appropriate)
and all statutory or regulatory obligations in any relevant jurisdiction
having been complied with or obtained on terms and in a form
reasonably satisfactory to Avisen, in each case (and to the extent
that it is material) in connection with the Scheme or the Proposal or the
acquisition or the proposed acquisition of any shares or other securities in, or
control or management of, Xploite or any other member of the Xploite Group or
the carrying on by any member of the Xploite Group of its business, unless
otherwise waived by Avisen, and no temporary restraining order, preliminary or
permanent injunction or other order having been issued and being in effect
by a court or other Third Party of competent jurisdiction which has
the effect of making the Scheme or the Proposal illegal or otherwise
prohibiting the consummation of the Scheme or the Proposal;
(c) all Authorisations which are necessary or are reasonably
considered necessary or appropriate by Avisen in any relevant
jurisdiction for or in respect of the Scheme or the Proposal or the
acquisition or proposed acquisition of any shares or other securities in, or
control or management of, Xploite or any other member of the Xploite
Group by any member of the Avisen Group or the carrying on by any
member of the Xploite Group of its business having been obtained, in terms and
in a form reasonably satisfactory to Avisen, from all appropriate Third Parties
or from any persons or bodies with whom any member of the Xploite Group has
entered into contractual arrangements and all such Authorisations remaining in
full force and effect and there being no notice or intimation of any intention
to revoke, suspend, restrict, modify or not to renew any of the same in
connection with the Scheme or the Proposal;
(d) since 10 March 2010 and except as Disclosed, there being no provision
of any arrangement, agreement, licence, permit, franchise or other
instrument to which any member of the Xploite Group or the Avisen
Group is a party, or by or to which any such member or any of its assets is or
are or may be bound, entitled or subject or any circumstance, which, in each
case as a consequence of the Scheme or the Proposal or the acquisition or
proposed acquisition of any shares or other securities in, or control of,
Xploite or any other member of the Xploite Group or the Avisen Group
by any member of the Avisen Group or otherwise, could or might reasonably
be expected to result in:
(i) any monies borrowed by or any other indebtedness or liabilities
(actual or contingent) of, or any grant available to, any member of the
Xploite Group or Avisen Group being or becoming repayable or capable of
being declared repayable immediately or prior to its stated repayment date or
the ability of any member of the Xploite Group or Avisen Group to
borrow monies or incur any indebtedness being withdrawn or inhibited or becoming
capable of being withdrawn;
(ii) the creation or enforcement of any mortgage, charge or other
security interest over the whole or any part of the business, property, assets
or interests of any member of the Xploite Group or Avisen Group or any such
mortgage, charge or other security interest (wherever created, arising or having
arisen) becoming enforceable;
(iii) any such arrangement, agreement, licence, permit, franchise
or other instrument, or the rights, liabilities, obligations or
interests of any member of the Xploite Group or Avisen Group thereunder,
being, or becoming capable of being, terminated or adversely modified or
affected or any adverse action being taken or any obligation or liability
arising thereunder;
(iv) any material asset or material interest of any member of the
Xploite Group or Avisen Group being or falling to be disposed of or
ceasing to be available to any member of the Xploite Group or Avisen
Group or any right arising under which any such asset or interest could be
required to be disposed of or could cease to be available to any
member of the Xploite Group or Avisen Group otherwise than in the ordinary
course of business;
(v) any member of the Xploite Group or the Avisen Group
ceasing to be able to carry on business under any name under which it
presently does so;
(vi) the creation of material liabilities (actual or contingent) by any
member of the Xploite Group or the Avisen Group other than in the ordinary
course of business;
(vii) the rights, liabilities, obligations or interests of any
member of the Xploite Group or the Avisen Group under any such
arrangement, agreement, licence, permit, franchise or other instrument or the
interests or business of any such member in or with any other person, firm,
company or body (or any arrangement or arrangements relating to any
such interests or business) being terminated or adversely modified or
affected; or
(viii) the financial or trading position or the prospects or the value of
any member of the Xploite Group being prejudiced or adversely affected; and
(ix) except as aforesaid, no event having occurred which, under
