TIDMTRCS TIDMSKHG
RNS Number : 8711A
Tracsis PLC
26 March 2013
RULE 2.7 ANNOUNCEMENT
Not for release, publication or distribution, in whole or in
part, directly or indirectly, in, into or from any jurisdiction
where to do so would constitute a violation of the relevant laws or
regulations of such jurisdiction.
TRACSIS PLC
("Tracsis" or the "Company")
RECOMMENDED CASH OFFER
FOR THE ENTIRE ISSUED SHARE CAPITAL OF SKY HIGH PLC
(other than those shares acquired by Tracsis under the
Management Agreement and the Prowse Trust Agreement)
And
NOTICE OF GENERAL MEETING OF SKY HIGH PLC
The boards of Sky High and Tracsis have today agreed the terms
of a recommended cash offer to be made by Tracsis for the entire
issued ordinary share capital of Sky High, excluding the Management
Roll Over Shares and the Prowse Trust Shares (as defined below), at
15.25p per Sky High Share (the "Offer").
The Offer values Sky High's entire issued ordinary share capital
(including the Management Roll Over Shares and the Prowse Trust
Shares) at approximately GBP3.28 million and an Offer Document has
today been dispatched to all Sky High shareholders (the "Offer
Document"), setting out the terms and conditions of the Offer.
Summary
-- The Offer represents a premium of approximately 69.44% to the
Closing Price per Offer Share of 9p on 25 March 2013 (being the
last Business Day prior to the date of the Announcement);
-- The Offer represents a premium of approximately 76.91% to the
weighted average Closing Price per Offer Share of 8.6p for the six
months ended 25 March 2013 (being the last Business Day prior to
the date of the Announcement).
-- Mark Mattison, Grant Wilson and Martin Prowse, directors of
Sky High, are acquiring 308,563 shares in Tracsis pursuant to the
terms of a Management Agreement (the details of which are set out
below) and in respect of which the Sky High Shareholders are being
asked to vote at the Sky High General Meeting, and Alex Johnson,
who is not a Sky High Shareholder, is a party to certain Management
Arrangements, they have not taken part in consideration of the
Offer as directors of Sky High.
-- The Offer is conditional, amongst other things, on:
o valid acceptances being received in respect of not less than
90% of the Offer Shares (or such lower percentage as Tracsis may
decide) provided that this condition will not be satisfied unless
Tracsis shall have acquired or agreed to acquire, whether pursuant
to the Offer or otherwise, Sky High Shares carrying in aggregate
more than 50% of the voting rights normally exercisable at general
meetings of Sky High; and
o the Independent Shareholders passing the Ordinary Resolution
to approve the Management Arrangements at the Sky High General
Meeting.
-- The Independent Directors, having been so advised by SPARK
Advisory Partners Limited, consider the terms of the Offer to be
fair and reasonable and unanimously recommend that:
o all Sky High Shareholders accept the Offer; and
o all Independent Shareholders vote in favour of the Ordinary
Resolution to approve the Management Arrangements to be proposed at
the Sky High General Meeting to be held at 2.00pm. on 15 April
2013.
-- The Independent Directors have irrevocably undertaken to:
o accept (or procure the acceptance of) the Offer in respect of
an aggregate total of 10,819,607 Sky High Shares representing, in
aggregate, approximately 60.70 per cent. of the Offer Shares and
50.28 per cent. of all of the Sky High Shares; and:
o to vote (or procure the vote), in favour of the Ordinary
Resolution, in respect of an aggregate of 10,819,607 Eligible
Voting Shares, representing, in aggregate, approximately 67.16 per
cent of the Eligible Voting Shares.
Commenting on the Offer, John McArthur, CEO of Tracsis said:
"The combination of Tracsis and Sky High is an exciting
opportunity as it adds considerable breadth, depth and scale to our
existing offering. The acquisition not only widens the number of
fields the Group services within the transportation industry, but
also importantly adds a new territory to its current geographic
footprint.
"As the largest provider of traffic analysis and surveys within
the UK, Sky High has significant stature in the market, a
formidable reputation, and robust systems to meet the data and
analysis needs of its enviable client list. Given our own success
within the rail industry, which already includes survey and
analysis work, we see great cross-selling opportunities of both
services and technology to this new market, whilst expanding our
reach overseas given the considerable presence Sky High has in
Australia.
"We believe that this acquisition, whilst being immediately
earnings enhancing, will also drive growth for the combined Group
and in turn provide further value to our shareholders."
Commenting on the Offer, Mark Mattison, CEO of Sky High
said:
"We welcome the opportunity to join Tracsis and see that, as
part of larger transport technology Group, it will bring both
immediate and longer term benefits to our clients and staff. The
acquisition will ensure that Sky High is well placed to both grow
our client base and continue to provide our current clients with a
high quality and cost efficient service. In addition, joining
Tracsis not only grants us access to new technical capabilities
that can be utilised within the highways sector, but also allows
the business to re-focus management's time and efforts on
delivering growth and new product initiatives."
For more information please contact:
John McArthur, Tracsis plc Tel: 0845 125 9162
Mark Mattison, Sky High plc Tel: 01937 833 933
WH Ireland Limited (financial adviser to Tel: 0161 832 2174
Tracsis plc)
Katy Mitchell
Dan Bate
SPARK Advisory Partners Limited (financial Tel: 0113 370 8975
adviser to Sky High plc)
Sean Wyndham-Quin
Neil Baldwin
This summary should be read in conjunction with the full text of
the attached announcement.
Terms used in this summary of the Announcement shall have the
meaning given to them in the Announcement.
This announcement is for information purposes only and is not
intended to and does not constitute, or form part of, any offer,
invitation or the solicitation of an offer to purchase, otherwise
acquire, subscribe for, sell or otherwise dispose of any securities
or the solicitation of any vote or approval in any jurisdiction
pursuant to the Offer or otherwise.
This announcement does not constitute a prospectus or prospectus
equivalent document. The Offer will be made solely on the basis of
information contained or referred to in, or the procedures set out
in, the Offer Document and the accompanying Forms of Proxy (which
will together contain the full terms and conditions of the Offer).
Sky High Shareholders are advised to read the formal documentation
in relation to the Offer carefully once it has been dispatched.
WH Ireland Limited ("WHI"), which is authorised and regulated in
the United Kingdom by the Financial Services Authority, is acting
exclusively for Tracsis and no-one else in connection with the
Offer and will not be responsible to anyone other than Tracsis for
providing the protections afforded to clients of WHI nor for
providing advice in relation to the Offer or any other matters
referred to herein.
SPARK Advisory Partners Limited, which is authorised and
regulated in the United Kingdom by the Financial Services
Authority, is acting exclusively for Sky High and no-one else in
connection with the Offer and will not be responsible to anyone
other than Sky High for providing the protections afforded to
clients of SPARK nor for providing advice in relation to the Offer
or any other matters referred to herein.
Overseas jurisdictions
The availability of the Offer in, and the release, publication
or distribution of this announcement in or into, jurisdictions
other than the United Kingdom may be restricted by law.
In particular, as described in Appendix I to this announcement,
the Offer will not be made directly or indirectly into any
Restricted Jurisdiction. Therefore, persons into whose possession
this announcement comes who are not resident in the United Kingdom
or who are subject to the laws of other jurisdictions should inform
themselves about, and observe, any applicable restrictions. Sky
High Shareholders who are in any doubt regarding such matters
should consult an appropriate independent adviser in the relevant
jurisdiction without delay. Any failure to comply with such
restrictions may constitute a violation of the securities laws of
any such jurisdiction.
Unless otherwise determined by Tracsis or required by the Code,
and permitted by applicable law and regulation, the Offer will not
be made available, directly or indirectly, in, into or from a
Restricted Jurisdiction where to do so would violate the laws in
that jurisdiction and no person may vote in favour of the Offer by
any such use, means, instrumentality or form within a Restricted
Jurisdiction or any other jurisdiction if to do so would constitute
a violation of the laws of that jurisdiction. Accordingly, copies
of this announcement and all documents relating to the Offer are
not being, and must not be, directly or indirectly, mailed or
otherwise forwarded, distributed or sent in, into or from a
Restricted Jurisdiction where to do so would violate the laws in
that jurisdiction, and persons receiving this announcement and all
documents relating to the Offer (including custodians, nominees and
trustees) must not mail or otherwise distribute or send them in,
into or from such jurisdictions where to do so would violate the
laws in that jurisdiction.
Any person (including, without limitation, as custodian, nominee
or trustee) who would or otherwise intends to, or who may have a
contractual or legal obligation to forward this announcement and /
or the Offer Document and / or any other related document to any
jurisdiction outside of the United Kingdom should inform themselves
of, and observe, any applicable legal or regulatory requirements of
their jurisdiction before taking any action.
This announcement has been prepared for the purposes of
complying with English law and the Code and the information
disclosed may not be the same as that which would have been
disclosed if this announcement had been prepared in accordance with
the laws of any jurisdiction outside the United Kingdom.
Disclosure requirements
Under Rule 8.3(a) of the Code, any person who is interested in
1% or more of any class of relevant securities of an offeree
company or of any paper offeror (being any offeror other than an
offeror in respect of which it has been announced that its offer
is, or is likely to be, solely in cash) must make an Opening
Position Disclosure following the commencement of the offer period
and, if later, following the announcement in which any paper
offeror is first identified.
An Opening Position Disclosure must contain details of the
person's interests and short positions in, and rights to subscribe
for, any relevant securities of each of (i) the offeree company and
(ii) any paper offeror(s). An Opening Position Disclosure by a
person to whom Rule 8.3(a) applies must be made by no later than
3.30 p.m. (London time) on the 10th Business Day following the
commencement of the offer period and, if appropriate, by no later
than 3.30 p.m. (London time) on the 10th Business Day following the
announcement in which any paper offeror is first identified.
Relevant persons who deal in the relevant securities of an offeree
company or of a paper offeror prior to the deadline for making an
Opening Position Disclosure must instead make
a Dealing Disclosure.
Under Rule 8.3(b) of the Code, any person who is, or becomes,
interested in 1% or more of any class of relevant securities of an
offeree company or of any paper offeror must make a Dealing
Disclosure if the person deals in any relevant securities of the
offeree company or of any paper offeror. A Dealing Disclosure must
contain details of the dealing concerned and of the person's
interests and short positions in, and rights to subscribe for, any
relevant securities of each of (i) the offeree company and (ii) any
paper offeror, save to the extent that these details have
previously been disclosed under Rule 8. A Dealing Disclosure by a
person to whom Rule 8.3(b) applies must be made by no later than
3.30 p.m. (London time) on the Business Day following the date of
the relevant dealing.
If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
interest in relevant securities of an offeree company or a paper
offeror, they will be deemed to be a single person for the purpose
of Rule 8.3.
Opening Position Disclosures must also be made by the offeree
company and by any offeror and Dealing Disclosures must also be
made by the offeree company, by any offeror and by any persons
acting in concert with any of them (see Rules 8.1, 8.2 and
8.4).
Details of the offeree and offeror companies in respect of whose
relevant securities Opening Position Disclosures and Dealing
Disclosures must be made can be found in the Disclosure Table on
the Panel's website at www.thetakeoverpanel.org.uk, including
details of the number of relevant securities in issue, when the
offer period commenced and when any offeror was first identified.
If you are in any doubt as to whether you are required to make an
Opening Position Disclosure or a Dealing Disclosure, you should
contact the Panel's Market Surveillance Unit on +44 (0)20 7638
0129.
Forward-looking statements
This announcement contains statements that are or may be
forward-looking statements. Forward looking statements are
prospective in nature and are not based on historical facts, but
rather on current expectations and projections of the management of
Tracsis or Sky High, as applicable, about future events, and are
therefore subject to risks and uncertainties which could cause
actual results to differ materially from the future results
expressed or implied by the forward-looking statements. The
forward-looking statements contained in this announcement include
statements relating to the expected effects of the Offer on Tracsis
and Sky High, the expected timing and scope of the Offer and other
statements other than historical facts. All statements other than
statements of historical facts included in this announcement may be
forward-looking statements. Without limitation, any statements
preceded or followed by or that include the words "targets",
"plans", "believes", "expects", "aims", "intends", "will",
"should", "could", "would", "may", "anticipates", "estimates",
"synergy", "cost-saving", "projects", "goal", "strategy", "budget",
"forecast" or "might" or, words or terms of similar substance or
the negative thereof, are forward-looking statements.
Forward-looking statements include statements relating to the
following: (i) future capital expenditures, expenses, revenues,
earnings, synergies, economic performance, indebtedness, financial
condition, losses and future prospects; (ii) business and
management strategies and the expansion and growth of Sky High or
Tracsis's operations and potential synergies resulting from the
Offer; (iii) the effects of government regulation on Sky High or
Tracsis's business.
These forward-looking statements are not guarantees of future
financial performance. Except as expressly provided in this
announcement, they have not been reviewed by the auditors of
Tracsis or Sky High or their respective financial advisers. Such
forward-looking statements involve known and unknown risks and
uncertainties that could significantly affect expected results and
are based on certain key assumptions. Many factors could cause
actual results to differ materially from those projected or implied
in any forward-looking statements. These factors include the
satisfaction of the Conditions, as well as additional factors, such
as: fluctuations in the capital markets; fluctuations in interest
and exchange rates; increased regulation or regulatory scrutiny;
the occurrence of unforeseen disasters or catastrophes; political
or economic instability in principal markets; adverse outcomes in
litigation; and general, local and global economic, political,
business and market conditions. Other unknown or unpredictable
factors could cause actual results to differ materially from those
in the forward-looking statements. Such forward looking statements
should therefore be construed in the light of such factors. Neither
Tracsis nor Sky High nor any of their respective associates or
directors, officers or advisers, provides any representation,
assurance or guarantee that the occurrence of the events expressed
or implied in any forward-looking statements in this announcement
will actually occur. Due to such uncertainties and risks, readers
are cautioned not to place undue reliance on such forward looking
statements, which speak only as of the date hereof. All subsequent
oral or written forward-looking statements attributable to Tracsis
or Sky High or any of their respective members, directors, officers
or employees or any persons acting on their behalf are expressly
qualified in their entirety by the cautionary statement above.
Tracsis and Sky High disclaim any obligation to update or revise
any forward-looking or other statements contained herein other than
in accordance with their legal and regulatory obligations.
Nothing in this announcement shall be effective to limit or
exclude any liability which, by law or regulation, cannot be so
limited or excluded.
Publication of this announcement on Tracsis and Sky High's
website
A copy of this announcement will be available, subject to
certain restrictions relating to persons resident in any Restricted
Jurisdictions, on www.tracsis.com and www.skyhighplc.com by no
later than 12:00 noon (London time) on 27 March 2013 (being the
Business Day following the date of this announcement) in accordance
with Rule 30.4 of the Code.
The contents of Tracsis's website and Sky High's website are not
incorporated into and do not form part of this announcement. A hard
copy of this announcement is available free of charge for
collection only, at WH Ireland, 11 St James's Square, Manchester,
M2 6WH. Sky High Shareholders may also request that all future
documents, announcements and information to be sent to them in
relation to the Offer should be in hard copy form.
Information relating to Sky High Shareholders
Please be aware that addresses, electronic addresses and certain
information provided by Sky High Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from Tracsis may be provided to the Offeror during
the offer period as requested under Section 4 of Appendix 4 of the
Code to comply with Rule 2.12(c).
Rule 2.10 disclosure
In accordance with Rule 2.10 of the Code, Sky High confirms that
it has in issue 21,517,946 ordinary shares of 1 pence each which
are admitted to trading on AIM. The ISIN of the Sky High Shares is
GB00B1LCP739.
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN
PART, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD
CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OF THAT
JURISDICTION
RECOMMENDED CASH OFFER
FOR THE ENTIRE ISSUED SHARE CAPITAL OF SKY HIGH PLC
(other than those shares acquired by Tracsis under the
Management Agreement and the Prowse Trust Agreement)
And
NOTICE OF GENERAL MEETING OF SKY HIGH PLC
1. Introduction
On 26 March 2013, the boards of Sky High and Tracsis announced,
by way of the Announcement, that they had agreed the terms of a
recommended cash offer to be made by Tracsis for the entire issued
ordinary share capital of Sky High, excluding the Management Roll
Over Shares and the Prowse Trust Shares, at 15.25p per Sky High
Share.
The Offer values Sky High's entire issued ordinary share capital
(including the Management Roll Over Shares and the Prowse Trust
Shares) at approximately GBP3.28 million.
As Mark Mattison, Grant Wilson and Martin Prowse (through the
Prowse Family Trust) are acquiring shares in Tracsis pursuant to
the terms of the Management Agreement and in respect of which the
Sky High Shareholders are being asked to vote at the Sky High
General Meeting, and Alex Johnson, who is not a Sky High
Shareholder, is a party to certain Management Arrangements, they
have not taken part in consideration of the Offer as directors of
Sky High. The purpose of this letter is to explain the background
to, and reasons for, the Offer and why the Independent Directors,
having been so advised by SPARK Advisory Partners Limited, consider
the terms of the Offer to be fair and reasonable and why they
unanimously recommend that:
- all Sky High Shareholders accept the Offer; and
- all Independent Shareholders vote in favour of the Ordinary
Resolution to approve the Management Arrangements, to be proposed
at the Sky High General Meeting to be held at 2.00 p.m. on 15 April
2013.
The Independent Directors have irrevocably undertaken to:
(a) accept (or procure the acceptance of) the Offer in respect
of an aggregate total of 10,819,607 Sky High Shares representing,
in aggregate, approximately 60.70 per cent. of the Offer Shares and
50.28 per cent. of all of the Sky High Shares; and
(b) vote (or procure the vote) in favour of the Ordinary
Resolution in respect of an aggregate of 10,819,607 Sky High Shares
representing, in aggregate, approximately 67.16 per cent. of the
Eligible Voting Shares.
