REG - Xpediator PLC - Documents incorporated by reference – translations

XpediatorAnnouncement

09/05/2023 07:15

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RNS Number : 6565Y  Xpediator PLC  09 May 2023

NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR
INDIRECTLY IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A
VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF SUCH JURISDICTION.

FOR IMMEDIATE RELEASE

9 May 2023

RECOMMENDED CASH OFFER

for

XPEDIATOR PLC

by

DLM BIDCO LIMITED

a newly incorporated entity to be indirectly owned by (i) funds advised by
BaltCap, (ii) Cogels Investments and (iii) Nuoma IR Kapitalas, as members of
the Consortium to be effected by means of a Scheme of Arrangement under Part
26 of the Companies Act 2006 (the "Scheme")

Documents incorporated by reference - availability of translations

On 4 May 2023, Xpediator PLC ("Xpediator"), announced the publication of the
circular in relation to the Scheme (the "Scheme Document"). As referred to in
Part VII, Paragraph 3 of the Scheme Document, financial information in respect
of members of the Consortium is incorporated by reference into the Scheme
Document in accordance with Rule 24.15 of the Takeover Code.

English translations of (i) the fiscal year report of BaltCap Private Equity
Fund III usaldusfond for the financial year ended 31 December 2021 and (ii)
the fiscal year report of BPEF III Supplementary Investment Facility
usaldusfond for the financial years ended 31 December 2022 and 31 December
2021 have today been published and will be available on Xpediator's website at
https:// (https://www.xpediator.com/offer-for-xpediator-plc/)
www.xpediator.com/offer-for-xpediator-plc/
(https://www.xpediator.com/offer-for-xpediator-plc/) and on BaltCap's website
at https://www.baltcap.com/offer-for-xpediator-plc/
(https://www.baltcap.com/offer-for-xpediator-plc/) .

Capitalised terms used in this announcement, unless otherwise defined, have
the same meanings as set out in the Scheme Document.

Enquiries:

Bidco

Šarūnas Alekna

Stephen Blyth
 
     Tel: +370 5254 6713

Rothschild &
Co
 

(Financial adviser to Bidco)

Stuart Vincent

Harry
O'Connor
                   Tel: +44 (0)20 7280 5000

Xpediator

Gillian Wilmot CBE, Interim Chairman

Mike Stone, