TIDMTHF
RNS Number : 1623C
Thirdforce PLC
09 November 2009
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 SUCH JURISDICTION.
9 November 2009
PRE-CONDITIONAL OFFER
By
LEARNVANTAGE PLC
For
THIRDFORCE PLC
SUMMARY
Introduction
The LearnVantage Directors and the Independent Directors of ThirdForce are
pleased to announce the terms of a pre-conditional Offer, including a
recommended Cash Offer, intended to be made by LearnVantage for the ThirdForce
Shares on the following basis:
+--------------------+---------------------------------------------------+
| The Share Offer: | 1 LearnVantage Share, issued credited as fully |
| | paid, for each ThirdForce Share; |
+--------------------+---------------------------------------------------+
| OR | |
+--------------------+---------------------------------------------------+
| The Composite | 3 LearnVantage Shares, issued credited as fully |
| Offer: | paid, and EUR0.12 in cash, for every 4 ThirdForce |
| | Shares; |
+--------------------+---------------------------------------------------+
| OR | |
+--------------------+---------------------------------------------------+
| The Cash Offer: | EUR0.105 in cash for each ThirdForce Share. |
+--------------------+---------------------------------------------------+
The making of the Offer is conditional upon satisfaction of the pre-conditions
set out in Appendix I to this Announcement. The pre-conditions require
LearnVantage to receive irrevocable undertakings to accept the Share Offer from
ThirdForce Shareholders holding 32.48 per cent. of the ThirdForce Shares
currently in issue and an irrevocable undertaking to accept the Composite Offer
from a ThirdForce Shareholder holding 3.10 per cent. of the ThirdForce Shares
currently in issue. In addition, the Offer will be subject to the conditions set
out in Appendix II to this Announcement and to be set out in the Offer Document
and Forms of Acceptance.
ThirdForce Shareholders will be entitled to accept any of the above Alternatives
in respect of all, or such number as they may elect, of their ThirdForce Shares
and will be entitled to accept any combination of the above Alternatives in
respect of all, or such number as they may elect, of their ThirdForce Shares.
The Offer will, when formally made, be subject to valid acceptances being
received (and not, where permitted, withdrawn) by 3:00p.m. on the Initial
Closing Date (or such later time(s) and/or date(s) as LearnVantage may
determine, subject always to the Takeover Rules) in respect of not less than 80
per cent. (or such lower percentage as LearnVantage may determine, subject
always to the Takeover Rules) in nominal value of the ThirdForce Shares,
provided that this condition shall not be satisfied unless LearnVantage shall
have acquired or agreed to acquire (whether pursuant to the Offer or otherwise)
ThirdForce Shares carrying in aggregate more than 50 per cent. of the voting
rights then exercisable at a general meeting of ThirdForce.
Independent Directors' Recommendation
The Independent Directors, who have been so advised by Goodbody Corporate
Finance, consider the terms of the Cash Offer to be fair and reasonable. In
providing its advice, Goodbody Corporate Finance has taken into account the
commercial assessments of the Independent Directors. Accordingly, the
Independent Directors unanimously recommend ThirdForce Shareholders to accept
the Cash Offer.
Whilst the Independent Directors acknowledge that some ThirdForce Shareholders
may, depending on their own circumstances and investment objectives, be
attracted to elect to accept the Share Offer or the Composite Offer, the
Independent Directors are aware that the Share Offer and the Composite Offer
would expose a ThirdForce Shareholder accepting them to considerable risks,
including those associated with an investment in shares in an unquoted company.
For this reason, the Independent Directors, who have been so advised by Goodbody
Corporate Finance, are not making any recommendation in respect of the Share
Offer or the Composite Offer. In providing its advice, Goodbody Corporate
Finance has taken into account the commercial assessments of the Independent
Directors.
In considering the risks identified by LearnVantage associated with the Share
Offer and the Composite Offer as set out in Appendix IV to this Announcement,
the Independent Directors believe the following to be arguments against the
Share Offer or the Composite Offer:
+-----+----------------------------------------------------------------+
| * | LearnVantage Shares may decrease in value over time; |
+-----+----------------------------------------------------------------+
| * | LearnVantage will not be subject to the disclosure, corporate |
| | governance and other requirements of the Irish Stock Exchange, |
| | the London Stock Exchange or any other securities exchange. As |
| | LearnVantage is not and will not be a company listed on the |
| | Irish Stock Exchange or the London Stock Exchange it will not |
| | be subject to the Combined Code on Corporate Governance of the |
| | United Kingdom Financial Reporting Council; |
+-----+----------------------------------------------------------------+
| * | shareholders of LearnVantage will not have the benefit of the |
| | Takeover Rules (or any equivalent rules) in relation to any |
| | takeover offer that might be made for LearnVantage in the |
| | future; |
+-----+----------------------------------------------------------------+
| * | LearnVantage Shares are subject to restrictions on transfer in |
| | relation to US Persons as set out in the Articles. It is |
| | intended to cancel the trading of ThirdForce's Shares on AIM |
| | and the IEX and to re-register ThirdForce as a private limited |
| | company, following the Offer, which may further restrict the |
| | transferability of LearnVantage Shares; |
+-----+----------------------------------------------------------------+
| * | LearnVantage Shares will be subject to certain rights, |
| | restrictions and conditions which are different to those |
| | affecting ThirdForce Shares. For example, LearnVantage Shares |
| | will be subject to certain "tag along" and "drag along" rights |
| | in the event of a sale of a major share interest in |
| | LearnVantage; |
+-----+----------------------------------------------------------------+
| * | LearnVantage/the Enlarged Group may have greater borrowings |
| | than ThirdForce currently has and this could adversely affect |
| | LearnVantage's financial condition and the results of its |
| | operations; |
+-----+----------------------------------------------------------------+
| * | certain shareholders may exercise significant influence over |
| | LearnVantage following the Offer and/or their interests may |
| | differ from some or all of the other shareholders; |
+-----+----------------------------------------------------------------+
| * | a slowdown in the growth of the e-learning market could |
| | negatively impact LearnVantage; and |
+-----+----------------------------------------------------------------+
| * | LearnVantage will operate in the e-learning market which is |
| | highly competitive. Other market participants, some of whom |
| | are larger than LearnVantage, may develop platforms or other |
| | technologies that render those used by LearnVantage less |
| | competitive or obsolete, or use their market position and |
| | financial resources to damage LearnVantage. |
+-----+----------------------------------------------------------------+
The Independent Directors also consider that the arguments in favour of the
Share Offer and Composite Offer over the Cash Offer include the following:
+------+----------------------------------------------------------------+
| * | LearnVantage Shares may increase in value over time; |
+------+----------------------------------------------------------------+
| * | ThirdForce has well established market positions in its chosen |
| | sectors and it has scope for further growth and development; |
+------+----------------------------------------------------------------+
| * | LearnVantage will not incur the costs associated with having |
| | its shares traded on AIM and/or IEX; and |
+------+----------------------------------------------------------------+
| * | ThirdForce may have increased flexibility in how it undertakes |
| | mergers and acquisitions being a privately-owned company. |
+------+----------------------------------------------------------------+
Two of the Independent Directors who hold ThirdForce Shares, either personally
or through investment funds which they manage, intend to accept the Share Offer.
Ms. Carol Clark intends to accept the Share Offer for her entire holding of
2,751,630 ThirdForce Shares. River Cities Capital Funds, of which Mr. Edwin
Robinson is co-founder, intends to provide an irrevocable undertaking to accept
the Share Offer in respect of its entire holding of 10,254,329 ThirdForce
Shares. Mr. Mike Newton holds no ThirdForce Shares. The Independent Directors
who intend to accept the Share Offer are aware of the risks associated with the
Share Offer including those set out above. These risks are acceptable to these
Independent Directors in respect of their own circumstances and investment
objectives. They do not consider it prudent to presume that other ThirdForce
Shareholders would be in a similar position. If you are in any doubt as to the
action you should take you are advised to seek independent financial advice.
Commenting on the Offer on behalf of the Independent Directors, Mr. Mike Newton,
said:
"After careful consideration, the Independent Directors are pleased to have
reached a position where the Cash Offer is at a price level at which the
Independent Directors will recommend the Cash Offer to ThirdForce Shareholders.
The Independent Directors believe that the Cash Offer represents a fair and
reasonable opportunity for ThirdForce Shareholders to realise their investment
for the cash consideration."
Commenting on the Offer on behalf of LearnVantage, the Chairman of LearnVantage,
Mr. Pat McDonagh, said:
"The LearnVantage Directors believe that the ThirdForce Group has
well-established market positions in its chosen sectors and that it has
significant scope for long-term growth and development and, accordingly, that
the acquisition of ThirdForce by LearnVantage will provide LearnVantage with a
platform upon which to build the Enlarged Group's position in the
technology-enabled learning solutions and services sector. LearnVantage has made
the Offer because it believes that the strategic objectives of ThirdForce can
best be achieved as an unlisted entity. In particular, the LearnVantage
Directors believe that not being admitted to trading on AIM and/or the IEX will
give LearnVantage more flexibility in how it undertakes mergers and
acquisitions, especially in the United Sates market, will enable management time
and resources to be fully focused on developing the business of the Enlarged
Group and will also enable cost savings which the Enlarged Group will make by
not being admitted to trading on AIM and/or the IEX to be used to fund growth in
the Enlarged Group's business. In view of the above beliefs, and in the context
of the Offer, in order to facilitate those ThirdForce Shareholders who wish to
continue their participation in ThirdForce, the LearnVantage Directors invite
such ThirdForce Shareholders to accept either the Share Offer or the Composite
Offer. For those ThirdForce Shareholders who wish to exit their investment in
ThirdForce in respect of some or all of their ThirdForce Shares, or who cannot
for regulatory reasons continue their participation in ThirdForce, the Cash
Offer and the Composite Offer are being made available as alternatives to the
Share Offer."
This summary should be read in conjunction with the full text of this
Announcement. The definitions of terms used in this summary are contained in
Appendix VI to this Announcement.
Enquiries
+-------------------------------+------------------------------+
| Brendan O'Sullivan | |
+-------------------------------+------------------------------+
| LearnVantage Plc | Tel: + 353 (0) 86 311 2868 |
+-------------------------------+------------------------------+
| | |
+-------------------------------+------------------------------+
| Tom Nolan | |
+-------------------------------+------------------------------+
| Dolmen Corporate Finance Ltd | Tel: +353 (0) 1 633 3800 |
+-------------------------------+------------------------------+
| (Financial Adviser to | |
| LearnVantage) | |
+-------------------------------+------------------------------+
| | |
+-------------------------------+------------------------------+
| Mike Newton | |
+-------------------------------+------------------------------+
| ThirdForce Plc | Tel: +353 (0) 1 289 1989 |
+-------------------------------+------------------------------+
| | |
+-------------------------------+------------------------------+
| Finbarr Griffin | |
+-------------------------------+------------------------------+
| David Stokes | |
+-------------------------------+------------------------------+
| Goodbody Corporate Finance | Tel: +353 (0) 1 667 0420 |
+-------------------------------+------------------------------+
| (Financial Adviser to | |
| ThirdForce) | |
+-------------------------------+------------------------------+
| | |
+-------------------------------+------------------------------+
| Eoin Kennedy | |
+-------------------------------+------------------------------+
| Slattery Communications | Tel: +353 (0) 1 661 4055 |
| Limited | |
+-------------------------------+------------------------------+
| (Media Enquiries) | |
+-------------------------------+------------------------------+
Dolmen is a division of Dolmen Securities Limited. Dolmen Securities Limited is
regulated by the Financial Regulator. Dolmen is acting exclusively for
LearnVantage and no one else in connection with the Offer and Dolmen will not
regard any other person as a client in relation to the Offer and will not be
responsible to anyone other than LearnVantage for providing the protections
afforded exclusively to its clients or for providing advice in relation to the
Offer, the contents of this Announcement or any other matters referred to
herein.
Goodbody Corporate Finance, which is regulated by the Financial Regulator, is
acting exclusively for ThirdForce and no one else in connection with the Offer
and Goodbody Corporate Finance will not regard any other person as a client in
relation to the Offer and will not be responsible to anyone other than
ThirdForce for providing the protections afforded exclusively to its clients, or
for providing advice in relation to the Offer, the contents of this Offer
Document, the Prospectus, the Form of Acceptance or any other matters referred
to herein.
This Announcement is made pursuant to Rule 2.5 of the Takeover Rules.
This Announcement does not constitute an offer to purchase, sell, subscribe or
exchange or the solicitation of an offer to purchase, sell, subscribe or
exchange 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. ThirdForce
Shareholders are advised to read the formal documentation in relation to the
Offer carefully, once it has been despatched.
The full text of the pre-conditions of the Offer is set out in Appendix I to
this Announcement and the full text of the conditions of the Offer is set out in
Appendix II to this Announcement.
Any response in relation to the Offer should be made only on the basis of the
information contained in the Offer Document and the Prospectus or any document
by which the Offer is made.
Overseas Shareholders
The availability of the Offer to persons not resident in Ireland, the United
Kingdom or the United States may be affected by the laws of the jurisdiction in
which they are resident. Persons who are resident in any jurisdiction or
territory other than Ireland, the United Kingdom or the United States should
obtain professional advice and observe any applicable requirements.
The Offer will not be made, directly or indirectly in, into or from any Excluded
Territory by the use of mails, or by any means or instrumentality (including,
without limitation, telephonically or electronically) of interstate or foreign
commerce, or of any facility of a national, state or other securities exchange
of any Excluded Territory and the Offer will not be capable of acceptance by any
such use, means, instrumentality or facility from or within any Excluded
Territory. Accordingly, copies of this Announcement and any related offering
documents are not being, and must not be mailed or otherwise distributed or sent
in, into or from any Excluded Territory and persons receiving such documents
(including, without limitation, any nominee, trustee or custodian) must not
distribute or send them in, into or from any Excluded Territory and doing so may
invalidate any purported acceptance of the Offer by persons in any such
jurisdiction. Notwithstanding the foregoing restrictions, LearnVantage reserves
the right to permit the Offer to be accepted if, in its sole discretion, it is
satisfied that the transaction in question is exempt from or not subject to the
legislation or regulation giving rise to the restrictions in question. Failure
to comply with the above restrictions may constitute a violation of relevant
securities law.
All ThirdForce Shareholders (including, without limitation, any nominee, trustee
or custodian) who would otherwise intend to, or who have a contractual or legal
obligation to, forward this Announcement or any other document(s) issued to
ThirdForce Shareholders in connection with the Offer to any Excluded Territory
should refrain from doing so and seek appropriate professional advice.
US Shareholders
The LearnVantage Shares have not been, and will not be registered under the US
Securities Act, or under the securities laws of any State of the United States
or other jurisdiction within the United States. In the United States, the
LearnVantage Shares will be offered and sold in reliance upon an exemption from
the registration requirements of the US Securities Act and only to ThirdForce
Shareholders who qualify as Accredited Investors. Accordingly, ThirdForce
Shareholders who are US Persons and who are not Accredited Investors may only
accept the Cash Offer, unless they are outside the United States within the
meaning of Regulation S promulgated under the US Securities Act.
The LearnVantage Shares are "restricted securities" within the meaning of Rule
144 of the US Securities Act and may be resold or transferred only in certain
limited instances. The certificates evidencing the LearnVantage Shares may bear
legends referring to applicable restrictions on transfer.
Directors Responsibility Statements
Acting in their capacity as directors of LearnVantage, the LearnVantage
Directors accept responsibility for all of the information contained in this
Announcement, other than that for which the ThirdForce Directors, acting in
their capacity as such, accept responsibility and for which the Independent
Directors, acting in their capacity as such, accept responsibility. To the best
of the knowledge and belief of the LearnVantage Directors (who have taken all
reasonable care to ensure that such is the case), the information contained in
this Announcement for which they accept responsibility is in accordance with the
facts and does not omit anything likely to affect the import of such
information.
Acting in their capacity as directors of ThirdForce, the ThirdForce Directors
accept responsibility for the information contained in paragraph 10 of this
Announcement (Information on ThirdForce) relating to ThirdForce, the ThirdForce
Group, the ThirdForce Directors (solely in their capacity as such) and members
of their immediate families, related trusts and persons connected with them. The
ThirdForce Directors, acting in their capacity as such, do not accept
responsibility for any other information contained in this Announcement. To the
best of the knowledge and belief of the ThirdForce Directors (who have taken all
reasonable care to ensure that such is the case), the information contained in
this Announcement for which they accept responsibility is in accordance with the
facts and does not omit anything likely to affect the import of such
information.
Acting in their capacity as independent directors of ThirdForce for the purposes
of the Offer, the Independent Directors accept responsibility for the
recommendation and the related opinions of the Independent Directors contained
in this Announcement. The Independent Directors, acting in their capacity as
such, do not accept responsibility for any other information contained in this
Announcement. To the best of the knowledge and belief of the Independent
Directors (who have taken all reasonable care to ensure that such is the case),
the information contained in this Announcement for which they accept
responsibility is in accordance with the facts and does not omit anything likely
to affect the import of such information.
Dealing Disclosure Requirements
Under the provisions of Rule 8.3 of the Takeover Rules, if any person is
interested in, owns or controls (directly or indirectly) 1 per cent. or more of
any class of "relevant securities" of ThirdForce or LearnVantage, all "dealings"
in any "relevant securities" of ThirdForce or LearnVantage must be publicly
disclosed by no later than 12.00 noon (Dublin time) on the Business Day
following the date of the relevant transaction. This requirement will continue
until the date on which the Offer becomes, or is declared, unconditional as to
acceptances, lapses or is otherwise withdrawn or on which the Offer Period
otherwise ends. If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire an "interest" in "relevant
securities" of ThirdForce or LearnVantage, they will be deemed to be a single
person for the purpose of Rule 8.3.
Under the provisions of Rule 8.1 of the Takeover Rules, all "dealings" in
"relevant securities" of ThirdForce or LearnVantage, by LearnVantage or
ThirdForce, or by any of their respective "associates", during the Offer Period
must be disclosed by no later than 12.00 noon (Dublin time) on the Business Day
following the date of the relevant transaction.
A disclosure table, giving details of the companies in whose "relevant
securities" "dealings" should be disclosed, and the number of such securities in
issue, can be found on the Panel's website at www.irishtakeoverpanel.ie.
Terms in this paragraph, Dealing Disclosure Requirements, in quotation marks are
defined in the Takeover Rules, which can also be found on the Panel's website.
If you are in any doubt as to whether or not you are required to disclose a
"dealing" under Rule 8, you should consult the Panel on telephone number (+353)
1 678 9020.
If you are in any doubt as to the action you should take you are recommended to
obtain advice immediately from your stockbroker, bank manager, solicitor,
accountant or other appropriate independent financial adviser, who, if you are
taking advice in Ireland, is duly authorised or exempted pursuant to the
European Communities (Markets in Financial Instruments) Regulations 2007 or the
Investment Intermediaries Act 1995 (as amended), or, if you are taking advice in
the United Kingdom, is duly authorised under the Financial Services and Markets
Act 2000 of the United Kingdom or, if you are taking advice elsewhere, from
another appropriately authorised independent financial adviser.
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 SUCH JURISDICTION.
FOR IMMEDIATE RELEASE
9 November 2009
PRE-CONDITIONAL OFFER
By
LEARNVANTAGE PLC
For
THIRDFORCE PLC
1.INTRODUCTION
The LearnVantage Directors and the Independent Directors of ThirdForce are
pleased to announce the terms of an Offer, including a recommended Cash Offer,
intended to be made by LearnVantage for the ThirdForce Shares on the following
basis:
+--------------------------------------+-------------------------------------------------+
| The | 1 LearnVantage |
| Share | Share, issued |
| Offer: | credited as fully |
| | paid, for each |
| | ThirdForce Share; |
+--------------------------------------+-------------------------------------------------+
| OR | |
+--------------------------------------+-------------------------------------------------+
| The | 3 LearnVantage |
| Composite | Shares, issued |
| Offer: | credited as fully |
| | paid, and EUR0.12 in |
| | cash, for every 4 |
| | ThirdForce Shares; |
+--------------------------------------+-------------------------------------------------+
| OR | |
+--------------------------------------+-------------------------------------------------+
| The | EUR0.105 in cash for |
| Cash | each ThirdForce |
| Offer: | Share. |
+--------------------------------------+-------------------------------------------------+
The making of the Offer is conditional upon satisfaction of the pre-conditions
set out in Appendix I to this Announcement. The pre-conditions require
LearnVantage to receive irrevocable undertakings to accept the Share Offer from
ThirdForce Shareholders holding 32.48 per cent. of the ThirdForce Shares
currently in issue and an irrevocable undertaking to accept the Composite Offer
from a ThirdForce Shareholder holding 3.10 per cent. of the ThirdForce Shares
currently in issue. In addition, the Offer will be subject to the conditions set
out in Appendix II to this Announcement and to be set out in the Offer Document
and Forms of Acceptance.
Under the terms of the Offer, ThirdForce Shareholders will be entitled to accept
any of the above Alternatives in respect of all, or such number as they may
elect, of their ThirdForce Shares and will be entitled to accept any combination
of the above Alternatives in respect of all, or such number as they may elect,
of their ThirdForce Shares.
The Offer will, when formally made, be subject to valid acceptances being
received (and not, where permitted, withdrawn) by 3:00p.m. on the Initial
Closing Date (or such later time(s) and/or date(s) as LearnVantage may
determine, subject always to the Takeover Rules) in respect of not less than 80
per cent. (or such lower percentage as LearnVantage may determine, subject
always to the Takeover Rules) in nominal value of the ThirdForce Shares,
provided that this condition shall not be satisfied unless LearnVantage shall
have acquired or agreed to acquire (whether pursuant to the Offer or otherwise)
ThirdForce Shares carrying in aggregate more than 50 per cent. of the voting
rights then exercisable at a general meeting of ThirdForce.
The Offer will extend to all ThirdForce Shares, which includes any further
ordinary shares of EUR0.125 each in the capital of ThirdForce which are
unconditionally allotted or issued after the date of the Offer Document and
before the Final Closing Date or, if LearnVantage implements the Compulsory
Acquisition Procedure, the date on which implementation of the Compulsory
Acquisition Procedure is completed (or before such other time as LearnVantage
may, subject to the Takeover Rules, decide in accordance with the terms and
conditions of the Offer), including, without limitation, any ThirdForce Shares
which are unconditionally allotted or issued pursuant to any exercise by Option
Holders of their options.
The ThirdForce Shares to be acquired by LearnVantage pursuant to the Offer are
to be acquired with full legal and beneficial title, fully paid and free from
all liens, equities, charges and encumbrances and other third party rights or
interests and together with all rights now or hereafter attaching thereto
including the right to receive and retain all dividends and other distributions
(if any) declared, made or paid on or after the date of this Announcement.