2. Summary terms of the Offer
The formal Offer is set out in the letter from Tracsis in Part
II of the Offer Document, in the conditions and terms of the Offer
set out in Appendix I to the Offer Document and the Form of
Acceptance (applicable if you hold Sky High Shares in certificated
form).
The Offer is being made on the following basis:
for each Offer Share 15.25 pence in cash
The Offer values Sky High's entire issued ordinary share capital
(excluding those ordinary shares contracted to be acquired under
the Management Agreement and the Prowse Trust Agreement) at
approximately GBP2.72 million and represents:
-- a premium of approximately 69.44 per cent. to the Closing
Price per Offer Share of 9p on 25 March 2013 (being the last
Business Day prior to the date of the Announcement); and
-- a premium of approximately 76.91 per cent. to the weighted
average Closing Price per Offer Share of 8.6p for the six months
ended 25 March 2013 (being the last Business Day prior to the date
of the Announcement).
Sky High Shares will be acquired by Tracsis pursuant to the
Offer fully paid and free from all liens, equities, charges,
equitable interests, encumbrances, rights of pre-emption and other
third party rights and/or interests of any nature whatsoever and
together with all rights attaching to them, now or in the future,
including the right to receive and retain all dividends, interest
and other distributions declared, paid or made in the future.
The Offer extends to all Offer Shares which are allotted or
issued and fully paid on the date of the Offer and any Offer Shares
which are allotted or issued and fully paid before the date on
which the Offer closes to acceptances or such earlier date as
Tracsis may announce subject to the Code and in accordance with the
conditions and further terms of the Offer set out in Appendix I to
the Offer Document and this Announcement.
The Offer is conditional, amongst other things, on:
-- valid acceptances being received in respect of not less than
90 per cent. of the Offer Shares (or such lower percentage as
Tracsis may decide) provided that this condition will not be
satisfied unless Tracsis shall have acquired or agreed to acquire,
whether pursuant to the Offer or otherwise, Sky High Shares
carrying in aggregate more than 50 per cent. of the voting rights
normally exercisable at general meetings of Sky High; and
-- the Independent Shareholders passing the Ordinary Resolution
to approve the Management Arrangements at the Sky High General
Meeting.
Full details of the conditions to which the Offer is subject are
set out at Appendix I to the Offer Document. The Offer can only
become effective if all the Conditions of the Offer have been
satisfied or waived. Your attention is also drawn to the additional
information set out in Appendix III to the Offer Document.
3. Deferred Shares
Sky High's share capital also includes 114,702,633 issued
Deferred Shares held by Sky High Shareholders which are not subject
to the Offer.
The Deferred Shares have no voting rights and do not carry any
entitlement to receive notice of or attend and vote at any general
meetings of the Company. They carry only the right to participate
in any return of capital to the extent of the amount paid up or
credited as paid up on each Deferred Share but only after the
holder of each Ordinary Share has received in aggregate the amount
paid up or credited as paid up on each Ordinary Share and a sum of
GBP100,000 per Ordinary Share. Accordingly, the Deferred Shares
are, for all practical purposes, valueless.
Under the articles of association of Sky High, each holder of
the Deferred Shares is deemed to confer an irrevocable authority on
Sky High to:
(a) appoint any one or more directors of Sky High to execute on
behalf of the holder of such Deferred Shares a transfer and/or
agreement to transfer the same for no consideration to such persons
as the directors may determine; and/or
(b) purchase all or any of the same for not more than an
aggregate sum of GBP1.00 for all the Deferred Shares without
obtaining the sanction of the holder thereof, and for the purposes
of such purchase to appoint any one or more of the directors of Sky
High to execute on behalf of any holder of Deferred Shares a
contract for sale of any such shares held by such holder.
The Deferred Shares are not subject to the Offer and Tracsis
intends that the Deferred Shares will either be transferred to
Tracsis or repurchased by Sky High in accordance with the
provisions of the articles of association following the date when
the Offer becomes or is declared unconditional.
4. Background to and reasons for recommending the Offer
Established in 1989, Sky High is a traffic data collection,
aggregation and analysis company that provides primary information
to a variety of clients that include government bodies, private
companies well known within the market place, and public sector
groups. Its primary markets are the transport and people moving
sectors ranging from highway agencies, stations and railways to
festival/conference organisers.
Sky High operates a portfolio of technology and services to
cover all types of survey requirements including a variety of video
capabilities and Bluetooth sensing devices. The market need for the
services provided by Sky High are diverse with data capture being
utilised for budgetary, planning, infrastructure design, and
general economic and income forecasting, all of which are becoming
increasingly important in the present economic and political
climate. Sky High has opportunities abroad and has a presence in
Australia with offices in Melbourne, Brisbane and Sydney.
Sky High has known of the Tracsis business for some time, with
both companies being based in Yorkshire and operating in similar
markets. During discussions with Tracsis, it became apparent to the
Sky High Directors that there is a strong commercial rationale for
combining the Sky High and Tracsis businesses both through
increased scale and cross-selling opportunities.
Reasons for recommending the Offer
The Independent Directors believe that the Offer is
strategically the appropriate next step for Sky High and will
benefit both its clients and employees. Sky High's Directors
believe there is a strong commercial and cultural fit between Sky
High and Tracsis, both in terms of their strategies and services
offerings, and that Sky High will benefit from the additional scale
and customer contacts available to it as part of Tracsis.
The Independent Directors also believe that the support and
backing available as part of a larger group will mean that Sky High
is better placed to continue to grow its client base, and provide
the ability to offer its clients a high quality and cost efficient
service. The Independent Directors also expect the acquisition to
provide additional opportunities for attractive career prospects
for Sky High's employees as a result of being part of a larger,
more profitable group.
The Independent Directors believe that the terms of the Offer,
entitling Shareholders to receive 15.25 pence in cash for each Sky
High Share (excluding the Management Roll Over Shares and the
Prowse Trust Shares), are attractive. The price represents a
significant premium to the Sky High Share price on the last trading
day prior to the Offer Period and the average price over the last
12 months. The Independent Directors believe the Offer represents
significant value for all Sky High Shareholders and, given the
limited liquidity in Sky High Shares, provides an opportunity for
Shareholders to fully monetise their shareholdings at an attractive
Offer price.
Therefore, the Independent Directors, having taken advice from
SPARK Advisory Partners Limited, consider the terms of the Offer to
be fair and reasonable and in the best interests of Shareholders as
a whole. Accordingly, the Independent Directors unanimously
recommend that Shareholders accept the Offer and that Independent
Shareholders vote in favour of the Resolution at the General
Meeting.
5. Information on the Offeror
Tracsis is a limited liability company and was incorporated in
England and Wales on 19 January 2004 with company no. 05019106.
Tracsis was admitted to the AIM market of the London Stock Exchange
in November 2007.
The issued share capital of Tracsis is 24,912,692 ordinary
shares of GBP0.004 each. Following the issue of the Management Roll
Over Shares the issued share capital will be 25,221,255 Ordinary
Shares of GBP0.004 each.
The principal country of Tracsis's operations is the United
Kingdom, although it has recently undertaken significant projects
in Australasia and Europe.
Tracsis is a developer, supplier and aggregator of resource
optimisation, data capture and reporting technologies and
consultancy to companies in the passenger transport industries. The
Group works primarily in the field of passenger rail and bus within
UK and overseas markets.
Tracsis is a profitable, high growth business operating from
three sites being its Head Office in Leeds and two offices in
Derby. It is a sales led organisation with a marketing strategy of
selling direct. Tracsis develops its own software using a team of
in-house developers.
Current Trading and Prospects
Your attention is drawn to the financial information on Tracsis
referred to in Part B of Appendix II of the Offer Document. On 4
March 2013, Tracsis released its interim results for the six months
ended 31 January 2013 (incorporated by reference under Part B of
Appendix II of the Offer Document) which stated that:
-- Revenues increased 29 per cent. to GBP4.9 million (from
GBP3.7 million in the six months ended 31 January 2012);
-- Adjusted EBITDA increased 49 per cent. to GBP1.9 million
(from GBP1.3 million in the six months ended 31 January 2012);
-- Profit before tax increased 50 per cent. to GBP1.7m (from
GBP1.1 million in the six months ended 31 January 2012);
-- Cash balances were GBP8.5m (from GBP7.6 million at 31 July 2012)
At the present time, Tracsis is trading in line with the
expectations of the Tracsis Board and the Tracsis Board believe
that the Group remains well positioned for further growth, subject
to wider general economic conditions, and those specific risks and
uncertainties that Tracsis is exposed to which have been referred
to in the interim report for the six months ended 31 January 2013
and fully explained in the Annual Report for the year ended 31 July
2012 (both incorporated by reference under Part B of Appendix II of
the Offer Document).
Financial Effects of the Offer
Following completion of the Offer, the consolidated assets and
liabilities of the Enlarged Group will comprise the assets and
liabilities of the Sky High Group and the Tracsis Group. The extent
and amount of any fair value adjustments is not yet known.
It is anticipated that the consolidated revenues and earnings of
the Enlarged Group will be enhanced by potential cross selling
opportunities, but these are not yet known.
No change in the continued employment of Tracsis's employees and
management, fixed assets or location of Tracsis' place of business
is anticipated as a consequence of the Offer.
6. Current Trading and Prospects of Sky High
Your attention is drawn to the financial information on Sky High
referred to in Part A of Appendix II of the Offer Document.
On 3 December 2012, Sky High released its half year results for
the six month period ended 30 September 2012. In that statement
Richard Jackson, Sky High's Chairman, commented:
"Despite the slow UK economy in general, the market for traffic
data collection services has improved considerably over the first
half of this financial year. This has been driven by increased
Government spending and focus on infrastructure projects including
a number of high profile rail projects. Enquiries have increased in
both quantity and value and there are more high profile, complex
projects for which Sky High has a competitive advantage in
delivering due to its size and experience. Sky High is now in a
much better position to benefit from the improved market due to its
greater geographical coverage and increased resources after the
Count On Us acquisition. The Directors are confident that the
stronger market conditions will continue at least to the end of
this financial year.
The Directors remain committed to continued investment in
business development and are continually looking to improve market
share through tendering for new major contracts and looking to
develop strategic relationships with other market participants. The
Directors are committed to continue to develop the vehicle and
pedestrian tracking service with the aim for Sky High to be the
market leader in both the traffic and pedestrian markets.
Whilst Australia has declined in this trading period the
Directors remain confident about the prospects for Australia
Traffic in the medium term. The business is well positioned in its
market and is in the prime position to benefit when the market
improves, which as we have seen in the UK, is only a matter of
time. When the market improves the Directors expect Australia
Traffic to enter another growth phase as it will look to increase
geographical coverage.
The performance since the 30 September has continued to be
strong, especially in the UK, which has continued to perform in
line with the trends described above. Whilst the second half of the
year has less work from the DfT National Road Traffic Census
contract and we expect December and January to be seasonally slow,
due to the combination of holidays and weather, the general outlook
for the second half of the year is positive.
It is expected that trading in Australia will remain challenging
but some improvement on the first half of the year is expected.
Overall, the Board remain positive about the prospects for the
Group for the remainder of the year and beyond."
There has been no significant change to the trading position or
prospects of Sky High since that time.
The profits before tax attributable to Sky High plc for the year
ended 31 March 2012 was GBP80,000 and the total value of the assets
of Sky High plc, as at 30 September 2012 was GBP2.7m.
7. Irrevocable undertakings
Under the Management Agreement, Tracsis has, subject to and
conditional upon the Offer becoming or being declared unconditional
in all respects, agreed to acquire the Management Roll Over Shares
(comprising 3,526,358 Sky High Shares) held by the Management
Shareholders, representing approximately 16.39 per cent. of all the
issued Sky High Shares, at the same price as the Offer Shares, and
the Management Shareholders have agreed to apply the proceeds to
acquire 308,563 Tracsis Shares, representing approximately 1.22 per
cent. of the issued share capital of Tracsis following their
issue.
Under the Prowse Trust Agreement, Tracsis has agreed to acquire
166,667 Sky High Shares from the Prowse Trust (a Connected Person
of Martin Prowse), representing 0.77 per cent. of all the issued
Sky High Shares, at the same price as the Offer Shares
In addition:
(a) the Offeror has received irrevocable undertakings to accept
the Offer from certain Management Shareholders in respect of
1,714,256 Sky High Shares, representing approximately 9.62 per
cent. of the Offer Shares and 7.97 per cent of all the issued Sky
High Shares;
(b) the Offeror has received irrevocable undertakings to:
(i) accept the Offer (or procure the acceptance of the Offer, as
the case may be) from the Independent Directors in respect of an
aggregate total of 10,819,607 Sky High Shares (as set out in
paragraph 4.3(d) of Appendix III of the Offer Document)
representing, in aggregate, approximately 60.70 per cent. of the
Offer Shares and 50.28 per cent. of all the Sky High Shares;
and
(ii) to vote or procure the vote in favour of the Ordinary
Resolution (to approve the Management Arrangements), in respect of
an aggregate total of 10,819,607 Eligible Voting Shares
representing, in aggregate, approximately 67.16 per cent. of the
Eligible Voting Shares; and
(c) The Offeror has also received irrevocable undertakings to:
(i) accept the Offer from certain other Sky High Shareholders in
respect of an aggregate total of 785,878 Sky High Shares (as set
out in paragraph 4.3(e) of Appendix III if the Offer Document)
representing approximately 4.41 per cent. of the Offer Shares and
3.65 per cent. of all the Sky High Shares; and
(ii) vote (or procure the vote) in favour of the Ordinary
Resolution (to approve the Management Arrangements), in respect of
an aggregate total of 785,878 Sky High Shares representing, in
aggregate, approximately 4.88 per cent. of the Eligible Voting
Shares.
In aggregate, therefore, irrevocable undertakings have been
received in respect of a total of:
(a) 13,319,741 Sky High Shares, to accept the Offer,
representing approximately 74.73 per cent. of the Offer Shares and
61.90 per cent. of all the Sky High Shares; and
(b) 11,605,485 Eligible Voting Shares, to vote in favour of the
Ordinary Resolution, representing approximately 72.04 per cent. of
the Eligible Voting Shares.
Further details of these irrevocable undertakings are set out in
paragraph 4.3 of Appendix III of the Offer Document.
8. Management Arrangements
Management Agreement
Tracsis has entered into a Management Agreement under which
Tracsis has conditionally agreed to acquire the 3,526,358
Management Roll Over Shares representing in aggregate approximately
16.39 per cent. of the issued share capital of Sky High, at the
same price as the Offer Shares and the Management Shareholders have
agreed to apply the proceeds to acquire 308,563 Tracsis Shares,
representing in aggregate approximately 1.22 per cent. of the
issued share capital of Tracsis as at the Unconditional Date.
The Management Shareholders are three executive directors of Sky
High (Mark Mattison, Grant Wilson and Martin Prowse) and three
senior managers of the Sky High Group (Paul Jackson, Peter Agnew
and Kevin Stewart). All these individuals will become part of the
Tracsis Group following the completion of the Offer (Sky High will
become a subsidiary of Tracsis) and the Tracsis Board consider that
the acquisition of Tracsis Shares will align the Management
Shareholders' interests with those of the existing Tracsis
shareholders.
It is proposed that the Management Roll Over Shares will be
acquired at the same Offer price as the cash Offer (15.25p) and
that the proceeds will be used to acquire Tracsis Shares. The issue
price of the Tracsis shares has been calculated using the 1 month
volume weighted average price ("VWAP") of the Tracsis shares (for
the period immediately prior to announcement of the Offer), being a
price of 174.28p per Tracsis Share. This price represents a
discount of 0.41 per cent. to the Tracsis Share price at 25 March
2013.
The table below sets out the number of Sky High Shares being
sold by the Management Shareholders and the number of Tracsis
Shares being acquired by Management Shareholders pursuant to the
Management Agreement:
Sky High Shares Tracsis Shares
------------------------- ---------------- ---------------
Mark Mattison 2,477,633 216,800
------------------------- ---------------- ---------------
Grant Wilson 548,726 48,015
------------------------- ---------------- ---------------
Prowse Family Trust Pty
Limited 249,999 21,875
------------------------- ---------------- ---------------
Paul Jackson 62,500 5,468
------------------------- ---------------- ---------------
Paul Agnew 125,000 10,937
------------------------- ---------------- ---------------
Kevin Stewart 62,500 5,468
------------------------- ---------------- ---------------
Total 3,526,358 308,563
Proposed Incentivisation Agreement
It is proposed that for the 12 months following completion of
the Offer, a bonus scheme is put in place for Mark Mattison and
Alex Johnson (executive directors of Sky High), whereby upon
achieving certain profit targets for the Sky High business they
would be entitled to receive a financial bonus. The proposal is to
award a bonus dependent upon achieving a profit before tax in the
following bands:
Level of Profit before tax achieved Bonus (GBP)
by
Sky High (GBP)
------------------------------------ ------------------------------
GBP0-GBP749,999 nil
------------------------------------ ------------------------------
GBP750,000 GBP22,500
------------------------------------ ------------------------------
GBP750,000 - GBP949,999 GBP22,500 plus 15 per cent of
the excess
over GBP750k
------------------------------------ ------------------------------
GBP950,000 and upwards GBP52,500 plus 20 per cent of
the excess
over GBP950k
------------------------------------ ------------------------------
Any bonus that becomes payable under the Proposed
Incentivisation Agreement would be allocated as to 60 per cent. to
Mark Mattison and 40 per cent. to Alex Johnson.
Under Rule 16 of the Code, except with the consent of the Panel,
an offeror or persons acting in concert with it may not make any
arrangements with shareholders and may not deal or enter into
arrangements to deal in shares of the offeree company, or enter
into arrangements which involve acceptance of an offer, either
during an offer period or when one is reasonably in contemplation,
if there are favourable conditions attached which are not being
extended to all shareholders.