any provision of any such arrangement, agreement, licence, permit or other
instrument, would be reasonably likely to result in any of the events or
circumstances which are referred to in paragraphs (i) to (viii) of this
Condition 3(d);
(e) since 10 March 2010 and except as Disclosed by Xploite or otherwise
as a result of the Proposal no member of the Xploite Group having:
(i) issued or agreed to issue, or authorised the issue of,
additional shares of any class, or securities convertible into or
exchangeable for, or rights, warrants or options to subscribe for or acquire,
any such shares or convertible securities or transferred or sold any shares out
of treasury other than: (A) as between Xploite and wholly owned subsidiaries of
Avisen; or (B) any shares issued upon the exercise of any options granted under
the Xploite Option Schemes;
(ii) purchased or redeemed or repaid any of its own shares or other
securities or reduced or made any other change to any part of its share capital;
(iii) recommended, declared, paid or made any dividend or other
distribution whether payable in cash or otherwise or made any bonus issue
(other than to Xploite or a wholly-owned subsidiary of Xploite);
(iv) except as between Xploite and its wholly-owned subsidiaries or
between such wholly-owned subsidiaries, made or authorised any material change
in its loan capital;
(v) (other than any acquisition or disposal in the ordinary
course of business or a transaction between Xploite and a wholly-owned
subsidiary of Xploite or between such wholly-owned subsidiaries) merged
with, demerged or acquired any body corporate, partnership or business or
acquired or disposed of or transferred, mortgaged, charged or created any
security interest over any assets or any right, title or interest in
any assets (including shares in any undertaking and trade investments) or
authorised the same (in each case to an extent which is material in the context
of the Xploite Group taken as a whole);
(vi) issued, agreed to issue or authorised the issue of, or
made any change in or to, any debentures or (except in the ordinary course
of business or except as between Xploite and its wholly-owned subsidiaries or
between such wholly-owned subsidiaries) incurred or increased any
indebtedness or liability (actual or contingent) which in any case is material
in the context of the Xploite Group taken as a whole;
(vii) entered into, varied, or authorised any agreement, transaction,
arrangement or commitment (whether in respect of capital expenditure or
otherwise) which (A) is of a long term, onerous or unusual nature or magnitude
or which is reasonably likely to involve an obligation of such nature or
magnitude; or (B) is reasonably likely to restrict the business of any member of
the Xploite Group, and which in any case is material in the context of the
Xploite Group taken as a whole;
(viii) other than pursuant to the Scheme (except as between Xploite
and its wholly-owned subsidiaries or between such wholly owned
subsidiaries), entered into, implemented, effected or authorised any
merger, demerger, reconstruction, amalgamation, scheme, commitment or other
transaction or arrangement in respect of itself or another member of the Xploite
Group, which in any case is material in the context of the Xploite
Group taken as a whole;
(ix) entered into or varied the terms of, or made any offer (which
remains open for acceptance) to enter into or vary the terms of any contract,
service agreement or arrangement with any of the directors or senior executives
of any member of the Xploite Group;
(x) save in relation to the Scheme, taken any corporate action
or had any legal proceedings instituted or threatened against it or
petition presented or order made for its winding-up (voluntarily or
otherwise), dissolution or reorganisation or for the appointment of a receiver,
administrator, administrative receiver, trustee or similar officer of all or any
material part of its assets and revenues or any analogous proceedings in
any jurisdiction or appointed any analogous person in any jurisdiction
which in any case is material in the context of the Xploite Group taken as a
whole;
(xi) been unable, or admitted in writing that it is unable, to pay its
debts 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;
(xii) waived or compromised any claim, which is material in the context
of the Xploite Group taken as a whole;
(xiii)(other than in connection with the Scheme) made any alteration
to its memorandum or articles of association which is material in the context
of the Scheme or the Proposal;
(xiv) (other than in connection with the Scheme) proposed, agreed
to provide or modified the terms of any share option scheme, incentive
scheme or other benefit (including in relation to any personal defined
contribution pension scheme(s) of any director or any person employed by the
Xploite Group) relating to the employment or termination of employment of any
person employed by the Xploite Group; or