The LearnVantage Shares to be issued pursuant to the Offer will be in
certificated form and will be recorded in the register of members of
LearnVantage.
The definitions of terms used in this Announcement are contained in Appendix VI
to this Announcement. Appendix III to this Announcement contains the sources and
bases for certain information set out in this Announcement.
2. RESPONSIBILITY FOR CONSIDERING THE OFFER
Following an approach by LearnVantage, an independent committee of the
ThirdForce Board was constituted comprising Mr. Mike Newton, Mr. Edwin Robinson
and Ms. Carol Clark and all matters relating to the Offer have been considered
by that committee of Independent Directors, each of whom has undertaken to
resign as a director of ThirdForce forthwith upon the Offer becoming or being
declared unconditional in all respects. In view of their prospective interest in
LearnVantage or their continuing involvement in ThirdForce, none of Mr. Brendan
O'Sullivan, Mr. Pat McDonagh, Mr. Alan Maguire or Ms. Eimer McGovern has taken
part in the Independent Directors' decision to recommend the Cash Offer and to
make no recommendation in respect of the Share Offer or the Composite Offer.
3. INDEPENDENT DIRECTORS' RECOMMENDATION OF THE CASH OFFER
The Independent Directors, who have been so advised by Goodbody Corporate
Finance, consider the terms of the Cash Offer to be fair and reasonable. In
providing its advice, Goodbody Corporate Finance has taken into account the
commercial assessments of the Independent Directors. Accordingly, the
Independent Directors unanimously recommend ThirdForce Shareholders to accept
the Cash Offer.
Whilst the Independent Directors acknowledge that some ThirdForce Shareholders
may, depending on their own circumstances and investment objectives, be
attracted to elect to accept the Share Offer or the Composite Offer, the
Independent Directors are aware that the Share Offer and the Composite Offer
would expose a ThirdForce Shareholder accepting them to considerable risks,
including those associated with an investment in shares in an unquoted company.
For this reason, the Independent Directors, who have been so advised by Goodbody
Corporate Finance, are not making any recommendation in respect of the Share
Offer or the Composite Offer. In providing its advice, Goodbody Corporate
Finance has taken into account the commercial assessments of the Independent
Directors.
In considering the risks identified by LearnVantage associated with the Share
Offer and the Composite Offer as set out in Appendix IV to this Announcement,
the Independent Directors believe the following to be arguments against the
Share Offer or the Composite Offer:
+------+---------------------------------------------------------------+
| * | LearnVantage Shares may decrease in value over time; |
+------+---------------------------------------------------------------+
| * | LearnVantage will not be subject to the disclosure, corporate |
| | governance and other requirements of the Irish Stock |
| | Exchange, the London Stock Exchange or any other securities |
| | exchange. As LearnVantage is not and will not be a company |
| | listed on the Irish Stock Exchange or the London Stock |
| | Exchange it will not be subject to the Combined Code on |
| | Corporate Governance of the United Kingdom Financial |
| | Reporting Council; |
+------+---------------------------------------------------------------+
| * | shareholders of LearnVantage will not have the benefit of the |
| | Takeover Rules (or any equivalent rules) in relation to any |
| | takeover offer that might be made for LearnVantage in the |
| | future; |
+------+---------------------------------------------------------------+
| * | LearnVantage Shares are subject to restrictions on transfer |
| | in relation to US Persons as set out in the Articles. It is |
| | intended to cancel the trading of ThirdForce's Shares on AIM |
| | and the IEX and to re-register ThirdForce as a private |
| | limited company, following the Offer, which may further |
| | restrict the transferability of LearnVantage Shares; |
+------+---------------------------------------------------------------+
| * | LearnVantage Shares will be subject to certain rights, |
| | restrictions and conditions which are different to those |
| | affecting ThirdForce Shares. For example, LearnVantage Shares |
| | will be subject to certain "tag along" and "drag along" |
| | rights in the event of a sale of a major share interest in |
| | LearnVantage; |
+------+---------------------------------------------------------------+
| * | LearnVantage/the Enlarged Group may have greater borrowings |
| | than ThirdForce currently has and this could adversely affect |
| | LearnVantage's financial condition and the results of its |
| | operations; |
+------+---------------------------------------------------------------+
| * | certain shareholders may exercise significant influence over |
| | LearnVantage following the Offer and /or their interests may |
| | differ from some or all of the other shareholders; |
+------+---------------------------------------------------------------+
| * | a slowdown in the growth of the e-learning market could |
| | negatively impact LearnVantage; and |
+------+---------------------------------------------------------------+
| * | LearnVantage will operate in the e-learning market which is |
| | highly competitive. Other market participants, some of whom |
| | are larger than LearnVantage, may develop platforms or other |
| | technologies that render those used by LearnVantage less |
| | competitive or obsolete, or use their market position and |
| | financial resources to damage LearnVantage. |
+------+---------------------------------------------------------------+
The Independent Directors also consider that the arguments in favour of the
Share Offer and Composite Offer over the Cash Offer include the following:
+------+---------------------------------------------------------------+
| * | LearnVantage Shares may increase in value over time; |
+------+---------------------------------------------------------------+
| * | ThirdForce has well established market positions in its |
| | chosen sectors and it has scope for further growth and |
| | development; |
+------+---------------------------------------------------------------+
| * | LearnVantage will not incur the costs associated with having |
| | its shares traded on AIM and /or IEX; and |
+------+---------------------------------------------------------------+
| * | ThirdForce may have increased flexibility in how it |
| | undertakes mergers and acquisitions being a privately-owned |
| | company. |
+------+---------------------------------------------------------------+
Two of the Independent Directors who hold ThirdForce Shares, either personally
or through investment funds which they manage, intend to accept the Share Offer.
Ms. Carol Clark intends to accept the Share Offer for her entire holding of
2,751,630 ThirdForce Shares. River Cities Capital Funds, of which Mr. Edwin
Robinson is co-founder, intends to provide an irrevocable undertaking to accept
the Share Offer in respect of its entire holding of 10,254,329 ThirdForce
Shares. Mr. Mike Newton holds no ThirdForce Shares. The Independent Directors
who intend to accept the Share Offer are aware of the risks associated with the
Share Offer including those set out above. These risks are acceptable to these
Independent Directors in respect of their own circumstances and investment
objectives. They do not consider it prudent to presume that other ThirdForce
Shareholders would be in a similar position. If you are in any doubt as to the
action you should take you are advised to seek independent financial advice.
4. THE SHARE OFFER
The Share Offer will be made on the basis of 1 LearnVantage Share for each
ThirdForce Share.
ThirdForce Shareholders will be entitled to accept the Share Offer in respect of
all or such number as they may elect, of their ThirdForce Shares.
Each LearnVantage Share to be issued pursuant to the Share Offer will be issued
credited as fully paid. No application will be made for LearnVantage Shares to
be admitted to trading on any regulated market for the purposes of the
Prospectus Directive 2003/71/EC or any other organised securities exchange or
market.
The LearnVantage Shares to be issued pursuant to the Share Offer will be of the
same class as:
+---------+------------------------------------------------------------+
| * | the LearnVantage Shares to be issued pursuant to the |
| | Composite Offer; |
| | |
+---------+------------------------------------------------------------+
| * | the 10,800,000 LearnVantage Shares which have been issued |
| | to Mr. Brendan O'Sullivan at an issue price of EUR0.004 per |
| | LearnVantage Share and which are one quarter paid up; and |
| | |
+---------+------------------------------------------------------------+
| * | any LearnVantage Shares which may be issued to Mr. Pat |
| | McDonagh at an issue price of EUR0.105 per share pursuant to |
| | the funding arrangements provided for in the Loan and |
| | Subscription Agreement as further described at paragraph |
| | 12 of this Announcement (Financing the Offer). |
+---------+------------------------------------------------------------+
Details of the rights attaching to the LearnVantage Shares under the Articles of
Association of LearnVantage are summarised in Appendix V to this Announcement.
ThirdForce Shareholders who elect to accept the Share Offer will suffer a
dilution of their interest. The table below, which has been prepared on the
basis of the Offer Assumptions, illustrates the possible dilutive effect on
ThirdForce Shareholders who elect to accept the Share Offer:
+---------------------------------------------+--------------------------+
| Number of ThirdForce Shares in issue at 6 | 259,376,281 |
| November 2009 being the latest practicable | |
| date prior to the issue of this | |
| Announcement (A) | |
+---------------------------------------------+--------------------------+
| | |
+---------------------------------------------+--------------------------+
| Number of LearnVantage Shares in issue at 6 | 10,800,000 |
| November 2009 being the latest practicable | |
| date prior to the issue of this | |
| Announcement (B) | |
| | |
+---------------------------------------------+--------------------------+
| Number of new LearnVantage Shares to be | 276,995,328 |
| issued based on the Offer Assumptions (C) | |
+---------------------------------------------+--------------------------+
| | |
| Total number of LearnVantage Shares in | 287,795,328 |
| issue following the Offer (D) = (B+C) | |
+---------------------------------------------+--------------------------+
| | |
+---------------------------------------------+--------------------------+
| ThirdForce Shares expressed as a percentage | 90.13% |
| of the total number of LearnVantage Shares | |
| in issue following the Offer (A/D) | |
+---------------------------------------------+--------------------------+
The Share Offer will remain open for acceptance until the Final Closing Date.
The Share Offer is being made available to ThirdForce Shareholders only and
there is no right to renounce it in favour of any third party or third parties.
The results of the Share Offer will be announced by way of notification to the
Irish Stock Exchange and the London Stock Exchange.
5. THE COMPOSITE OFFER
The Composite Offer will be made on the basis of 3 LearnVantage Shares and EUR0.12
in cash for every 4 ThirdForce Shares.
ThirdForce Shareholders will be entitled to accept the Composite Offer in
respect of all, or such number as they may elect, of their ThirdForce Shares.
Any fractional entitlement to a LearnVantage Share arising from acceptance of
the Composite Offer will be satisfied in cash at EUR0.03 for each quarter of such
share.
Each LearnVantage Share issued pursuant to the Composite Offer will be issued
credited as fully paid. No application will be made for LearnVantage Shares to
be admitted to trading on any regulated market for the purposes of the
Prospectus Directive 2003/71/EC or any other organised securities exchange or
market.
The LearnVantage Shares to be issued pursuant to the Composite Offer will be of
the same class as:
+--------+--------------------------------------------------------------+
| * | the LearnVantage Shares to be issued pursuant to the Share |
| | Offer; |
| | |
+--------+--------------------------------------------------------------+
| * | the 10,800,000 LearnVantage Shares which have been issued to |
| | Mr. Brendan O'Sullivan at an issue price of EUR0.004 per |
| | LearnVantage Share and which are one quarter paid up; |
| | |
+--------+--------------------------------------------------------------+
| * | any LearnVantage Shares which may be issued to Mr. Pat |
| | McDonagh at an issue price of EUR0.105 per share pursuant to |
| | the funding arrangements provided for in the Loan and |
| | Subscription Agreement as further described at paragraph 12 |
| | of this Announcement (Financing the Offer). |
+--------+--------------------------------------------------------------+
Details of the rights attaching to the LearnVantage Shares under the Articles of
Association of LearnVantage are summarised in Appendix V to this Announcement.
The Composite Offer will remain open for acceptance until the Final Closing
Date. The Composite Offer is being made available to ThirdForce Shareholders
only and there is no right to renounce it in favour of any third party or third
parties. The results of the Composite Offer will be announced by way of
notification to the Irish Stock Exchange.
6. THE CASH OFFER
The Cash Offer will be made on the basis of EUR0.105 in cash for each ThirdForce
Share.
ThirdForce Shareholders are entitled to accept the Cash Offer in respect of all
or such number as they may elect of their ThirdForce Shares.
The Cash Consideration of EUR0.105 for each ThirdForce Share values the entire
issued ordinary share capital of ThirdForce as at the date of this Announcement
at approximately EUR27.2 million and represents:
+--------+--------------------------------------------------------------+
| * | a premium of approximately 24 per cent. to the Dublin |
| | Closing Price on 27 March 2009, being the last date prior to |
| | the commencement of the Offer Period; |
| | |
+--------+--------------------------------------------------------------+
| * | a premium of approximately 23 per cent. to the average |
| | Dublin Closing Price over the six months preceding 27 March |
| | 2009, being the last date prior to the commencement of the |
| | Offer Period; |
| | |
+--------+--------------------------------------------------------------+
| * | a premium of approximately 31 per cent to EUR0.08, being the |
| | initial approach price; |
| | |
+--------+--------------------------------------------------------------+
| * | a multiple of approximately 9.6 times EBITDA to enterprise |
| | value for the year ended 31 December 2008; and |
| | |
+--------+--------------------------------------------------------------+
| * | a multiple of approximately 11.1 times EBITDA to enterprise |
| | value for the twelve months ended 30 June 2009. |
+--------+--------------------------------------------------------------+
The Independent Directors, who have been so advised by Goodbody Corporate
Finance, consider the terms of the Cash Offer to be fair and reasonable. In
providing its advice, Goodbody Corporate Finance has taken into account the
commercial assessments of the Independent Directors. Accordingly, the
Independent Directors intend to unanimously recommend the Cash Offer to
ThirdForce Shareholders.
7. BACKGROUND TO AND REASONS FOR THE OFFER
The LearnVantage Directors believe that ThirdForce has well established market
positions in its chosen sectors and that it has significant scope for long-term
growth and development and, accordingly, that the acquisition of ThirdForce by
LearnVantage will provide LearnVantage with a platform upon which to build the
Enlarged Group's position in the technology-enabled learning solutions and
services sector.
The LearnVantage Directors are of the opinion that being a public company whose
shares are traded on AIM and the IEX is no longer in the best interests of the
business of ThirdForce. In the past being publicly listed or traded was helpful
as it provided a platform to acquire companies and raise funds to facilitate
growth. However, in light of the current conditions in global markets the
LearnVantage Directors believe that the burdens of maintaining ThirdForce's
admission to trading on AIM and the IEX, including the high costs associated
therewith, now outweigh any previous advantages. In this regard, the
LearnVantage Directors are of the view that:
+-----------+-----------------------------------------------------------+
| (a) | the decline in ThirdForce's share price in the months |
| | prior to the approach by LearnVantage and current stock |
| | market conditions mean that there is little or no ability |
| | at the present time to raise additional capital publicly |
| | to fund ThirdForce's strategy, including any potential |
| | acquisitions; |
+-----------+-----------------------------------------------------------+
| (b) | there is an absence of any real liquidity for ThirdForce |
| | Shareholders; |
+-----------+-----------------------------------------------------------+
| (c) | market expectation that acquisitions be earnings |
| | accretive in the short term constrains ThirdForce's |
| | acquisition options, in particular, where potential |
| | targets are loss making or need to be restructured; |
+-----------+-----------------------------------------------------------+
| (d) | the complexity for many US investors to invest in a |
| | company only listed on an exchange outside of the United |
| | States is a significant barrier for ThirdForce to be able |
| | to carry out its growth strategy; and |
+-----------+-----------------------------------------------------------+
| (e) | the cost to ThirdForce of maintaining its admission to |
| | trading on AIM and the IEX is a significant draw on the |
| | profits being generated by the business for its |
| | shareholders. |
+-----------+-----------------------------------------------------------+
LearnVantage intends to make the Offer because it believes that the strategic
objectives of ThirdForce can best be achieved as an unlisted entity. In
particular, the LearnVantage Directors believe that not being admitted to
trading on AIM and/or the IEX will give LearnVantage more flexibility in how it
undertakes mergers and acquisitions, especially in the United States market,
will enable management time and resources to be fully focused on developing the
business of the Enlarged Group and will also enable cost savings which the
Enlarged Group will make by not being admitted to trading on AIM and/or the IEX
to be used to fund growth in the Enlarged Group's business.
In view of the above beliefs and, in the context of the Offer, in order to
facilitate those ThirdForce Shareholders who wish to continue their
participation in ThirdForce, the LearnVantage Directors invite such ThirdForce
Shareholders to accept either the Share Offer or the Composite Offer. For those
ThirdForce Shareholders who wish to exit their investment in ThirdForce in
respect of some or all of their ThirdForce Shares, or who cannot for regulatory
reasons continue with their participation in ThirdForce, the Cash Offer and
Composite Offer will be made available as alternatives to the Share Offer.
8. LEARNVANTAGE STRATEGY
In the event that acceptances are received by LearnVantage pursuant to the Offer
in respect of all of the ThirdForce Shares or such number and within such period
as enables LearnVantage to acquire the remaining ThirdForce Shares under the
Compulsory Acquisition Procedure, it is the intention of the LearnVantage
Directors that the business of ThirdForce, which will then form part of the
Enlarged Group, will be developed in a manner which is consistent with the
strategy that is currently employed by ThirdForce, save that the ThirdForce
Shares will no longer be traded on AIM or the IEX.
ThirdForce's stated strategic objectives are to continue to grow both
organically and through acquisition by meeting the needs of its existing
customer base and expanding its portfolio of solutions and services to address
key growth sectors, to expand its international business and to address the
significant opportunity for its solutions in the United States market - believed
to be the world's largest technology-enabled learning market. However,
LearnVantage's strategy for ThirdForce could change in the future depending upon
circumstances then prevailing.
LearnVantage intends to make the Offer because it believes that the strategic
objectives of ThirdForce can best be achieved as an unlisted entity. In
particular, the LearnVantage Directors believe that not being listed on AIM
and/or the IEX will enable management time and resources to be fully focused on
and deployed in developing the business of the Enlarged Group and will also
enable the cost savings which the Enlarged Group will make by not being admitted
to trading on AIM and/or the IEX to be used to fund growth in the Enlarged
Group's business.
The LearnVantage Directors consider that ThirdForce's next acquisition or merger
is most likely to be with a company in the United States and the LearnVantage
Directors have identified a small number of potential target companies. In
particular, the LearnVantage Directors believe that there is a possible fit
between ThirdForce and a company in the United States known to ThirdForce for
some years and in which Mr. Pat McDonagh has a minority interest. This company
is a provider of campus-based learning supported by on-line materials and
in-company high-touch consultancy and has a similar level of turnover to
ThirdForce with growth potential. The LearnVantage Directors believe that such
an acquisition or merger could be transformational. There is no certainty that
this opportunity will progress or that an acquisition or merger will be
concluded with this particular company. However, the LearnVantage Directors
believe that even if this opportunity does not progress other merger and
acquisition opportunities exist in the US.
The method of financing of a future acquisition or merger will be determined at
the time of that acquisition or merger dependent on available funding sources at
that time but it is likely that any acquisition or merger will be financed
either from available cash resources, through additional debt or the issue of
new shares or a combination thereof.
9. BACKGROUND TO AND REASONS FOR RECOMMENDING THE CASH OFFER
In the months prior to the approach by LearnVantage, ThirdForce's share price
performance had been disappointing to the ThirdForce Board. While this
disappointing performance reflected a deterioration in equity markets, the
Independent Directors believe ThirdForce's share price had also been adversely
impacted by the absence of any real liquidity in ThirdForce Shares. For these
reasons, the Independent Directors were willing to engage in discussions with
LearnVantage following the approach. In these discussions, the Independent
Directors have sought to achieve the best possible outcome for ThirdForce
Shareholders.
On 30 March 2009, ThirdForce announced it had received an approach from
LearnVantage which may or may not lead to an offer being made for ThirdForce at
EUR0.08 per share. On 29 April 2009, following a period of negotiation, the
Independent Directors announced that the possible offer of EUR0.08 per share would
not be recommended. On 18 August 2009, following a period of further
negotiation, the Independent Directors announced that they had received a
revised possible offer from LearnVantage, including a possible cash offer of
EUR0.105 per ThirdForce Share and indicated that they were, in principle,
supportive of the revised possible cash offer of EUR0.105.
In recommending the Cash Offer, the Independent Directors, who have been advised
by Goodbody Corporate Finance, have considered, inter alia, the following
factors:
Current trading and outlook
The Independent Directors considered current trading and outlook for the
ThirdForce business as outlined in the Interim Report for the six-month period
ended 30 June 2009.
The Cash Offer price
The Cash Offer of EUR0.105 for each ThirdForce Share values the entire issued
share capital of ThirdForce at approximately EUR27.2 million and represents:-
+--------+--------------------------------------------------------------+
| * | a premium of approximately 24 per cent. to the Dublin |
| | Closing Price on 27 March 2009, being the last date prior to |
| | the commencement of the Offer Period; |
| | |
+--------+--------------------------------------------------------------+
| * | a premium of approximately 23 per cent. to the average |
| | Dublin Closing Price over the six months preceding 27 March |
| | 2009, being the last date prior to the commencement of the |
| | Offer Period; |
| | |
+--------+--------------------------------------------------------------+
| * | a premium of approximately 31 per cent to EUR0.08, being the |
| | initial approach price; |
| | |
+--------+--------------------------------------------------------------+
| * | a multiple of approximately 9.6 times EBITDA to enterprise |
| | value for the year ended 31 December 2008; and |
| | |
+--------+--------------------------------------------------------------+
| * | a multiple of approximately 11.1 times EBITDA to enterprise |
| | value for the twelve months ended 30 June 2009. |
+--------+--------------------------------------------------------------+
Additional factors
Additional factors that have also been taken into consideration by the
Independent Directors include:
+--------+--------------------------------------------------------------+
| * | the Independent Directors believe that the Cash Offer |
| | provides a source of liquidity at a fair and reasonable |
| | price for those ThirdForce Shareholders who desire to |
| | dispose of all or a portion of their ThirdForce Shares; |
| | |
+--------+--------------------------------------------------------------+
| * | the Independent Directors believe that, in the absence of |
| | the Offer, there is a risk of a significant fall in the |
| | share price from EUR0.07 being the Dublin Closing Price of a |
| | ThirdForce Share on 6 November 2009, being the last Business |
| | Day prior to the date of this Announcement; and |
| | |
+--------+--------------------------------------------------------------+
| * | since the date of the commencement of the Offer Period, the |
| | Independent Directors have not been in receipt of any other |
| | potential offer(s). |
+--------+--------------------------------------------------------------+
10. INFORMATION ON THIRDFORCE
The ThirdForce Group is an established provider of technology-enabled learning
solutions and services. Its products are deployed in approximately 20 countries
across 4 continents. The ThirdForce Group is a specialist in its field with over
25 years' experience in the industry providing it with a well-established
platform from which to evolve, grow and embrace new technologies and concepts.
It now has offices in Ireland, the United Kingdom, the United States and Canada
and its principal geographic markets are the United States and the United
Kingdom.