In accordance with Rule 16.2 of the Code:
(a) as Mark Mattison, Grant Wilson, Paul Jackson, Peter Agnew,
Kevin Stewart and Martin Prowse (via the Prowse Family Trust) are
shareholders in Sky High, and as a result of the Management
Agreement, they, will become shareholders in Tracsis on a basis
that is not being made available to the Independent Shareholders;
and
(b) Alex Johnson, although he is not a shareholder in Sky High
will also take part in the Proposed Incentivisation Agreement with
Mark Mattison.
All such Management Arrangements must be approved by the
Independent Shareholders of Sky High before they may take effect.
The Management Agreement and the Proposed Incentivisation Agreement
are therefore subject to the Ordinary Resolution being approved on
a poll by a majority of the Independent Shareholders at the Sky
High General Meeting.
Accordingly the Notice of Sky High General Meeting convening the
Sky High General Meeting for 2.00p.m. on 15 April 2013 at which the
Ordinary Resolution to approve the Management Arrangements,
pursuant to the Code will be proposed is set out in Appendix IV of
the Offer Document. In accordance with the requirements of the
Code, only the Independent Shareholders will be permitted to vote
on the Ordinary Resolution, which will be taken on a poll.
The Offer is therefore conditional on, inter alia, the passing
of the Ordinary Resolution by Independent Shareholders at the Sky
High General Meeting to approve the Management Arrangements
described above.
SPARK Advisory Partners Limited considers the terms of the
Management Arrangements, which comprises the terms of the
Management Agreement and the Proposed Incentivisation Agreement
with Mark Mattison and Alex Johnson are fair and reasonable in so
far as the Independent Shareholders are concerned.
The details of all the Directors' service agreements are shown
in paragraph 10 of Appendix III of the Offer Document.
9. Management, employees and locations
The Tracsis Board attaches great importance to the skills and
experience of the management and employees of Sky High. The Tracsis
Board intends to continue the business of Sky High, including
supporting Sky High's current activities, and has provided
assurances to the Independent Directors that, upon the Offer
becoming or being declared unconditional in all respects, the
existing employment rights of all employees of Sky High will be
fully safeguarded.
No change is expected to the current locations or fixed assets
of the Group's places of business.
Following the Offer becoming unconditional in all respects the
Management Team will remain in their current roles with no changes
to their current terms and conditions of employment, save that Mark
Mattison and Alex Johnson have been incentivised to remain as
employees of Sky High following completion of the Offer through the
Proposed Incentivisation Arrangements.
In addition, it is proposed that Mark Mattision, Martin Prowse,
Grant Wilson and Alex Johnson, as executive directors of Sky High
will be eligible to join the Tracsis Long Term Incentive Plan
scheme, whereby it is possible that any cash bonus awarded in the
future can be swapped for discounted EMI share options which vest
over a three year period (assuming that various conditions are met)
on the same basis as existing Tracsis employees of a comparable
level of seniority.
Additionally, it is proposed that following completion of the
Offer, Alex Johnson will be entitled to receive a pension
contribution of 5 per cent. of his salary. The Sky High
remuneration committee had already agreed to this change, which is
not being provided as a direct result of the Offer.
The Independent Directors have agreed to resign subject to, and
with effect from, the Offer being declared unconditional in all
respects. Particulars of the payments in respect of termination of
their respective appointments as Directors are set out in paragraph
10 of Appendix III to the Offer Document.
10. Sky High Options
Sky High has granted the following options to David Lowe, Grant
Wilson, Paul Jackson and Steve Hanson to subscribe for ordinary
shares in Sky High:
Option Holder Sky High EMI Exercise Price Sky High Unapproved Exercise Price
Options Options
--------------- ------------- --------------- -------------------- ---------------
David Lowe 255,000 12.5p
--------------- ------------- --------------- -------------------- ---------------
Grant Wilson 127,000 12.5p
--------------- ------------- --------------- -------------------- ---------------
Paul Jackson 100,000 12.5p
--------------- ------------- --------------- -------------------- ---------------
Steven Hanson 107,317 20.5p
--------------- ------------- --------------- -------------------- ---------------
However each of the option holders have voluntarily surrendered
such options and waived their rights under Rule 15 of the Code,
which would have required Tracsis to have made an appropriate offer
to them to ensure that their interests were safeguarded.
Consequently, the Panel has granted dispensation in respect of
making an appropriate offer under Rule 15 of the Code.
11. Financing the Offer
Full acceptance of the Offer on its current terms would involve
payment by Tracsis of GBP2.72 million in cash to Sky High
Shareholders. In addition the sum of GBP0.54 million is payable to
the Management Shareholders under the Management Agreement for the
purchase of the Management Roll Over Shares and GBP0.02million is
payable to the Prowse Trust under the Prowse Trust Agreement for
the purchase of the Prowse Trust Shares.
Tracsis will fund the cash consideration of GBP3.28 million
payable under the terms of the Offer and the Management Agreement
and the Prowse Trust Agreement from its existing cash
resources.
WH Ireland, financial adviser to the Offeror, is satisfied that
sufficient financial resources are available to Tracsis from its
own resources to satisfy in full the cash consideration payable to
Sky High Shareholders under the terms of the Offer and to
Management Shareholders under the terms of the Management Agreement
and the Prowse Trust under the terms of the Prowse Trust
Agreement.
12. Cancellation of trading on AIM, Re-registration and
Compulsory Acquisition
If Tracsis receives acceptances under the Offer in respect of
(and/or otherwise acquires) both 90 per cent. or more in value of
the Offer Shares and 90 per cent. or more of the voting rights
carried by those shares and assuming that all the other conditions
of the Offer have been satisfied or waived (if capable of being
waived), Tracsis intends to exercise its rights in accordance with
sections 974 to 991 (inclusive) of the Act to acquire compulsorily
the remaining Sky High Shares on the same terms as the Offer.
Following the Offer becoming or being declared unconditional in
all respects and subject to any applicable requirements of the AIM
Rules, Tracsis intends to procure that Sky High applies to the
London Stock Exchange for the cancellation of trading of Sky High
Shares on AIM. It is expected that such cancellation would take
effect no earlier than 20 Business Days after the Offer becomes or
is declared unconditional in all respects (provided that Tracsis
has acquired, or agreed to acquire, issued share capital carrying
not less than 75 per cent. of the voting rights of Sky High). The
cancellation of the admission of Sky High Shares to trading on AIM
would significantly reduce the liquidity and marketability of any
Sky High Shares not acquired by Tracsis.
It is also intended that, following the Offer becoming or being
declared unconditional in all respects, Sky High will be
re-registered as a private company under the relevant provisions of
the Companies Act 2006 and new articles of association be adopted
by Sky High. It is intended that these articles of association will
contain drag-along rights, which will provide that if there is a
change of control of Sky High, namely a transfer to a third party
of equity voting capital representing 50.00 per cent. control or
more of the equity voting capital of Sky High, Tracsis can require
all the other shareholders (if any) to sell their Sky High Shares
to such third party on the same terms as Tracsis.
13. Overseas Shareholders
The availability of the Offer to Sky High Shareholders who are
not resident in the United Kingdom may be affected by the laws of
the relevant jurisdictions in which they are resident.
The Offer is not being made, directly or indirectly, in or into
and is not capable of acceptance from or within any Restricted
Jurisdiction. Doing so may render invalid any purported
acceptance.
14. Sky High General Meeting and Sky High Form of Proxy
In accordance with Rule 16.2 of the Code, and for the reasons
set out in paragraph 6 of this letter, the Management Arrangements
must be approved at the Sky High General meeting before they take
effect. The Management Arrangements are therefore subject to the
Ordinary Resolution being approved on a poll by a majority of the
Independent Shareholders at the Sky High General Meeting.
The Notice of Sky High General Meeting is therefore set out in
Appendix IV of the Offer Document (and Appendix 2 of this
announcement) to be held at the offices at 32 Bedford Row, London
WC1R 4HE at 2pm on 15 April 2013 at which it is proposed that that
the Independent Shareholders approve the Management Arrangements
(as summarised in paragraph 6 of Part I of the Offer Document) for
the purposes of Rule 16 of the Code. In accordance with the
requirements of the Code, only the Independent Shareholders will be
permitted to vote on the Ordinary Resolution, which will be taken
on a poll.
15. Documents available for inspection
Copies of the following documents will be available free of
charge, on Sky High's website www.skyhighplc.co.uk and Tracsis'
website www.tracsis.com, from, unless otherwise indicated in the
Offer Document, 5.00 p.m. (London time) on 26 March 2013 until the
end of the Offer Period:
(a) the memorandum of association and articles of association of
each of Tracsis and Sky High;
(b) the material contracts of Tracsis referred to in paragraph 8
of Appendix III of the Offer Document;
(c) the material contracts of Sky High referred to in paragraph
9 of Appendix III of the Offer Document;
(d) the service agreements and letters of appointment referred
to in paragraph 10 of Appendix III of the Offer Document;
(e) the Irrevocable Undertakings;
(f) the letters of consent referred to in paragraph 13.4 and
13.5 of Appendix III of the Offer Document;
(g) the financial statements of Sky High referred to in Part A
of Appendix II of the Offer Document;
(h) the financial statements of Tracsis referred to in Part B of
Appendix II of the Offer Document;
(i) the Offer Document, the announcement under Rule 2.7 of the
Code and the Form of Acceptance; and
(j) the Confidentiality Agreement.
16.Offer Related Agreements
Management Agreement;
On 25 March 2013, Tracsis entered into an agreement with the
Management Shareholders, pursuant to which the Management
Shareholders conditionally agreed to sell and Tracsis conditionally
agreed to purchase the Management Roll Over Shares in exchange for
certain Tracsis Shares and the Executive Management Shareholders
agreed to give certain warranties in relation to Sky High.
Under the agreement, the Management Shareholders agreed that
they (and their Connected Persons) will sell 3,526,358 Sky High
Shares, representing in aggregate 16.39 per cent. of the Sky High
Shares as at the date of the Offer Document, to Tracsis, in
consideration of the sum of GBP0.54 million and that the proceeds
will be used to acquire 308,563 Tracsis Shares, representing in
aggregate approximately 1.22 per cent. of the issued share capital
of Tracsis, as set out in the table below:
Management Shareholder Number of Sky High Number of Tracsis Shares
Shares
------------------------ ------------------- -------------------------
Mark Mattison 2,477,633 216,800
------------------------ ------------------- -------------------------
Grant Wilson 548,726 48,015
------------------------ ------------------- -------------------------
Martin Prowse 249,999 21,875
------------------------ ------------------- -------------------------
Paul Jackson 62,500 5,468
------------------------ ------------------- -------------------------
Peter Agnew 125,000 10,937
------------------------ ------------------- -------------------------
Kevin Stewart 62,500 5,468
------------------------ ------------------- -------------------------
Total 3,526,358 308,563
------------------------ ------------------- -------------------------
Under the agreement, the Executive Management Shareholders have
agreed to give certain limited warranties to Tracsis in respect of
the content of the financial due diligence report, in respect of
the financial forecasts and in respect of the framework
agreements.
The Management Agreement is conditional upon the passing of the
Ordinary Resolution at the Sky High General Meeting and the Offer
becoming or being declared unconditional in all respects.
Prowse Trust Agreement
On 25 March 2013, Tracsis entered into an agreement with the
Prowse Trust, pursuant to which the Prowse Trust conditionally
agreed to sell and Tracsis conditionally agreed to purchase 166,667
Sky High Shares, representing 0.77 per cent of the issued share
capital of Sky High Shares, at the same price as the Offer
Shares.
Under the agreement, the Prowse Trust has given certain limited
warranties to Tracsis regarding title to the Prowse Trust
Shares.
The Prowse Trust Agreement is conditional upon the Offer
becoming or being declared unconditional in all respects
Deed of Surrender
On 25 March 2013, Tracsis entered into the deeds of surrender
relating to the surrender of the Sky High Options referred to in
paragraphs 4.2(e) and (f) of the Offer Document, and as more
particularly described in paragraph 9(a) of the Offer Document.
Lock - In and Orderly Market Agreement
On 25 March 2013, Tracsis has entered into a Lock-In and Orderly
Market Agreement with the Management Shareholders and WH Ireland,
pursuant to which each Management Shareholder undertakes to Tracsis
and WH Ireland to enter into certain restrictions with regard to
the disposal by them of the Tracsis Shares acquired by them under
the Management Agreement. Each Management Shareholder agrees:
-- not at any time prior to the first anniversary of the date
when the Tracsis Shares are issued to the relevant Management
Shareholder ("Relevant Issue Date"), without the prior written
consent of Tracsis, to offer, dispose of, or agree to offer or
otherwise dispose of directly or indirectly, whether for
consideration or not any Tracsis Shares (or any legal or beneficial
interest in any Tracsis Shares); or
-- not before the first anniversary of the Relevant Issue Date
but prior to the second anniversary of the Relevant Issue Date
except through WH Ireland and subject to the reasonable
requirements and restrictions of WH Ireland with a view to
maintaining an orderly market in the shares of Tracsis.
The Lock-In and Orderly Market Agreement provides for customary
carve-outs in respect of these restrictions.
The Lock-In and Orderly Market Agreement is conditional upon the
passing of the Ordinary Resolution at the Sky High General Meeting
and the Offer becoming or being declared unconditional in all
respects.
LTIP Letter
On 25 March 2013, Tracsis issued a letter in favour of Mark
Mattison, Martin Prowse, Grant Wilson and Alex Johnson as executive
directors of Sky High:
-- its intention to enter into the Proposed Incentivisation
Agreement, as further described in paragraph 6 Part I and paragraph
6 of Part II of the Offer Document, with Mark Mattison and Alex
Johnson; and
-- its proposal that Mark Mattison, Martin Prowse, Grant Wilson
and Alex Johnson, as executive directors of Sky High, will be
eligible to join the Tracsis Long Term Incentive Plan, as described
in paragraph 6 of Part I and Paragraph 6 of Part II of the Offer
Document.
The Confidentiality Agreement
On 21 November 2012, Sky High entered into a confidentiality
agreement with Tracsis, pursuant to which Tracsis agreed to treat
information provided to it by Sky High as confidential, and to not
directly or indirectly disclose the confidential information (or
allow it to be disclosed) to any person, unless permitted by the
Confidentiality Agreement and save where such information is
required to be disclosed by, inter alia, law, regulation or
judicial process. The information provided by Sky High is only to
be used for the purposes of considering, evaluating and negotiating
a possible offer for the entire issued share capital of Sky
High.
Under the terms of the agreement, it was also agreed that for a
period of one year from the date of the agreement, neither party
can, without the prior written consent of the other, directly or
indirectly, engage or have contact in the other party's group,
except to the extent that negotiations in respect of the possible
offer continue or otherwise in the ordinary course of business
between the parties. It was also agreed that for a period of one
year from the date of the agreement, neither party can entice,
solicit procure any individual who was, at the time during
negotiations relating to the possible offer, a "key employee" to
leave the employment of the other party or company in the other
party's group.
Tracsis also agreed not to use any confidential information to
deal with or seek the custom of any person who is or was a client
or customer of Sky High in the 12 months prior to the
agreement.
The agreement also includes standstill arrangements which apply
for a period of 12 months following the date of the agreement and
restrict Tracsis, subject to customary carve outs, from acquiring
Sky High Shares, announcing an Offer or entering into agreements in
relation to the voting rights of Sky High Shares.
17. Confirmation regarding Opening Position Disclosure
The Offeror confirms that it is, on the date of this
Announcement, making an Opening Position Disclosure, setting out
the details required to be disclosed by it under Rule 8.1(a) of the
Code.
18 . Persons acting in concert with Tracsis
In addition to Tracsis, and the Tracsis Directors, for the
purposes of the Code, the persons who are acting, or deemed to
acting, in concert with Tracsis for the purposes of the Code and
which are required to be disclosed are:
Person Type of Organisation Relationship to Tracsis
---------------------- ------------------------ ------------------------
WH Ireland Limited English private limited Financial Adviser
11 St James's Square company
Manchester
M2 6WH
---------------------- ------------------------ ------------------------
19. Interests and Dealings in relevant Sky High securities
(a) As at the close of business on the disclosure date, the
interests (all of which are beneficial unless otherwise stated), of
the Tracsis Directors and their respective related parties, in
relevant Sky High securities were as follows:
Name Number of Sky High % of Sky High Shares
Shares
--------------- ------------------- ---------------------
John McArthur 41,874* 0.19%
--------------- ------------------- ---------------------
* John McArthur holds 41,874 Sky High Shares beneficially via a
self invested personal pension which are registered in the name of
Lawshare Nominees Limited.
(b) The following dealings in relevant Sky High securities have
taken place by Tracsis Directors during the disclosure period:
Name Date Nature of Transaction Number of Sky Price per Sky
High Shares High
Share
---------------- ---------------- ----------------------- -------------- --------------
Purchase of
John McArthur* 3 April 2012 shares 18,858 8p
---------------- ---------------- ----------------------- -------------- --------------
Purchase of
John McArthur* 14 August 2012 shares 8,543 10.25p
---------------- ---------------- ----------------------- -------------- --------------
Purchase of
John McArthur* 29 August 2012 shares 14,473 9.9p
---------------- ---------------- ----------------------- -------------- --------------
* The relevant Sky High Shares were purchased beneficially on
behalf of John McArthur and are registered in the
name of Lawshare Nominees Limited, a self invested personal
pension plan of John McArthur.
(c) As at the close of business of the disclosure date, the
interests of WH Ireland Limited, as a person acting in concert with
Tracsis, in relevant Sky High Securities were as follows.
Name Number of Sky High % of Sky High Shares
Shares
--------------------- ------------------- ---------------------
WH Ireland Limited* 515,000 2.39%
--------------------- ------------------- ---------------------
* the relevant Sky High shares are held in discretionary
accounts on behalf of clients of WH Ireland Limited.