(xv) entered into any agreement, commitment or arrangement or passed any
resolution or made any Proposal (which remains open for acceptance) or proposed
or announced any intention with respect to any of the transactions, matters or
events referred to in this Condition 3(e);
(f) since 10 March 2010 and except as Disclosed by Xploite:
(i) there having been no adverse change or deterioration in
the business, assets, financial or trading positions or profit or prospects
of any member of the Xploite Group which in any case is material in the context
of the Xploite Group taken as a whole;
(ii) no contingent or other liability of any member of the Xploite
Group having arisen or become apparent or increased which in any case is
material in the context of the Xploite Group taken as a whole;
(iii) no litigation, arbitration proceedings, prosecution or other
legal proceedings to which any member of the Xploite Group is or may become
a party (whether as plaintiff, defendant or otherwise) having been
threatened, announced, implemented or instituted by or against or
remaining outstanding against or in respect of any member of the Xploite Group
which in any case is material in the context of the Xploite Group taken as a
whole; and
(iv) no enquiry or investigation by, or complaint or reference
to, any Third Party having been threatened, announced, implemented,
instituted by or against or remaining outstanding against or in respect of
any member of the Xploite Group which in any case is material in the context of
the Xploite Group taken as a whole;
(g) Avisen not having discovered, other than to the extent
otherwise publicly announced by Xploite prior to the Announcement (by
the delivery of an announcement to a Regulatory Information Service) or
as otherwise fairly disclosed prior to the date of the Announcement in writing
to Avisen by or on behalf of Xploite in the course of negotiations:
(i) that any financial or business or other information concerning the
Xploite Group disclosed at any time by or on behalf of any member of
the Xploite Group, whether publicly or to any member of the Avisen Group,
is misleading or contains any misrepresentation of fact or omits to state a fact
necessary to make any information contained therein not misleading to an extent
which in any case is material in the context of the Xploite Group taken as a
whole;
(ii) that any member of the Xploite Group is subject to any liability
(actual or contingent) which is not disclosed in Xploites annual report
and accounts for the financial year ended 31 October 2009 and which in
any case is material in the context of the Xploite Group taken as a whole; or
(iii) any information which affects the import of any information
disclosed at any time by or on behalf of any member of the Xploite Group to an
extent which is material in the context of the Xploite Group taken as a whole;
and
(h) since 10 March 2010 and save as otherwise Disclosed by Avisen, no
member of the Avisen Group having (in each case to an extent which is material
in the context of the Avisen Group taken as a whole):
(i) issued or agreed to issue, or authorised the issue of, additional
shares of any class, class, 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 any shares out of treasury;
(ii) purchased or redeemed or repaid any of its own shares or other
securities or reduced or made any other change to any part of its share capital;
(iii) recommended, declared, paid or made any dividend or other
distribution whether payable in cash or otherwise or made any bonus issue
(other than to Avisen or a wholly-owned subsidiary of Avisen);
(iv) except as between, Avisen and its wholly-owned subsidiaries
or between such wholly owned subsidiaries, made or authorised any material
change in its loan capital;
(v) (other than any acquisition or disposal in the ordinary
course of business or a transaction between Avisen and a wholly-owned
subsidiary of Avisen or between such wholly- owned subsidiaries) merged
with, demerged or acquired any body corporate, partnership or business or
acquired or disposed of or transferred, mortgaged, charged or created
any security interest over any assets or any right, title or interest in any
assets (including shares in any undertaking and trade investments) or authorised
the same;
(vi) issued, agreed to issue or authorised the issue of, or made
any change in or to, any debentures or (except in the ordinary course of
business or except as between Avisen and its wholly-owned subsidiaries or
between such wholly-owned subsidiaries) incurred or increased any
indebtedness or liability (actual or contingent);
(vii) entered into, varied, or authorised any agreement, transaction,
arrangement or commitment (whether in respect of capital expenditure or
otherwise) which (A) is of a long term, onerous or unusual nature or magnitude
or which is reasonably likely to involve an obligation of such nature or
magnitude; or (B) is reasonably likely to restrict the business of any member of
the Avisen Group;