The content offerings of the ThirdForce Group include business, IT, compliance
and small to medium-sized business courseware collections, as well as
complementary content assets such as online mentoring services. The ThirdForce
Group also provides performance support products through its Reference Library
of on-line books which support on-demand learning needs by offering online
access to digitised IT and business books which cover broad business and
technical areas of interest.
The ThirdForce Group regularly adds new courses to cover new skills and
technologies and new subjects requested by its customers or that it believes its
customers will want, and replaces older courses with newer and higher quality
versions. It also retires courses as certain skills, subjects or technologies
become outdated or used less frequently by its customers.
The ThirdForce Group's multiple delivery options offer flexibility and choice to
its customers. Products can be delivered online over the internet using standard
web browsers, downloaded for off-line usage, delivered as a local load option -
where courses are installed on local hardware and all learner data is held in
the online database, delivered via an intranet or delivered over a local area
network or on CD-ROM or using the ThirdForce Group's tablet PC - the el-box(TM).
In the United States, products are predominantly delivered to customers in a
hosted online environment while in the United Kingdom and the Rest of the World
markets, they are installed on the customer's own network or hosted by
ThirdForce on their system for the customer or delivered on CD-Rom or
el-box(TM).
The ThirdForce Group's products provide learners with the ability to gain the
knowledge they need to perform their jobs and prepare for many popular
professional certifications.
The ThirdForce Group has a worldwide customer base of in excess of 2,000
organisations spanning the business, public sector, hospitality and leisure,
education and care sectors.
The ThirdForce Group's worldwide business is segmented as follows:-
+--------+--------------------------------------------------------------+
| * | Information & Communication Technology software and testing |
| | ("ICT") - predominantly provided to customers in the UK and |
| | the Rest of the World; |
+--------+--------------------------------------------------------------+
| * | Compliance software, hardware and services ("Compliance") - |
| | predominantly provided to customers in the UK; and |
+--------+--------------------------------------------------------------+
| * | Professional: business and IT courseware ("Professional") - |
| | predominantly provided to customers in the United States. |
+--------+--------------------------------------------------------------+
Two additional categories, Infrastructure and Human Support Services and
Learning Assistance, span the three core segments that the ThirdForce Group
services.
11. INFORMATION ON LEARNVANTAGE
LearnVantage was incorporated in Ireland on 20 March 2009 under the Companies
Acts 1963 to 2006 as a private limited company (registered number 468837) and
was formed for the purpose of making the Offer. LearnVantage has not traded
prior to the date of this Announcement (except for entering into transactions
relating to the Offer and the financing thereof) and will not trade prior to the
date of the Offer (except for entering into transactions relating to the Offer
and the financing thereof). The registered office of LearnVantage is at 5th
floor, 75 St. Stephen's Green, Dublin 2, Ireland.
On 2 September 2009 LearnVantage was converted to a public company with limited
liability. LearnVantage is an Irish-domiciled company.
LearnVantage is owned by Mr. Brendan O'Sullivan and controlled by the
LearnVantage Directors, Mr. Pat McDonagh and Mr. Brendan O'Sullivan. The issued
share capital of LearnVantage as at the date of this Announcement consists of
10,800,000 LearnVantage Shares each beneficially owned by Mr. Brendan O'Sullivan
and at the date of the Offer will consist of 10,800,000 LearnVantage Shares each
beneficially owned by Mr. Brendan O'Sullivan. There is no established market for
the LearnVantage Shares.
It is proposed that two additional executive directors and one additional
non-executive director will be appointed to the LearnVantage Board. The identity
of the persons to be appointed in this regard has not been determined at the
date of this Announcement.
LearnVantage has agreed that updated financial information will be provided to
all shareholders on a quarterly basis.
Following the closing of the Offer, it is intended that LearnVantage will
establish a new share option plan which will provide for share options to be
granted primarily to key personnel of the Enlarged Group.
12. FINANCING THE OFFER
The Offer is pre-conditional upon LearnVantage receiving irrevocable
undertakings to accept the Share Offer from ThirdForce Shareholders holding
84,245,039 ThirdForce Shares which will result in it issuing 84,245,039
LearnVantage Shares as consideration. In addition, the Offer is pre-conditional
upon LearnVantage receiving an irrevocable undertaking to accept the Composite
Offer from a ThirdForce Shareholder holding 8,050,000 ThirdForce Shares which
will result in it issuing 6,037,500 LearnVantage Shares and making a payment of
EUR241,500 in cash as consideration. Consequent on receipt of these irrevocable
undertakings, the maximum number of ThirdForce Shares in respect of which the
Cash Offer could be accepted is 191,190,985 (assuming Option Holders exercise
their options in full) and such acceptance would result in a payment of
EUR20,075,053 in cash as consideration. Therefore, the maximum Cash Consideration
payable pursuant to the Offer is EUR20,316,553 (the "Maximum Cash Consideration")
which when aggregated with Third Party Expenses amounts to EUR22,166,553. Dolmen
is satisfied that the necessary resources are available to LearnVantage to
enable it to satisfy payment of the Maximum Cash Consideration.
LearnVantage will fund the Cash Consideration payable under the Offer and the
Third Party Expenses using the funds it will receive pursuant to the Loan and
Subscription Agreement as described below.
If all or any of these funds are required and are provided by way of a loan from
Mr. Pat McDonagh, LearnVantage intends to seek to refinance such loan as soon as
reasonably practicable following the Offer becoming or being declared
unconditional in all respects and to repay to Mr. Pat McDonagh the funds
advanced by him.
Loan and Subscription Agreement
The cash required to fund the Cash Consideration payable under the Offer and the
Third Party Expenses will be provided by Mr. Pat McDonagh under the terms of the
Loan and Subscription Agreement entered into between Mr. Pat McDonagh and
LearnVantage dated 2 November 2009 which provide as follows:
+--------+--------------------------------------------------------------+
| * | Mr. Pat McDonagh has agreed to subscribe an amount up to a |
| | maximum of EUR5,000,000 for up to 47,619,047 LearnVantage |
| | Shares at a price of EUR0.105 per share, which funds will be |
| | used by LearnVantage to fund the Cash Consideration payable |
| | under the Offer and the Third Party Expenses; |
+--------+--------------------------------------------------------------+
| * | should the level of funding required to fund the Cash |
| | Consideration payable under the Offer and the Third Party |
| | Expenses be such that further funding in excess of |
| | EUR5,000,000 is required then Mr. Pat McDonagh has agreed to |
| | advance up to a further EUR8,000,000 to LearnVantage, which |
| | funds will be advanced, at Mr. Pat McDonagh's election, by |
| | way of a loan or by way of the subscription for up to a |
| | further 76,190,476 LearnVantage Shares at a price of EUR0.105 |
| | per share or by a combination of both. Any funds advanced by |
| | way of loan will be repayable in 12 successive quarterly |
| | instalments commencing on the date which is 6 months after |
| | the date of the Offer being declared unconditional in all |
| | respects and will bear interest at the annual rate of 5% |
| | above the Euro interbank offered rate from time to time; |
+--------+--------------------------------------------------------------+
| * | any additional funding required to implement the Offer above |
| | the amount of EUR13,000,000 will be provided by Mr. Pat |
| | McDonagh by way of a loan which will be repayable in 12 |
| | successive quarterly instalments commencing on the date |
| | which is 15 months after the date of the Offer becoming or |
| | being declared unconditional in all respects and will bear |
| | interest at the annual rate of 5% above the Euro interbank |
| | offered rate from time to time; |
+--------+--------------------------------------------------------------+
| * | the obligations of Mr. Pat McDonagh pursuant to the terms of |
| | the Loan and Subscription Agreement are conditional upon the |
| | Offer becoming or being declared unconditional in all |
| | respects; and |
+--------+--------------------------------------------------------------+
| * | the maximum amount of Third Party Expenses for which funding |
| | will be advanced by Mr. Pat McDonagh under the Loan and |
| | Subscription Agreement is EUR1,850,000. |
+--------+--------------------------------------------------------------+
LearnVantage has provided undertakings to Dolmen to confirm that it will enforce
its rights pursuant to the Loan and Subscription Agreement and the Charge
Agreement.
13. MANAGEMENT AND EMPLOYEES
LearnVantage believes that ThirdForce has well established positions in its
chosen sectors and that it has significant scope for long-term growth and
development. LearnVantage considers the domain experience, technical and
pedagogical expertise and market knowledge of ThirdForce's employees and, in
particular, their relationships with customers are important for the continuing
success of the Enlarged Group.
LearnVantage has no specific plans to make any changes at this time which would
involve any material repercussions on employment (including any immediate change
to the conditions of employment of ThirdForce's employees) and there are no
current plans to change the principal locations of ThirdForce's business or to
redeploy any of its fixed assets. In addition, LearnVantage's intention is that,
upon the Offer becoming or being declared unconditional in all respects, the
existing employment rights of all ThirdForce employees will be fully safeguarded
as required by applicable law. The Independent Directors welcome the comments of
LearnVantage above which they consider to be in the best interests of ThirdForce
and its employees.
If the Offer is successful, it is intended that LearnVantage will, together with
ThirdForce's management, conduct a review of the roles of ThirdForce's employees
in the context of the Enlarged Group. The Independent Directors note the
proposal to conduct a review.
The Independent Directors have undertaken to resign from the ThirdForce Board
forthwith upon the Offer becoming or being declared unconditional in all
respects. ThirdForce will, following such resignations, pay to the Independent
Directors all unpaid remuneration and reimbursements of expenses accrued due to
them as at the date of resignation, but no compensation will be paid by
ThirdForce in connection with those resignations.
Following the closing of the Offer it is intended that LearnVantage will
establish a new share option plan which will provide for share options to be
granted primarily to key personnel in the Enlarged Group.
An appropriate proposal will be made in due course to Option Holders.
14. IRREVOCABLE UNDERTAKINGS
The Offer is pre-conditional upon LearnVantage receiving irrevocable
undertakings from the following ThirdForce Shareholders to accept or procure the
acceptance of the Share Offer in respect of 84,245,039 ThirdForce Shares held by
them and the Composite Offer in respect of 8,050,000 ThirdForce Shares held by
them, representing in aggregate irrevocable undertakings to accept or procure
the acceptance of the Offer in respect of 92,295,039 ThirdForce
Shares, being 35.58 per cent. of ThirdForce's existing issued share capital as
at the date of this Announcement:
+----------------+-------------+----------------+---------------+--------------+
| ThirdForce | Whether | No. of | Percentage | No. of |
| Shareholder |irrevocable | ThirdForce | Shareholding |LearnVantage |
| |undertaking | Shares in |in ThirdForce |Shares to be |
| |provided in | respect of | represented | issued |
| | respect of | which an |by the shares | pursuant to |
| |Share Offer | irrevocable |in respect of | the |
| | or |undertaking to | which an | irrevocable |
| | Composite | accept the | irrevocable | undertaking |
| | Offer |Share Offer or | undertaking | |
| | | Composite | to be | |
| | | Offer to be | provided | |
| | | provided | | |
+----------------+-------------+----------------+---------------+--------------+
| Mr. Pat | Share | 66,057,375 | 25.47% | 66,057,375 |
| McDonagh | Offer | | | |
+----------------+-------------+----------------+---------------+--------------+
| River Cities | Share | 10,254,329 | 3.95% | 10,254,329 |
| Capital Fund | Offer | | | |
| II, LP. | | | | |
+----------------+-------------+----------------+---------------+--------------+
| One Fifty One | Share | 7,933,335 | 3.06% | 7,933,335 |
| Capital | Offer | | | |
| Limited | | | | |
+----------------+-------------+----------------+---------------+--------------+
| Mr. Jonathan | Composite | 8,050,000 | 3.10% | 6,037,500 |
| Parkes | Offer | | | |
+----------------+-------------+----------------+---------------+--------------+
The irrevocable undertakings (which will be firm) will only cease to be binding
on the shareholders giving them if (a) the Offer is withdrawn or lapses in
accordance with the terms and conditions to be set out in the Offer Document; or
(b) the price of the cash consideration to be paid by LearnVantage pursuant to
the Cash Offer exceeds EUR0.12 per ThirdForce Share.
15. INTERESTS AND SHORT POSITIONS IN RELEVANT THIRDFORCE SECURITIES
For the purposes of this paragraph 15:
+---------------------+---------------------+-----+------+--------------------------------------+--------------------------------------+
| acting in concert | has the meaning such that two or more persons shall be deemed to be acting in concert as |
| | respects a takeover or other relevant transaction (in neither case being a bid to which the |
| | Takeover Regulations apply) if they co-operate on the basis of an agreement, either express |
| | or tacit, either oral or written, aimed at: |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| | (i) | either - |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | | (I) | the acquisition by any one or more of them of securities in the relevant |
| | | | company concerned, or |
+ +---------------------+------------+-----------------------------------------------------------------------------+
| | | (II) | the doing, or the procuring of the doing, |
| | | | of any act that will or may result in an |
| | | | increase in the proportion of securities |
| | | | in the relevant company concerned held by |
| | | | any one or more of them; |
+---------------------+---------------------+------------+-----------------------------------------------------------------------------+
| | |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| | or |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| | |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| | (ii) | either - |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| | | (I) | acquiring control of the relevant company concerned, or |
+ +---------------------------+------+-----------------------------------------------------------------------------+
| | | (II) | frustrating the successful outcome of an |
| | | | offer made for the purpose of the |
| | | | acquisition of control of the relevant |
| | | | company concerned, |
+---------------------+---------------------------+------+-----------------------------------------------------------------------------+
| | |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| | and, for this purpose, persons controlled by another person within the meaning of Article 87 |
| | of Directive 2001/34/EC of the European Parliament and of the Council of 28 May 2001 shall |
| | be deemed to be persons acting in concert, as respects the matters mentioned directly above |
| | with that other person and with each other, and furthermore, for this purpose, 'bid to which |
| | the Takeover Regulations apply' means a takeover bid, within the meaning of the Takeover |
| | Regulations, which the Panel has, by virtue of Regulation 6 of the Takeover Regulations, |
| | jurisdiction to supervise. |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| interest | shall be construed such that the purpose of determining whether a person has an "interest in |
| | a relevant security" or is "interested in a relevant security": (i) that person shall be |
| | deemed to have an "interest", or to be "interested", in that security if and only if he or |
| | she has a long position in that security; and (ii) a person who has only a short position in |
| | a relevant security shall be deemed not to have an interest, nor to be interested, in that |
| | security. |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| Latest Practicable | the latest practicable date prior to this Announcement. |
| Date | |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| long position | shall be construed such that a person shall be deemed to have a long position in a relevant |
| | security if he or she directly or indirectly: |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| | (1) | owns that security; |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | (2) | has the right or option to acquire that security or to call for its delivery; |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | (3) | is under an obligation to take delivery of that security; |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | (4) | has the right to exercise or control the exercise of the voting rights (if any) |
| | | attaching to that security; or, |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | to the extent that none of sub-paragraphs (1) to (4) above applies to that person, if he or |
| | she: |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| | (5) | will be economically advantaged if the price of that security increases; or |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | (6) | will be economically disadvantaged if the price of that security decreases, |
| | | irrespective of: |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | | (A) | how any such ownership, right, |
| | | | option, obligation, advantage or |
| | | | disadvantage arises and including, |
| | | | for the avoidance of doubt and |
| | | | without limitation, where it arises |
| | | | by virtue of an agreement to |
| | | | purchase, option or derivative; and |
+ +---------------------+---------------------------------------------------+--------------------------------------+
| | | (B) | whether any such ownership, right, |
| | | | option, obligation, advantage or |
| | | | disadvantage is absolute or |
| | | | conditional and, where applicable, |
| | | | whether it is in the money or |
| | | | otherwise; |
+---------------------+---------------------+---------------------------------------------------+--------------------------------------+
| | provided that a person who has received an irrevocable commitment to accept an offer (or to |
| | procure that another person accept an offer) shall not, by virtue only of sub-paragraph (2) |
| | or (3) above, be treated as having an interest in the relevant securities that are the |
| | subject of the irrevocable commitment. |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| relevant ThirdForce | |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| securities | means: |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| | |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| | (i) | securities of ThirdForce which are the subject of the offer or which confer voting |
| | | rights; |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | (ii) | equity share capital of ThirdForce; |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | (iii) | securities or any other instruments of ThirdForce conferring on their holders rights to |
| | | convert into or to subscribe for new securities of any of the foregoing categories; |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | and "relevant security" shall be construed accordingly. |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| short position | shall be construed such that a person shall be deemed to have a short position in a relevant |
| | security if he or she directly or indirectly: |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| | (1) | has the right or option to dispose of that security or to put it to another person; |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | (2) | is under an obligation to deliver that security to another person; |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | (3) | is under an obligation either to permit another person to exercise the voting rights |
| | | (if any) attaching to that security or to procure that such voting rights are exercised |
| | | in accordance with the directions of another person, or, |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | to the extent that none of sub-paragraphs (1) to (3) above applies to that person, if he or |
| | she: |
+---------------------+----------------------------------------------------------------------------------------------------------------+
| | (4) | will be economically advantaged if the price of that security decreases; or |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | (5) | will be economically disadvantaged if the price of that security increases, |
| | | irrespective of: |
+---------------------+---------------------+------------------------------------------------------------------------------------------+
| | | (A) | how any such right, option, |
| | | | obligation, advantage or |
| | | | disadvantage arises and including, |
| | | | for the avoidance of doubt and |
| | | | without limitation, where it arises |
| | | | by virtue of an agreement to sell, |
| | | | option or derivative; and |
+---------------------+---------------------+---------------------------------------------------+--------------------------------------+
| | | (B) | whether any such right, option, |
| | | | obligation, advantage or |
| | | | disadvantage is absolute or |
| | | | conditional and, where applicable, |
| | | | whether it is in the money or |
| | | | otherwise. |
+---------------------+---------------------+---------------------------------------------------+--------------------------------------+
| Takeover | means the European Communities (Takeover Bids) Regulations 2006. |
| Regulations | |
+---------------------+---------------------+-----+------+--------------------------------------+--------------------------------------+
Interests and short positions in relevant ThirdForce securities
+-----------+------------------------------------------------------------+
| (i) | As at the close of business on the Latest Practicable |
| | Date, LearnVantage did not have any interest or short |
| | position in any relevant ThirdForce securities. |
+-----------+------------------------------------------------------------+
| (ii) | As at close of business on the Latest Practicable Date, no |
| | directors of LearnVantage had any interest or short |
| | position in any relevant ThirdForce securities, save as |
| | set out below: |
+-----------+------------------------------------------------------------+
Shares
+--------------------------------+--------------------------------+
| Name | Number of relevant ThirdForce |
| | securities |
+--------------------------------+--------------------------------+
| Mr. Pat McDonagh | 66,057,375 |
+--------------------------------+--------------------------------+
Options
+-------------+------------+--------------+----------------+----------+
| Name | Date of | Number of | Exercise | Exercise |
| | grant | relevant | period | price |
| | | ThirdForce | | |
| | | securities | | |
+-------------+------------+--------------+----------------+----------+
| Mr. Brendan | 5 March | 7,787,601 | 1 April 2003 | EUR0.15 |
| O'Sullivan | 2003 | | to 31 March | |
| | | | 2010 | |
+-------------+------------+--------------+----------------+----------+
+-----------+------------------------------------------------------------+
| (iii) | As at close of business on the Latest Practicable Date, no |
| | other person acting in concert (including parties deemed |
| | to be acting in concert) with LearnVantage had any |
| | interest or short position in any relevant ThirdForce |
| | securities, save as set out below: |
+-----------+------------------------------------------------------------+
+--------------------------------+---------------------------------+
| Name | Number of relevant ThirdForce |
| | securities |
+--------------------------------+---------------------------------+
| Dolmen Securities Limited | 5,752,076 |
+--------------------------------+---------------------------------+
| Discretionary clients of | 5,346,679 |
| Dolmen Securities Limited | |
+--------------------------------+---------------------------------+
| Ms. Jennifer Caldwell, | 84,500 |
| Partner, Maples & Calder | |
+--------------------------------+---------------------------------+
16. COMPULSORY ACQUISITION, DE-LISTING, CANCELLATION OF TRADING AND
RE-REGISTRATION
If LearnVantage receives acceptances of the Offer in respect of 80 per cent. or
more of the ThirdForce Shares within the requisite period and assuming all other
conditions of the Offer have been satisfied or waived (if they are capable of
being waived), LearnVantage intends to exercise its rights pursuant to the
provisions of Section 204 of the Act to acquire the ThirdForce Shares of those
ThirdForce Shareholders who have not accepted the Offer.
In the event that LearnVantage exercises its rights pursuant to the provisions
of Section 204 of the Act to acquire the ThirdForce Shares of those ThirdForce
Shareholders who have not accepted the Offer on the same terms as the Offer, it
shall send a notice of its intention to those ThirdForce Shareholders who have
not voluntarily accepted the Offer which, in accordance with section 204(10) of
the Act, will again set out the Alternatives available to ThirdForce
Shareholders and specify that, in the absence of them electing for one of the
Alternatives within 14 days from the date of the giving of the notice, their
ThirdForce Shares will be acquired on the same terms as the Cash Offer.
ThirdForce Shareholders who are US Persons and who receive the above notice will
be able to elect to receive the Share Offer or the Composite Offer only if they
are either: (i) outside the United States within the meaning of Regulation S
promulgated under the US Securities Act, or (ii) Accredited Investors.
As soon as it is appropriate and possible to do so, and subject to the Offer
becoming or being declared unconditional in all respects, and subject to any
applicable requirements of AIM and/or the IEX, LearnVantage intends to apply for
cancellation of the admission to trading of the ThirdForce Shares on AIM and the
IEX and to propose a resolution to re-register ThirdForce as a private limited
company under the relevant provisions of the Companies (Amendment) Act 1983. If
this cancellation and re-registration occur, it will significantly reduce the
liquidity and marketability of ThirdForce Shares. It is anticipated that the
cancellation and re-registration will take effect no earlier than twenty
Business Days after the date on which the Offer has been declared unconditional
in all respects.
One of the conditions of the Offer is that valid acceptances in respect of the
Offer are received in respect of not less than 80 per cent. in nominal value of
the ThirdForce Shares (or such lower percentage in nominal value of ThirdForce
Shares as LearnVantage may determine, but which must in any event be such number
of ThirdForce Shares carrying in aggregate more than 50 per cent. of the voting
rights then exercisable at a general meeting of ThirdForce). If LearnVantage
determines that this condition is met at a percentage which is lower than 80 per
cent. then it may not be able to avail of the Compulsory Acquisition Procedure.
In such circumstances LearnVantage may only be a majority shareholder in
ThirdForce with those ThirdForce Shareholders who have not accepted the Offer
retaining their existing ThirdForce Shares.