(d) As at the close of business on the disclosure date, the
interests (all of which are beneficial unless otherwise stated) of
the Sky High Directors and their respective related parties, in
relevant Sky High securities were as follows:
Name Number of Sky High % of Sky High Shares
Shares
------------------------- ------------------- ---------------------
Michael Jackson 797,693 3.71%
------------------------- ------------------- ---------------------
Richard Jackson 2,329,256 10.82%
------------------------- ------------------- ---------------------
Michael Jackson and
Richard
Jackson, as trustee
for the
W&E Jackson Settlement
Trust 1,571,756 7.30%
------------------------- ------------------- ---------------------
David Lowe 485,193 2.25%
------------------------- ------------------- ---------------------
Sir John Madejski OBE
DL 5,635,709* 26.19%
------------------------- ------------------- ---------------------
Mark Mattison 4,129,389 19.19%
------------------------- ------------------- ---------------------
Grant Wilson 548,726 2.55%
------------------------- ------------------- ---------------------
Martin Prowse** 416,666 1.94%
------------------------- ------------------- ---------------------
* Of these, (i) 1,500,000 Sky High Shares are registered in the
name of Sir John Madejski OBE DL and (ii) 4,135,709 Sky High Shares
are registered in the name of Clearview Traffic Group Limited, a
company in which Sir John Madejski OBE DL is a director and
shareholder.
** These are registered in the name of Prowse Family Trust Pty
Limited, a company in which Martin Prowse is a director and
shareholder.
(e) As at the disclosure date, the following options had been
granted to the Sky High Directors under the Sky High share option
schemes:
Option Holders Sky High EMI Options Exercise Price Sky High Unapproved Options Exercise Price
---------------- --------------------- --------------- ---------------------------- ---------------
David Lowe 255,000 12.5p
---------------- --------------------- --------------- ---------------------------- ---------------
Grant Wilson 127,000 12.5p
---------------- --------------------- --------------- ---------------------------- ---------------
However, subject to and conditional upon the Offer becoming or
being declared unconditional in all respects, each of the option
holders has voluntarily surrendered such options and waived their
rights under Rule 15 of the Code, which would have required Tracsis
to have made an appropriate offer to them to ensure that their
interests were safeguarded. Consequently, the Panel has granted
dispensation in respect of making an appropriate offer under Rule
15 of the Code.
(f) As at the disclosure date, the following options had been
granted to Paul Jackson (a director of Sky High Technology Limited
and subsidiary of Sky High) and Steven Hanson (a Sky High employee)
under the Sky High share option schemes:
Option Holders Sky High EMI Options Exercise Price
---------------- --------------------- ---------------
Paul Jackson 100,000 12.5p
---------------- --------------------- ---------------
Steven Hanson 107,317 20.5p
---------------- --------------------- ---------------
However, subject to and conditional upon the Offer becoming or
being declared unconditional in all respects, each of the option
holders has voluntarily surrendered such options and waived their
rights under Rule 15 of the Code, which would have required Tracsis
to have made an appropriate offer to them to ensure that their
interests were safeguarded. Consequently, the Panel has granted
dispensation in respect of making an appropriate offer under Rule
15 of the Code.
(g) The following dealings in relevant Sky High Securities have
taken place by the Sky High Directors during the disclosure
period:
Name Date Nature of Transaction Number of Sky Price per Sky
High Shares High
Share
-------------- -------------- ----------------------- -------------- --------------
25 September Purchase of
Grant Wilson 2012 Shares 7,733 9.65p
-------------- -------------- ----------------------- -------------- --------------
20. Conditions
The Offer will be subject to the conditions and certain further
terms set out in Appendix 1 of this Announcement and the further
terms and conditions set out in the Offer Document.
The formal Offer Document will be sent to Sky High Shareholders,
together with (in the case of holdings of Sky High Shares in
certificated form) the Form of Acceptance, as soon as reasonably
practicable and, in any event, within 28 days of the date of this
Announcement (unless agreed otherwise with the Panel). This
Announcement is not intended to and does not constitute an offer or
an invitation to purchase any securities. The definitions of terms
used in this Announcement are contained in Appendix III to this
Announcement.
APPENDIX I - CONDITIONS AND FURTHER TERMS OF THE OFFER
PART A - CONDITIONS OF THE OFFER
The Offer complies with the rules and regulations of the
Financial Services Authority, the AIM Rules of the London Stock
Exchange, the Code and the Companies Act 2006. The Offer is
governed by English law and is subject to the jurisdiction of the
courts of England and to the terms and conditions set out in this
Appendix I and (in relation to Sky High Shares held in certificated
form) in the Form of Acceptance.
The Offer is subject to the following conditions:
(a) valid acceptances of the Offer being received (and not,
where permitted, withdrawn) by not later than 1.00 p.m. (London
time) on the First Closing Date (or such later time(s) and/or
date(s) as Tracsis may, subject to the rules of the Code or with
the consent of the Panel, decide) in respect of not less than 90
per cent. (or such lesser percentage as Tracsis may decide) in
nominal value of Sky High Shares to which the Offer relates, and
not less than 90 per cent. (or such lesser percentage as Tracsis
may decide) of the voting rights carried by Sky High Shares to
which the Offer relates, provided that this condition will not be
satisfied unless Tracsis shall have acquired or agreed to acquire,
whether pursuant to the Offer or otherwise, Sky High Shares
carrying in aggregate more than 50 per cent. of the voting rights
then exercisable at a general meeting of Sky High including to the
extent (if any) required by the Panel, any voting rights attaching
to Sky High Shares which are unconditionally allotted before the
Offer becomes or is declared unconditional as to acceptances
pursuant to the exercise of any outstanding conversion or
subscription rights or otherwise. For the purposes of this
condition:
(i) Sky High Shares which have been unconditionally allotted but
not issued before the Offer becomes or is declared unconditional as
to acceptances, whether pursuant to the exercise of any outstanding
subscription or conversion rights or otherwise, shall be deemed to
carry the voting rights they will carry upon issue; and
(ii) the expression "Sky High Shares to which the Offer relates"
shall be construed in accordance with Chapter 3 of Part 28 of the
Companies Act 2006;
(b) the passing by the Independent Shareholders at a general
meeting of Sky High (or at any adjournment thereof) of the Ordinary
Resolution to approve the Management Arrangements between Tracsis,
the Management Team and Sky High or such other resolutions as may
be required by the Panel to approve the Management
Arrangements;
(c) no Relevant Authority having, without the consent of
Tracsis, having given notice in writing of a decision to take,
institute, implement or threaten any action, proceedings, suit,
investigation, enquiry or reference (and in each case not having
withdrawn the same) or having required any action to be taken or
information to be provided or otherwise having done anything or
having made, proposed or enacted any statute, regulation, order or
decision (and in each case not having withdrawn the same) or having
done anything which would or might reasonably be expected to (in
any case which would or might reasonably be expected to be material
in the context of the Wider Sky High Group, or the Wider Tracsis
Group, as the case may be, each taken as a whole):
(i) make the Offer, its implementation or the acquisition or
proposed acquisition of any shares or other securities in, or
control or management of, any member of the Wider Sky High Group by
any member of the Wider Tracsis Group void, prohibited,
unenforceable and/or illegal in or under the laws of any relevant
jurisdiction or otherwise, in any material way, directly or
indirectly restrain, restrict, prohibit, prevent, delay or
otherwise interfere with the Offer or such acquisition or the
implementation thereof, or impose material additional conditions or
obligations with respect to the Offer or such acquisition, or
otherwise, in any material way, challenge, impede or prevent the
Offer or its implementation, or require material amendment to the
terms of the Offer or the acquisition or proposed acquisition of
any Sky High Shares, or the acquisition of control by the Wider
Tracsis Group of the Wider Sky High Group;
(ii) require, prevent or delay the divestiture (or alter the
terms envisaged for any proposed divestiture) by any member of the
Wider Tracsis Group or by any member of the Wider Sky High Group of
all or any material part of their respective businesses, assets or
properties or impose any material limitation on the ability of any
of them to conduct any of their respective businesses (or any of
material part thereof) or to own or dispose of any of their
respective assets or properties or any material part thereof;
(iii) impose any limitation on, or result in a material delay
in, the ability of any member of the Wider Tracsis Group, to
acquire or to hold or to exercise effectively, directly or
indirectly, all or any rights of ownership of shares or loans or
securities convertible into shares or any other securities in Sky
High (or any member of the Wider Sky High Group) or on the ability
of any member of the Wider Sky High Group or any member of the
Wider Tracsis Group to hold or exercise effectively, directly or
indirectly, all or any rights of ownership in respect of shares or
loans or securities convertible into shares or any other securities
(or equivalent) in, or to exercise voting or management control
over any member of the Wider Sky High Group;
(iv) other than pursuant to Chapter 3 of Part 28 of the
Companies Act, require any member of the Wider Tracsis Group and/or
any member of the Wider Sky High Group to acquire, or to offer to
acquire, any shares or other securities (or their equivalent) or
interest in and/or indebtedness of any member of the Wider Sky High
Group owed by or owed to any third party;
(v) impose any limitation on the ability of any member of the
Wider Tracsis Group or any member of the Wider Sky High Group to
integrate or co-ordinate its business, or any part of it, with the
businesses (or any part of the businesses) of any other member of
the Wider Tracsis Group or the Wider Sky High Group;
(vi) result in any member of the Wider Sky High Group ceasing to
be able to carry on business under any name under which it
presently does so or ceasing to be able to use in its business any
name, trademark or other intellectual property right which it at
present uses where such name or use is material to the business of
the Wider Sky High Group taken as a whole; or
(vii) otherwise adversely affect any or all of the business,
assets, financial or trading position, profits or prospects of any
member of the Wider Tracsis Group or any member of the Wider Sky
High Group,
and all applicable waiting and other time periods during which
any Relevant Authority could decide to take, institute, implement
or threaten any such actions, proceedings, suit, investigation,
enquiry or reference under the laws of any relevant jurisdiction
having expired, lapsed or been terminated;
(d) all necessary filings and applications 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 regulations of any relevant jurisdiction
having expired, lapsed or been terminated and all regulatory and
statutory obligations in any relevant jurisdiction having been
complied with in each case as may be necessary in respect of the
Offer and its implementation or the acquisition or proposed
acquisition by Tracsis or any member of the Wider Tracsis Group of
any shares or other securities in, or control of, Sky High or any
member of the Wider Sky High Group;
(e) all authorisations, orders, recognitions, grants, consents,
clearances, confirmations, licences, certificates, permissions and
approvals ("Authorisations") which are material and necessary or
appropriate for or in respect of the Offer or the acquisition or
proposed acquisition by Tracsis of any shares or other securities
in, or control of, Sky High or any other member of the Wider Sky
High Group in each case where the absence of such Authorisations
would have a material adverse effect on the Wider Tracsis Group or
the Wider Sky High Group and in each case taken as a whole, having
been obtained on terms and in a form satisfactory to Tracsis
(acting reasonably), from all and any appropriate Relevant
Authority or (without prejudice to the generality of the foregoing)
from any person or bodies with whom any member of the Wider Sky
High Group or the Wider Tracsis Group has entered into contractual
arrangements and all such Authorisations which are necessary or
reasonably considered to be appropriate to carry on the business of
any member of the Wider Sky High Group remaining in full force and
effect at the time at which the Offer becomes unconditional in all
respects and there being no notice of any intention to revoke, not
renew, suspend, restrict, modify such Authorisations and all
necessary statutory or regulatory obligations in any jurisdiction
having been complied with;
(f) save as Disclosed, there being no provision of any
agreement, arrangement, license, permit or other instrument to
which any member of the Wider Sky High 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 making or implementation of the Offer or
the proposed acquisition or proposed acquisition of any shares or
other securities in, or control or management of, any member of the
Wider Sky High Group taken as a whole, by any member of the Wider
Tracsis Group which would or might reasonably be expected to result
in (to an extent in any such case that is material in the context
of the Wider Sky High Group taken as a whole):
(i) any monies borrowed by or any other indebtedness or
liabilities (actual or contingent) of, or any grant available to,
any member or the Wider Sky High Group being or becoming repayable
or being capable of being declared repayable immediately or prior
to its stated maturity or repayment date, or the ability of any
such member to borrow moneys or incur any indebtedness being
withdrawn or inhibited or capable of being withdrawn or
inhibited;
(ii) the creation or enforcement of any mortgage, charge or
other security interest over the whole or any material part of the
business, property, assets or interests of any such member of the
Wider Sky High Group or any such security (whenever created arising
or having arisen), becoming enforceable or being enforced;
(iii) any such arrangement, agreement, licence or instrument or
the rights, liabilities, obligations or interests or business of
any member of the Wider Sky High Group under any such arrangement,
agreement, licence or instrument (or any arrangement, agreement,
licence or instrument relating to any such right, liability,
obligation, interest or business);
(iv) the rights, liabilities, obligations, interests or business
of any member of the Wider Sky High Group in or with any other firm
or company or body or person being or becoming capable of being
terminated or adversely modified or adversely affected or any
onerous obligation or liability arising or any adverse action being
taken thereunder;
(v) any member of the Wider Sky High Group ceasing to be able to
carry on business under any name or in any manner under which it
presently carries on business or ceasing to be able to use in its
business any name, trademark or other intellectual property right
which it at present uses, in each case on the same basis and terms
as at present apply;
(vi) any asset, property or interest of, any member of the Wider
Sky High Group being disposed of or charged, or any right arising
under which any such asset, property or interest could be required
to be disposed of or charged (otherwise than in the ordinary course
of business);
(vii) the creation or acceleration of any material liability
(actual or contingent) by any such member of the Wider Sky High
Group (other than in the ordinary course of business);
(viii) the business, assets, value, financial or trading
position, profits, prospects or operational performance of any
member of the Wider Sky High Group being prejudiced or adversely
affected;
(ix) any liability of any member of the Wider Sky High Group to
make any severance, termination, bonus or other payment to any of
its directors or other officers; or
(x) any change in, or effect on, the ownership or use of any
intellectual property rights owned or used by any member of the
Wider Sky High Group,
and no event having occurred which, under any provision of any
such agreement, arrangement, license, permit or other instrument
which would or might reasonably be expected to result in any of the
events or circumstances which are referred to in this condition
(f), in each case to an extent which is or would be material in the
context of the Wider Sky High Group taken as a whole;
(g) save as Disclosed, no member of the Wider Sky High Group since 31 March 2012 having:
(i) issued, agreed to issue or proposed or authorised the issue
or grant of additional shares or securities 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 redeemed, purchased, repaid, reduced or
made any other change, or proposed the redemption, purchase,
repayment, reduction or other change, of any part of its share
capital or any other securities;
(ii) merged with (by statutory merger or otherwise) or demerged
from or acquired any body corporate, partnership or business or
acquired or disposed of, or transferred, mortgaged or charged or
created any security interest over, any material assets or any
right, title or interest in any material asset (including shares
and trade investments) or authorised, proposed or announced any
intention to do so or to any material change in its loan capital,
in each case to an extent which is material in the context of the
Wider Sky High Group;
(iii) issued, authorised or proposed the issue of, or made any
change in or to, any debentures (save as between Sky High and its
wholly-owned subsidiaries or between such wholly-owned
subsidiaries) incurred or increased any indebtedness or become
subject to any actual or contingent liability, to an extent which
is material in the context of the Wider Sky High Group taken as a
whole;
(iv) other than to Sky High or a wholly owned subsidiary of Sky
High, recommended, declared, paid or made or proposed to recommend,
declare, pay or make any bonus, dividend, or other distribution
(whether payable in cash or otherwise);
(v) entered into, proposed or authorised, or announced its
intention to enter into or authorise, any merger or demerger,
reconstruction, arrangement, amalgamation, transaction or
arrangement, in respect of itself or another member of the Wider
Sky High Group (other than in the ordinary course of business)
which is material in the context of the Wider Sky High Group taken
as a whole;
(vi) entered into or varied or authorised or become bound by or
proposed the entry into or variation of, or announced its intention
to enter into or vary, any contract, transaction, arrangement or
commitment (whether in respect of capital expenditure or otherwise)
which:
(a) is of a long term, onerous or unusual nature or magnitude; or
(b) is or is reasonably likely to be restrictive to the
businesses of any member of the Wider Sky High Group to an extent
which is material to the Sky High Group taken as a whole; or
(c) involves or could reasonably be expected to involve an
obligation of a long term, onerous or unusual nature or magnitude
which is material in the context of the Wider Sky High Group taken
as a whole;
(vii) been unable or admitted 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 or proposed
or entered into any composition or voluntary arrangement with its
creditors (or any class of them) or the filing at court of
documentation in order to obtain a moratorium prior to a voluntary
arrangement or, by reason of actual or anticipated financial
difficulties, commenced negotiations with one or more of its
creditors with a view to rescheduling any of its indebtedness;
(viii) entered into, varied or authorised or proposed entry into
or variation of, or announced its intention to enter into or vary
the terms of or made any offer (which remains open for acceptance)
enter into or vary the terms of, any service agreement, or other
agreement, commitment, arrangement or contract with any of the
directors or senior executives or senior managers of any member of
the Wider Sky High Group;
(ix) proposed, agreed to or modified the terms of any share
option scheme, share scheme, incentive scheme or other benefit
relating to the employment or termination of employment of any
person employed by the Wider Sky High Group in a manner which is
material in the context of the Wider Sky High Group taken as a
whole;
(x) proposed, agreed to provide or modified (in any material
respect) the terms of any retirement, death or disability benefit
or any other employment-related benefit of or in respect of any of
its directors, employees, former director or former employees;
(xi) save as between Sky High and its wholly-owned subsidiaries,
granted any lease or third party rights in respect of any leasehold
or freehold property owned or occupied by it or transferred or
otherwise disposed of any such property, in each case which is
material in the context of the Wider Sky High Group as a whole;
(xii) (other than in respect of a member of the Wider Sky High
Group which is dormant and was solvent at the relevant time) taken
or proposed any corporate action nor had any steps taken or legal
proceedings started or threatened against it or petition presented
or order made for its winding-up (voluntarily or otherwise),
dissolution, striking off or reorganisation or for it to enter into