(viii) other than pursuant to the Scheme (except as between Avisen
and its wholly-owned subsidiaries or between such wholly-owned subsidiaries),
entered into, implemented, effected or authorised any merger, demerger,
reconstruction, amalgamation, scheme, commitment or other transaction or
arrangement in respect of itself or another member of the Avisen Group;
(ix) entered into or varied the terms of, or made any offer (which
remains open for acceptance) to enter into or vary the terms of any contract,
service agreement or arrangement with any of the directors or senior executives
of any member of the Avisen Group;
(x) save in relation to the Scheme, taken any corporate action
or had any legal proceedings instituted or threatened against it or
petition presented or order made for its winding-up (voluntarily or
otherwise), dissolution or reorganisation or for the appointment of a receiver,
administrator, administrative receiver, trustee or similar officer of all or any
material part of its assets and revenues or any analogous proceedings in
any jurisdiction or appointed any analogous person in any jurisdiction;
(xi) been unable, or admitted in writing that it is unable, to pay its
debts 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;
(xii) (other than in connection with the Scheme) made any
alteration to its memorandum or articles of association which is material in
the context of the Scheme;
(xiii)waived or compromised any claim which is material in the context of the
Avisen Group;
(xiv)(other than in connection with the Scheme) proposed, agreed to
provide or modified the terms of any share option scheme, incentive scheme or
other benefit (including in relation to any personal defined contribution
pension scheme(s) of any director or any person employed by the Avisen Group)
relating to the employment or termination of employment of any senior
person employed by the Avisen Group; or
(xv) entered into any agreement, commitment or arrangement or passed any
resolution or made any offer (which remains open for acceptance) or proposed or
announced any intention with respect to any of the transactions, matters or
events referred to in this Condition (h);
(i) in the period since 10 March 2010 and save as Disclosed by Avisen:
(i) there having been no adverse change or deterioration in
the business, assets, financial or trading positions or profit or prospects
of any member of the Avisen Group which in any case is material in the context
of the Avisen Group taken as a whole;
(ii) no contingent or other liability of any member of the
Avisen Group having arisen or become apparent or increased which in any case
is material in the context of the Avisen Group taken as a whole;
(iii) no litigation, arbitration proceedings, prosecution or other
legal proceedings to which any member of the Avisen Group is or may become a
party (whether as plaintiff, defendant or otherwise) having been threatened,
announced, implemented or instituted by or against or remaining
outstanding against or in respect of any member of the Avisen Group which in any
case is material in the context of the Avisen Group taken as a whole; and
(iv) no enquiry or investigation by, or complaint or reference
to, any Third Party having been threatened, announced, implemented,
instituted by or against or remaining outstanding against or in respect of
any member of the Avisen Group which in any case is material in the context of
the Avisen Group taken as a whole; and
(j) save as Disclosed by Avisen, Xploite not having discovered
(in each case to an extent which is material in the context of the Avisen
Group taken as a whole):
(i) that any financial or business or other information concerning the
Avisen Group disclosed at any time by or on behalf of any member of the Avisen
Group, whether publicly or to any member of the Xploite Group, is misleading or
contains any misrepresentation of fact or omits to state a fact necessary
to make any information contained therein not misleading to an extent;
(ii) that any member of the Avisen Group is subject to any
liability (actual or contingent) which is not disclosed in Avisens annual
report and accounts for the financial year ended 31 January 2009 or unaudited
interim accounts for the 6 month period ended 31 July 2009; or
(iii) any information which affects the import of any information
disclosed at any time by or on behalf of any member of the Avisen Group.
Further Terms of the Proposal
1. If the Panel requires Avisen to make an offer for Xploite Shares
under the provisions of Rule 9 of the City Code, Avisen may (with the consent of
Xploite) make such alterations to the conditions of the Proposal, including to
the Conditions set out in paragraph 2 of this Part IV of the Scheme Document, as
are necessary to comply with the provisions of that Rule.
2. Avisen reserves the absolute right to elect, subject to the prior
consent of the Panel, to implement the Proposal by way of a takeover offer in
accordance with the City Code as it may determine in its absolute discretion.