If LearnVantage determines that this condition is met at a percentage which is
lower than 75 per cent. then it may not be able to procure the cancellation of
the trading of ThirdForce's Shares on AIM and the IEX or to re-register
ThirdForce as a private limited company (which would enable LearnVantage,
subject to the provisions of Section 60 of the Act, to access ThirdForce's
financial resources (in particular, ThirdForce's cash balances, borrowing
capacity and future cash flows) in connection with the Offer). If the Offer
becomes unconditional in all respects then, in all circumstances, whether
LearnVantage's final shareholding in ThirdForce exceeds 75% of the voting rights
exercisable at a general meeting of ThirdForce or not, LearnVantage's intention
is to convene a general meeting of ThirdForce at which it will propose a special
resolution of the members of ThirdForce to cancel the trading of ThirdForce's
Shares on AIM and the IEX.
In addition, unless the number of shareholders remaining in ThirdForce exceeds
100 following closing of the Offer, LearnVantage intends to propose a special
resolution at the same general meeting to re-register ThirdForce as a private
limited company.
In addition, in all circumstances, upon the Offer becoming or being declared
unconditional in all respects, unless there are one hundred or more holders of
LearnVantage Shares following the closing of the Offer, the LearnVantage
Directors intend to seek to re-register LearnVantage as a private company and in
these circumstances a general meeting of LearnVantage would be convened at which
a special resolution to this effect would be proposed.
17. CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Announcement includes statements that are, or may be deemed to be,
"forward-looking statements". These forward-looking statements can be
identified by the use of forward-looking terminology, including the terms
"believes", "estimates", "plans", "anticipates", "targets", "aims",
"continues", "expects", "intends", "may", "will", "could", "would"
or "should" or, in each case, their negatives or other variations or
comparable terminology. These forward-looking statements include all matters
that are not historical facts. They appear in a number of places throughout this
Announcement and include statements regarding LearnVantage's and/or ThirdForce's
intentions, beliefs or current expectations concerning, among other things,
results of operations, financial condition, liquidity, prospects, growth
strategies and the markets in which ThirdForce operates and in which
LearnVantage will operate upon the Offer becoming or being declared
unconditional in all respects.
By their nature, forward-looking statements involve risk and uncertainty because
they relate to future events and circumstances. A number of factors could cause
actual results and developments to differ materially from those expressed or
implied by the forward-looking statements, including, but without limitation:
conditions in the markets, the market position of LearnVantage and/or
ThirdForce, earnings, financial position, cash flows, return on capital,
anticipated investments and capital expenditures, changing business or other
market conditions and general economic conditions. These and other factors could
adversely affect the outcome and financial effects of the events described
herein on LearnVantage and/or ThirdForce.
Such forward-looking statements involve known and unknown risks, uncertainties
and other factors, which may cause the actual results, performance or
achievements of LearnVantage and/or ThirdForce or the markets in which they
operate or will operate, to be materially different from any future results,
performance or achievements expressed or implied by such forward-looking
statements. In particular, certain statements in this Announcement relating to
future financial results, plans and expectations regarding LearnVantage's and
ThirdForce's business, growth and profitability, as well as the general economic
conditions to which LearnVantage and/or ThirdForce are or may be exposed, are
forward-looking in nature and may be affected by factors including, but not
limited to, the Risk Factors set out in greater detail in Appendix IV to this
Announcement (Risk Factors).
Forward-looking statements contained in this Announcement based on current
trends or activities should not be taken as a representation that such trends or
activities will continue in the future. Forward-looking statements speak only as
of the date of this Announcement.
Except as required by the Prospectus Regulations 2005 or by law, LearnVantage
disclaims any obligation or undertaking to release publicly any updates or
revisions to any forward-looking statements contained herein to reflect any
changes in LearnVantage's expectations with regard thereto or any change in
events, conditions or circumstances on which any such statement is based.
18. OVERSEAS SHAREHOLDERS
The availability of the Offer to persons not resident in Ireland, the United
Kingdom or the United States may be affected by the laws of the jurisdiction in
which they are resident. Persons who are resident in any jurisdiction or
territory other than Ireland, the United Kingdom or the United States should
obtain professional advice and observe any applicable requirements.
The Offer will not be made, directly or indirectly in, into or from any Excluded
Territory by use of mails, or by any means or instrumentality (including,
without limitation, telephonically or electronically) of interstate or foreign
commerce, or of any facility of a national, state or other securities exchange
of any Excluded Territory and the Offer will not be capable of acceptance by any
such use, means, instrumentality or facility from or within any Excluded
Territory. Accordingly, copies of this Announcement and any related offering
documents are not being, and must not be mailed or otherwise distributed or sent
in, into or from any Excluded Territory and persons receiving such documents
(including, without limitation, any nominee, trustee or custodian) must not
distribute or send them in, into or from any Excluded Territory and doing so may
invalidate any purported acceptance of the Offer by persons in any such
jurisdiction. Notwithstanding the foregoing restrictions, LearnVantage reserves
the right to permit the Offer to be accepted if, in its sole discretion, it is
satisfied that the transaction in question is exempt from or not subject to the
legislation or regulation giving rise to the restrictions in question. Failure
to comply with the above restrictions may constitute a violation of relevant
securities law.
All ThirdForce Shareholders (including, without limitation, any nominee, trustee
or custodian) who would otherwise intend to, or who have a contractual or legal
obligation to, forward this Announcement or any other document(s) issued to
ThirdForce Shareholders in connection with the Offer to any Excluded Territory
should refrain from doing so and seek appropriate professional advice.
US Shareholders
The LearnVantage Shares have not been, and will not be registered under the US
Securities Act, or under the securities laws of any State of the United States
or other jurisdiction within the United States. In the United States, the
LearnVantage Shares will be offered and sold in reliance upon an exemption from
the registration requirements of the US Securities Act and only to ThirdForce
Shareholders who qualify as "Accredited Investors". Accordingly, ThirdForce
Shareholders who are US Persons and who are not Accredited Investors may only
accept the Cash Offer, unless they are outside the United States within the
meaning of Regulation S promulgated under the US Securities Act.
The LearnVantage Shares are "restricted securities" within the meaning of Rule
144 of the US Securities Act and may be re-sold or transferred only in certain
limited instances. The certificates evidencing the LearnVantage Shares may bear
legends referring to applicable restrictions on transfer.
The LearnVantage Shares have not been approved or disapproved by the US
Securities and Exchange Commission or by any securities commission or regulatory
authority of any State of the United States, nor have any of the foregoing
authorities passed on the accuracy or adequacy of this Announcement or any
related offering documents. Any representation to the contrary is a criminal
offence.
Neither this Announcement nor any related offering document or the Offer
constitute an offer to any other person or a general offer to the public of, or
the general solicitation from the public of, offers to subscribe for or purchase
any of the LearnVantage Shares in the United States.
LearnVantage exists under the laws of Ireland. Some of LearnVantage's officers
and directors may be residents of jurisdictions outside of the United States. As
a result, it may be difficult for an acquirer of LearnVantage Shares to enforce
civil liabilities under the United States federal securities laws.
Prospective acquirers of LearnVantage Shares in the United States should be
aware that the financial information contained in this Announcement in respect
of ThirdForce and LearnVantage has been prepared in accordance with IFRS.
Prospective acquirers of LearnVantage Shares should conduct their own
investigation and analysis of the business, data, and transactions described in
this Announcement.
Meaning of US Persons
+--------+------+-------------+-----+---------------------------------------------------+
| (a) | For the purposes of this Announcement "US Person" means: |
+--------+------------------------------------------------------------------------------+
| | (i) | any natural person resident in the United States; |
+--------+--------------------+---------------------------------------------------------+
| | (ii) | any partnership or corporation organised or |
| | | incorporated under the laws of the United States or |
| | | any state thereof; |
+--------+--------------------+---------------------------------------------------------+
| | (iii) | any estate of which any executor or administrator is a |
| | | US person; |
+--------+--------------------+---------------------------------------------------------+
| | (iv) | any trust of which any trustee is a US person; |
+--------+--------------------+---------------------------------------------------------+
| | (v) | any agency or branch of a non-United States entity |
| | | located in the United States; |
+--------+--------------------+---------------------------------------------------------+
| | (vi) | any non-discretionary account or similar account |
| | | (other than an estate or trust) held by a dealer or |
| | | other fiduciary for the benefit or account of a US |
| | | person; |
+--------+--------------------+---------------------------------------------------------+
| | (vii) | any discretionary account or similar account (other |
| | | than an estate or trust) held by a dealer or other |
| | | fiduciary organised, incorporated or (if an |
| | | individual) resident in the United States; and |
+--------+--------------------+---------------------------------------------------------+
| | (viii) | any partnership or corporation, if: |
+--------+--------------------+---------------------------------------------------------+
| | | (A) | organised or incorporated under the laws of any |
| | | | non-United States jurisdiction; |
+--------+--------------------+-----+---------------------------------------------------+
| | | (B) | formed by a US person principally for the purpose |
| | | | of investing in securities not registered under |
| | | | the US Securities Act, unless it is organised or |
| | | | incorporated, and owned, by Accredited Investors |
| | | | (as defined in Rule 501(a) under the US |
| | | | Securities Act) who are not natural persons, |
| | | | estates or trusts. |
+--------+--------------------+-----+---------------------------------------------------+
| (b) | Notwithstanding paragraph (a) above, any discretionary account or similar |
| | account (other than an estate or trust) held for the benefit of a non-US |
| | person by a dealer or other professional fiduciary organised, |
| | incorporated, or (if an individual) resident in the United States shall |
| | not be deemed a US person. |
+--------+------------------------------------------------------------------------------+
| (c) | Notwithstanding paragraph (a) above any estate of which any professional |
| | fiduciary acting as executor or administrator is a US person shall not be |
| | deemed a US person if: |
+--------+------------------------------------------------------------------------------+
| | (i) | an executor or administrator of the estate who is not a U.S. person |
| | | has sole or shared investment discretion with respect to the assets |
| | | of the estate; and |
+--------+------+-----------------------------------------------------------------------+
| | (ii) | the estate is governed by non-United States law. |
| | | |
+--------+------+-----------------------------------------------------------------------+
| (d) | Notwithstanding paragraph (a) above, any trust of which any professional |
| | fiduciary acting as trustee is a US person shall not be deemed a US |
| | person if a trustee who is not a US person has sole or shared investment |
| | discretion with respect to the trust assets, and no beneficiary of the |
| | trust (and no settler if the trust is revocable) is a US person. |
+--------+------------------------------------------------------------------------------+
| (e) | Notwithstanding paragraph (a) above, an employee benefit plan established |
| | and administered in accordance with the law of a country other than the |
| | United States and customary practices and documentation of any such |
| | country shall not be deemed a US person. |
+--------+------------------------------------------------------------------------------+
| (f) | Notwithstanding paragraph (a) above, any agency or branch of a US person |
| | located outside the United States shall not be deemed a US person if: |
+--------+------------------------------------------------------------------------------+
| | (i) | the agency or branch operates for valid business reasons; and |
| | | |
+--------+------+-----------------------------------------------------------------------+
| | (ii) | the agency or branch is engaged in the business of insuring or |
| | | banking and is subject to substantive insurance or banking |
| | | regulation, respectively, in the jurisdiction where located. |
+--------+------+-------------+-----+---------------------------------------------------+
European Economic Area
In relation to each member state of the EEA which has implemented the Prospectus
Directive 2003/71/EC other than Ireland and the United Kingdom (each, a
"relevant member state"), with effect from and including the date on which the
Prospectus Directive 2003/71/EC was implemented in that relevant member state
(the "relevant implementation date"), no LearnVantage Shares have been offered
or will be offered pursuant to the Offer in that relevant member state prior to
the publication of a prospectus in relation to the LearnVantage Shares which has
been approved by the competent authority in that relevant member state or, where
appropriate, approved in another relevant member state and notified to the
competent authority in the relevant member state, all in accordance with the
Prospectus Directive 2003/71/EC, except that with effect from and including the
relevant implementation date, offers of LearnVantage Shares may be made in that
relevant member state at any time:
+--------+--------------------------------------------------------------+
| (i) | to legal entities which are authorised or regulated to |
| | operate in the financial markets or, if not so authorised or |
| | regulated, whose corporate purpose is solely to invest in |
| | securities; |
+--------+--------------------------------------------------------------+
| (ii) | to any legal entity which has two or more of (a) an average |
| | of at least 250 employees during the last financial year (b) |
| | a total balance sheet of more than EUR43,000,000; and (c) an |
| | annual turnover of more than EUR50,000,000 as shown in its |
| | last annual or consolidated accounts; |
+--------+--------------------------------------------------------------+
| (iii) | to any other individual or entity authorised in that |
| | relevant member state as a qualified investor within the |
| | meaning of the Prospectus Directive 2003/71/EC; |
+--------+--------------------------------------------------------------+
| (iv) | to fewer than 100 natural or legal persons (other than |
| | qualified investors as defined in the Prospectus Directive |
| | 2003/71/EC); or |
+--------+--------------------------------------------------------------+
| (v) | in any other circumstances which do not require the |
| | publication by LearnVantage of a prospectus pursuant to |
| | Article 3 of the Prospectus Directive 2003/71/EC. |
+--------+--------------------------------------------------------------+
provided that no such offer of LearnVantage Shares results in a requirement for
the publication of a prospectus pursuant to Article 3 of the Prospectus
Directive 2003/71/EC or any measure implementing the Prospectus Directive
2003/71/EC in a relevant member state and each person who initially acquires any
LearnVantage Shares or to whom any offer is made under the Offer on the basis of
(i), (ii) or (iii) above will be deemed to have represented, acknowledged and
agreed that it is a "qualified investor" within the meaning of Article 2(1)(e)
of the Prospectus Directive 2003/71/EC.
19. DIRECTORS' RESPONSIBILITY STATEMENT
Acting in their capacity as directors of LearnVantage, the LearnVantage
Directors accept responsibility for all of the information contained in this
Announcement, other than that for which the ThirdForce Directors, acting in
their capacity as such, accept responsibility and for which the Independent
Directors, acting in their capacity as such, accept responsibility. To the best
of the knowledge and belief of the LearnVantage Directors (who have taken all
reasonable care to ensure that such is the case), the information contained in
this Announcement for which they accept responsibility is in accordance with the
facts and does not omit anything likely to affect the import of such
information.
Acting in their capacity as directors of ThirdForce, the ThirdForce Directors
accept responsibility for the information contained in paragraph 10 of this
Announcement (Information on ThirdForce) relating to ThirdForce, the ThirdForce
Group, the ThirdForce Directors (solely in their capacity as such) and members
of their immediate families, related trusts and persons connected with them. The
ThirdForce Directors, acting in their capacity as such, do not accept
responsibility for any other information contained in this Announcement. To the
best of the knowledge and belief of the ThirdForce Directors (who have taken all
reasonable care to ensure that such is the case), the information contained in
this Announcement for which they accept responsibility is in accordance with the
facts and does not omit anything likely to affect the import of such
information.
Acting in their capacity as independent directors of ThirdForce for the purposes
of the Offer, the Independent Directors accept responsibility for the
recommendation and the related opinions of the Independent Directors contained
in this Announcement. The Independent Directors, acting in their capacity as
such, do not accept responsibility for any other information contained in this
Announcement. To the best of the knowledge and belief of the Independent
Directors (who have taken all reasonable care to ensure that such is the case),
the information contained in this Announcement for which they accept
responsibility is in accordance with the facts and does not omit anything likely
to affect the import of such information.
20. DEALING DISCLOSURE REQUIREMENTS
Under the provisions of Rule 8.3 of the Takeover Rules, if any person is
interested in, owns or controls (directly or indirectly) 1 per cent. or more of
any class of "relevant securities" of ThirdForce or LearnVantage, all "dealings"
in any "relevant securities" of ThirdForce or LearnVantage must be publicly
disclosed by no later than 12.00 p.m. (Dublin time) on the Business Day
following the date of the relevant transaction. This requirement will continue
until the date on which the Offer becomes, or is declared, unconditional as to
acceptances, lapses or is otherwise withdrawn or on which the Offer Period
otherwise ends. If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire an "interest" in "relevant
securities" of ThirdForce or LearnVantage, they will be deemed to be a single
person for the purpose of Rule 8.3.
Under the provisions of Rule 8.1 of the Takeover Rules, all "dealings" in
"relevant securities" of ThirdForce or LearnVantage, by LearnVantage or
ThirdForce, or by any of their respective "associates", during the Offer Period
must be disclosed by no later than 12.00 noon (Dublin time) on the Business Day
following the date of the relevant transaction.
A disclosure table, giving details of the companies in whose "relevant
securities" "dealings" should be disclosed, and the number of such securities in
issue, can be found on the Panel's website at www.irishtakeoverpanel.ie.
Terms in this paragraph, Dealing Disclosure Requirements, in quotation marks are
defined in the Takeover Rules, which can also be found on the Panel's website.
If you are in any doubt as to whether or not you are required to disclose a
"dealing" under Rule 8, you should consult the Panel on telephone number (+353)
1 678 9020.
If you are in any doubt as to action to be taken by you, you are recommended to
obtain advice immediately from your stockbroker, bank manager, solicitor,
accountant or other appropriate independent financial adviser who, if you are
resident in Ireland, is duly authorised or exempted pursuant to the European
Communities (Markets in Financial Instruments) Regulations 2007 or the
Investment Intermediaries Act 1995 (as amended), or, if you are resident in the
United Kingdom, is duly authorised under the Financial Services and Markets Act
2000 of the United Kingdom or from another appropriately authorised adviser if
you are in a territory outside Ireland and the United Kingdom.
21. GENERAL
It is expected that the Offer Document and Prospectus will be despatched to
ThirdForce Shareholders by LearnVantage as soon as possible. This Announcement
is not intended to and does not constitute an offer or an invitation to purchase
any securities. Details of the sources and bases of certain information set out
in this Announcement are included in Appendix III to this Announcement.
The definitions of terms used in this Announcement are contained in Appendix VI
to this Announcement.
This Announcement is made pursuant to Rule 2.5 of the Takeover Rules.
APPENDIX I
PRE-CONDITIONS
The making of the Offer is subject to the receipt by LearnVantage of:
+---------+-------------------------------------------------------------+
| (a) | an irrevocable undertaking from Mr. Pat McDonagh to accept |
| | the Share Offer in respect of the 66,057,375 ThirdForce |
| | Shares held by him; |
| | |
+---------+-------------------------------------------------------------+
| (b) | an irrevocable undertaking from River Cities Capital Fund |
| | II, L.P. to accept the Share Offer in respect of the |
| | 10,254,329 ThirdForce Shares held by it; |
| | |
+---------+-------------------------------------------------------------+
| (c) | an irrevocable undertaking from One Fifty One Capital |
| | Limited to accept the Share Offer in respect of the |
| | 7,933,335 ThirdForce Shares held by it; and |
| | |
+---------+-------------------------------------------------------------+
| (d) | an irrevocable undertaking from Mr. Jonathan Parkes to |
| | accept the Composite Offer in respect of the 8,050,000 |
| | ThirdForce Shares held by him; |
+---------+-------------------------------------------------------------+
in each case in a form satisfactory to LearnVantage, by 12.00 noon on 9 November
2009.
APPENDIX II
CONDITIONS OF THE OFFER
The Offer is being made by LearnVantage, and complies with the Takeover Rules
(to the extent applicable) and, where relevant, the rules and regulations of AIM
and the IEX and is subject to the terms and conditions set out below and to be
set out in the Offer Document and the Forms of Acceptance. The Offer and any
acceptances thereunder will be governed by Irish law and be subject to the
exclusive jurisdiction of the courts of Ireland which exclusivity shall not
limit the right to seek provisional or protective relief in the courts of
another jurisdiction, during or after any substantive proceedings have been
instituted in Ireland, nor shall it limit the right to bring enforcement
proceedings in another jurisdiction on foot of an Irish judgement.