any arrangement or composition for the benefit of its creditors, or
for the appointment of a receiver, administrator (including the
filing of any administration application, notice or intention to
appoint an administrator or notice of appointment of an
administrator), administrative receiver, trustee or similar officer
of it or all or any of its assets and revenues (or for any
analogous proceedings or steps having occurred in any jurisdiction
or for the appointment of any analogous person in any
jurisdiction);
(xiii) been unable, or admitted in writing that is unable, to
pay its debts or commenced negotiations with one or more of its
creditors with a view to rescheduling or restructuring any of its
indebtedness, or having stopped or suspended (or threatened to stop
or suspend) payment of its debts generally or cease carrying on all
or a substantial part of its business;
(xiv) to the extent that there are trust deeds constituting
pension schemes established for directors and/or employees of the
Wider Sky High Group and/or their dependants made or agreed or
consented to any material change to the terms of the scheme or to
the benefits which accrue, or to the pensions which are payable,
thereunder, or to the basis on which qualification for, or accrual
of or entitlement to, such benefit or pensions are calculated or
determined or to the basis upon which the liabilities (including
pensions) or such pension schemes are funded or made, or agreed or
consented to any change to the trustees involving the appointment
of a trust corporation or allowed any deficit (actual or
contingent) to arise or persist in relation to the funding of any
such scheme to an extent which is material in the context of the
Wider Sky High Group taken as a whole;
(xv) waived or compromised or settled any claim, or authorised
any such waiver, compromise or settlement, which is material in the
context of the Wider Sky High Group taken as a whole;
(xvi) made any material alteration to its memorandum or articles of association, or any other constitutional document; or
(xvii) entered into any agreement, contract, commitment or
arrangement or passed any resolution or made any offer (which
remains open for acceptance) with respect to or announced an
intention to, or proposed to, effect any of the transactions,
matters or events referred to in this condition (g);
(h) save as Disclosed, since 31 March 2012:
(i) no adverse change or deterioration having occurred in the
business, assets, financial or trading position or profits, assets
or prospects of Sky High or any other member of the Wider Sky High
Group that is material in the context of the Wider Sky High Group
taken as a whole;
(ii) no litigation, arbitration proceedings, prosecution or
other legal proceedings having been instituted, announced,
implemented, threatened in writing by or remain outstanding against
any member of the Wider Sky High Group or to which any member of
the Wider Sky High Group is a party (whether as claimant, defendant
or otherwise) and no enquiry or investigation by a Relevant
Authority having been instituted, threatened in writing or
announced by or against or remaining outstanding in respect of the
Wider Sky High Group which in any such case is or is reasonably
likely to be material in the context of the Wider Sky High Group
taken as a whole;
(iii) no contingent or other liability in respect of any member
of the Wider Sky High Group having arisen or been incurred, become
apparent or increased other than in the Ordinary course of business
which would reasonably be expected to materially adversely affect
the business, assets, financial or trading position or profits of
any member of the Wider Sky High Group taken as a whole; and
(iv) no steps having been taken, and no omission having been
made which are reasonably likely to result in the withdrawal,
cancellation, termination or modification of any licence held by
any member of the Wider Sky High Group which is necessary for the
proper carrying on of its business and where such withdrawal,
cancellation, termination or modification would be material in the
context of the Wider Sky High Group, taken as a whole;
(i) save as Disclosed, Tracsis not having discovered that:
(i) any financial, business or other information concerning Sky
High or any member of the Wider Sky High Group publicly announced
or disclosed at any time prior to the Announcement Date to any
member of the Wider Tracsis Group by or on behalf of any member of
the Wider Sky High Group, is misleading, contains a material
misrepresentation of fact or omits to state a fact necessary to
make the information contained therein not misleading and which has
not been corrected by being Disclosed, in each case to an extent
which is material in the context of the Wider Sky High Group taken
as a whole in the context of the Offer; or
(ii) any information which affects the import of any information
Disclosed to an extent which is material in the context of the
Wider Sky High Group;
(iii) that any member of the Wider Sky High Group other than in
the ordinary course of business is subject to any liability (actual
or contingent), which is material in the context of the Wider Sky
High Group taken as a whole in the context of the Offer; or
(iv) any past or present member of the Wider Sky High Group has
not complied with any and all applicable legislation or regulations
of any relevant jurisdiction with regard to the use, treatment,
handling, release, emission, disposal, discharge, deposit, spillage
or leak of waste or hazardous or harmful substances or substances
on or about or from any land or property of any description or
other asset now or previously owned, occupied or made use of by any
past or present member of the Wider Sky High Group which
non-compliance would be reasonably likely to give rise to any
liability (whether actual or contingent) on the part of any member
of the Wider Sky High Group which is material in the context of the
Wider Sky High Group taken as a whole; or
(v) there has been a material disposal, spillage, emission,
discharge or leak of waste or hazardous substance reasonably likely
to impair the environment or harm human health on, or from, any
land or other asset now or previously owned, occupied or made use
of by any past or present member of the Wider Sky High Group, or in
which any such member may now or previously have had an interest,
which would be reasonably likely to give rise to any liability
(whether actual or contingent) on the part of any member of the
Wider Sky High Group to any extent which would be material in the
context of the Wider Sky High Group taken as a whole;
(vi) there is, or is reasonably likely to be, for that or any
other reason whatsoever, any material obligation or liability
(actual or contingent) of any past or present member of the Wider
Sky High Group to make good, repair, reinstate or clean up any
property, asset or any controlled waters now or previously owned,
occupied, operated or made use of by any past or present member of
the Wider Sky High Group, in any case to an extent which is
material in the context of the Wider Sky High Group taken as a
whole; or
(vii) circumstances exist whereby a person or class of persons
would be reasonably likely to have any claim or claims in respect
of any product, by-product or process of manufacture or service or
materials used therein now or previously manufactured, supplied,
sold or in any way dealt with or handled by any past or present
member of the Wider Sky High Group where such claim is material in
the context of the Wider Sky High Group taken as a whole.
The Offer will lapse (unless agreed by the Panel) if, before
1.00 p.m. on the First Closing Date, it is referred to the
Competition Commission or results in the European Commission,
pursuant to Council Regulation (EC) 139/2004, initiating
proceedings under Article 6(1)(c) or making a referral to a
competent authority of the United Kingdom under Article 9(1).
Further, the Offer will lapse unless the conditions set out
above (other than condition (a)) have been fulfilled or (if capable
of waiver) waived, or, where appropriate, have been determined by
Tracsis in its reasonable opinion to be or to remain satisfied, by
midnight (London time) on the date which is 21 days after the later
of (i) the First Closing Date; and (ii) the date on which condition
(a) is fulfilled (the acceptance condition), or such later date as
Tracsis may, with the consent of the Panel, decide. Tracsis shall
be under no obligation to waive (if capable of waiver), to
determine to be or remain satisfied, or to treat as fulfilled or
satisfied any of conditions (b) to (i) (inclusive) by any date
earlier than the latest date specified above for the fulfilment of
that condition, notwithstanding that the other conditions of the
Offer may at such earlier date have been waived or fulfilled and
that there are at such earlier date no circumstances indicating
that any such conditions may not be capable of fulfilment.
If Tracsis is required by the Panel to make an offer for Sky
High Shares under the provisions of Rule 9 of the Code, Sky High
may make such alterations to the terms and conditions of the Offer
(including condition (a) above) as are necessary to comply with the
provisions of that Rule.
Subject to the requirements of the Panel, Tracsis reserves the
right to waive all or any of the above conditions, in whole or in
part, except condition (a).
Under Rule 13.5 of the Code, Tracsis may not invoke a condition
to the Offer so as to cause the Offer not to proceed, to lapse or
to be withdrawn unless the circumstances which give rise to the
right to invoke the condition are of material significance to
Tracsis in the context of the Offer. The condition contained in (a)
of this Appendix I is not subject to this provision of the
Code.
If the Offer lapses it will cease to be capable of further
acceptance and Tracsis and accepting Sky High Shareholders shall
thereupon cease to be bound by Forms of Acceptance submitted at or
before the time when the Offer so lapses.
The Offer will be governed by English Law and will be subject to
the jurisdiction of the English courts and is subject to the terms
and conditions set out above and those further terms set out in the
Offer Document and in the Form of Acceptance.
PART B -FURTHER TERMS OF THE OFFER
The following further terms apply to the Offer.
Except where the context requires otherwise, any reference in
Parts B, C and D of this Appendix I and in the Form of Acceptance
to:
(a) the "acceptance condition" means the condition as to
acceptances of the Offer set out in paragraph (a) of Part A of this
Appendix I;
(b) "acceptances of the Offer" includes deemed acceptances of the Offer;
(c) "First Closing Date" means 16 April 2013;
(d) "Day 42 of the Offer" means 7 May 2013;
(e) "Day 46 of the Offer" means 11 May 2013;
(f) "Day 60 of the Offer" means 25 May 2013;
(g) an "extension of the Offer" includes an extension of the
date by which the acceptance condition has to be fulfilled;
(h) the "Offer" means the Offer and includes any revision,
variation, renewal or extension of the Offer; and
(i) the "Offer becoming unconditional" means the acceptance
condition becoming or being declared satisfied whether or not any
other condition of the Offer remains to be fulfilled and references
to the Offer having become or not become unconditional shall be
construed accordingly.
All times referred to are London time, unless otherwise
stated.
1. Acceptance Period
(a) The Offer will initially be open for acceptance until 1.00
p.m. (London time) on the First Closing Date of the Offer.
(b) Although no revision is envisaged or contemplated, if the
Offer is revised, a revised offer document will be posted to Sky
High Shareholders. On the day of posting, Tracsis will place the
revised offer document on display and announce that the document
has been posted and where it can be inspected. If the Offer is
revised, it will remain open for acceptance for a period of at
least 14 days (or such other period as may be permitted by the
Panel) from the date of posting of the revised offer document to
Sky High Shareholders. Except with the consent of the Panel, no
such revision of the Offer may be posted to Sky High Shareholders
after Day 46 of the Offer or, if later, the date falling 14 days
prior to the last date on which the Offer can become
unconditional.
(c) The Offer, whether revised or not, shall not (except with
the consent of the Panel) be capable or becoming unconditional
after midnight on Day 60 of the Offer (or any earlier time and/or
date beyond which the Offeror has stated that the Offer will not be
extended and in respect of which it has not withdrawn that
statement) nor of being kept open for acceptance after that time
and/or date unless it has previously become or been declared
unconditional. However, Tracsis reserves the right, with the
consent of the Panel, to extend the Offer to later time(s) and/or
date(s).
(d) Except with the consent of the Panel, Tracsis may not, for
the purpose of determining whether the acceptance condition has
been satisfied, take into account acceptances received, or
purchases of Sky High Shares made, in respect of which relevant
electronic instructions or documents have been received by the
Receiving Agent after 1.00 p.m. on Day 60 of the Offer (or any
other time and/or date beyond which Tracsis has stated that the
Offer will not be extended and in respect or which it has not
withdrawn that statement) or such later time and/or date as the
case may be to which the Offer has been extended.
(e) If the Offer is extended beyond midnight on Day 60 of the
Offer, acceptances received and purchases of Sky High Shares made
in respect of which relevant electronic instructions or documents
have been received by the Receiving Agent after 1.00 p.m. (London
time) on Day 60 of the Offer may (except where the Code otherwise
permits) only be taken into account with the consent of the
Panel.
(f) If the Offer becomes unconditional, it will remain open for
acceptance for not less than 14 days from the date on which it
would otherwise have expired. If, however, the Offer is
unconditional as to acceptances from the outset, a 14 day extension
will not be required. If the Offer has become or is declared
unconditional and it is stated by or on behalf of Tracsis that the
Offer will remain open until further notice, then not less than 14
days' notice will be given by or on behalf of Tracsis to Sky High
Shareholders who have not accepted the Offer.
(g) If a competitive situation (as determined by the Panel)
arises after Tracsis has made a "no extension" statement or a "no
increase" statement (as referred to in the Code) in relation to the
Offer, Tracsis may (if it has specifically reserved the right to do
so at the time such statement was made, or otherwise with the
consent of the Panel) choose not to be bound by or withdraw the
terms of such statement and extend or revise the Offer (as
appropriate) provided that it complies with the requirements of the
Code and, in particular, that:
(i) it announces the withdrawal as soon as possible and in any
event within four Business Days after the announcement of the
competing offer or other competitive situation and notifies Sky
High Shareholders to that effect in writing at the earliest
opportunity or, in the case of Sky High Shareholders with a
registered address outside the United Kingdom or whom the Offeror
knows to be nominees, custodians or trustees holding Sky High
Shares for such persons, by announcement in the United Kingdom at
the earliest opportunity; and
(ii) any Sky High Shareholders who accepted the Offer after the
date of such statement are given a right of withdrawal as described
in paragraph 3(b) of this Part B.
Tracsis may (if it has reserved the right to do so at the time
such statement was made or in such other circumstances as may be
permitted by the Panel) choose not to be bound by the terms of a
"no increase" statement or a "no extension" statement if it would
otherwise prevent the posting of an increased or improved Offer
which is recommended for acceptance by the Sky High Shareholders or
in other circumstances permitted by the Panel.
(h) If a competitive situation arises and is continuing on Day
60 of the Offer, Tracsis will enable holders of Sky High Shares in
uncertificated form who have not already validly accepted the Offer
but who have previously accepted the competing offer to accept the
Offer by special form of acceptance to take effect on Day 60 of the
Offer (or such later date to which the Offer may be extended with
the consent of the Panel). It shall be a condition of such special
form of acceptance being a valid acceptance of the Offer that:
(i) it is received by the Receiving Agent at Neville Registrars
Limited, Neville House, 18 Laurel Lane, Halesowen, B63 3DA, on or
before Day 60 of the Offer (or such later date as appropriate);
(ii) the relevant Sky High Shareholder shall have applied to
withdraw his acceptance of the competing offer but that the Sky
High Shares to which such withdrawal relates shall not have been
released from escrow before Day 60 of the Offer by the escrow agent
to the competing offer; and
(iii) the Sky High Shares to which the special form of
acceptance relates are not transferred to escrow in accordance with
the procedure for acceptance set out in paragraph 15 of the letter
from Tracsis contained in Part II of the Offer Document on or
before Day 60 of the Offer, but an undertaking is given that they
will be so transferred as soon as possible thereafter.
Sky High Shareholders wishing to use such forms of acceptance
should apply to the Receiving Agent at Neville Registrars Limited,
Neville House, 18 Laurel Lane, Halesowen, B63 3DA or if calling
from outside the UK on +44 121 585 1131 between 9.00 a.m. and 5.00
p.m. on the Business Day preceding Day 60 from outside the UK are
charged at applicable international rates. Different charges may
apply to calls made from mobile telephones and calls may be
recorded and monitored randomly for security and training purposes.
Neville Registrars Limited cannot provide advice on the merits of
the Offer nor give any financial, legal or tax advice.
Notwithstanding the right to use such special form of acceptance,
holders of Sky High Shares in uncertificated form may not use a
Form of Acceptance (or any other purported acceptance form) for the
purpose of accepting the Offer in respect of such shares.
(i) Unless otherwise required by the Panel for the purpose of
determining at any particular time whether the acceptance condition
has been satisfied, the Offeror shall not be bound to take into
account any Sky High Shares which have been unconditionally
allotted or issued before such time or which arise as a result of
the exercise of subscription or conversion rights before such
determination takes place, unless the Receiving Agent on behalf of
Tracsis has received written notice of the relevant details of such
allotment or issue, subscription or conversion (including the price
thereof) before that time. Notification by e-mail, telex,
facsimile, the internet or other electronic transmission will not
be sufficient to constitute written notice for this purpose.
2. Announcements
(a) Without prejudice to paragraph 3(a) of this Part B, by 8.00
a.m. (London time) on the Business Day (the "relevant day") next
following the day on which the Offer is due to expire or becomes or
is declared unconditional or is revised or extended, as the case
may be (or such later time(s) and/or date(s) as the Panel may
agree), Tracsis will make an appropriate announcement and
simultaneously inform a Regulatory Information Service of the
position. Such announcement will also state (unless otherwise
permitted by the Panel):
(i) the number of Sky High Shares and rights over Sky High
Shares (as nearly as practicable) for which acceptances of the
Offer have been received, specifying the extent, if any, to which
acceptances have been received from persons acting in concert with
Tracsis or in respect of Sky High Shares which were subject to an
irrevocable commitment or a letter of intent procured by Tracsis or
any of its associates;
(ii) details of any relevant securities of Sky High in which
Tracsis or any person acting in concert with it has an interest or
in respect of which any such person has a right to subscribe, in
each case specifying the nature of the interests or rights
concerned and similar details of any short positions (whether
conditional or absolute and whether in the money or otherwise).
including any short position under a derivative, any agreement to
sell or any delivery obligation or right to require another person
to purchase or take delivery, will also be stated;
(iii) details of any relevant securities of Sky High in respect
of which Tracsis or any of its associates has an outstanding
irrevocable commitment or letter of intent; and
(iv) details of any relevant securities of Sky High which
Tracsis or any person acting in concert with it has borrowed or
lent, save for any borrowed shares which have been either on-lent
or sold,
and will in each case specify the percentages of each class of
relevant securities of Sky High represented by these figures. Any
such announcement shall include a prominent statement of the total
number of Sky High Shares which Tracsis may count towards the
satisfaction of the acceptance condition and the percentage of
relevant securities of Sky High represented by the figure.
(b) Any decision to extend the time and/or date by which the
acceptance condition has to be fulfilled may be made by Tracsis at
any time up to, and will be announced not later than, 8.00 a.m.
(London time) on the relevant day (or such later time and/or date
as the Panel may agree) and the announcement will state the next
expiry date (unless the Offer is unconditional in which case a
statement may be made that the Offer will remain open until further
notice). In computing the number of Sky High Shares represented by
acceptances and/or purchases there may, at the discretion of
Tracsis, be included or excluded for announcement purposes,
acceptances and purchases which are not complete in all respects or
are subject to verification provided that such acceptances or
purchases of Sky High Shares shall not (unless agreed by the Panel)
be included unless they could be counted towards fulfilling the
acceptance condition in accordance with paragraph 5(j) of this Part
B and the provisions of the Code.