In such event, such offer will be implemented on the same terms
(subject to appropriate amendment, including (without limitation and
subject to the consent of the Panel) an acceptance condition set at 90
per cent. (or such lesser percentage (being more than 50 per cent.) as Avisen
may decide) of the Xploite Shares to which such offer would relate.
3. New Xploite Shares will be acquired by Avisen fully paid and free
from all liens, equitable interests, charges, encumbrances and other third party
rights of any nature whatsoever and together with all rights attaching to them,
including the right to receive and retain all dividends and distributions (if
any) declared, made or payable after the Effective Date.
4. The Proposal will be on the terms and will be subject, amongst other
things, to the Conditions which are set out in the Scheme Document and
accompanying Forms of Proxy and such further terms as may be required to comply
with the AIM Rules, the provisions of the City Code and the provisions of the
Act. The Scheme will be governed by the laws of England and Wales.
5. The availability of the Proposal to persons not resident in the
United Kingdom may be affected by the laws of the relevant jurisdictions.
Persons who are not resident in the United Kingdom should inform themselves
about and observe any applicable requirements.
6. All of the Conditions set out in paragraphs 3 (a) to (g) of this Part
IV must be fulfilled, be determined by Avisen (only to the extent that such
Conditions remain to be satisfied by Xploite) to be or remain satisfied or (if
capable of waiver) be waived by the Scheme Record Time, failing which the
Proposal will lapse. Subject to the requirements of the Panel, Avisen reserves
the right to waive all or any of the Conditions in paragraphs 3(a) to 3(g)
(inclusive) of this Part IV, in whole or part. Avisen 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 paragraphs 3(a) to
3(g) (inclusive) of this Part IV by a date earlier than the date specified in
paragraph 1 of this Part IV above for the fulfilment thereof, notwithstanding
that the other Conditions of the Proposal 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.
7. Subject to the requirements of the Panel, Xploite reserves
the right to waive all or any of the Conditions in paragraph 3(d)
(only to the extent that such Conditions remain to be satisfied by
Avisen) and 3(h) to 3(j) (inclusive) of this Part IV, in whole or
part. Xploite 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 paragraphs 3(h) to 3(j) (inclusive) of this
Part IV by a date earlier than the date specified in paragraph 1 of this Part IV
above.
8. For the purpose of these Conditions:
(a) "Third Party" means any central bank, government,
government department or governmental, quasi-governmental, supranational,
statutory, regulatory or investigative body, authority (including any national
anti-trust or merger control authority), court, trade agency, association,
institution or professional or environmental body or any other person or body
whatsoever in any relevant jurisdiction;
(b) a Third Party shall be regarded as having "intervened" if
it has decided to take, institute, implement or threaten any action,
proceeding, suit, investigation, enquiry or reference or made, proposed or
enacted any statute, regulation, decision or order or taken any measures or
other steps or required any action to be taken or information to be provided or
otherwise having done anything and "intervene" shall be construed accordingly;
and
(c) "Authorisations" means authorisations, orders, grants, recognitions,
determinations, certificates, confirmations, consents, licences, clearances,
provisions and approvals.
(d) "Disclosed" means;
(i) as disclosed in Xploites annual report and accounts for the year
ended 31 October 2009; or
(ii) as disclosed in Avisens annual report and accounts for the year
ended 31 January 2009;
(iii) as publicly announced by any member of the Xploite Group or the
Avisen Group (through a Regulatory Information Service) prior to the date of the
Scheme Document; or
(iv) as disclosed in the Scheme Document; or
(v) as otherwise fairly disclosed prior to the date of the
Announcement in writing to Xploite or Avisen by or on behalf of Avisen or
Xploite in the course of negotiations.