The Offer is subject to the following conditions:
+---------+--------+------------------------------------------------------+
| (a) | valid acceptances being received (and not, where permitted, |
| | withdrawn) by 3:00p.m. Irish time on the Initial Closing |
| | Date (or such later time(s) and/or date(s) as LearnVantage |
| | may determine, subject always to the Takeover Rules) in |
| | respect of not less than 80 per cent. (or such lower |
| | percentage as LearnVantage may determine, subject always to |
| | the Takeover Rules) in nominal value of the ThirdForce |
| | Shares, provided that this condition shall not be satisfied |
| | unless LearnVantage shall have acquired or agreed to |
| | acquire (whether pursuant to the Offer or otherwise) |
| | ThirdForce Shares carrying in aggregate more than 50 per |
| | cent. of the voting rights then exercisable at a general |
| | meeting of ThirdForce. |
+---------+---------------------------------------------------------------+
| (b) | no central bank, government or governmental, |
| | quasi-governmental, supranational, statutory, regulatory or |
| | investigative body, including any national anti-trust or |
| | merger control authorities, regulatory or licensing |
| | authority, court, tribunal, trade agency, professional |
| | association, environmental body, any analogous body |
| | whatsoever or tribunal in any jurisdiction or any person |
| | (each a "Third Party") having decided to take, institute or |
| | implement any action, proceeding, suit, investigation, |
| | enquiry or reference or having made, proposed or enacted |
| | any statute, regulation or order or having done or decided |
| | to do anything (with the exception of any action taken by a |
| | Third Party in exercise of its rights relating to any |
| | matter disclosed by ThirdForce to LearnVantage prior to the |
| | date of this Announcement) which would or would reasonably |
| | be expected to: |
+---------+---------------------------------------------------------------+
| | (i) | make the Offer or its implementation, or the |
| | | acquisition or the proposed acquisition by |
| | | LearnVantage of any shares in, or control of, |
| | | ThirdForce, or any of the assets of the Wider |
| | | ThirdForce Group void, illegal or unenforceable |
| | | under the laws of any jurisdiction or otherwise, |
| | | directly or indirectly, restrain, revoke, prohibit, |
| | | materially restrict or materially delay the same or |
| | | impose additional or different conditions or |
| | | obligations with respect thereto (except for |
| | | conditions or obligations that would not be material |
| | | (in value terms or otherwise) in the context of the |
| | | Wider ThirdForce Group taken as a whole), or |
| | | otherwise challenge or interfere therewith (except |
| | | where the result of such challenge or interference |
| | | would not have, or would not reasonably be expected |
| | | to have, a material adverse effect on the Wider |
| | | ThirdForce Group taken as a whole); |
+---------+--------+------------------------------------------------------+
| | (ii) | result in a material delay in the ability of |
| | | LearnVantage, or render LearnVantage unable, to |
| | | acquire some or all of the ThirdForce Shares or |
| | | require a divestiture by LearnVantage of any shares |
| | | in ThirdForce; |
+---------+--------+------------------------------------------------------+
| | (iii) | (except where the consequences thereof would not be |
| | | material (in value terms or otherwise) in the |
| | | context of the Wider ThirdForce Group taken as a |
| | | whole) require, prevent or delay the divestiture by |
| | | LearnVantage or by any member of the Wider |
| | | ThirdForce Group of all or any portion of their |
| | | respective businesses, assets (including, without |
| | | limitation, the shares or securities of any other |
| | | member of the Wider ThirdForce Group) or property or |
| | | (except where the consequences thereof would not be |
| | | material (in value terms or otherwise) in the |
| | | context of the Wider ThirdForce Group taken as a |
| | | whole) impose any material limitation on the ability |
| | | of any of them to conduct their respective |
| | | businesses (or any of them) or own their respective |
| | | assets or properties or any part thereof; |
+---------+--------+------------------------------------------------------+
| | (iv) | impose any material limitation on, or result in a |
| | | material delay in, the ability of LearnVantage to |
| | | acquire, or to hold or to exercise effectively, |
| | | directly or indirectly, all or any rights of |
| | | ownership of shares (or the equivalent) in, or to |
| | | exercise voting or management control over, |
| | | ThirdForce or (to the extent ThirdForce has such |
| | | rights) any member of the Wider ThirdForce Group |
| | | which is material in the context of the Wider |
| | | ThirdForce Group taken as a whole or (except where |
| | | the consequences thereof would not be material (in |
| | | value terms or otherwise) in the context of the |
| | | Wider ThirdForce Group taken as a whole) on the |
| | | ability of any member of the Wider ThirdForce Group |
| | | to hold or exercise effectively, directly or |
| | | indirectly, rights of ownership of shares (or the |
| | | equivalent) in, or to exercise rights of voting or |
| | | management control over, any member of the Wider |
| | | ThirdForce Group; |
+---------+--------+------------------------------------------------------+
| | (v) | (except where the consequences thereof would not be |
| | | material (in value terms or otherwise) in the |
| | | context of the Wider ThirdForce Group taken as a |
| | | whole), require LearnVantage or any member of the |
| | | Wider ThirdForce Group to acquire or offer to |
| | | acquire any shares or other securities (or the |
| | | equivalent) in, or any interest in any asset owned |
| | | by any third party; |
+---------+--------+------------------------------------------------------+
| | (vi) | cause any member of the Wider ThirdForce Group to |
| | | cease to be entitled to any Authorisation (as |
| | | defined in paragraph (c) below) used by it in the |
| | | carrying on of its business (except where the |
| | | consequences thereof would not be material (in value |
| | | terms or otherwise) in the context of the Wider |
| | | ThirdForce Group taken as a whole); |
+---------+--------+------------------------------------------------------+
| | (vii) | otherwise adversely affect the business, profits, |
| | | assets, liabilities, financial or trading position |
| | | of any member of the Wider ThirdForce Group (except |
| | | where the consequences thereof would not be material |
| | | (in value terms or otherwise) in the context of the |
| | | Wider ThirdForce Group taken as a whole); |
+---------+--------+------------------------------------------------------+
| | (viii) | impose any limitation on the ability of any member |
| | | of the Wider ThirdForce Group to integrate or |
| | | coordinate its business, or any part of it, with the |
| | | businesses of any member of the Wider ThirdForce |
| | | Group (except where the consequences thereof would |
| | | not be material (in value terms or otherwise) in the |
| | | context of the Wider ThirdForce Group taken as |
| | | a whole); or |
+---------+--------+------------------------------------------------------+
| | (ix) | result in any member of the Wider ThirdForce Group |
| | | ceasing to be able to carry on business under any |
| | | name, or in any jurisdiction, under, or in, which it |
| | | currently does so (except where the consequences |
| | | would not be material (in value terms or otherwise) |
| | | in the context of the Wider ThirdForce Group taken |
| | | as a whole); |
+---------+--------+------------------------------------------------------+
| (c) | all necessary notifications and filings having been made, |
| | all necessary waiting and other time periods (including any |
| | extensions thereof) under any applicable legislation or |
| | regulation of any jurisdiction in which ThirdForce or any |
| | subsidiary or subsidiary undertaking of ThirdForce which is |
| | material in the context of the Wider ThirdForce Group taken |
| | as a whole (a "Material Subsidiary") is incorporated or |
| | carries on a business which is material in the context of |
| | the Wider ThirdForce Group taken as a whole, having |
| | expired, lapsed or having been terminated (as appropriate) |
| | (save to an extent which would not be material (in value |
| | terms or otherwise) in the context of the Wider ThirdForce |
| | Group taken as a whole) and all statutory or regulatory |
| | obligations in any jurisdiction in which ThirdForce or a |
| | Material Subsidiary shall be incorporated or carry on any |
| | business which is material in the context of the Wider |
| | ThirdForce Group taken as a whole having been complied with |
| | (save to an extent which would not be material (in value |
| | terms or otherwise) in the context of the Wider ThirdForce |
| | Group taken as a whole), in each case, in connection with |
| | the Offer or its implementation and all authorisations, |
| | orders, recognitions, grants, consents, clearances, |
| | confirmations, licences, permissions and approvals in any |
| | jurisdiction ("Authorisations") reasonably deemed necessary |
| | or appropriate by LearnVantage for or in respect of the |
| | Offer having been obtained on terms and in a form |
| | reasonably satisfactory to LearnVantage from all |
| | appropriate Third Parties (except where the consequence of |
| | the absence of any such Authorisation would not be material |
| | (in value terms or otherwise) in the context of the Wider |
| | ThirdForce Group taken as a whole), all such Authorisations |
| | remaining in full force and effect, there being no notified |
| | intention to revoke or vary or not to renew the same at the |
| | time at which the Offer becomes or is declared otherwise |
| | unconditional and all necessary statutory or regulatory |
| | obligations in any such jurisdiction having been complied |
| | with (except where the consequence thereof would not be |
| | material (in value terms or otherwise) in the context of |
| | the Wider ThirdForce Group taken as a whole); |
+---------+---------------------------------------------------------------+
| (d) | all applicable waiting periods and any other time periods |
| | during which any Third Party could, in respect of the Offer |
| | or the acquisition or proposed acquisition of any shares or |
| | other securities (or the equivalent) in, or control of, |
| | ThirdForce or any member of the Wider ThirdForce Group by |
| | LearnVantage, institute or implement any action, |
| | proceedings, suit, investigation, enquiry or reference |
| | under the laws of any jurisdiction which would be |
| | reasonably expected adversely to affect (to an extent which |
| | would be material (in value terms or otherwise) in the |
| | context of the Wider ThirdForce Group taken as a whole) any |
| | member of the Wider ThirdForce Group, having expired, |
| | lapsed or been terminated; |
+---------+---------------------------------------------------------------+
| (e) | save as publicly announced (by the delivery of an |
| | announcement to the Irish Stock Exchange and the London |
| | Stock Exchange or otherwise publicly disclosed by the |
| | ThirdForce Group) on or prior to the date of this |
| | Announcement, no member of the ThirdForce Group having, |
| | since 30 June 2009: |
+---------+---------------------------------------------------------------+
| | (i) | issued or agreed to issue additional shares of any |
| | | class, or securities convertible into or |
| | | exchangeable for, or rights, warrants or options to |
| | | subscribe for or acquire, any such shares or |
| | | convertible or exchangeable securities (except for |
| | | issues to ThirdForce or wholly-owned subsidiaries of |
| | | ThirdForce); |
+---------+--------+------------------------------------------------------+
| | (ii) | recommended, declared, paid or made any bonus, |
| | | dividend or other distribution other than bonuses, |
| | | dividends or other distributions (other than bonus |
| | | issues) lawfully paid or made or issued to another |
| | | member of the Wider ThirdForce Group; |
+---------+--------+------------------------------------------------------+
| | (iii) | (save for transactions between two or more members |
| | | of the Wider ThirdForce Group ("intra-ThirdForce |
| | | Group transactions")) made or authorised, proposed |
| | | or announced any change in its loan capital (save in |
| | | respect of loan capital which is not material (in |
| | | value terms or otherwise) in the context of the |
| | | Wider ThirdForce Group taken as a whole); |
+---------+--------+------------------------------------------------------+
| | (iv) | save for intra-ThirdForce Group transactions, |
| | | implemented, authorised, proposed or announced its |
| | | intention to propose any merger, demerger, |
| | | reconstruction, amalgamation, scheme or (except in |
| | | the ordinary and usual course of trading) |
| | | acquisition or disposal of (or of any interest in) |
| | | assets or shares (or the equivalent thereof) in any |
| | | undertaking or undertakings (except in any such case |
| | | where the consequences of any such merger, demerger, |
| | | reconstruction, amalgamation, scheme, acquisition or |
| | | disposal would not be material (in value terms or |
| | | otherwise) in the context of the Wider ThirdForce |
| | | Group taken as a whole); |
+---------+--------+------------------------------------------------------+
| | (v) | except in the ordinary and usual course of business, |
| | | entered into or materially improved, or made any |
| | | offer (which remains open for acceptance) to enter |
| | | into or improve, the terms of the employment |
| | | contract with any director of ThirdForce or any |
| | | person occupying one of the senior executive |
| | | positions in the Wider ThirdForce Group; |
+---------+--------+------------------------------------------------------+
| | (vi) | (except where the consequences thereof would not be |
| | | material (in value terms or otherwise) in the |
| | | context of the Wider ThirdForce Group, taken as a |
| | | whole) issued or agreed to issue any loan capital or |
| | | (save in the ordinary course of business and save |
| | | for intra-ThirdForce Group transactions) debentures |
| | | or incurred any indebtedness or contingent |
| | | liability; |
+---------+--------+------------------------------------------------------+
| | (vii) | purchased, redeemed, repaid or announced any offer |
| | | to purchase, redeem or repay any of its own shares |
| | | or other securities (or the equivalent) or reduced |
| | | or made any other change to any part of its share |
| | | capital; |
+---------+--------+------------------------------------------------------+
| | (viii) | (except where the consequences thereof would not be |
| | | material (in value terms or otherwise) in the |
| | | context of the Wider ThirdForce Group taken as a |
| | | whole) (A) merged with any body corporate, |
| | | partnership or business, or (B) and save for |
| | | intra-ThirdForce Group transactions acquired or |
| | | disposed of, transferred, mortgaged or encumbered |
| | | any assets or any right, title or interest in any |
| | | asset (including shares and trade investments); |
+---------+--------+------------------------------------------------------+
| | (ix) | (except where the consequences thereof would not be |
| | | material (in value terms or otherwise) in the |
| | | context of the Wider ThirdForce Group taken as a |
| | | whole), entered into or varied any contract, |
| | | transaction, arrangement or commitment or announced |
| | | its intention to enter into or vary any contract, |
| | | transaction, arrangement or commitment (whether in |
| | | respect of capital expenditure or otherwise) which |
| | | is of a long term, onerous or unusual nature or |
| | | magnitude or which is or could be materially |
| | | restrictive on the business of any member of the |
| | | Wider ThirdForce Group; |
+---------+--------+------------------------------------------------------+
| | (x) | waived or compromised any claim which would be |
| | | material (in value terms or otherwise) in the |
| | | context of the Wider ThirdForce Group taken as a |
| | | whole; |
+---------+--------+------------------------------------------------------+
| | (xi) | (except where the consequences thereof would not be |
| | | material (in value terms or otherwise) in the |
| | | context of the Wider ThirdForce Group, taken as a |
| | | whole) been unable, or having admitted in writing |
| | | that it is unable, to pay its debts or having |
| | | stopped or suspended (or threatened to stop or |
| | | suspend) payment of its debts generally or (except |
| | | where the consequences thereof would not be material |
| | | (in value terms or otherwise) in the context of the |
| | | Wider ThirdForce Group taken as a whole) ceased or |
| | | threatened to cease to carry on all or a substantial |
| | | part of any business; |
+---------+--------+------------------------------------------------------+
| | (xii) | (except where the consequences thereof would not be |
| | | material (in value terms or otherwise) in the |
| | | context of the Wider ThirdForce Group taken as a |
| | | whole) and save for voluntary solvent liquidations, |
| | | taken any corporate action or had any legal |
| | | proceedings instituted against it in respect of its |
| | | winding-up, dissolution, examination or |
| | | reorganisation or for the appointment of a receiver, |
| | | examiner, administrator, administrative receiver, |
| | | trustee or similar officer of all or any part of its |
| | | assets or revenues, or (A) any analogous proceedings |
| | | in any jurisdiction, or (B) appointed any analogous |
| | | person in any jurisdiction in which a member of the |
| | | Wider ThirdForce Group shall be incorporated or |
| | | carry on any business which is material in the |
| | | context of the Wider ThirdForce Group taken as a |
| | | whole; |
+---------+--------+------------------------------------------------------+
| | (xiii) | (except where the consequences thereof would not be |
| | | material (in value terms or otherwise) in the |
| | | context of the Wider ThirdForce Group taken as a |
| | | whole) made or agreed or consented to any |
| | | significant change to the terms of the trust deeds |
| | | constituting the pension schemes established for its |
| | | directors and/or employees and/or their dependants |
| | | or to the benefits which accrue, or to the pensions |
| | | which are payable thereunder, or to the basis on |
| | | which qualification for or accrual or entitlement to |
| | | such benefits or pensions are calculated or |
| | | determined, or made, or agreed or consented to any |
| | | change to the trustees involving the appointment of |
| | | a trust corporation; |
+---------+--------+------------------------------------------------------+
| | (xiv) | entered into any agreement, contract or commitment |
| | | or passed any resolution or made any offer or |
| | | announcement with respect to, or to effect any of |
| | | the transactions, matters or events set out in this |
| | | condition; or |
+---------+--------+------------------------------------------------------+
| | (xv) | except in the case of ThirdForce subsidiaries, for |
| | | amendments which are not material, amended its |
| | | memorandum or articles of association; |
+---------+--------+------------------------------------------------------+
| (f) | save as publicly announced (by the delivery of an |
| | announcement to the Irish Stock Exchange and the London |
| | Stock Exchange or otherwise publicly disclosed by the |
| | ThirdForce Group) on or prior to the date of this |
| | Announcement: |
+---------+---------------------------------------------------------------+
| | (i) | there not having arisen any adverse change or |
| | | deterioration in the business, assets, financial or |
| | | trading position or profits of ThirdForce or any |
| | | member of the Wider ThirdForce Group (save to an |
| | | extent which would not be material (in value terms |
| | | or otherwise) in the context of the Wider ThirdForce |
| | | Group taken as a whole); |
+---------+--------+------------------------------------------------------+
| | (ii) | no litigation, arbitration proceedings, prosecution |
| | | or other legal proceedings to which any member of |
| | | the Wider ThirdForce Group is or would reasonably be |
| | | expected to become a party (whether as plaintiff or |
| | | defendant or otherwise) and no investigation by any |
| | | Third Party against or in respect of any member of |
| | | the Wider ThirdForce Group having been instituted or |
| | | remaining outstanding by, against or in respect of |
| | | any member of the Wider ThirdForce Group (save where |
| | | the consequences of such litigation, arbitration |
| | | proceedings, prosecution or other legal proceedings |
| | | or investigation are not or would not be material |
| | | (in value terms or otherwise) in the context of the |
| | | Wider ThirdForce Group taken as a whole); |
+---------+--------+------------------------------------------------------+
| | (iii) | no contingent or other liability existing or having |
| | | arisen or become apparent to LearnVantage which |
| | | would reasonably be expected to affect adversely any |
| | | member of the Wider ThirdForce Group (save where |
| | | such liability is not or would not be material (in |
| | | value terms or otherwise) in the context of the |
| | | Wider ThirdForce Group taken as a whole); and |
+---------+--------+------------------------------------------------------+
| | (iv) | no steps having been taken which are likely to |
| | | result in the withdrawal, cancellation, termination |
| | | or modification of any licence, consent, permit or |
| | | authorisation held by any member of the Wider |
| | | ThirdForce Group which is necessary for the proper |
| | | carrying on of its business and which is material in |
| | | the context of the Wider ThirdForce Group; |
+---------+--------+------------------------------------------------------+
| (g) | except as publicly disclosed, LearnVantage not having |
| | discovered that any financial, business or other |
| | information concerning the Wider ThirdForce Group which is |
| | material in the context of the Wider ThirdForce Group taken |
| | as a whole and which has been publicly disclosed, is |
| | materially misleading, contains a material |
| | misrepresentation of fact or omits to state a fact |
| | necessary to make the information contained therein not |
| | misleading (save where the consequences thereof would not |
| | be material (in value terms or otherwise) in the context of |
| | the Wider ThirdForce Group taken as a whole); |
+---------+---------------------------------------------------------------+
| (h) | save as disclosed by ThirdForce to LearnVantage and/or |
| | except as publicly disclosed and/or save as publicly |
| | announced (by the delivery of an announcement to the Irish |
| | Stock Exchange and the London Stock Exchange) on or prior |
| | to the date of this Announcement, LearnVantage not having |
| | discovered: |
+---------+---------------------------------------------------------------+
| | (i) | that any member of the Wider ThirdForce Group or any |
| | | partnership, company or other entity in which any |
| | | member of the Wider ThirdForce Group has an interest |
| | | and which is not a subsidiary undertaking of |
| | | ThirdForce is subject to any liability, contingent |
| | | or otherwise (save where such liability is not or |
| | | would not be material (in value terms or otherwise) |
| | | in the context of the Wider ThirdForce Group taken |
| | | as whole); |
+---------+--------+------------------------------------------------------+
| | (ii) | in relation to any release, emission, discharge, |
| | | disposal or other fact or circumstance which has |
| | | caused or might impair the environment or harm human |
| | | health, that any past or present member of the Wider |
| | | ThirdForce Group has acted in material violation of |
| | | any laws, statutes, regulations, notices or other |
| | | legal or regulatory requirements of any Third Party |
| | | (except where the consequences thereof would not be |
| | | material (in value terms or otherwise) in the |
| | | context of the Wider ThirdForce Group, taken as a |
| | | whole); |
+---------+--------+------------------------------------------------------+
| | (iii) | that there is, or is likely to be, any liability, |
| | | whether actual or contingent, to make good, repair, |
| | | reinstate or clean up any property now or previously |
| | | owned, occupied or made use of by any past or |
| | | present member of the Wider ThirdForce Group or any |
| | | other property or any controlled waters under any |
| | | environmental legislation, regulation, notice, |
| | | circular, order or other lawful requirement of any |
| | | relevant authority (whether by formal notice or |
| | | order or not) or Third Party or otherwise (save |
| | | where such liability is not or would not be material |
| | | (in value terms or otherwise) in the context of the |
| | | Wider ThirdForce Group taken as a whole); and |
+---------+--------+------------------------------------------------------+
| | (iv) | that circumstances exist which are likely to result |
| | | in any actual or contingent liability to any member |
| | | of the Wider ThirdForce Group under any applicable |
| | | legislation referred to in sub-paragraph (iii) above |
| | | to improve or modify existing or install new plant, |
| | | machinery or equipment or to carry out any changes |
| | | in the processes currently carried out (save where |
| | | such liability is not or would not be material (in |
| | | value terms or otherwise) in the context of the |
| | | Wider ThirdForce Group taken as a whole); |
+---------+--------+------------------------------------------------------+
| (i) | for the purposes of the conditions set out above "Wider |
| | ThirdForce Group" means the ThirdForce Group and any joint |
| | venture, partnership, firm, company or undertaking in which |
| | any member of the ThirdForce Group is interested. |
+---------+--------+------------------------------------------------------+
Subject to the requirements of the Panel, LearnVantage reserves the right (but
shall be under no obligation) to waive, in whole or in part, all or any of the
above conditions apart from conditions (a), (b), (c) and (d).
The Offer will lapse unless all of the conditions set out above have been
fulfilled or (if capable of waiver) waived or, where appropriate, have been
determined by LearnVantage to be or to remain satisfied on the day which is 21
days after the later of the Initial Closing Date or the date on which the Offer
becomes or is declared unconditional as to acceptances or such later date as
LearnVantage may, with the consent of the Panel (to the extent required) decide.
Except for condition (a), LearnVantage shall not be obliged to waive (if capable
of waiver) or treat as satisfied any condition by a date earlier than the latest
day for the fulfilment of all conditions referred to in the previous sentence,
notwithstanding that any other condition of the Offer may at such earlier date
have been waived or fulfilled or that there are at such earlier date no
circumstances indicating that the relevant condition may not be capable of
fulfilment.
APPENDIX III
Bases and sources
+--------+---------+-----------------------------------------------------+
| a) | The value of approximately EUR27.2 million attributed to the |
| | current issued share capital of ThirdForce, is based upon the |
| | number of ThirdForce shares currently in issue being |
| | 259,376,281. |
+--------+---------------------------------------------------------------+
| | |
+--------+---------------------------------------------------------------+
| b) | Unless otherwise stated financial information relating to |
| | ThirdForce has been extracted from the Consolidated Financial |
| | Statements for the financial year ended 31 December 2008 and |
| | the Interim Report for the six month period ended 30 June |
| | 2009. |
+--------+---------------------------------------------------------------+
| | |
+--------+---------------------------------------------------------------+
| c) | ThirdForce Share prices have been derived from the Irish |
| | Stock Exchange and represent closing prices on the relevant |
| | date. |
+--------+---------------------------------------------------------------+
| | |
+--------+---------------------------------------------------------------+
| d) | The enterprise value of ThirdForce is calculated as the value |
| | of the Cash Offer for the ordinary share capital currently in |
| | issue of EUR27.2 million minus the net cash position of EUR7.1 |
| | million plus preference shares of EUR0.234 million taken from |
| | the ThirdForce Interim Report for the period ended 30 June |
| | 2009. |
+--------+---------------------------------------------------------------+
| | |
+--------+---------------------------------------------------------------+
| e) | The Cash Offer enterprise value multiple of 9.6 times |
| | ThirdForce's EBITDA for the year ended 31 December 2008 as |
| | stated in paragraph 6 and 9, has been based on: |
+--------+---------------------------------------------------------------+
| | |
+--------+---------------------------------------------------------------+
| | (i) | The enterprise value of ThirdForce at the Cash |
| | | Offer price of EUR20.334 million; and |
+--------+---------+-----------------------------------------------------+
| | (ii) | EBITDA of ThirdForce of EUR2.1 million for the year |
| | | ended 31 December 2008. |
+--------+---------+-----------------------------------------------------+
| | |
+--------+---------------------------------------------------------------+
| f) | The Cash Offer enterprise value multiple of 11.1 times |
| | ThirdForce's EBITDA for the twelve months ended 30 June 2009 |
| | as stated in paragraph 6 and 9, has been based on: |
+--------+---------------------------------------------------------------+
| | |
+--------+---------------------------------------------------------------+
| | (i) | The enterprise value of ThirdForce at the Cash |
| | | Offer price of EUR20.334 million; and |
+--------+---------+-----------------------------------------------------+
| | (ii) | EBITDA of ThirdForce of EUR1.8 million for the twelve |
| | | months ended 30 June 2009 is calculated as EBITDA |
| | | for the year ended 31 December 2008 plus EBITDA for |
| | | the six months ended 30 June 2009 minus EBITDA for |
| | | the six months ended 30 June 2008. |
+--------+---------+-----------------------------------------------------+
Included in the EBITDA is a charge of EUR262,000, EUR159,000 and EUR76,000 in respect
of share based payments for the year ended 31 December 2008, the six months
ended 30 June 2008 and the six months ended 30 June 2009.
APPENDIX IV
RISK FACTORS
In addition to the other information that will be set out in the Offer Document
and the Prospectus, the following specific factors should be considered
carefully by ThirdForce Shareholders before deciding whether to accept the
Offer. The risks associated with holding LearnVantage Shares include (but may
not be limited to) the following identifiable risks which, individually or in
aggregate, could have a material adverse effect on LearnVantage and/or its
shareholders. The risks discussed in this Appendix IV comprise all of the
material risks of which the LearnVantage Directors are aware as at the date of
this Announcement.
The risks identified below are those which the LearnVantage Directors believe to
be material in the context of LearnVantage and/or ThirdForce but these risks may
not be the only risks faced by LearnVantage and/or ThirdForce. Additional risks,
including those that the LearnVantage Directors are unaware of or currently deem
immaterial, may also result in decreased income, increased expenses or other
events that could result in a decline in the value of LearnVantage Shares. The
headings for each risk factor set out in this Appendix IV are not definitive and
potential investors should read the entirety of each risk factor.
LearnVantage is a newly incorporated company which has been formed for the
purpose of making the Offer. No application will be made for LearnVantage Shares
to be admitted to trading on any regulated market for the purposes of the
Prospectus Directive 2003/71/EC or any other organised securities exchange or
market.
If the Offer becomes or is declared unconditional in all respects, LearnVantage
will be the holding company for the Enlarged Group and therefore the risk
factors relating to the ThirdForce Group and the e-learning market set out below
will also have the ability to materially impact the business and operations of
LearnVantage.
Statements made in the risk factors below relating to the competitive position
of the ThirdForce Group are based on the opinion of the LearnVantage Directors
who, in making such statements, have relied on their knowledge of the e-learning
market and of the conditions affecting that particular market.
1. RISKS RELATING TO LEARNVANTAGE
LearnVantage faces the general risks associated with doing business in today's
challenging business environment
Investments in unlisted companies are subject to the usual risks inherent in the
ownership of any company operating a business. These include risks associated
with the general economic climate, inflation, deflation, interest rates, lack of
liquidity, equity and property market trends and their impact on customer
sentiment, natural disasters, political risks, and government regulations.
General risks related to the business of ThirdForce and, in the event that the
Offer becomes or is declared unconditional in all respects, general risks which
may affect the business of LearnVantage and the Enlarged Group, other than those
discussed elsewhere in this Appendix IV, include supply chain issues (for
example difficulties in hardware delivery of the ThirdForce Group's tablet PC
product - the el-box(TM)) and general uninsured or uninsurable risks. As a
result, the materialisation of any one or a combination of the aforementioned
risks could have a materially adverse effect on LearnVantage or the Enlarged
Group.
LearnVantage's aims may not be achieved
The value of an investment in LearnVantage is dependent, inter alia, upon it
achieving the aims set out in this Announcement. There can be no guarantee that
LearnVantage or the Enlarged Group will achieve those aims.
When formulating the Offer LearnVantage did not undertake any detailed legal,
financial or other due diligence exercise
LearnVantage will make an offer to acquire the ThirdForce Shares. When
formulating the Offer, LearnVantage did not undertake any detailed legal,
financial or other due diligence exercise. Instead, the LearnVantage Directors
have relied upon their own knowledge of the ThirdForce Group's business and
their experience and understanding of the e-learning market. Information
contained in this Announcement in relation to ThirdForce has been sourced from
certain information provided to LearnVantage by ThirdForce and from publicly
available information concerning ThirdForce, including third party financial and
accounting data obtained from the publicly available Consolidated Financial
Statements of ThirdForce for the three years ended 31 December 2008, 2007 and
2006, and the Interim Report.
LearnVantage may face difficulties in implementing its strategy for ThirdForce
in the event that it acquires more than 50 per cent. but less than 100 per cent.
of the ThirdForce Shares
The Offer will be subject to the satisfaction of certain conditions which are
more fully described in Appendix II to this Announcement. One of these
conditions is that valid acceptances in respect of the Offer are received in
respect of not less than 80 per cent. in nominal value of the ThirdForce Shares
(or such lower percentage of ThirdForce Shares as LearnVantage may determine,
but which must, in any event, be such number of ThirdForce Shares as carry
between them more than 50 per cent. of the votes capable of being cast at a
general meeting of ThirdForce). If LearnVantage determines that this condition
is met at a percentage which is lower than 80 per cent. then it may not be able
to implement the Compulsory Acquisition Procedure. In such circumstances
LearnVantage may only be a majority shareholder in ThirdForce with those
ThirdForce Shareholders who have not accepted the Offer retaining their existing
ThirdForce Shares. If LearnVantage determines that this condition is met at a
percentage which is lower than 75 per cent. then it may not be able to procure
the cancellation of the trading of ThirdForce's Shares on AIM and the IEX or to
access ThirdForce's financial resources (in particular, ThirdForce's cash
balances, borrowing capacity and future cash flows) in connection with the
Offer. Information on the Compulsory Acquisition Procedure, the intended
cancellation of the trading of ThirdForce's Shares on AIM and the IEX and what
the position would be in the event that LearnVantage does not receive sufficient
acceptances to enable it to implement the Compulsory Acquisition Procedure are
set out at paragraph 16 of this Announcement (Compulsory Acquisition Procedure,
Delisting, Cancellation of Trading and Re-registration).
The inherently subjective nature of valuing private companies makes it difficult
to value the LearnVantage Shares
It is difficult to value the LearnVantage Shares as the valuation of unlisted
securities is inherently subjective and is dependent on a number of factors
including the financial, economic, market and other conditions prevailing at a
given time, the nature of the issuer's business, the financial position and
prospects of the issuer, the business model and strategy utilised by the issuer,
the risks associated with the issuer's business, industry performance and other
trends apparent in the markets in which the issuer operates, the extent of
competition in the markets in which the issuer operates, the degree of
technological change in the markets in which the issuer operates, the historical
and forecast financial performance of the issuer, the intellectual property
owned or licensed by the issuer, the rights attaching to the unlisted securities
issued by the issuer and the liquidity of the securities issued by the issuer.
Such difficulty in valuation means it may be difficult for holders of
LearnVantage Shares to know the value of their LearnVantage Shares at any given
time.
LearnVantage's expansion plans may be constrained to the extent that it is
unable to raise further equity or debt financing
In order to fund LearnVantage's expansion plans in the longer term and, in
particular, to fund future acquisitions, as discussed in paragraph 8 of this
Announcement (LearnVantage Strategy), it may be necessary for the Enlarged Group
to raise further funds by way of equity or debt financing or a combination of
both. The Enlarged Group's future capital requirements will depend on numerous
factors including, without limitation, its trading performance and LearnVantage
cannot predict accurately the timing and amount of the Enlarged Group's capital
requirements.
Further equity financing will likely either come from existing shareholders or
other equity investors. Additional acquisitions may be carried out by way of
issuing further equity to the acquired company's shareholders. Any additional
equity issued pursuant to such arrangements may be dilutive to LearnVantage's
shareholders. Debt financing, if available, may involve restrictions on the
future financing and operating activities of members of the Enlarged Group. Such
debt financing will increase the debt profile of the Enlarged Group and may
require the giving of security over its assets.
LearnVantage's expansion plans may be constrained to the extent that it or other
members of the Enlarged Group are unable to raise further equity finance or that
lenders are not willing to provide any additional debt or other facilities.
LearnVantage will not be subject to the same level of regulatory oversight as a
company whose shares are listed or traded on a regulated securities market or
exchange
LearnVantage will not be subject to the disclosure, corporate governance and
shareholder protection requirements of the Irish Stock Exchange, the London
Stock Exchange or any other securities exchange or market. As LearnVantage is
not and will not be a company whose shares are listed, traded or dealt in on the
Irish Stock Exchange or the London Stock Exchange it will not be subject to the
Combined Code on Corporate Governance of the United Kingdom Financial Reporting
Council.
Shareholders of LearnVantage will not have the benefit of the Takeover Rules (or
any equivalent rules) in relation to any takeover offer that might be made for
LearnVantage in the future.
As a company whose shares are not listed on any securities exchange or market or
traded on AIM and/or the IEX, LearnVantage may not be subject to the same level
of public scrutiny as a company whose shares are listed on a recognised
securities exchange or market or traded on AIM and/or the IEX.
If the Offer becomes or is declared unconditional in all respects and thereafter
a special resolution is proposed to cancel the trading of ThirdForce's Shares on
AIM and the IEX and such resolution is passed, then ThirdForce will no longer be
subject to the disclosure, corporate governance and shareholder protection
requirements of AIM and/or the IEX.
Irish law governs the rights of holders of LearnVantage Shares and these rights
may differ from the rights of shareholders in other jurisdictions. LearnVantage
is incorporated under the laws of Ireland. The rights of holders of LearnVantage
Shares are governed by Irish law, including the Companies Acts, and by its
Articles and certain laws of the European Union.
Increases in corporation tax rates may adversely affect the earnings position of
the Enlarged Group
Any increase in corporation tax rates in any of the jurisdictions in which any
member of the Enlarged Group carries on business may have an adverse effect on
the earnings position of the Enlarged Group.
The Enlarged Group may have greater borrowings than the ThirdForce Group
currently has as a result of the Offer
The Enlarged Group may have greater borrowings than the ThirdForce Group
currently has and this could adversely affect LearnVantage's financial condition
and the results of its operations.
LearnVantage will fund the Cash Consideration payable under the Offer and the
Third Party Expenses using funds it will receive pursuant to the Loan and
Subscription Agreement described in further detail at paragraph 12 of this
Announcement (Financing the Offer). Any funds above EUR5 million and up to EUR13
million that are required by LearnVantage to fund the Cash Offer, the cash
element of the Composite Offer and the Third Party Expenses may, under the Loan
and Subscription Agreement, be provided by Mr. Pat McDonagh, at his election,
either by way of subscribing for further LearnVantage Shares or by way of a loan
or a combination of both. Any funds required above EUR13 million will be provided
by Mr. Pat McDonagh by way of a loan. If all or any of these funds are required
and are provided by way of a loan, LearnVantage intends to seek to re-finance
such loan as soon as reasonably practicable following the Offer becoming or
being declared unconditional in all respects and to repay to Mr. Pat McDonagh
the funds advanced by him. Given the current problems in the credit markets,
there is a risk that LearnVantage may not be able to refinance the funds
advanced to it by Mr. Pat McDonagh under the Loan and Subscription Agreement,
or, alternatively, may be forced to refinance on terms which are materially less
attractive to LearnVantage than the terms on which the funds were advanced by
Mr. Pat McDonagh pursuant to the Loan and Subscription Agreement.
The Enlarged Group may suffer due to difficulties or problems in successfully
integrating other e-learning companies acquired by the Enlarged Group
From time to time, LearnVantage may pursue acquisitions of other e-learning
companies. Integrating acquired operations into the business of the Enlarged
Group involves significant risk and uncertainties including: inability to
maintain uniform standards, controls, policies and procedures; distraction of
management's attention from normal business operations during the acquisition
and integration process; inability to obtain approval of the acquisition from
the necessary regulatory agencies; expenses associated with acquisition and
integration efforts; and unidentified issues not discovered in the due diligence
process. If LearnVantage pursues acquisitions it will incur costs and if it
completes one or more acquisitions and is unable to integrate acquired
operations successfully, the business of the Enlarged Group may suffer.
In addition, although the LearnVantage Directors believe that there are
companies which are suitable for acquisition by LearnVantage, there is no
certainty that any such transaction(s) can or will be concluded.
Future growth of the Enlarged Group may place significant pressure on its
resources and management systems
Any future growth that the Enlarged Group may experience may place a significant
strain on its resources and increase demands on its management systems. If
LearnVantage is unable to manage this growth effectively while putting in place
appropriate internal controls it may experience operating inefficiencies that
could increase its costs.
Damage to the reputation of the management of LearnVantage or the LearnVantage
Board could be detrimental to LearnVantage
The reputation of the LearnVantage Board and LearnVantage's management team will
be a significant factor in the retention of the existing clients of the
ThirdForce Group and the ability of the Enlarged Group to secure new business.
If, for whatever reason, the reputation of the LearnVantage Board or its
management team was to become tarnished in any way, this could affect the
ability of LearnVantage to execute its business strategy and may have an adverse
impact on future revenues.
Increases in interest rates may impact on the cost of servicing borrowings
LearnVantage intends to finance its operations through a mixture of equity, bank
and other borrowings (at both fixed and variable rates of interest), and working
capital (including cash generated from operations).
LearnVantage may determine the level of borrowings at fixed rates of interest
having regard to current market rates and expected future trends but there is
always a risk that interest rate rises will impact on at least some of its
potential future borrowings.
There is no certainty that LearnVantage will be in a position to pay dividends
There is no guarantee that the distributable profits of LearnVantage will be
sufficient to allow the payment of dividends or share buybacks. The intention of
the LearnVantage Board is not to pay any cash or share dividends in respect of
the LearnVantage Shares for the foreseeable future. Historically, ThirdForce's
policy has been not to pay dividends.
Certain shareholders may exercise significant influence over LearnVantage
following the Offer and their interests may differ from those of other
shareholders
Certain shareholders may exercise significant influence over LearnVantage
following the Offer and their interests may differ from those of some or all of
the other shareholders.
On the Offer Assumptions, including that all of the ThirdForce Shareholders
accept the Share Offer, Mr. Pat McDonagh will beneficially own approximately
29.07 per cent. of the issued share capital of LearnVantage. If not all of the
ThirdForce Shareholders accept the Share Offer, this percentage will increase to
reflect the funding required to be provided by Mr. Pat McDonagh under the terms
of the Loan and Subscription Agreement, details of which are set out in
paragraph 12 of this Announcement (Financing the Offer). As Mr. Pat McDonagh may
have a significant shareholding in LearnVantage he may have rights in relation
to the appointment of directors which are in addition to his rights as a holder
of LearnVantage Shares. Such additional rights are set out in Appendix V to this
Announcement.
Currency fluctuations may negatively impact the financial condition of
LearnVantage
Changes in currency rates may negatively impact the financial condition of
LearnVantage through both transaction and translation risk. The main markets of
the ThirdForce Group are in non-Euro areas, namely the United States and the
United Kingdom, and consequently, subsequent to the Offer becoming or being
declared unconditional in all respects, LearnVantage's results may be affected
by currency fluctuations and, in particular, changes in the euro/sterling and
euro/dollar exchange rates. Hedging activities which LearnVantage may undertake
in order to mitigate exchange rate risks faced by the businesses of the Enlarged
Group may not be successful and may result in an adverse charge to LearnVantage.
Significant performance failures of the financial, accounting, management and
other information systems of the Enlarged Group may adversely impact its ability
to operate effectively
The efficient operation and management of the businesses of the Enlarged Group,
whether in whole or in part, will depend on the proper operation and performance
of financial, accounting, management and other information and support IT
systems (such as payroll management and invoicing). A significant performance
failure of any of such systems could lead to loss of control over critical
business information and/or systems, resulting in an adverse impact on the
ability of the business to operate effectively and/or fulfil its contractual or
service obligations which may in turn lead to a loss of custom, revenue and
profitability and the incurring of significant consequential and remedial costs.
Changes in pension legislation could negatively impact the Enlarged Group
The ThirdForce Group currently operates within pension regimes in Ireland, the
United Kingdom and the United States. There is a possibility that the pension
regimes in each of these jurisdictions could be varied in the future and that,
as an employer, the Enlarged Group may be subject to increased pension related
costs as a result.
It is LearnVantage's intention to continue to operate the ThirdForce Group's
existing pension schemes for employees of the Enlarged Group.
2. RISKS RELATING TO THE E-LEARNING MARKET
Adverse economic conditions may negatively impact the growth and development of
the e-learning market
Adverse economic conditions in major e-learning markets, such as the United
States and the United Kingdom, may negatively impact the growth and development
of the e-learning market. Any reduction in funding for e-learning initiatives or
reduction of spending by businesses (many of whom are currently focusing on cost
reduction strategies in the light of the current global economic slowdown) may
result in a reduction in demand for e-learning products and services.
Reductions in public sector funding may negatively impact demand in major
e-learning markets
One of the drivers of demand for e-learning services is public sector funding
for e-learning initiatives in major e-learning markets. A significant percentage
of the ThirdForce Group's revenue in the financial year ended 31 December 2008
related either to: spend by national or state or local government agencies or
authorities in the various jurisdictions in which the ThirdForce Group operates;
spend by schools and colleges in the United Kingdom, much of which is ultimately
funded by the United Kingdom government; or spend by corporate organisations in
respect of learning support services that were ultimately funded by the United
Kingdom government.
Any reduction in public sector funding for these initiatives could negatively
impact demand. Given current global economic conditions, it is possible that
governments may seek to cut their level of spending on such e-learning
initiatives.
The e-learning market is highly competitive and other market participants may
develop platforms or other technologies that render those used by the ThirdForce
Group less competitive or obsolete
The LearnVantage Directors' experience is that the e-learning market is a highly
competitive market that is characterised by rapid changes in customer
requirements, technological requirements and evolving market standards. Whilst
competitors vary in size and structure, each of these market participants may
develop platforms or other technologies that better meet the needs of customers.
Any such advances may render certain delivery formats such as those used by
members of the ThirdForce Group less competitive or obsolete.
The fragmentation of the e-learning market increases the risk that customers
will not develop strong relationships with a particular supplier
The LearnVantage Directors' experience is that the fragmentation of the
e-learning market increases the risk that customers will not develop strong
relationships with any one particular e-learning supplier, but will instead seek
to purchase e-learning solutions from several different suppliers on competitive
terms or move from one supplier to another.
Large competitors could use their market position and financial resources to
damage the business of the ThirdForce Group
The e-learning market has a number of large competitors who could use their
market position and financial resources to attack sectors that the ThirdForce
Group serves and thereby damage the business of the ThirdForce Group therein.
Acceptance of e-learning could decline, reducing the monetary value of the
e-learning market
E-learning has taken many years to be accepted within the market. There is no
guarantee that this acceptance will continue into the future. If acceptance
declines it is likely to quickly reduce the monetary value of the e-learning
market.
A slowdown in the growth of the e-learning market could have a material adverse
effect on the Enlarged Group's operating profits and position
The e-learning market is relatively young. While the e-learning market has been
experiencing growth in recent years the nature of such a new industry is that
growth rates may be unpredictable due to a lack of historical growth
information.
Accordingly, it is difficult for the LearnVantage Directors to predict with
certainty how and whether this market will develop. The failure of this market
to develop could have a material adverse effect on the Enlarged Group's
operating results and financial position.
Competition from other media could damage the prospects of the Enlarged Group
Today, e-learning is delivered via recognised media including PC, mobile phones,
personal digital appliances and television. If the large companies with a
significant presence in these media sectors become involved in e-learning it
could damage the prospects of the Enlarged Group.
There is an additional risk that new formats or standards may be adopted by the
e-learning industry which may be incompatible with existing e-learning products
developed by the ThirdForce Group.
3. RISKS RELATING TO THE THIRDFORCE GROUP
There is no guarantee that the ThirdForce Group will continue to retain its
current client base and win new customers
The revenues of the ThirdForce Group are dependent on its ability to retain its
current client base and to secure contracts with new customers. There is no
certainty that the ThirdForce Group will be able to keep its current client base
or to secure contracts with new customers on appropriate terms.
Major customers of the ThirdForce Group may cease to do business with it in the
future
Currently the ThirdForce Group has a well diversified customer base. However, if
the ThirdForce Group were to lose some of its major customers this would have a
material adverse effect on its operating results and financial position.
Acceptance of the ThirdForce Group's products by new customers is not guaranteed
Whilst the ThirdForce Group has already secured customers in a number of
countries, there are many other potential customers who have yet to purchase its
products. Whilst the LearnVantage Directors believe that the products of the
ThirdForce Group offer advantages over competing products it is possible that
potential customers may choose alternative products from competing suppliers.
Failure to develop and improve the ThirdForce Group's products would be
detrimental to its success
The performance of the ThirdForce Group in part depends on its ability to expand
the content of its existing programs, develop new programs in a cost-effective
manner and meet the needs of existing and prospective customers in a timely
manner. If the ThirdForce Group does not respond adequately to changes in market
conditions, its ability to attract and retain customers could be impaired and
its business, prospects and financial condition could suffer.
Loss of the ThirdForce Group's intellectual property through piracy or loss of
key development staff could impair its business and prospects
The ThirdForce Group's business model relies on the intellectual property
developed by its employees in producing e-learning solutions for clients. The
ThirdForce Group could lose some or all of its intellectual property through
piracy or its ability to develop further intellectual property could be impaired
by the loss of key development staff. Any such piracy or loss could impair its
business and prospects.
The ThirdForce Group's growth depends on it managing the demands on its
resources and personnel
The ThirdForce Group has grown since 2003 and it must manage the demands on its
own resources and personnel in order to maintain growth. The business strategy
of the ThirdForce Group is based on the assumption that it will continue to
retain sufficient qualified personnel who can contribute to its growth in the
future. The success of the ThirdForce Group as it grows is also dependent on
management exercising sound judgment in relation to the deployment of resources.
There is no guarantee that the Enlarged Group will be able to successfully
develop new technological platforms for delivery of the ThirdForce Group's
products
LearnVantage's strategy will be to seek to develop possible new technological
platforms for delivery of the products of the ThirdForce Group to end users,
however at this time LearnVantage does not know whether these will be
successfully developed or prove to be commercially successful. The development
of new technologies and software is an inherently risky process. In addition,
the speed with which the e-learning market evolves means that there is a risk
that the ThirdForce Group may spend time and resources in developing a
technology which could be substantially out of date by the time it reaches a
state of market readiness.
The ThirdForce Group's networks may be vulnerable to computer hackers and other
security problems
The ThirdForce Group's computer networks may be vulnerable to unauthorised
access, computer hackers, computer viruses and other security problems. A user
who circumvents security measures could misappropriate proprietary information
or cause interruptions or malfunctions in operations. Any such event which
damages the performance and reliability of the ThirdForce Group's technology
infrastructure could affect its ability to attract and retain customers.
The corporate insolvency of any bank with which the cash reserves of the
Enlarged Group are deposited or a significant increase in uncollectible
receivables may impair the Enlarged Group's credit position
Credit risk arises from cash and cash equivalents and deposits with banks, as
well as credit exposures to customers, including outstanding receivables and
committed transactions. The corporate insolvency of any bank with which cash
reserves of the Enlarged Group are deposited or a significant increase in the
level of uncollectible receivables due to adverse economic conditions or other
reasons may impair the credit position of the Enlarged Group.
Failure to attract, retain, develop and motivate appropriately skilled,
competent people could have an adverse effect on the ThirdForce Group
The LearnVantage Directors believe that the skills, efforts and motivation of
the ThirdForce Group's executive officers and key members of its senior
technical and management teams, who generally have significant experience within
the e-learning market, has contributed to the performance to date of the
ThirdForce Group. Its ongoing performance will, in part, be dependent on its
ability to attract, retain, develop and motivate appropriately skilled,
competent people at all levels of their respective organisations. There may at
any time be shortages in the availability of appropriately skilled people within
the core markets of the ThirdForce Group, and these shortages may have a
negative effect on the ThirdForce Group. The ThirdForce Group faces competition
for personnel from other companies and organisations. If the ThirdForce Group is
not able to successfully attract, retain, develop, and motivate such personnel,
it may not be able to maintain standards of service or continue to grow its
businesses as anticipated and this could have an adverse affect on the business
and prospects of the ThirdForce Group.
Until the Offer becomes or is declared unconditional in all respects
LearnVantage is not in a position to discuss its long term plans with key
personnel of the ThirdForce Group. LearnVantage has no specific plans to make
any changes at this time which would involve any material repercussions on
employment (including any immediate change to the conditions of employment of
ThirdForce's employees) and there are no current plans to change the principal
locations of ThirdForce's business or to redeploy any of its fixed assets. In
addition, LearnVantage's intention is that, upon the Offer becoming or being
declared unconditional in all respects, the existing employment rights of all
ThirdForce employees will be fully safeguarded as required by applicable law.
Following the closing of the Offer it is intended that LearnVantage will
establish a new share option plan which will provide for share options to be
granted primarily to key personnel in the Enlarged Group.
Infringement of third party intellectual property rights by the ThirdForce Group
could result in litigation and/or reputational damage
Any allegation of infringement, or actual infringement of a third party's
intellectual property rights by any member of the ThirdForce Group could result
in litigation and/or reputational damage to the ThirdForce Group.
Employee fraud could lead to a potential loss of both a financial and
competitive nature for the ThirdForce Group
Fraud by employees of the ThirdForce Group could result in damage to it.
Financial fraud by an employee could result in immediate financial loss to the
ThirdForce Group. Fraud in relation to its intellectual property, for instance
theft of intellectual property or dissemination of intellectual property, could
lead to potential loss of both a financial and a competitive nature for the
ThirdForce Group.
Withdrawal of approval relating to products which are currently approved for
sale by the ECDL Foundation and its national operators may reduce demand for the
ThirdForce Group's products
ThirdForce currently has a range of products which are approved for sale by the
ECDL Foundation and its national operators. The latest ECDL syllabus version of
the ThirdForce Group's products has not been approved by the Irish national
operator for distribution by the ThirdForce Group in Ireland, other than to one
customer. The United Kingdom national operator has approved the ThirdForce
Group's latest ECDL syllabus version for distribution by the ThirdForce Group in
the United Kingdom. If that approval were to be withdrawn in the future, for
whatever reason, it could result in the ThirdForce Group not being able to
continue to supply those products or negatively impact the standing of those
products in the e-learning market and could lead to a reduction in demand for
the affected products.
The involvement of any member of the ThirdForce Group in litigation may divert
senior management time and result in cost implications and negative publicity
The potential outcome of any litigation is inherently risky for a business. The
involvement of any member of the ThirdForce Group in litigation could result in
senior management diverting time and attention from the running of the business
of the ThirdForce Group and could result in cost implications and negative
publicity for the ThirdForce Group.
As at the date of this Announcement the LearnVantage Directors are not aware of
any material litigation ongoing or pending against any member of the ThirdForce
Group.
A change of control of ThirdForce pursuant to the Offer might result in a delay
of certain losses (which may be carried forward and offset against future tax
liabilities in the US) being available for utilisation by ThirdForce
At present the ThirdForce Group has losses in the US which it may be able to
carry forward and use to offset tax liabilities which would otherwise arise on
future operating profits. In certain circumstances, such as a change in control
of ThirdForce, the availability of these losses for offsetting against future
tax liabilities may be delayed. Acceptance of the Offer and, in particular
acceptance of the Cash Offer, by ThirdForce Shareholders may result in such a
change of control.
A change of control of ThirdForce pursuant to the Offer might result in the
termination of contracts material to the business of the ThirdForce Group
A number of the contracts to which members of the ThirdForce Group are party, in
particular, contracts with suppliers of content, or licences, for some of the
ThirdForce Group's e-learning products, contain provisions which entitle the
other contracting party to terminate the contract in the event of a change of
control of ThirdForce. These contracts are generally for the economic benefit of
the supplier or other contracting party. However, if all or a substantial number
of the suppliers or other contracting parties exercised their rights of
termination under these contracts after the Offer becomes or is declared
unconditional in all respects, the business of the ThirdForce Group could be
materially adversely affected. In the event that any supplier or licensor
exercises a right to terminate any contract with the ThirdForce Group after the
Offer becomes or is declared unconditional, alternative suppliers or licensors
would be sought to replace them.
4. RISKS RELATING TO LEARNVANTAGE SHARES
As LearnVantage is an unlisted company, LearnVantage Shares may suffer from a
lack of liquidity
No application will be made for LearnVantage Shares to be admitted to trading on
any regulated market for the purposes of the Prospectus Directive 2003/71/EC or
any other organised securities exchange or market. Consequently, LearnVantage
Shares may be difficult to sell and any potential shareholders must be willing
and able to invest in LearnVantage for an indefinite period of time and without
any anticipation of any public resale of LearnVantage Shares.
The LearnVantage Shares may not be a suitable investment for all ThirdForce
Shareholders. Before making a final decision, investors are advised to consult
an appropriate independent financial adviser who is duly authorised in the
jurisdiction in which the investor is taking advice and who specialises in
advising on the acquisition of shares and other securities.
The value of the LearnVantage Shares and any income received from them can go
down as well as up and investors may get back less than their original
investment.
Future share issues and sales of LearnVantage Shares could result in dilution
and reduce the influence of existing holders of LearnVantage Shares
Save for the proposed issue of the LearnVantage Shares pursuant to the Offer,
LearnVantage has no current plans for a further offering of LearnVantage Shares.
However, it is possible that LearnVantage may decide to offer additional
LearnVantage Shares in the future. An additional offering or sale of shares by
LearnVantage could result in dilution, could have an adverse affect on the value
of LearnVantage Shares and may result in existing shareholders' influence over
matters on which holders of LearnVantage Shares are entitled to vote being
reduced.
LearnVantage Shares are subject to certain rights and restrictions which are
different to those affecting ThirdForce Shares and are subject to restrictions
on transfer in relation to US Persons as set out in the Articles. It is intended
to re-register LearnVantage as a private limited company if it has less than 100
shareholders after the closing of the Offer which may further restrict the
transferability of LearnVantage Shares
LearnVantage Shares are subject to certain rights, restrictions and conditions
which do not apply to ThirdForce Shares. For example, LearnVantage Shares are
subject to certain "tag along" and "drag along" rights in the event of a sale of
a major share interest in LearnVantage. In addition, LearnVantage Shares are
"restricted securities" within the meaning of Rule 144 of the US Securities Act
and therefore transfers of the LearnVantage Shares in the United States or to a
US Person have significant restrictions and, in some instances, are even
prohibited. Consequently, there is a risk that holders of LearnVantage Shares
may not be able to dispose freely (if at all) of their LearnVantage Shares.
Further details of the rights, restrictions and conditions attaching to the
LearnVantage Shares will be set out in the Offer Document and Prospectus. In the
event that the Cash Offer is accepted by sufficient ThirdForce Shareholders such
that upon the closing of the Offer and the implementation of the Compulsory
Acquisition Procedure (if applicable) there are fewer than 100 holders of
LearnVantage Shares, the LearnVantage Directors intend to seek to re-register
LearnVantage as a private limited company. In the event that LearnVantage is
re-registered as a private limited company, transfers of shares in LearnVantage
will be subject to the restrictions on transfer of shares applicable for private
companies under Irish law, including, in particular, a restriction that the
number of members of LearnVantage may not exceed 99, not including persons who
are in the employment of LearnVantage and persons who, having been formerly in
the employment of LearnVantage, were, while in that employment, and have
continued after the termination of that employment to be, members of
LearnVantage.
APPENDIX V
Rights attaching to LearnVantage Shares
Voting rights
At a general meeting on a show of hands every member who (being an individual)
is present in person and every proxy and every member (being corporation) who is
present by a representative duly authorised under section 139 of the Act not
being himself a member, shall have one vote, so however that no individual shall
have more than one vote and on a poll every member present in person or by proxy
shall have one vote for every share of which he is the holder.
Dividends
Subject to the provisions of the Companies Acts, LearnVantage may by ordinary
resolution declare the dividends to be paid to the members according to their
respective rights and interests, but no dividend shall exceed the amount
recommended by the directors. Subject to the provisions of the Companies Acts,
the LearnVantage Board may pay to the members such interim dividends as appear
to them to be justified by the profits of LearnVantage available for
distribution.
Distribution of assets on liquidation
On a winding up, subject to any special rights attaching to any class of shares
(no such special rights presently being in existence) any surplus assets will
belong to the holders of any ordinary shares then in issue according to the
numbers of shares held by them. In addition, the liquidator may, with the
authority of a special resolution and any other sanction required by the
Companies Acts, divide among the members in kind the whole or any part of the
assets of LearnVantage. For this purpose the liquidator may set such value as he
deems fair upon any class or classes of property and may determine how the
division is carried out as between the members or different classes of members.
No contributory shall, however, be compelled to accept any asset in respect of
which there is a liability.
Transfer of shares
Subject to the restrictions referred to below, any member may transfer all or
any of his certificated shares by instrument in writing in any usual or common
form, or in such other form as the LearnVantage Board may approve. The
instrument of transfer shall be signed by or on behalf of the transferor and, in
the case of a partly paid up share or a share in respect of which LearnVantage
has a lien, by or on behalf of the transferee. The directors of LearnVantage
may, in their absolute discretion and without assigning any reason, refuse to
register a transfer of any share, not being a fully paid up share, provided that
they shall not exercise their discretion in such a way as to prevent dealings in
shares admitted to listing or trading on any recognised stock exchange taking
place on an open and proper basis. They may also refuse to register any transfer
of any share (whether fully paid or not) to an entity which is not a legal or
natural person, to a minor or to be held jointly by more than four persons. In
addition, they may restrict the registration of a transfer of any certified
shares where the shares concerned comprise, or comprise part of, a holding of at
least 0.25 per cent. of the issued shares of the relevant class and the
directors of LearnVantage have issued a notice under Section 81 of the 1990 Act
in respect of that holding which has not been complied with provided that
registration shall be permitted on receipt of a notice confirming that the
shareholding concerned has been sold to a third party or when LearnVantage is
satisfied that the shareholder has duly complied with the notice under Section
81 of the 1990 Act. The directors of LearnVantage may also decline to recognise
any instrument of transfer unless:
+--------+---------------------------------------------------------------+
| (a) | it is deposited duly stamped, or adjudged or certified as not |
| | chargeable to any stamp duty, at the place where the register |
| | of members is kept, accompanied by the certificate for the |
| | shares to which it relates and such other evidence as the |
| | directors of LearnVantage may reasonably require to show the |
| | right of the transferor to make the transfer, and |
+--------+---------------------------------------------------------------+
| (b) | it is in respect of only one class of certificated share; |
+--------+---------------------------------------------------------------+
The registration of transfers may be suspended by the directors of LearnVantage
for any period not exceeding 30 days in any year.
Limitation on shareholding
A separate register, apart from the register of members, shall be maintained of
all Record Holders.
Prior to any proposed sale, transfer or pledge of an Article 26 Security that
would result in a new Record Holder or Record Holders acquiring an Article 26
Security, the member proposing such sale, transfer or pledge will be required to
provide to LearnVantage notice in accordance with the Articles of such proposed
transfer, sale or pledge, which notice shall identify the proposed new Record
Holder or Record Holders and describe the manner and circumstances of the
proposed sale, transfer or pledge in sufficient detail.
In addition, unless there is in effect a registration statement under the US
Securities Act at the time of the proposed sale, transfer or pledge,
LearnVantage may require the notice (as set out above) to be accompanied at such
member's expense by any of (a) a written opinion of legal counsel who shall, and
whose legal opinion shall, be satisfactory to LearnVantage addressed to
LearnVantage, to the effect that the proposed transaction may be effected
without registration under the US Securities Act at the time of the proposed
sale, transfer or pledge; (b) a "no action" letter from the U.S. Securities and
Exchange Commission to the effect that the proposed sale, pledge or transfer of
such Article 26 Securities without registration will not result in a
recommendation by the staff of the U.S. Securities and Exchange Commission that
action be taken with respect thereto; or (c) any other evidence satisfactory to
counsel to LearnVantage to the effect that the proposed sale, pledge or transfer
of the Article 26 Securities may be effected without registration under the US
Securities Act.
LearnVantage, in its discretion, may require each certificate or instrument
evidencing Article 26 Securities to bear one or more of the following legends:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE "ACT"). OFFERS, SALES
OR TRANSFERS IN THE UNITED STATES OR TO A UNITED STATES PERSON (AS DEFINED IN
REGULATION S PROMULGATED UNDER THE ACT) OR FOR THE ACCOUNT AND BENEFIT OF A
UNITED STATES PERSON ARE NOT PERMITTED IN THE ABSENCE OF SUCH REGISTRATION OR A
VALID EXEMPTION FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
SAID ACT.
THE SALE, PLEDGE OR TRANSFER OF THE SECURITIES REPRESENTED HEREBY IS SUBJECT TO,
AND IN CERTAIN CASES PROHIBITED BY, THE TERMS AND CONDITIONS OF THE MEMORANDUM
AND ARTICLES OF ASSOCIATION OF LEARNVANTAGE PLC, A COPY OF WHICH MAY BE OBTAINED
UPON WRITTEN REQUEST TO THE COMPANY.
By acquiring Article 26 Securities, the members shall be deemed to have
consented to LearnVantage making a notation in its records and giving
instructions to any transfer agent of the Article 26 Securities in order to
implement the restrictions on transfer set forth above.
The LearnVantage Board may decline to register any purported transfer of any
Article 26 Security and no transferee of any such Article 26 Security shall be
registered as a member of LearnVantage if the LearnVantage Board determines that
such transfer would be reasonably likely to result in LearnVantage becoming
subject to the periodic reporting requirements of Section 12(g) of the US
Securities Exchange Act.
Any resolution, decision, determination or exercise of any discretion or power
by the LearnVantage Board in relation to this limitation shall be final and
conclusive and the LearnVantage Board shall not be obligated to give any reasons
therefor.
Issue and allotment of shares
Subject to the provisions of the Articles and the Companies Acts relating to the
authority to allot shares, the minimum amount payable on allotments by public
limited companies and otherwise and to any resolution of LearnVantage in general
meeting passed pursuant thereto, the unissued shares of LearnVantage (whether
forming part of the original or any increased capital) or rights to subscribe
for or convert any security into shares, shall be under the control of the
directors of LearnVantage who may offer, allot, grant options over or otherwise
dispose of them to such persons, on such terms and conditions and at such times
as they shall think fit, but so that no share shall be allotted at a discount.
The allotment of shares in LearnVantage is subject to the statutory pre-emption
rights contained in Section 23 of the Companies (Amendment) Act 1983 (which
confers on shareholders rights of pre-emption in respect of the allotment of
equity securities which are, or are to be, paid up in cash).
Board appointment
Any shareholder shall for so long as he either individually or together with
related parties (as defined in the Articles) holds shares in LearnVantage
representing 50 per cent. or more of the issued voting shares in the capital of
LearnVantage be entitled to appoint up to three directors (and to remove and
replace his/its appointed directors as he/it sees fit).
Any shareholder shall for so long as he either individually or together with
related parties (as defined in the Articles) holds shares in LearnVantage
representing 30 per cent. or more of the issued voting shares in the capital of
LearnVantage but less than 50 per cent. be entitled to appoint up to one
director (and to remove and replace his/its appointed director as he/it
decides).
Borrowing powers
The directors of LearnVantage may exercise all the powers of LearnVantage to
borrow money and to mortgage or charge all or any part of its undertaking,
property and assets (both present and future), including its uncalled capital
and, subject to the Companies Acts, to issue debentures and other securities,
whether outright or as collateral security, for any debt, liability or
obligation of LearnVantage or of any third party.
Related party transactions
A "related party transaction" is any transaction between LearnVantage (or any
subsidiary of LearnVantage) and a director or majority shareholder of
LearnVantage or a related party of that director or shareholder (being a spouse,
of that director or shareholder or a company controlled by that director or
shareholder or the spouse, of that director or shareholder); for these purposes
"control" means either control of a majority of the shareholder voting interests
or control of the board, provided that any transaction concerning the
remuneration of any director (including without limitation the salary, pension
and other benefits of the director, director's fees and the granting of options
over LearnVantage's shares to the director) which has been approved by the
remuneration committee of LearnVantage or the payment or reimbursement of
expenses properly incurred by any director in the course of his duties or the
arrangement of directors and officers insurance shall not constitute a related
party transaction.
Any related party transaction will require (at the discretion of the directors
of LearnVantage excluding any relevant related party director) either:
+--------+---------------------------------------------------------------+
| (a) | an opinion from a suitably-qualified independent third party |
| | that any consideration being paid by or received by |
| | LearnVantage (or its relevant subsidiary) in respect of that |
| | transaction is at a fair value; or |
+--------+---------------------------------------------------------------+
| (b) | an ordinary resolution of the shareholders of LearnVantage |
| | approving the transaction (in respect of which vote any |
| | related director or related shareholder shall be excluded |
| | from voting any shares in LearnVantage in which they are |
| | interested). |
+--------+---------------------------------------------------------------+
Tag-along rights
Tag-along rights will apply when any shareholder holding 40 per cent. or more of
the issued share capital of LearnVantage proposes to sell a majority of his
shares to any one purchaser or purchasers acting in concert or within any
consecutive six month period, disposes of a majority of the shares in
LearnVantage held by him whether in one transaction or through a series of
transactions to any one purchaser or purchasers acting in concert.
The selling shareholder must first give LearnVantage written notice (a "tag
along notice") of the proposed sale specifying (a) the number of shares that the
seller proposes to sell; (b) the identity of the proposed purchaser(s); (c) the
price per share that the purchaser(s) propose to pay; and (d) any other terms
and conditions applicable to the proposed sale.
The remaining shareholders have the right, by notifying the selling shareholder
within 10 days of receiving such notice that they wish to exercise their tag
along right entitling them to sell shares in LearnVantage of the same class as
the shares being sold by the selling shareholder. The maximum number of shares
in LearnVantage that any remaining shareholder may sell upon exercise of this
tag along right shall be such number as bears the same proportion to the number
of shares in LearnVantage which the selling shareholder proposes to sell as the
number of shares in LearnVantage held by the remaining shareholder bears to the
total number of shares in LearnVantage in issue.
When the 10 day period has expired the selling shareholder shall be entitled to
sell to the purchaser(s) the number of shares in LearnVantage set out in the
tag-along notice (less any shares in LearnVantage which the remaining
shareholders have indicated they wish to sell) on the terms set out in the tag
along notice provided that, at the same time, the purchaser(s) buy from each of
the remaining shareholders who have indicated they wish to exercise their tag
along rights the number of shares in LearnVantage in respect of which each of
them has exercised those rights in each case on the same terms and conditions as
are set out in the tag along notice.
These procedures shall not apply to any transfer of LearnVantage Shares which
(a) is by a partnership to its partners or retired partners in accordance with
partnership interests; (b) is by a body corporate to any subsidiary or holding
company of that body corporate or to any subsidiary of any holding company of
that body corporate; or (c) which is by an individual to any of his or her
immediate family members or to a trust for the benefit of all or any of his or
her immediate family members.
Drag-along rights
A drag-along right will apply where a shareholder or shareholders together
holding 60 per cent. or more of the voting shares in LearnVantage (the "relevant
majority") wish to accept an offer from a third party purchaser, or purchasers
acting in concert, to purchase the entire issued share capital of LearnVantage.
Where exercised the drag-along right will entitle the relevant majority to
compel the other shareholders to sell their shares in LearnVantage to the third
party purchaser at the same price as the price at which the shares of the
relevant majority are being sold.
If the third party purchaser is, or (where it consists of purchasers acting in
concert) includes a related party of any of the relevant majority then prior to
exercising the drag rights the relevant majority must first obtain either:
+--------+---------------------------------------------------------------+
| (a) | an opinion from a suitably qualified independent third party |
| | that the proposed price of the offer is fair and reasonable; |
| | or |
+--------+---------------------------------------------------------------+
| (b) | the approval of the offer by the members of LearnVantage by |
| | way of ordinary resolution passed at a general meeting of |
| | LearnVantage (in respect of which resolution the relevant |
| | majority may not vote). |
+--------+---------------------------------------------------------------+
For these purposes a related party is someone who is part of the relevant
majority, or a spouse of any of the relevant majority or a company or other body
corporate controlled by any of the relevant majority and/or the spouse of any of
the relevant majority and "control" means either control of a majority of the
shareholder voting interests or control of the board of that company or body
corporate.
Those shareholders to whom the drag-along right applies shall deliver to
LearnVantage stock transfer forms for all the shares in LearnVantage held by
them together with the relevant share certificates relating to such shares (or a
suitable indemnity). If any shareholder shall fail to deliver the said documents
then the chairman of the directors of LearnVantage, or failing him, any person
nominated by the relevant majority is nominated as the duly appointed attorney
of such shareholder with full power to transfer all of the shares held by him in
LearnVantage to the proposed purchaser.
APPENDIX VI
Definitions and further interpretation
1. Definitions
The following definitions apply throughout this Announcement, unless the context
requires otherwise:
+-------------------------+----+--------------------------------------------------------+
| "1990 Act" | | the Companies Act 1990 of Ireland |
| | | (as amended); |
+-------------------------+----+--------------------------------------------------------+
| "Accredited Investors" | | "accredited investors" as |
| | | described in Rule 501(a) of |
| | | Regulation D promulgated under the |
| | | US Securities Act; |
+-------------------------+----+--------------------------------------------------------+
| "Act" | | the Companies Act 1963 of Ireland |
| | | (as amended); |
+-------------------------+----+--------------------------------------------------------+
| "AIM" | | the AIM market, operated by the |
| | | London Stock Exchange; |
+-------------------------+----+--------------------------------------------------------+
| "Alternatives" | | any of the Share Offer, the |
| | | Composite Offer or the Cash Offer; |
+-------------------------+----+--------------------------------------------------------+
| "Announcement" | | this Announcement of the Offer |
| | | dated 9 November 2009 made |
| | | pursuant to Rule 2.5 of the |
| | | Takeover Rules; |
+-------------------------+----+--------------------------------------------------------+
| "Article 26 Security" | | any equity security of |
| | | LearnVantage whether or not |
| | | currently authorised, as well as |
| | | rights, options or warrants to |
| | | purchase such equity securities, |
| | | or securities of any type |
| | | whatsoever that are, or may |
| | | become, convertible or |
| | | exchangeable into or exercisable |
| | | for such equity securities; |
+-------------------------+----+--------------------------------------------------------+
| "Articles" | | the Articles of Association of |
| | | LearnVantage; |
+-------------------------+----+--------------------------------------------------------+
| "Authorisations" | | shall have the meaning given to |
| | | such term in paragraph (c) of |
| | | Appendix II to this Announcement; |
+-------------------------+----+--------------------------------------------------------+
| "Business Day" | | any day, other than a Saturday, |
| | | Sunday or public holiday or bank |
| | | holiday, on which banks are |
| | | generally open for business in |
| | | Dublin and the Irish Stock |
| | | Exchange is open for transaction |
| | | of business; |
+-------------------------+----+--------------------------------------------------------+
| "Cash Consideration" | | as appropriate, the cash |
| | | consideration of EUR0.105 per share |
| | | payable to ThirdForce Shareholders |
| | | who elect to accept the Cash Offer |
| | | or the cash consideration of EUR0.12 |
| | | per share payable to those |
| | | ThirdForce Shareholders who elect |
| | | to accept the Composite Offer in |
| | | respect of every fourth ThirdForce |
| | | Share in respect of which they |
| | | have elected to accept the |
| | | Composite Offer; |
+-------------------------+----+--------------------------------------------------------+
| "Cash Offer" | | the cash offer (recommended for |
| | | acceptance by the Independent |
| | | Directors) whereby, pursuant to |
| | | the Offer, ThirdForce Shareholders |
| | | may elect (subject to certain |
| | | limitations and conditions) to |
| | | receive EUR0.105 per share for each |
| | | ThirdForce Share held by them; |
+-------------------------+----+--------------------------------------------------------+
| "certificated" or "in | | where a share or other security is |
| certificated form" | | not in uncertificated form (that |
| | | is NOT in CREST); |
+-------------------------+----+--------------------------------------------------------+
| "Companies Acts" | | the Companies Acts 1963 to 2009 of |
| | | Ireland (as amended); |
+-------------------------+----+--------------------------------------------------------+
| "Composite Offer" | | the offer whereby, pursuant to the |
| | | Offer, ThirdForce Shareholders may |
| | | elect (subject to certain |
| | | limitations and conditions) to |
| | | receive 3 LearnVantage Shares and |
| | | EUR0.12 in cash for every 4 |
| | | ThirdForce Shares held by them; |
+-------------------------+----+--------------------------------------------------------+
| "Compulsory Acquisition | | means the procedure or application |
| Procedure" | | intended to be implemented |
| | | pursuant to Section 204 of the Act |
| | | to compulsorily acquire ThirdForce |
| | | Shares held in persons who have |
| | | not otherwise accepted the Offer, |
| | | details of which are set out in |
| | | paragraph 16 of this Announcement |
| | | (Compulsory Acquisition, |
| | | Delisting, Cancellation of |
| | | Admission to Trading and |
| | | Re-registration); |
+-------------------------+----+--------------------------------------------------------+
| "CREST" | | the relevant system (as defined in |
| | | the CREST Regulations) in respect |
| | | of which EUI is the Operator (as |
| | | defined in the CREST Regulations); |
+-------------------------+----+--------------------------------------------------------+
| "CREST Regulations" | | the Companies Act 1990 |
| | | (Uncertificated Securities) |
| | | Regulations, 1996 (SI No 68 of |
| | | 1996) and the Companies Act 1990 |
| | | (Uncertificated Securities) |
| | | (Amendment) Regulations 2005 (SI |
| | | No 693 of 2005) and such other |
| | | regulations made under s.239 of |
| | | the Companies Act 1990 having |
| | | force in Ireland as are applicable |
| | | to EUI and/or CREST and are from |
| | | time to time in force; |
+-------------------------+----+--------------------------------------------------------+
| "Dolmen" | | Dolmen Corporate Finance Limited, |
| | | of 75 St. Stephen's Green, Dublin |
| | | 2, Ireland, a division of Dolmen |
| | | Securities Limited which is |
| | | regulated in Ireland by the |
| | | Financial Regulator; |
+-------------------------+----+--------------------------------------------------------+
| "Dublin Closing Price" | | the closing price of a ThirdForce |
| | | Share as derived from the IEX |
| | | section of the Irish Stock |
| | | Exchange Daily Official List; |
+-------------------------+----+--------------------------------------------------------+
| "EBITDA" | | Earnings before interest, tax, |
| | | depreciation and amortisation; |
+-------------------------+----+--------------------------------------------------------+
| "EEA" | | the European Economic Area; |
+-------------------------+----+--------------------------------------------------------+
| "Enlarged Group" | | the group of companies comprising |
| | | LearnVantage and the ThirdForce |
| | | Group that will be formed upon the |
| | | Offer becoming or being declared |
| | | unconditional in all respects; |
+-------------------------+----+--------------------------------------------------------+
| "EUI" | | Euroclear UK and Ireland Limited |
| | | (formerly known as CRESTCo |
| | | Limited) incorporated in England |
| | | and Wales under number 2878738 and |
| | | whose registered office is at 33 |
| | | Cannon Street, London, EC4M 5SB; |
+-------------------------+----+--------------------------------------------------------+
| "Euro" or "EUR" | | euro, the lawful currency of |
| | | Ireland; |
+-------------------------+----+--------------------------------------------------------+
| "Excluded Territories" | | Canada, South Africa, Australia |
| | | and Japan and any other |
| | | jurisdiction, their territories |
| | | and possessions, where it would be |
| | | unlawful for this Announcement, |
| | | the Offer Document, the Prospectus |
| | | and the Forms of Acceptance to be |
| | | released, forwarded, transmitted, |
| | | published or distributed, in whole |
| | | or in part, or for the Offer to be |
| | | accepted, and "Excluded Territory" |
| | | shall be construed accordingly; |
+-------------------------+----+--------------------------------------------------------+
| "Final Closing Date" | | (i) if the Offer is declared |
| | | unconditional in all respects |
| | | whichever is the later of: |
| | | (a) the date which is 14 days |
| | | after the date on which the Offer |
| | | is declared unconditional in all |
| | | respects, and |
| | | (b) if LearnVantage implements the |
| | | Compulsory Acquisition Procedure, |
| | | the date which is 14 days after |
| | | the date on which LearnVantage |
| | | gives notice of the Compulsory |
| | | Acquisition Procedure, or |
| | | (ii) if the Offer lapses or is |
| | | withdrawn the date on which the |
| | | Offer lapses or is withdrawn; |
+-------------------------+----+--------------------------------------------------------+
| "Financial Regulator" | | the Irish Financial Services |
| | | Regulatory Authority; |
+-------------------------+----+--------------------------------------------------------+
| "Form of Acceptance" | | the Form of Acceptance for Non-US |
| | | Persons or the Form of Acceptance |
| | | for US Persons as the case may be, |
| | | and the term "Forms of Acceptance" |
| | | shall be construed accordingly; |
+-------------------------+----+--------------------------------------------------------+
| "Form of Acceptance for | | the form of acceptance and |
| non-US Persons" | | authority for non-US Persons for |
| | | use by ThirdForce Shareholders in |
| | | relation to the Offer which is to |
| | | be posted to ThirdForce |
| | | Shareholders together with the |
| | | Offer Document and the Prospectus; |
+-------------------------+----+--------------------------------------------------------+
| "Form of Acceptance for | | the form of acceptance and |
| US Persons" | | authority for US Persons for use |
| | | by ThirdForce Shareholders in |
| | | relation to the Offer which is to |
| | | be posted to ThirdForce |
| | | Shareholders together with the |
| | | Offer Document and the Prospectus; |
+-------------------------+----+--------------------------------------------------------+
| "Goodbody Corporate | | Goodbody Corporate Finance, of |
| Finance" | | Ballsbridge Park, Ballsbridge, |
| | | Dublin 4, which is regulated in |
| | | Ireland by the Financial |
| | | Regulator; |
+-------------------------+----+--------------------------------------------------------+
| "IEX" | | the IEX market, operated by the |
| | | Irish Stock Exchange; |
+-------------------------+----+--------------------------------------------------------+
| "Independent Directors" | | Mr. Mike Newton, Mr. Edwin |
| | | Robinson and Ms. Carol Clark, |
| | | being the independent directors of |
| | | ThirdForce for the purposes of the |
| | | Offer; |
+-------------------------+----+--------------------------------------------------------+
| "Initial Closing Date" | | the date which is set as the |
| | | initial closing date of the Offer |
| | | in the Offer Document; |
+-------------------------+----+--------------------------------------------------------+
| "Interim Report" | | the interim report of ThirdForce |
| | | for the six months ended 30 June |
| | | 2009 reported on by its auditors |
| | | PricewaterhouseCoopers; |
+-------------------------+----+--------------------------------------------------------+
| "intra-ThirdForce Group | | shall have the meaning given to |
| transaction" | | such term in paragraph (e) of |
| | | Appendix II to this Announcement; |
+-------------------------+----+--------------------------------------------------------+
| "Irish Stock Exchange" | | The Irish Stock Exchange Limited; |
+-------------------------+----+--------------------------------------------------------+
| "Ireland" | | Ireland excluding Northern Ireland |
| | | and the word "Irish" shall be |
| | | construed accordingly; |
+-------------------------+----+--------------------------------------------------------+
| "LearnVantage" | | LearnVantage Plc, a public limited |
| | | company incorporated in Ireland |
| | | with registration number 468837; |
+-------------------------+----+--------------------------------------------------------+
| "LearnVantage Board" | | the board of directors of |
| | | LearnVantage as constituted from |
| | | time to time; |
+-------------------------+----+--------------------------------------------------------+
| "LearnVantage | | the directors of LearnVantage as |
| Directors" | | at the date of this Announcement, |
| | | being Mr. Brendan O'Sullivan and |
| | | Mr. Pat McDonagh; |
+-------------------------+----+--------------------------------------------------------+
| "LearnVantage Shares" | | ordinary shares of EUR0.004 each in |
| | | the capital of LearnVantage; |
+-------------------------+----+--------------------------------------------------------+
| "Loan and Subscription | | the agreement entered into between |
| Agreement" | | Mr. Pat McDonagh and LearnVantage |
| | | which regulates the terms of the |
| | | loan(s) and subscription to be |
| | | made by Mr. Pat McDonagh to |
| | | LearnVantage for the purposes of |
| | | the Offer as further described in |
| | | paragraph 12 of this Announcement; |
+-------------------------+----+--------------------------------------------------------+
| "London Stock Exchange" | | London Stock Exchange Plc; |
+-------------------------+----+--------------------------------------------------------+
| "Material Subsidiary" | | shall have the meaning given to |
| | | such term in paragraph (c) of |
| | | Appendix II to this Announcement; |
+-------------------------+----+--------------------------------------------------------+
| "Offer" | | the offer to be made by |
| | | LearnVantage for the ThirdForce |
| | | Shares on the terms and subject to |
| | | the conditions to be set out in |
| | | the Offer Document and, where the |
| | | context so requires, any |
| | | subsequent revision, renewal, |
| | | variation or extension thereof |
+-------------------------+----+--------------------------------------------------------+
| "Offer Assumptions" | | the |
| | | following |
| | | assumptions: |
| | | all |
| | | ThirdForce |
| | | Shareholders |
| | | as at the |
| | | date of this |
| | | Announcement |
| | | will accept |
| | | the Share |
| | | Offer, |
| | | resulting in |
| | | the issue of |
| | | 259,376,281 |
| | | LearnVantage |
| | | Shares |
| | | pursuant to |
| | | the Offer. |
| | | In this |
| | | regard it is |
| | | not possible |
| | | to determine |
| | | the level of |
| | | acceptances |
| | | that may be |
| | | received in |
| | | respect of |
| | | either the |
| | | Share Offer |
| | | or the |
| | | Composite |
| | | Offer as at |
| | | the date of |
| | | this Announcement; |
| | | the Third Party |
| | | Expenses will |
| | | amount to |
| | | EUR1,850,000; and |
| | | none of the |
| | | outstanding options |
| | | in respect of |
| | | ThirdForce Shares |
| | | are exercised by |
| | | the Option Holders |
| | | prior to the |
| | | closing of the |
| | | Offer; |
| | | |
+-------------------------+----+--------------------------------------------------------+
| "Offer Document" | | the offer document to be posted to |
| | | ThirdForce Shareholders as soon as |
| | | practicable following the date of |
| | | this Announcement containing and |
| | | setting out, amongst other things, |
| | | the terms and conditions of the |
| | | Offer and certain information |
| | | about ThirdForce and LearnVantage |
| | | and the Offer; |
+-------------------------+----+--------------------------------------------------------+
| "Offer Period" | | the period commencing on 30 March |
| | | 2009 and ending on the earlier of |
| | | (i) the Initial Closing Date or, |
| | | if later, the time and date on |
| | | which the Offer becomes |
| | | unconditional as to acceptances; |
| | | and (ii) the time and date on |
| | | which the Offer lapses or is |
| | | withdrawn; |
+-------------------------+----+--------------------------------------------------------+
| "Option Holders" | | holders of options over ordinary |
| | | shares of EUR0.125 each in |
| | | ThirdForce granted either under |
| | | the ThirdForce Share Option Plan |
| | | or pursuant to option agreements |
| | | entered into between ThirdForce |
| | | and the holders of the option, as |
| | | the case may be; |
+-------------------------+----+--------------------------------------------------------+
| "Panel" | | the Irish Takeover Panel; |
+-------------------------+----+--------------------------------------------------------+
| "Prospectus" | | the document to be issued by |
| | | LearnVantage in relation to the |
| | | Offer which will be filed with the |
| | | Financial Regulator in accordance |
| | | with the Prospectus Directive |
| | | 2003/71/EC and Prospectus |
| | | Regulations 2005 and which is to |
| | | be posted to ThirdForce |
| | | Shareholders together with the |
| | | Offer Document and the Forms of |
| | | Acceptance as soon as practicable |
| | | following the date of this |
| | | Announcement; |
+-------------------------+----+--------------------------------------------------------+
| "Prospectus Directive | | the European Union Directive |
| 2003/71/EC" | | 2003/71/EC of the European |
| | | Parliament and of the European |
| | | Council of 4 November 2003; |
+-------------------------+----+--------------------------------------------------------+
| "Prospectus Regulations | | the Prospectus (Directive |
| 2005" | | 2003/71/EC) Regulations 2005 of |
| | | Ireland; |
+-------------------------+----+--------------------------------------------------------+
| "Record Holder" | | any person or entity that is |
| | | deemed to hold, as determined in |
| | | accordance with Rule 12g5-1 |
| | | promulgated pursuant to the U.S. |
| | | Securities Exchange Act, Article |
| | | 26 Securities for purposes of |
| | | determining whether LearnVantage |
| | | is subject to the periodic |
| | | reporting requirements of Section |
| | | 12(g) of the U.S. Securities |
| | | Exchange Act; |
+-------------------------+----+--------------------------------------------------------+
| "Rest of the World" | | the world excluding the United |
| | | States, the United Kingdom and |
| | | Ireland; |
+-------------------------+----+--------------------------------------------------------+
| "Share Offer" | | the offer whereby, pursuant to the |
| | | Offer, ThirdForce Shareholders may |
| | | elect, (subject to certain |
| | | limitations and conditions), to |
| | | receive one LearnVantage Share in |
| | | exchange for each ThirdForce Share |
| | | held by them; |
+-------------------------+----+--------------------------------------------------------+
| "Takeover Rules" | | the Irish Takeover Panel Act 1997, |
| | | Takeover Rules 2007 and 2008; |
+-------------------------+----+--------------------------------------------------------+
| "ThirdForce" | | ThirdForce Plc, a public limited |
| | | company incorporated in Ireland |
| | | with registered number 271467; |
+-------------------------+----+--------------------------------------------------------+
| "ThirdForce Board" | | the board of directors of |
| | | ThirdForce as constituted from |
| | | time to time; |
+-------------------------+----+--------------------------------------------------------+
| "ThirdForce Directors" | | the directors of ThirdForce as at |
| | | the date of this Announcement, |
| | | being Mr. Brendan O'Sullivan, Mr. |
| | | Pat McDonagh, Ms. Eimer McGovern, |
| | | Mr. Alan Maguire, Mr. Mike Newton, |
| | | Mr. Edwin Robinson and Ms. Carol |
| | | Clark; |
+-------------------------+----+--------------------------------------------------------+
| "ThirdForce Group" | | ThirdForce and its subsidiary |
| | | undertakings including its |
| | | associated undertakings and any |
| | | entities in which ThirdForce Group |
| | | or any of its subsidiary |
| | | undertakings including its |
| | | associated undertakings holds a |
| | | substantial interest. For this |
| | | purpose "substantial interest" |
| | | means an interest in 20 per cent |
| | | or more of the voting equity |
| | | capital of an undertaking; |
+-------------------------+----+--------------------------------------------------------+
| "ThirdForce | | holders of ThirdForce Shares; |
| Shareholders" | | |
+-------------------------+----+--------------------------------------------------------+
| "ThirdForce Share | | the share option plan established |
| Option Plan; | | by ThirdForce in 2003; |
+-------------------------+----+--------------------------------------------------------+
| "ThirdForce Shares" | | the existing issued fully paid |
| | | ordinary shares of EUR0.125 each in |
| | | the capital of ThirdForce as at |
| | | the date of the Offer Document and |
| | | any further ordinary shares of |
| | | EUR0.125 each in the capital of |
| | | ThirdForce which are |
| | | unconditionally allotted or issued |
| | | after the date of the Offer |
| | | Document and before the Final |
| | | Closing Date or, if LearnVantage |
| | | implements the Compulsory |
| | | Acquisition Procedure, the date on |
| | | which implementation of the |
| | | Compulsory Acquisition Procedure |
| | | is completed (or before such other |
| | | time as LearnVantage may, subject |
| | | to the Takeover Rules, decide in |
| | | accordance with the terms and |
| | | conditions of the |
| | | Offer) including, without |
| | | limitation, any ThirdForce Shares |
| | | which are unconditionally allotted |
| | | or issued pursuant to any exercise |
| | | by Option Holders of their |
| | | options; |
+-------------------------+----+--------------------------------------------------------+
| "Third Party" | | shall have the meaning given to |
| | | such term in paragraph (b) of |
| | | Appendix II to this Announcement; |
+-------------------------+----+--------------------------------------------------------+
| "Third Party Expenses" | | third party costs and expenses |
| | | incurred by LearnVantage in |
| | | connection with the Offer together |
| | | with any stamp duty payable by |
| | | LearnVantage upon acquisition of |
| | | the ThirdForce Shares; |
+-------------------------+----+--------------------------------------------------------+
| "uncertificated" or "in | | recorded on the relevant register |
| uncertificated form" | | of the share or security concerned |
| | | as being in uncertificated form in |
| | | CREST and title to which may be |
| | | transferred by means of CREST; |
+-------------------------+----+--------------------------------------------------------+
| "unconditional as to | | satisfaction, in accordance with |
| acceptances" | | Rule 10.6(a) of the Takeover |
| | | Rules, of the condition set out in |
| | | paragraph (a) in Appendix II of |
| | | this Announcement; |
+-------------------------+----+--------------------------------------------------------+
| "unconditional in all | | satisfaction or waiver of all of |
| respects" | | the conditions set out in Appendix |
| | | II of this Announcement; |
+-------------------------+----+--------------------------------------------------------+
| "United Kingdom" or | | the United Kingdom of Great |
| "UK" | | Britain and Northern Ireland; |
+-------------------------+----+--------------------------------------------------------+
| "United States" or "US" | | the United States of America, its |
| | | territories and possessions, any |
| | | State of the United States of |
| | | America and the District of |
| | | Colombia; |
+-------------------------+----+--------------------------------------------------------+
| "US Person" | | has the meaning assigned to such |
| | | term in paragraph 18 of this |
| | | Announcement; |
+-------------------------+----+--------------------------------------------------------+
| "US Securities Act" | | the United States Securities Act |
| | | of 1934, as amended, and the rules |
| | | and regulations promulgated |
| | | thereunder; |
+-------------------------+----+--------------------------------------------------------+
| "US Securities Exchange | | the United States Securities Act |
| Act" | | of 1934, as amended, and the rules |
| | | and regulations promulgated |
| | | thereunder; and |
+-------------------------+----+--------------------------------------------------------+
| "Wider ThirdForce | | shall have the meaning given to |
| Group" | | such term in paragraph (i) |
| | | Appendix II of this Announcement. |
+-------------------------+----+--------------------------------------------------------+
2. Further Interpretation
In this Announcement:
All amounts referred to by "EUR" and "c" refer to euro and cent.
Any references to "subsidiary undertaking", "associated undertaking" and
"undertaking" have the meanings given by the European Communities (Companies:
Group Accounts) Regulations 1992.
Any reference to "subsidiary" has the meaning given to it by Section 155 of the
Act, as amended.
Any references to any provision of any legislation shall include any amendment,
modification, re-enactment or extension thereof. Any reference to any
legislation is to Irish legislation unless specified otherwise.
Words importing the singular shall include the plural and vice versa and words
importing the masculine shall include the feminine or neuter gender.
END
This information is provided by RNS
The company news service from the London Stock Exchange
END
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