(c) A copy of any announcement made by or on behalf of Tracsis
in accordance with this paragraph 2 will be available, subject to
certain restrictions relating to persons resident in Restricted
Jurisdictions, for inspection on Sky High's website at
www.skyhighplc.co.uk as soon as possible after the making of such
announcement and in any event by no later than 12 noon (London
time) on the following Business Day and will remain on such website
while the Offer remains open for acceptances.
(d) References in this Part B to the making of an announcement
by or on behalf of Tracsis include the release of an announcement
by public relations consultants appointed by Tracsis or by Sky High
to the press, and the delivery by hand or telephone, e-mail,
facsimile, telex, the internet or other electronic transmission of
an announcement to a Regulatory Information Service. An
announcement made otherwise than to a Regulatory Information
Service shall be notified simultaneously to a Regulatory
Information Service.
3. Rights of withdrawal
(a) If Tracsis having announced the Offer to be unconditional,
fails to comply by 1.00 p.m. on the relevant day (as defined in
paragraph 2(a) of this Part B) (or such later time and/or date as
the Panel may agree) with any of the other relevant requirements
specified in paragraph 2(a) of this Part B, an accepting
certificated Sky High Shareholder may (unless the Panel agrees
otherwise) immediately after that time withdraw his acceptance of
the Offer by written notice (signed by the accepting Sky High
Shareholder or his agent duly appointed in writing and evidence of
whose appointment in a form reasonably satisfactory to Tracsis is
produced with the notice) given by post (or by hand during normal
business hours only) to the Receiving Agent at Neville House, 18
Laurel Lane, Halesowen, B63 3DA. Alternatively, in the case of Sky
High Shares held in uncertificated form, withdrawals must be
effected in the manner set out in paragraph 3(d) of this Part B.
Subject to paragraph 1(b) of this Part B, this right of withdrawal
may be terminated not less than eight days after the relevant day
by Tracsis confirming, if such is the case, that the Offer is still
unconditional and complying with the other relevant requirements
specified in paragraph 2(a) of this Part B. If any such
confirmation is given, the first period of 14 days referred to in
paragraph 1(c) of this Part B will run from the date of such
confirmation and compliance.
(b) If by 1.00 p.m. on Day 42 of the Offer (or such later time
and/or date as the Panel may agree) the Offer has not become
unconditional, an accepting certificated Sky High Shareholder may
withdraw his acceptance at any time thereafter, in respect of Sky
High Shares held in certificated form, by written notice to the
Receiving Agent at the address set out in paragraph 3(a) of this
Part B and in the manner referred to in paragraph 3(a) of this Part
B or, in respect of Sky High Shares held in uncertificated form, in
the manner referred to in paragraph 3(d) of this Part B, before the
earlier of:
(i) the time when the Offer becomes unconditional; and
(ii) the final time for lodgement of acceptances of the Offer
which can be taken into account in accordance with paragraph 1(b)
of this Part B.
If Tracsis withdraws a "no extension" statement or a "no
increase" statement in accordance with paragraph 1(d) of this Part
B, any Sky High Shareholder who accepts the Offer after the date of
such statement may withdraw his acceptance thereafter, in respect
of Sky High Shares held in certificated form, in the manner
referred to in paragraph 3(a) of this Part B or, in respect of Sky
High Shares held in uncertificated form, in the manner referred to
in paragraph 3(d) of this Part B, not later than the eighth day
after the date on which notice of the withdrawal of such statement
is posted to Sky High Shareholders by Tracsis.
(c) Except as provided by paragraph 3 of this Part B, acceptances shall be irrevocable.
(d) In respect of Sky High Shares held in uncertificated form,
if withdrawals are permitted pursuant to paragraphs 3(a) or 3(b) of
this Part B an accepting Sky High Shareholder may withdraw his
acceptance through CREST by sending (or, if a CREST sponsored
member, procuring that his CREST sponsor sends) a valid ESA
Instruction to settle in CREST in relation to each Electronic
Acceptance to be withdrawn. Each ESA Instruction must, in order for
it to be valid and settle, include the following details:
-- the number of Sky High Shares to be withdrawn;
-- the ISIN of the Sky High Shares: GB00B1LCP739;
-- the member account ID of the accepting Sky High Shareholder;
-- the participant ID of the accepting Sky High Shareholder;
-- the participant ID of the Escrow Agent. This is 7RA11;
-- the member account ID of the Escrow Agent included in the
relevant Electronic Acceptance. This is SKYHIGH;
-- the CREST Transaction ID of the Electronic Acceptance to be
withdrawn to be inserted at the beginning of the shared note
field;
-- input with standard delivery instruction priority of 80;
-- the intended settlement date for the withdrawal; and
-- the corporate action number of the Offer which will be
allocated by Euroclear and can be found by viewing the relevant
corporate action details in CREST.
Any such withdrawal will be conditional upon the Receiving Agent
verifying that the withdrawal request is validly made. Accordingly,
the Receiving Agent will, on behalf of the Offeror, reject or
accept the withdrawal by transmitting in CREST a receiving agent
reject (AEAD) or receiving agent accept (AEAN) message.
Any question as to the validity (including time of receipt) of
any notice of withdrawal will be determined by the Offeror, whose
determination (save as the Panel otherwise determines) will be
final and binding. None of the Offeror, Sky High, WH Ireland, the
Receiving Agent or any other person will be under any duty to give
notification of any defect or irregularity in any notice of
withdrawal or will incur any liability for failure to do so.
(e) In this paragraph 3, "written notice" (including any letter
of appointment, direction or authority) means notice in writing
bearing the original signature(s) of the relevant accepting Sky
High Shareholder(s) or his/their agent(s) duly appointed in writing
(evidence of whose appointment in a form reasonably satisfactory to
the Offeror is produced with the notice). E-mail, telex, facsimile,
the internet or other electronic transmission, or copies, will not
be sufficient to constitute written notice. No notice which is
postmarked in, or which otherwise appears to the Offeror, its
agents or advisers to have been sent from, a Restricted
Jurisdiction will be treated as valid.
4. Revised Offer
(a) Although no such revision of the Offer is envisaged, if the
Offer (in its original or any previously revised form(s)) is
revised (either in its terms or conditions or in the value or
nature of the consideration offered or otherwise) (which Tracsis
reserves the right to do) and such revision represents on the date
on which such revision is announced an improvement (or no
diminution) in the value of the consideration or the consideration
of the Offer as so revised compared with the value of the
consideration or terms previously offered, the benefit of the
revised Offer shall (subject to this paragraph 4 and paragraph 5 of
this Part B) be made available to any Sky High Shareholder who has
validly accepted the Offer in its original or any previously
revised form(s) and not previously withdrawn such acceptance (a
"Previous Acceptor"). The acceptance by or on behalf of a Previous
Acceptor of the Offer (in its original or any previously revised
form(s)) shall, subject as provided in this paragraph 4 and
paragraph 5 of this Part B, be deemed to be an acceptance of the
Offer as so revised and shall also constitute the irrevocable and
separate appointment of any director or person authorised by
Tracsis as his attorney and/or agent with authority to accept any
such revised Offer on behalf of such Previous Acceptor and to
execute on behalf of and in the name of such Previous Acceptor all
such further documents (if any) as may be required to give effect
to such acceptance. In making any such acceptance, such attorney
and/or agent shall take into account the nature of any previous
acceptance made by or on behalf of the Previous Acceptor and such
other facts or matters as he may reasonably consider relevant.
(b) Although no such revision is envisaged, if any revised Offer
provides for Sky High Shareholders who accept it to elect for (or
accept) alternative forms of consideration, the acceptance by or on
behalf of a Previous Acceptor of the Offer (in its original or any
previously revised form(s)) shall, subject as provided below, also
constitute the irrevocable and separate appointment of any director
or person authorised by the Offeror as his attorney and/or agent to
make on his behalf elections for and/or to accept such alternative
forms of consideration on his behalf as such attorney and/or agent
in his absolute discretion thinks fit and to execute on behalf of
and in the name of such Previous Acceptor all such further
documents (if any) as may be required to give effect to such
acceptances and/or elections. In making any such acceptance or
election, such attorney and/or agent shall take into account the
nature of any previous acceptances and/or elections made by or on
behalf of the Previous Acceptor and such other facts or matters as
he may reasonably consider relevant.
(c) The deemed acceptances and elections referred to in
paragraphs 4(a) and 4(b) of this Part B shall not apply and the
authorities conferred by paragraphs 4(a) and 4(b) of this Part B
shall not be exercised if as a result thereof a Previous Acceptor
would (on such basis as WH Ireland may advise Tracsis) receive less
in aggregate consideration under the revised Offer than he would
have received as a result of his acceptance of the Offer in the
form in which it was originally accepted by him unless such
Previous Acceptor has previously otherwise agreed in writing.
(d) The deemed acceptances and elections referred to in
paragraphs 4(a) and 4(b) of this Part B shall not apply and the
authorities conferred by paragraphs 4(a) and 4(b) of this Part B
shall be ineffective to the extent that a Previous Acceptor:
(i) in respect of Sky High Shares held in certificated form,
lodges with the Receiving Agent at the address and in the manner
specified in paragraph 3(a) of this Part B, within 14 days of the
posting of the document pursuant to which the revised Offer
referred to in paragraphs 4(a) and 4(b) of this Part B is made
available to Sky High Shareholders (or such later date as Tracsis
may determine), a Form of Acceptance or some other form issued by
or on behalf of the Offeror in which he validly elects to receive
the consideration receivable by him under that revised Offer in
some other manner than that set out in his original acceptance;
or
(ii) in respect of Sky High Shares held in uncertificated form,
sends (or, if a CREST Sponsored Member, procures that his CREST
sponsor sends) a valid ESA Instruction to settle in CREST in
relation to each Electronic Acceptance in respect of which an
election is to be varied. Each such ESA Instruction must, in order
for it to be valid and settle, include the following details:
-- the ISIN of the Sky High Shares: GB00B1LCP739
-- the number of Sky High Shares in respect of which the changed election is made;
-- the participant account ID of the Previous Acceptor;
-- the member account ID of the Previous Acceptor;
-- the participant account ID of the Escrow Agent. This is 7RA11;
-- the member account ID of the Escrow Agent included in the
relevant Electronic Acceptance. This is SKYHIGH;
-- the CREST Transaction ID of the Electronic Acceptance in
respect of which the election is to be changed;
-- the intended settlement date for the changed election;
-- the corporate action number for the Offer which will be
allocated by Euroclear and can be found by viewing the relevant
corporate action details in CREST;
-- input with standard delivery instruction priority of 80; and
and, in order that the desired change of election can be
effected, must include:
-- the member account ID of the Escrow Agent relevant to the new election.
Any such change of election will be conditional upon the
Receiving Agent verifying that the request is validly made.
Accordingly, the Receiving Agent will on behalf of Tracsis reject
or accept the requested change of election by transmitting in CREST
a receiving agent reject (AEAD) or receiving agent accept (AEAN)
message as appropriate.
(e) The powers of attorney and authorities referred to in this
paragraph 4 of this Part B and any acceptance of a revised Offer
and/or election pursuant thereto shall be irrevocable unless and
until the Previous Acceptor becomes entitled to withdraw his
acceptance under paragraph 3 of this Part B and duly and validly
does so.
(f) Tracsis reserves the right (subject to paragraphs 3 and 4(a)
above) to treat a valid Form of Acceptance or Electronic Acceptance
relating to the Offer (in its original or any previously revised
form(s)) which is received after the announcement or the issue of
the Offer in any revised form as a valid acceptance in respect of
the revised Offer and/or a valid election pursuant thereto and such
acceptance shall constitute an authority and request in the terms
of this paragraph 4 of this Part B on behalf of the relevant Sky
High Shareholders.
5. General
(a) Except with the consent of the Panel, the Offer will lapse
unless all the conditions (other than the acceptance condition) to
the Offer as set out in Part A of this Appendix I have been
satisfied or (if capable of waiver) waived or, where appropriate,
have been determined by Tracsis in its reasonable opinion to be or
to remain satisfied as at midnight (London time) on the later of
Day 42 of the Offer and the date which is 21 days after the date on
which the Offer becomes or declared unconditional, or such later
time(s) and/or date(s) as Tracsis, with the consent of the Panel,
may decide. If the Offer lapses for any reason, it shall cease to
be capable of acceptance and Sky High Shareholders who have
accepted the Offer shall thereupon cease to be bound by acceptances
delivered on or before the date on which the Offer lapses.
(b) All communications, notices, certificates. documents of
title, other documents and remittances to be delivered by, or to,
or sent to or from Sky High Shareholders (or their designated
agent(s)) or as otherwise directed will be delivered by, or to, or
sent to or from such Sky High Shareholders (or their designated
agent(s)) at their risk.
(c) All references in the Offer Document and in the Form of
Acceptance to the First Closing Date, shall (except where the
context otherwise requires) be deemed, if the expiry date of the
Offer shall be extended, to refer to the expiry date of the Offer
as so extended.
(d) Except with the consent of the Panel, settlement of the
consideration to which any Sky High Shareholder is entitled under
the Offer will be implemented in full in accordance with the terms
of the Offer without regard to any lien, right of set-off,
counterclaim or other analogous right to which Tracsis may
otherwise be, or claim to be, entitled as against such Sky High
Shareholder and will be effected by the dispatch of cheques or the
crediting of CREST accounts:
(i) in the case of acceptances received, complete in all
respects (including the relevant transfer to escrow or (as
applicable) receipt of the relevant share certificate(s) and/or
other document(s) of title or indemnities satisfactory to Tracsis),
by the date on which the Offer becomes or is declared unconditional
in all respects, and will be effected by the dispatch of cheques or
the crediting of CREST accounts within 14 calendar days of such
date; or
(ii) in the case of acceptances of the Offer received, complete
in all respects, after the date on which the Offer becomes or is
declared unconditional in all respects, but while it remains open
for acceptance, within 14 calendar days of receipt.
All cash payments (other than payments made by means of CREST)
will be made in pounds sterling by cheque drawn on a branch of a UK
clearing bank. No consideration will be sent to an address in a
Restricted Jurisdiction.
(e) The instructions, terms, provisions and authorities
contained in or deemed to be incorporated in the Form of Acceptance
(in respect of certificated Sky High Shares) constitute part of the
terms of the Offer. Words and expressions defined in the Offer
Document shall, unless the context otherwise requires, have the
same meanings when used in the Form of Acceptance (in respect of
certificated Sky High Shares). The provisions of this Appendix I
shall be deemed to be incorporated in the Form of Acceptance (in
respect of certificated Sky High Shares).
(f) The Offer, the Offer Document, the Form of Acceptance (in
respect of certificated Sky High Shares) and all acceptances
thereof and all elections thereunder or pursuant thereto and all
contracts made pursuant thereto and action taken or made or deemed
to be taken or made under any of the foregoing shall be governed by
and construed in accordance with English law. Execution by or on
behalf of a Sky High Shareholder of a Form of Acceptance (in
respect of certificated Sky High Shares) will constitute his
irrevocable submission, in relation to all matters arising out of
or in connection with the Offer, the Offer Document and (in respect
of certificated Sky High Shares) the Form of Acceptance, to the
jurisdiction of the Courts of England and his agreement that
nothing shall limit the rights of Tracsis to bring any action, suit
or proceeding arising out of or in connection with the Offer, the
Offer Document and (in respect of certificated Sky High Shares) the
Form of Acceptance in any other manner permitted by law or in any
court of competent jurisdiction.
(g) Any omission or failure to (or decision not to) despatch the
Offer Document or the Form of Acceptance or any document or notice
required to be given under the terms of the Offer to, or any
failure to receive the same by, any person to whom the Offer is
made or should be made, shall not invalidate the Offer in any way
or create any implication that the Offer has not been made to any
such person.
(h) Subject to paragraph 5(i) of this Part B below, and without
prejudice to any other provision of this Appendix I, Tracsis
reserves the right to treat acceptances of the Offer and/or
elections pursuant thereto as valid if received by or on its behalf
at any place or places or in any manner determined by it otherwise
than as stated in the Offer Document or (in respect of certificated
Sky High Shares) in the Form of Acceptance, or (in respect of
uncertificated Sky High Shares) if the relevant TTE Instruction has
not been settled. Neither Tracsis nor any agent or director of
Tracsis nor its advisers or any person acting on behalf of any of
them shall have any liability to any person for any loss or alleged
loss arising from any decision as to the treatment of acceptances
of the Offer or otherwise in connection therewith.
(i) Notwithstanding the right reserved by Tracsis to treat
acceptances as valid even though (in respect of certificated Sky
High Shares) the Form of Acceptance is not entirely in order or not
accompanied by the relevant share certificate(s) and/or other
document(s) of title), except with the consent of the Panel:
(i) an acceptance of the Offer will only be counted towards
fulfilling the acceptance condition if the requirements of Note 4
and, if applicable, Note 6 on Rule 10 of the Code are satisfied in
respect of it;
(ii) a purchase of Sky High Shares by Tracsis or its nominee(s)
(or if Tracsis is required to make an offer under Rule 9 of the
Code, by a person acting in concert with Tracsis or its nominee(s))
will only be counted towards fulfilling the acceptance condition if
the requirements of Note 5 and, if applicable, Note 6 on Rule 10 of
the Code are satisfied in respect of it; and
(iii) Sky High Shares which have been borrowed by Tracsis will
not be counted towards fulfilling the acceptance condition.
(j) Except with the consent of the Panel, the Offer will not
become unconditional unless the Receiving Agent has issued a
certificate to Tracsis or WH Ireland (or their agents) which states
the number of Sky High Shares in respect of which acceptances have
been received which meet the requirements of Note 4 on Rule 10 of
the Code and the number (if any) of Sky High Shares otherwise
acquired (whether before or during the Offer Period) which meet the
requirements of Note 5 on Rule 10 of the Code and, in each case, if
applicable, Note 6 on Rule 10 of the Code. Copies of such
certificate will be sent to the Panel and to WH Ireland as soon as
possible after it is issued.
(k) All powers of attorney, appointments of agents and
authorities on the terms conferred by or referred to in this
Appendix I or (in respect of certificated Sky High Shares) in the
Form of Acceptance are given by way of security for the performance
of the obligations of the Sky High Shareholders concerned and are
irrevocable in accordance with section 4 of the Powers of Attorney
Act 1971, except in the circumstances where the donor of such power
of attorney, appointment or authority is validly withdraws his
acceptance in accordance with paragraph 3 of this Part B.
(l) The Offer extends to any Sky High Shareholders to whom the
Offer Document, the Form of Acceptance (in respect of certificated
Sky High Shares) and any related documents may not have been
dispatched or by whom such documents may not be received and such
Sky High Shareholders may collect copies of those documents (during
normal business hours only) from the Receiving Agent at Neville
House, 18 Laurel Lane, Halesowen, B63 3DA.
(m) Tracsis reserves the right to notify any matter, including
the making of the Offer, to all or any Sky High Shareholders with a
registered address outside the United Kingdom (or whom Tracsis
knows to be nominees, trustees or custodians for such persons) by
announcement in the United Kingdom or paid advertisement in a daily
newspaper published and circulated in the United Kingdom or in the
London Gazette, in which event such notice shall be deemed to have
been sufficiently given notwithstanding any failure by a Sky High
Shareholder to receive such notice and all references in the Offer
Document to notice, or the provision of information in writing, by
Tracsis and/or its agents shall be construed accordingly.
(n) The Offer is made on 26 Match 2013 and is capable of
acceptance from and after that time. Copies of the Offer Document
and the Form of Acceptance (in respect of certificated Sky High
Shares) are available for collection (during normal business hours
only) from the Receiving Agent at Neville House, 18 Laurel Lane,
Halesowen, B63 3DA from that time and. subject to certain
restrictions relating to persons resident in Restricted
Jurisdictions, the Offer Document is available for information
purposes only on Sky High's website at www.skyhighplc.co.uk. The
Offer is being made by means of the Offer Document and by means of
a notice proposed to be published in the London Gazette on or
around 26 March 2013.
(o) If the Offer does not become unconditional in all respects:
(i) in respect of Sky High Shares held in certificated form,
Forms of Acceptance, share certificates and other documents of
title will be returned by post (or by such other method as may be
approved by the Panel) within 14 days of the Offer lapsing or being
withdrawn, at the risk of the Sky High Shareholder concerned, to
the person or agent whose name and address, outside a Restricted
Jurisdiction, is set out in the relevant box on the Form of
Acceptance or, if none is set out, to the first-named holder at his
registered address outside a Restricted Jurisdiction. No such
documents will be sent to an address in a Restricted Jurisdiction;
and
(ii) in respect of Sky High Shares held in uncertificated form,
the Receiving Agent will, immediately after the lapsing of the
Offer (or within such longer period as the Panel may permit, not
exceeding 14 days from the lapsing of the Offer), give instructions
to Euroclear to transfer all the Sky High Shares held in escrow
balances and in relation to which it is the Escrow Agent for the
purposes of the Offer to the original available balances of the Sky
High Shareholders concerned.
(p) In relation to any acceptance of the Offer in respect of a
holding of Sky High Shares which are held in uncertificated form in
CREST, Tracsis reserves the right to make such alterations,
additions or modifications to the terms of the Offer as may be
necessary or desirable to give effect to any purported acceptance
of the Offer, whether in order to comply with the facilities or
requirements of CREST or otherwise, provided that such alterations,
additions or modifications are consistent with the requirements of
the Code or are otherwise made with the consent of the Panel.
(q) If sufficient acceptances under the Offer are received
and/or sufficient Sky High Shares are otherwise acquired by
Tracsis, Tracsis intends to apply the provisions of sections 974 to
991 of the Companies Act 2006 to acquire compulsorily any
outstanding Sky High Shares to which the Offer relates. If Tracsis
acquires or agrees to acquire, by virtue of its shareholding and
acceptances of the Offer, issued share capital carrying 75 per
cent. or more of the voting rights of Sky High, Tracsis intends to
procure that Sky High applies for cancellation for the trading in
Sky High Shares on AIM not less than 20 Business Days following
Tracsis first having acquired or agreed to acquire such issued
share capital and thereafter to procure that the Company applies to
be re-registered as a private limited company under the Companies
Act 2006.
(r) For the purposes of the Offer Document, the time of receipt
of a TTE Instruction, an ESA Instruction or an Electronic
Acceptance shall be the time that the relevant instruction settles
in CREST.
If the Panel requires Tracsis to make an offer for Sky High
Shares under the provisions of Rule 9 of the Code, Tracsis may make
such alterations to the conditions of the Offer, including
condition (a) in Part A of this Appendix I, as are necessary to
comply with the provisions of that Rule.
(s) All references in this Appendix I to any statute or
statutory provision shall include any statute or statutory
provision which amends, consolidates or replaces the same (whether
before or after the date hereof).
The Offer may not be accepted, in relation to Sky High Shares
held in certificated form, otherwise than by means of a Form of
Acceptance.
6. Overseas Shareholders
(a) The making of the Offer in, or to persons resident in, or
citizens or nationals of, jurisdictions outside the United Kingdom
or who are nominees of, or custodians. trustees or guardians for,
citizens or nationals of such jurisdictions may be prohibited or
affected by the laws or regulatory requirements of the relevant
overseas jurisdiction. Overseas Shareholders should inform
themselves about and observe any applicable legal requirements. No
person receiving a copy of the Offer Document in any territory
other than the UK may treat the same as constituting an Offer or
invitation to him nor should he in any event use the Form of
Acceptance (in respect of certificated Sky High Shares), unless, in
the relevant territory, such an offer or invitation could lawfully
be made to him and such Form of Acceptance (in respect of
certificated Sky High Shares) could lawfully be used without
contravention of any registration or other legal or regulatory
requirements. In such circumstances the Offer Document and/or Form
of Acceptance are sent for information only. It is the
responsibility of any Overseas Shareholder wishing to accept the
Offer to satisfy himself as to the full observance of the laws and
regulatory requirements of the relevant jurisdiction in connection
with the Offer, including the obtaining of any governmental,
exchange control or other consents which may be required and the
compliance with other necessary formalities. Any Overseas
Shareholder will be responsible for payment of any issue, transfer
or other taxes or other requisite payments due in that
jurisdiction. Tracsis and WH Ireland (and any person acting on
behalf of them) shall be fully indemnified and held harmless by
such Overseas Shareholder for any such issue, transfer or other
taxes or other requisite payments as Tracsis or WH Ireland (or any
person acting on behalf of them) may be required to pay.
If you are an Overseas Shareholder and you are in doubt about
your position, you should consult your professional adviser in the
relevant jurisdiction.
(b) Unless otherwise determined by Tracsis or required by the
Code and permitted by applicable law and regulation, the Offer is
not being made, directly or indirectly, in or into, or by the use
of the mails or by any means or instrumentality (including, without
limitation, telephonically or electronically) of interstate or
foreign commerce, or any facility of a national securities
exchange, of a Restricted Jurisdiction and the Offer is not capable
of acceptance by any such use, means, instrumentality or facility
or from within a Restricted Jurisdiction. Accordingly, copies of
the Offer Document, the Form of Acceptance and any related
documents are not being, and must not be, directly or indirectly,
mailed or otherwise forwarded, distributed or sent in or into or
from a Restricted Jurisdiction including to Sky High Shareholders
with registered addresses in any Restricted Jurisdiction, or
persons receiving such documents (including, without limitation,
custodians, nominees and trustees) must not mail or otherwise
forward, distribute or send them in or into or from a Restricted
Jurisdiction. Doing so may render invalid any purported acceptance
of the Offer. Persons wishing to accept the Offer should not use
such mails or any such means, instrumentality or facility for any
purpose directly or indirectly related to acceptance of the
Offer.
Envelopes containing Forms of Acceptance, evidence of title or
other documents relating to the Offer must not be postmarked in a
Restricted Jurisdiction or otherwise dispatched from a Restricted
Jurisdiction and all accepting Sky High Shareholders must provide
addresses outside a Restricted Jurisdiction for the receipt of any
consideration to which they are entitled pursuant to the Offer or
(in respect of certificated Sky High Shares) return of Forms of
Acceptance, share certificate(s) and/or other document(s) of
title.
(c) If, in connection with the making of the Offer,
notwithstanding the restrictions described above, any persons
(including, without limitation, custodians, nominees and trustees),
whether pursuant to a contractual or legal obligation or otherwise,
forwards the Offer Document, the Form of Acceptance or any other
documents relating to the Offer in, into or from a Restricted
Jurisdiction or uses the mails of, or any means or instrumentality
(including without limitation, telephonically or electronically) of
interstate or foreign commerce of, or any facilities of a national
securities exchange of, a Restricted Jurisdiction in connection
with such forwarding, such person should:
(i) inform the recipient of such fact;
(ii) explain to the recipient that such action may invalidate
any purported acceptance by the recipient; and
(iii) draw the attention of the recipient to this paragraph 6 of this Part B.
(d) A Sky High Shareholder will be deemed not to have validly accepted the Offer if:
(i) (in respect of certificated Sky High Shares) he puts "No" in
Box 3 of the Form of Acceptance and thereby does not give the
representation and warranty set out in paragraph (c) of Part C of
this Appendix I;
(ii) (in respect of certificated Sky High Shares) he completes
Box 1 of the Form of Acceptance with an address in a Restricted
Jurisdiction or has a registered address in a Restricted
Jurisdiction and in either case he does not insert in Box 4 of the
Form of Acceptance the name and address of a person or agent
outside a Restricted Jurisdiction to whom he wishes the
consideration to which he is entitled under the Offer to be sent,
subject to this paragraph 6 and applicable laws;
(iii) (in respect of certificated Sky High Shares) he inserts in
Box 4 of the Form of Acceptance the name and address of a person or
agent in a Restricted Jurisdiction to whom he wishes the
consideration to which he is entitled under or in consequence of
the Offer to be sent;
(iv) (in respect of certificated Sky High Shares) any Form of
Acceptance received from him is received in an envelope postmarked
in, or which otherwise appears to Tracsis or its agents to have
been sent from a Restricted Jurisdiction; or
(v) (in respect of uncertificated Sky High Shares) he makes a
Restricted Escrow Transfer pursuant to and defined in paragraph
6(f) below unless he also makes a related Restricted ESA
Instruction as defined below which is accepted by the Receiving
Agent.
Tracsis reserves the right, in its sole discretion, to
investigate, in relation to any acceptance, whether the
representation and warranty set out in paragraph (c) of Part C of
Appendix I or (as the case may be) paragraph (c) of Part D of
Appendix I could have been truthfully given by the relevant Sky
High Shareholder and, if such investigation is made and, as a
result, Tracsis cannot satisfy itself that such representation and
warranty was true and correct, such acceptance shall not be
valid.
The provisions of this paragraph 6 and/or any other terms of the
Offer relating to Overseas Shareholders may be waived, varied or
modified as regards specific Sky High Shareholder(s) or on a
general basis by Tracsis in its absolute discretion. In particular,
without limitation, Tracsis reserves the right: (i) to permit the
Offer to be accepted by, and/or (in respect of certificated Sky
High Shares) to issue or deliver any share certificate(s) and/or
document(s) of title to an Overseas Shareholder, or (in respect of
uncertificated Sky High Shares) the crediting of the appropriate
stock account of an Overseas Shareholder (otherwise unable to
accept the Offer in accordance with the above) in circumstances in
which Tracsis is satisfied that acceptance by such Sky High
Shareholder and/or (in respect of certificated Sky High Shares) the
issue or delivery of any documents of title to, or (in respect of
uncertificated Sky High Shares) the crediting of the appropriate
stock account of, such Sky High Shareholder will not constitute a
breach of any securities or other relevant legislation or impose
obligations on Sky High not contemplated by the Offer (and in any
such case, Sky High may impose reasonable additional requirements
and restrictions on such acceptance and the share certificates
and/or documents of title issued and/or crediting appropriate stock
accounts). Subject thereto, the provisions of this paragraph 6
supersede any terms of the Offer inconsistent herewith.
(e) If a Sky High Shareholder holding Sky High Shares in
uncertificated form is unable to give the representation and
warranties set out in paragraph (c) (i) or (ii) of Part D of this
Appendix I, but nevertheless can produce evidence satisfactory to
Tracsis that he is able to accept the Offer in compliance with all
legal and regulatory requirements, he may only purport to accept
the Offer by sending (or if a CREST Sponsored Member, procuring
that his CREST sponsor sends) both:
(i) a TTE Instruction to a designated escrow balance detailed
below (a "Restricted Escrow Transfer"); and
(ii) one or more valid ESA Instructions (a "Restricted ESA Instruction").
Such purported acceptance will not be treated as a valid
acceptance unless both the Restricted Escrow Transfer and the
Restricted ESA Instruction settle in CREST and Tracsis decides in
its absolute discretion to exercise its right, described in
paragraph 6(d) above to waive, vary or modify the terms of the
Offer related to Overseas Shareholders to the extent required to
permit such acceptance to be made in each case during the
acceptance period set out in Part A of this Appendix I. If Tracsis
accordingly decides to permit such acceptance to be made, the
Receiving Agent will on behalf of Tracsis accept the purported
acceptance as an Electronic Acceptance on the terms of the Offer
Document (as so waived, varied or modified) by transmitting in
CREST a receiving agent accept (AEAN) message. Otherwise, the
Receiving Agent will on behalf of Tracsis reject the purported
acceptance by transmitting in CREST a receiving agent reject (AEAO)
message.
Each Restricted Escrow Transfer must, in order for it to be
valid and settle, include the following details:
-- the ISIN of the Sky High Shares: GB00B1LCP739;
-- the number of Sky High Shares in respect of which you wish to
accept the Offer (i.e. the number of Sky High Shares to be
transferred to an escrow balance);
-- your participant ID;
-- your member account ID;
-- the participant ID of the Escrow Agent. This is 7RA11;
-- the member account ID of the Escrow Agent specific to a
Restricted Escrow Transfer. This is SKYHIGH;
-- the intended settlement date. This should be as soon as
possible and in any event not later than p.m. on the First Closing
Date of the Offer;
-- the corporate action number for the Offer which will be
allocated by Euroclear and can be found by reviewing the relevant
corporate action details in CREST;
-- input with standard delivery instruction priority of 80; and
-- your contact name and telephone number inserted in the shared note field.
Each Restricted ESA Instruction must, in order for it to be
valid and settle include the following details:
-- the ISIN of the Sky High Shares: GB00B1ICP739:
-- the number of Sky High Shares relevant to that Restricted ESA Instruction:
-- your participant ID;
-- your member account ID;
-- the participant ID of the Escrow Agent. This is 7RA11;
-- the member account ID of the Escrow Agent set out in the
Restricted Escrow Transfer. This is RESTRICTED;
-- the CREST Transaction ID of the Restricted Escrow Transfer to
which the Restricted ESA Instruction relates to be inserted at the
beginning of the shared note field;
-- the intended settlement date. This should be as soon as
possible and in any event not later than p.m. on the First Closing
Date of the Offer;
-- the corporate action number for the Offer; and
-- input with standard delivery instruction priority of 80.
Appendix 2
NOTICE OF GENERAL MEETING SKY HIGH PLC
(registered in England and Wales with company number:
3896384)
(the "Company")
NOTICE IS HEREBY GIVEN that a general meeting of the Company
will be held on 15 April 2012 at 32 Bedford Row, London WC1R 3HE at
2 p.m. for the purpose of considering and, if thought fit, passing
the following resolution which will be proposed as an ordinary
resolution. Voting on the resolution will be by way of a poll
(rather than on a show of hands) by the Independent Shareholders
for the purposes of Rule 16 of the City Code on Takeovers and
Mergers. Any terms in the following resolution shall have the
meaning given to such terms in the Offer Document as defined
below.
ORDINARY RESOLUTION
THAT, in connection with the offer made by Tracsis plc
("Tracsis") to acquire the entire issued ordinary share capital of
the Company as set out in the offer document dated 26 March 2013
(the "Offer Document"), and for the purposes of Rule 16.2 of the
City Code on Takeovers and Mergers, the Management Arrangements as
described in the Offer Document and in particular paragraph 6 of
the letter of recommendation from the Independent Directors of the
Company in Part I of the Offer Document and paragraph 6 of the
letter from Tracsis to the Sky High Shareholders in Part II of the
Offer Document, pursuant to which the Management Team will be
entitled to receive different treatment from the other holders of
Sky High Shares in connection with the Offer, be and are hereby
approved.
By Order of the Board
Alex Johnson
Company Secretary
Registered Office:
12-14 Westgate
Tadcaster
LS24 9AB
Notes:
Entitlement to attend and vote
Pursuant to regulation 41 of the Uncertificated Securities
Regulations 2001, the Company specifies that in order to have the
right to attend and vote at the general meeting, a person must be
entered on the register of members of the Company at 6.00 pm on 12
April 2013 or, in the event of any adjournment, at 6.00 pm on the
day two days prior to the adjourned meeting. Changes to entries on
the register of members after this time shall be disregarded in
determining the rights of any person to attend or vote at the
meeting.
Appointment of Proxies
If you are a member of the Company at the time and date set out
in note 1 above, you are entitled to appoint another person as your
proxy to exercise all or any of your rights to attend, to speak and
to vote at the general meeting, and you should have received a
proxy form with this notice of meeting. You can only appoint a
proxy using the procedures set out in these notes and the notes to
the proxy form.
A member may appoint more than one proxy in relation to the
meeting, provided that each proxy is appointed to exercise the
rights attached to different shares held by him. A proxy need not
be a member of the Company. To appoint more than one proxy, please
contact Capita Registrars on 0871 664 0300 (calls cost 10p per
minute plus network extras.) from within the UK or +44 (0) 208 639
3399 if calling from outside the UK between 9.00 a.m. and 5.00 a.m.
(London time) Monday to Friday.
Any member attending the general meeting has the right to ask
questions. The Company must cause to be answered any such questions
relating to the business being dealt with at the meeting but no
such answer need be given if: (a) to do so would interfere unduly
with the preparation for the meeting or involve the disclosure of
confidential information; (b) the answer has already been given on
a website in the form of an answer to a question; or (c) it is
undesirable in the interests of the company or the good order of
the meeting that the question be answered.
A vote withheld is not a vote in law, which means that the vote
will not be counted in the calculation of votes for or against the
resolution. If no voting indication is given, your proxy will vote
or abstain from voting at his or her discretion. Your proxy will
vote (or abstain from voting) as he or she thinks fit in relation
to any other matter which is put before the meeting.
Appointment of proxy using hard copy proxy form
To be valid any proxy form must be:
-- completed and signed;
-- sent or delivered to Capita Registrars at The Registry, 34
Beckenham Road, Beckenham, Kent, BR3 4TU ;
-- received by Capita Registrars no later than 2.00pm on 13 April 2013.
In the case of a member which is a corporation, the proxy form
must be executed under its common seal or signed on its behalf by
an officer of the corporation or attorney duly authorised on their
behalf. Any power of attorney or any other authority under which
the proxy form is signed (or a duly certified copy of such power or
authority) must be included with the proxy form).
A corporation which is a member may by resolution of its
directors or other governing body, authorise such person as it
thinks fit to act as its representative (or as the case may be,
representatives) at any meeting of the Company or at any separate
meeting of the holders of any class of shares. Any person so
authorised shall be entitled to exercise the same powers on behalf
of the corporation (in respect of that part of the corporation's
holdings to which the authority relates) as the corporation could
exercise if it were an individual member. The corporation shall be
deemed to be present in person at any such meeting if a person so
authorised is present at it and all references to attendance and
voting in person shall be construed accordingly. A certified copy
of such a resolution shall be deposited at Capita Registrars, The
Registry, 34 Beckenham Road, Beckenham, Kent, BR3 4TU no later than
2.00pm on 13 April 2013, or in the case of a poll taken subsequent
to the meeting, not less than 24 hours before the time appointed
for the taking of the poll, and unless such certified copy of such
resolution is so deposited the authority granted by such resolution
shall not be treated as valid. Where certified copies of two or
more valid but differing resolutions authorising any person or
persons to act as the representative of any corporation at the same
meeting in relation to the same share are deposited at the office,
the resolution, a certified copy of which is deposited with the
Company last in time (regardless of the date of such certified copy
or of the date upon which the resolution set out there was passed),
shall be treated as revoking and replacing all other such
authorities as regards that share but if the Company is unable to
determine which of any such two or more valid but differing
resolutions was the one so deposited last in time, none of them
shall be treated as valid in respect of that share. The authority
granted by any such resolution shall, unless the contrary is stated
in the certified copy thereof deposited with the Company be treated
as valid for any adjournment of any meeting at which such authority
may be used as well as at such meeting. A corporation which is a
member of the Company who holds different classes of shares may so
authorise one or more different persons for each class of share
held.
Appointment of proxy by joint members
In the case of joint holders, where more than one of the joint
holders purports to appoint a proxy, only the appointment submitted
by the most senior holder will be accepted. Seniority is determined
by the order in which the names of the joint holders appear in the
Company's register of members in respect of the joint holding (the
first-named being the most senior).
Termination of proxy appointments
In order to revoke a proxy instruction you will need to inform
the Company by sending a signed hard copy notice clearly stating
your intention to revoke your proxy appointment to Capita
Registrars The Registry, 34 Beckenham Road, Beckenham, Kent, BR3
4TU no later than 11.00 am on 12 April2013. In the case of a member
which is a corporation, the revocation notice must be executed
under its common seal or signed on its behalf by an officer of the
corporation or an attorney. Any power of attorney authorised on
that behalf or any other authority under which the revocation
notice is signed (or a duly certified copy of such power or
authority) must be included with the revocation notice.
Appointment of a proxy does not preclude you from attending and
voting in person at the meeting if he/she wishes to do so. If you
have appointed a proxy and attend the meeting in person, your proxy
appointment will automatically be terminated.
A copy of this notice and the offer document date 26 March 2013,
can be found at www.skyhighplc.co.uk and www.tracsis.com.
Issued Shares and total voting rights
As at 25 March 2013 (being the last practicable date prior to
the publication of this notice) the Company's issued share capital
comprised 21,517,946 ordinary shares of GBP0.01 each. Each ordinary
share carried the right to one vote at a general meeting of the
Company and, therefore, the total number of voting rights in the
Company as at that date is 21,517,946.
Communication
If you have general queries about the general meeting please
telephone 0871 664 0300 from within the UK or on +44 (0) 208 639 33
99 if calling from outside the UK. Lines are open 9.00 am to 5.00
pm Monday to Friday. Calls to the helpline from outside the UK will
be charged at the applicable international rate. Different charges
may apply to calls from mobile telephones and calls may be recorded
and randomly monitored for security and training purposes. No other
methods of communication will be accepted.
you may not use any electronic address provided in this notice
of meeting (or in any related documents including the proxy form)
to communicate with the Company for any purposes other than those
expressly stated.
Appendix 3
Definitions
The following definitions apply throughout this Announcement,
unless the context requires otherwise:
Act or Companies Act 2006 means the Companies Act 2006;
AIM means AIM, being a market operated by the London Stock
Exchange;
AIM Rules means the AIM Rules for Companies published by the
London Stock Exchange governing admission to, and operation of,
AIM;
Announcement means the announcement by Tracsis of a firm
intention to make the Offer dated 26 March 2013;
Announcement Date means 26 March 2013;
Business Day means a day (excluding Saturdays, Sundays and
public holidays) on which banks are generally open for business in
the City of London;
Capita Registrars means Capita Registrars Limited
certificated or in certificated form means a share or other
security which is not in uncertificated form (that is, not in
CREST);
Closing Price means the closing middle market quotation of a Sky
High Share or Tracsis Share (as the context requires) as derived
from the Appendix to the Daily Official List;
Code or City Code means The City Code on Takeovers and
Mergers;
Conditions means the conditions of the Offer set out in Part A
and Part B of Appendix I to this Announcement and the Offer
Document;
Confidentiality Agreement means the agreement entered into
regarding confidentiality between Sky High and Tracsis dated 21
November 2012;
Connected Persons means close relatives, family members, self
invested personal pensions, related trusts and discretionary fund
managers of the Management Shareholders;
CREST means the relevant system (as defined in the CREST
Regulations) for the paperless settlement of trades and holding of
securities in respect of which CRESTCo is the Operator (as defined
in the CREST Regulations);
CRESTCo means CRESTCo Limited;
CREST Member means a person who has been admitted by CRESTCo as
a system member (as defined in the CREST Regulations);
CREST Participant means a person who is, in relation to CREST, a
system participant (as defined in the CREST Regulations);
CREST Payment shall have the meaning given in the CREST manual
issued by CRESTCo from time to time;
CREST Regulations means the Uncertificated Securities CREST
Regulations 2001 (SI 2001 No.3755);
CREST Sponsor means a CREST Participant admitted to CREST as a
CREST sponsor;
CREST Sponsored Member means a CREST Member admitted to CREST as
a sponsored member;
Daily Official List means the Daily Official List of the London
Stock Exchange;
dealing day means a day on which the London Stock Exchange is
open for business in the trading of securities admitted to AIM;
Deferred Share(s) means 114,702,633 deferred share(s) of 1p each
in Sky High;
Disclosed means information disclosed by or on behalf of Sky
High in (i) in Sky High's annual report and accounts for the period
ended 31 March 2012 or the unaudited accounts for the six months
ended 30 September 2012; (ii) in any other announcement (through a
Regulatory Information Service) prior to the date of the
Announcement; or (iii) in writing (including by email and/or by
electronic dataroom) to Tracsis or its financial or legal advisers
by or on behalf of Sky High prior to the date of the
Announcement.
Electronic Acceptance means the inputting and settling of a TTE
Instruction in respect of Sky High Shares which constitutes or is
deemed to constitute an acceptance of the Offer on the terms set
out in the Offer Document;
Eligible Voting Shares means those Sky High Shares that are held
by the Independent Shareholders and which are eligible to vote on
the Ordinary Resolution at the Sky High General Meeting;
ESA instruction means an Escrow Account Adjustment Input (AESN),
transaction type "ESA" (as described in the CREST manual issued by
CRESTCo) from time to time;
Escrow Agent means the Receiving Agent (in its capacity as an
Escrow Agent as described in the CREST manual issued by CRESTCo)
from time to time;
Euroclear means Euroclear UK & Ireland Limited, a private
limited company registered in England and Wales under number
2878738;
First Closing Date means 1.00 p.m. on 16 April 2013;
Executive Directors means Mark Mattison and Martin Prowse
Form of Acceptance means the form of acceptance relating to the
Offer accompanying the Offer Document;
Form of Proxy means the personalised form of proxy relating to
the Sky High General Meeting which accompanies the Offer
Document;
FSA means the Financial Services Authority and any successor
body;
FSMA means the Financial Services and Markets Act 2000, as
amended from time to time;
Independent Directors means the independent directors of Sky
High, being Richard Jackson (Non-Executive Chairman), Michael
Jackson (Non-Executive Director), David Lowe (Non-Executive
Director), Sir John Madejski (Non-Executive Director), and Nick
Lanigan (Non-Executive Director);
Independent Shareholders means all Sky High Shareholders other
than the Management Shareholders and the Prowse Trust;
intellectual property means all patents, trademarks, trade
names, service marks, copyrights, designs, databases and any
applications therefore, schematics, technology, know how, computer
software, programs or applications (in both source code and object
code form), and tangible or intangible proprietary information or
material;
Irrevocable Undertakings means the irrevocable undertakings to
accept the Offer, details of which are set out in paragraph 4.3(c),
4.3(d) and 4.3 (e) of Appendix III to the Offer Document;
legal proceedings means actions, suits, proceedings,
investigations, references or enquiries;
London Gazette means the daily publication issued in London with
such name;
London Stock Exchange means London Stock Exchange plc;
Management Agreement means the management agreement dated 25
March 2013, entered into between Tracsis and the Management Team,
details of which are set out in paragraph 8(a) of Appendix III to
the Offer Document;
Management Arrangements means the Management Agreement and the
Proposed Incentivisation Agreement as described in paragraph 6 of
Part II of the Offer Document;
Management Roll Over Shares means the 3,526,358 Sky High Shares
which are held by the Management Shareholders (and certain of their
Connected Persons) to be sold to Tracsis pursuant to the terms of
the Management Agreement;
Management Shareholders means Mark Mattison, Grant Wilson,
Martin Prowse, Paul Jackson, Peter Agnew and Kevin Stewart ;
Management Team means the Management Shareholders and Alex
Johnson;
member account ID means the identification code or number
attached to any member account in CREST;
Notice of Sky High General Meeting means the notice of Sky High
General Meeting dated the date of the Offer Document and is set out
in Appendix IV of the Offer Document;
Offer means the recommended cash offer made by Tracsis to
acquire the entire issued share capital of Sky High not already
owned by Tracsis or persons acting in concert with Tracsis, at the
Offer Price on the terms and subject to the conditions to be set
out in the Offer Document and the Form of Acceptance (including,
where the context so requires, any subsequent revision, variation,
extension or renewal of such offer);
Offer Document means the Offer document dated 26 March 2013,
dispatched to shareholders of Sky High today , a copy of which is
available at www.tracsis.com and www.skyhighplc.co.uk;
Offer Period means the period commencing on (and including) 26
March 2013 and ending on the latest of: (i) the First Closing Date;
and (ii) the date on which the Offer lapses or is withdrawn; and
(iii) the date on which the Offer becomes or is declared
unconditional as to acceptances;
Offer Price means 15.25p for each Sky High Share;
Offer Shares means all of the Sky High Shares, but excluding the
Management Roll Over Shares contracted to be acquired by Tracsis
under the terms of the Management Agreement;
Ordinary Resolution means the ordinary resolution to be proposed
to the Independent Shareholders at the Sky High General Meeting (or
any adjournment thereof) in accordance with the requirements of the
Code to approve on a poll the terms of the Management
Arrangements;
Ordinary Share(s) means ordinary shares of 1p each in Sky
High;
Overseas Shareholders or Overseas Sky High Shareholders means
Sky High Shareholders resident in, or nationals or citizens of, or
who are subject to jurisdictions outside, the UK or who are
nominees of, or custodians, trustees or guardians for, citizens or
nationals of or persons subject to such jurisdictions;
Panel means The Panel on Takeovers and Mergers;
Participant ID means the identification code or membership
number used in CREST to identify a particular CREST Member or other
CREST Participant;
Proposed Incentivisation Agreement means the Proposed
Incentivisation Agreement described in paragraph 6 of Part II of
the Offer Document;
Prowse Trust means Prowse Family Trust Pty Limited;
Prowse Trust Agreement means the agreement dated 25 March 2013
entered into between the Prowse Trust and Tracsis, details of which
are set out in paragraph 8(b) of Appendix III to the Offer
Document;
Prowse Trust Shares means the 166,667 Sky High Shares which are
held by the Prowse Trust (a Connected Person of Martin Prowse)
which are to be sold to Tracsis pursuant to the Prowse Trust
Agreement;
Receiving Agent means Tracsis's registrars, Neville Registrars
Limited;
Relevant Authority means any central bank, government,
government department or governmental, quasigovernmental,
supranational, statutory, regulatory or investigative body,
authority (including any anti- trust or merger control authority),
court, trade agency, association; institution or professional or
environmental body or any other statutory person or body whatsoever
in any jurisdiction;
Restricted Jurisdiction means the United States, Canada, Japan,
Australia, South Africa and any other jurisdiction where local laws
or regulations may result in a significant risk of civil,
regulatory or criminal exposure or prosecution if information
concerning the Offer is sent or made available to Sky High
Shareholders in that jurisdiction;
RIS or Regulatory Information Service means any of the services
approved by the London Stock Exchange and included in the list
maintained on the London Stock Exchange's website;
Sky High or Company means Sky High Group plc, incorporated in
England and Wales with registered number 3896384;
Sky High Board, Sky High Directors or Directors means the
directors of Sky High at the relevant time;
Sky High EMI Options means options granted by the Company
pursuant to the EMI Scheme adopted by the Company;
Sky High General Meeting means the general meeting of Sky High
(or any adjournment thereof) to be convened pursuant to Rule 16 of
the Code at which the Ordinary Resolution will be proposed (which
only the Independent Shareholders shall vote on) notice of which
will be set out in the Notice of Sky High General Meeting;
Sky High Group or Group means Sky High and its subsidiaries;
Sky High Shareholders or Shareholders means holders of Sky High
Shares;
Sky High Shares means the existing unconditionally allotted or
issued and fully paid ordinary shares of 1p each in the capital of
Sky High and any further such shares which are unconditionally
allotted or issued fully paid, or credited as fully paid, before
the date on which the Offer closes (or before such earlier date as
Tracsis may, subject to the Code, decide, not being earlier than
(a) the date on which the Offer becomes or is declared
unconditional as to acceptances or (b) if later, the First Closing
Date);
Subsidiary means a subsidiary as defined in section 1159 of the
Act;
Tracsis or Offeror means Tracsis Limited, a company incorporated
in England and Wales with registered number 05019106;
Tracsis Board or Tracsis Directors means the existing board of
directors of Tracsis details of whom are given in paragraph 2.1 of
Appendix III of the Offer Document;
Tracsis Group means Tracsis and its subsidiaries;
Tracsis Shares means the ordinary shares of GBP0.004 each in the
share capital of Tracsis;
Tracsis Shareholders means holders of Tracsis Shares;
TTE Instruction means a transfer to escrow instruction (as
defined by the CREST manual issued to CRESTCo from time to
time);
Unconditional Date means the date on which the Offer becomes or
is declared unconditional in all respects in accordance with its
terms;
UK or United Kingdom means the United Kingdom of Great Britain
and Northern Ireland;
uncertificated or in uncertificated form means recorded on the
relevant register of Sky High as being held in uncertificated form
in CREST, and title to which, by virtue of the CREST Regulations,
may be transferred by means of CREST;
WH Ireland means WH Ireland Limited, financial advisor to
Tracsis;
Wider Sky High Group means Sky High, its subsidiary
undertakings, associated undertakings and any other body corporate,
partnership, joint venture or person in which Sky High and/or such
undertakings (aggregating their interests) have an interest of more
than 20 per cent. of the voting or equity capital or the
equivalent.
Wider Tracsis Group means Tracsis, its subsidiary undertakings,
associated undertakings and any other body corporate, partnership,
joint venture or person in which Tracsis and/or such undertakings
(aggregating their interests) have an interest of more than 20 per
cent. of the voting or equity capital or the equivalent.
All references to legislation in this Announcement and the Offer
Document are to English legislation unless the contrary is
indicated. Any reference to any provision of any legislation shall
include any amendment, modification, re-enactment or extension
thereof.
Words importing the singular shall include the plural and vice
versa, and words importing the masculine gender shall include the
feminine or neutral gender.
For the purposes of this Announcement and the Offer Document,
'subsidiary', 'subsidiary undertaking', 'associated undertaking',
'undertaking' and 'parent undertaking' have the respective meanings
given to them by the Companies Act 2006.
References to "GBP", "Sterling", "p", "penny" and "pence" are to
the lawful currency of the United Kingdom. References to time are
to London time unless otherwise specified.
This information is provided by RNS
The company news service from the London Stock Exchange
END
MSCNKADBFBKKBNB
Grafico Azioni Sky High (LSE:SKHG)
Storico
Da Ago 2024 a Set 2024
Grafico Azioni Sky High (LSE:SKHG)
Storico
Da Set 2023 a Set 2024