APPENDIX II
DEFINITIONS
In this Announcement, the following words and expressions shall, except
where the context requires otherwise, have the following meanings:
"Act" means the Companies Act 2006;
"Acquisition" means the proposed acquisition of the entire issued and to be
issued ordinary share capital of Xploite by Avisen pursuant to the Proposal;
"AIM" means the AIM market operated by the London Stock Exchange;
"AIM Rules" means the Rules and Guidance notes for AIM Companies and their
nominated advisers issued by the London Stock Exchange from time to time
relating to AIM traded securities and the operation of AIM;
"Anix" means the IT services and infrastructure solutions operations of Xploite
carried on under the Anix brand;
"Announcement" means this announcement regarding the Proposal and the Scheme
made pursuant to Rule 2.5 of the City Code;
"Avisen" or "Offeror" means Avisen plc;
"Avisen Board" or "Avisen Directors" means the board of directors of Avisen as
at the date of this Announcement;
"Avisen General Meeting" means the general meeting (or any adjournment thereof)
of the Holders of Avisen Shares to be convened to consider and, if thought fit,
to approve the resolutions to be proposed thereat in connection with the issue
of the New Avisen Shares under the Scheme;
"Avisen Group" means Avisen, its subsidiaries and subsidiary undertakings;
"Avisen Resolutions" means the resolutions to be proposed at the Avisen General
Meeting in order to give effect to the Scheme;
"Avisen Shares" means ordinary shares of GBP0.05 each in the capital of Avisen;
"Articles" means the articles of association of Xploite from time to time;
"Business Day" means a day, not being a Saturday, Sunday or public holiday, on
which the clearing banks in London are generally open for business;
"Brewin Dolphin" means Brewin Dolphin Investment Banking, a trading name of
Brewin Dolphin Limited, a company incorporated under the laws of England and
Wales with registered number 2135876;
"Cantono" means Cantono PLC, a company incorporated under the laws of England &
Wales with registered number 05354873;
"Capita Registrars" means a trading name of Capita Registrars Limited;
"certificated" or "in certificated form" means recorded on the relevant register
of the share or other security as being held in certificated form (that is, not
in CREST);
"Close of Business" means in respect of a Business Day, 6.00 p.m. on that
Business Day;
"Closing Price" means as regards securities quoted on AIM, the closing middle
market quotation of a share derived from AIM;
"Code", "Takeover Code" or "City Code" means the City Code on Takeovers and
Mergers issued by the Panel;
"Conditions" means the "Conditions to the Implementation of the Scheme and
Further Terms of the Proposal" set out in Appendix I to this Announcement and
"Condition" means any one of them;
"Connected Person" has the meaning given to it in section 252 of the Act;
"Consideration Shares" means the 3.6 New Avisen Shares to be issued under the
terms of the Proposal in respect of each Scheme Share;
"Court" means the High Court of Justice of England and Wales;
"Court Meeting" means the meeting (and any adjournment thereof) of the Scheme
Shareholders convened by an order of the Court pursuant to Part 26 of the Act to
be held at 100 Fetter Lane, London EC4A 1BN at 11.00 a.m. on 6 April 2010 at
which the Scheme Shareholders will be asked to consider and, if thought fit,
approve the Scheme (with or without amendment) and any adjournment thereof,
notice of which will be set out in the Scheme Document;
"Court Orders" means the Scheme Court Order and the Reduction Court Order;
"CREST" means the relevant system (as defined in the Regulations) of which
Euroclear is the Operator (as defined in the Regulations);
"CREST Application Host" means the system that is operated to receive, manage
and control the processing of messages by CREST;
"CREST Manual" means the CREST manual issued by Euroclear;
"CREST member" means a person who is, in relation to CREST, a system-member (as
defined in the Regulations);
"CREST participant" means a person who is, in relation to CREST, a
system-participant (as defined in the Regulations);
"CREST sponsor" means a person who is, in relation to CREST, a sponsoring
system-participant (as defined in the Regulations);
"CREST sponsored member" means a CREST member admitted to CREST as a sponsored
member under the sponsorship of a CREST sponsor;
"Effective Date" means the date on which the Reduction Court Order is delivered
to the Registrar of Companies in England and Wales;
"Enlarged Group" means the Avisen Group as enlarged by the Acquisition;
"Enlarged Issued Share Capital" means all of the issued Avisen Shares following
the issue of the New Avisen Shares, assuming the Scheme becomes effective;
"Euroclear" means Euroclear UK & Ireland Limited;
"Forms of Proxy" means the respective forms of proxy for use in connection with
the Court Meeting and the General Meeting or either of them as the context
requires;
"FSA" means the Financial Services Authority;
"FSMA" means the Financial Services and Markets Act 2000 (as amended);
"General Meeting" means the general meeting (and any adjournment thereof) of
Xploite Shareholders convened in connection with the Scheme to be held at 100
Fetter Lane, London EC4A 1BN at 11.15 a.m on 6 April 2010 to consider and, if
thought fit, to approve the Special Resolutions in relation to the Scheme (with
or without amendment), notice of which will be set out in the Scheme Document;
"HMRC" means HM Revenue & Customs;
"Holder" means a registered holder of shares and includes any person(s) entitled
by transmission;
"Inducement Fee" means the fee to be paid by Xploite to Avisen pursuant to the
Non-Solicitation Agreement;
"London Stock Exchange" or "LSE" means London Stock Exchange plc;
"Meetings" means the Court Meeting and the General Meeting and "Meeting" means
either of them;
"New Avisen Shares" means up to 82,814,227 new Avisen Shares to be issued to
Scheme Shareholders, as consideration for the New Xploite Shares pursuant to the
Proposal;
"New Xploite Shares" means 23,003,952 new Xploite Shares to be issued to Avisen
under the terms of the Scheme;
"Non-Solicitation Agreement" means the non-solicitation agreement between Avisen
and Xploite dated 18 January 2010;
"Offer Period" means the period commencing on the date of this Announcement
until announcement via a Regulatory Information Service by Xploite and/or Avisen
that the Scheme has become effective or that the Scheme has lapsed or been
withdrawn;
"Overseas Shareholders" means Xploite Shareholders who are resident in, or
nationals or citizens of, jurisdictions outside the United Kingdom or who are
nominees of, or custodians or trustees for, citizens or nationals of countries
other than the United Kingdom;
"Panel" or "Takeover Panel" means the Panel on Takeovers and Mergers;
"Participant ID" means the identification code or membership number used in
CREST to identify a CREST member or other CREST participant;
"Proposal" means the recommended acquisition by Avisen of the entire issued and
to be issued share capital of Xploite to be effected by way of the Scheme and
subject to the Conditions and on the terms of the Scheme Document including,
where the context so requires, any subsequent revision, variation, extension or
renewal of such proposal;
"Proposed Directors" means Ian Smith, Robert Arrowsmith and Tony Weaver, all of
whom will be appointed on the Effective Date;
"Reduction of Capital" the proposed reduction of the ordinary share capital of
Xploite under Part 17, Chapter 10 of the Act by the cancellation and
extinguishing of the Scheme Shares, to be effected as part of the Scheme;
"Reduction Court Hearing" means the hearing at which the Reduction Court Order
is made;
"Reduction Court Order" means the order of the Court to be granted at the
Reduction Court Hearing to confirm the Reduction of Capital provided for by the
Scheme;
"Regulations" means the Uncertificated Securities Regulations 2001 (SI 2001 No.
01/3755);
"Regulatory Information Service" has the same meaning as defined in the AIM
Rules;
"Resolutions" means the resolutions to be proposed at the Court Meeting (or any
adjournment thereof) and the General Meeting (or any adjournment thereof), as
appropriate;
"Restricted Jurisdiction" means any jurisdiction where local laws or regulations
may result in a significant risk of civil, regulatory or criminal exposure for
Avisen or Xploite if information or documentation concerning the Proposal is
sent or made available to Xploite Shareholders in that jurisdiction;
"Scheme" or "Scheme of Arrangement" means the proposed scheme of arrangement
under Part 26 of the Act between Xploite and the Scheme Shareholders, with or
subject to any modification, addition or condition approved or imposed by the
Court and agreed to by Xploite and Avisen, the full terms of which will be set
out in the Scheme Document and (as the case may be) any supplemental
circular(s);
"Scheme Court Hearing" means the hearing at which the Scheme Court Order is
made;
"Scheme Court Order" means the order of the Court granted at the Scheme Court
Hearing to sanction the Scheme under Part 26 of the Act;
"Scheme Document" means the scheme document to be issued in relation to the
Proposal;
"Scheme Record Time" 6.00 p.m. on the Business Day immediately preceding the
Reduction Court Hearing;
"Scheme Shareholders" means the Holders of Scheme Shares;
"Scheme Shares" means
* the Xploite Shares in issue at 6.00 p.m. on the date of the Scheme Document;
* (if any) Xploite Shares issued after the date of the Scheme Document and
before the Voting Record Time; and
* (if any) Xploite Shares issued at or after the Voting Record Time and before
the Scheme Record Time, either on terms that the original or any subsequent
holders of such shares shall be bound by the Scheme, or in respect of which the
original or any subsequent holders of such shares are, or shall have agreed in
writing to be, bound by the Scheme, in each case, save for any shares held,
legally or beneficially, by Avisen;
"SEC" means the US Securities and Exchange Commission;
"Securities Act" means the United States Securities Act of 1933 (as amended);
"South Africa" means the Republic of South Africa, its provinces, possessions,
and territories and all areas subject to its jurisdiction and any political
sub-division thereof;
"Special Resolutions" means the special resolutions to be proposed at the
General Meeting to approve the Scheme, the Reduction of Capital and to amend the
Articles;
"SRA" means storage resource analysis;
"Storage Fusion" means Storage Fusion Limited, a wholly-owned subsidiary of
Xploite;
"Storage Fusion Business" means the business of Storage Fusion, being the
development and sale of the SRA software;
"subsidiary" has the meaning given by section 1159 of the Act;
"subsidiary undertaking" has the meaning given by section 1162 of the Act;
"takeover offer" means the acquisition of the entire issued and to be issued
ordinary share capital of Xploite by means of a takeover offer made pursuant to
the City Code;
"TFE instruction" means a Transfer from Escrow instruction (as described in the
CREST manual issued by Euroclear);
"TTE instruction" means a Transfer to Escrow instruction (as described in the
CREST manual issued by Euroclear) in relation to Xploite Shares in
uncertificated form;
"UK" or "United Kingdom" means the United Kingdom of Great Britain and Northern
Ireland;
"UK Listing Authority" or "UKLA" means the FSA in its capacity as a competent
authority under the Financial Services and Markets Act 2000;
"uncertificated" or "uncertificated form" means recorded on the relevant
register of the share or security concerned as being held in uncertificated form
(that is, in CREST), and title to which, by virtue of the Regulations, may be
transferred by means of CREST;
"United States" or "US" means the United States of America, its territories and
possessions, the District of Columbia, and all other areas subject to its
jurisdiction;
"Voting Record Time" means 6.00 p.m. on 4 April 2010, or, in the event that the
Court Meeting is adjourned by more than 48 hours, 6.00 p.m. on the day which is
two days before such adjourned meeting;
"Xploite" or the "Company" means Xploite plc;
"Xploite Board" or "Xploite Directors" means the board of directors of Xploite
as at the date of this Announcement;
"Xploite EMI Options" means the 1,206,898 Xploite Options exercisable under the
Xploite EMI Option Scheme;
"Xploite EMI Option Scheme" means the EMI option scheme adopted by the Xploite
Board on 19 March 2007;
"Xploite Group" means Xploite, its subsidiaries and subsidiary undertakings;
"Xploite Non-Executive Directors" means the non-executive directors of Xploite;
"Xploite's Receiving Agent" or "Capita Registrars" means Capita Registrars of
The Registry, 34 Beckenham Road, Beckenham, Kent BR3 4TU;
"Xploite Shares" means the existing unconditionally allotted or issued and fully
paid ordinary shares of GBP0.10 each in the capital of Xploite and any further
such shares of GBP0.10 each in the capital of Xploite which are unconditionally
allotted or issued before the Scheme becomes effective;
"Xploite Shareholders" means holders of Xploite Shares from time to time; and
"Xploite Option" means an option over a Xploite Share which has been granted to
a holder pursuant to the Xploite Option Schemes.
This information is provided by RNS
The company news service from the London Stock Exchange
END
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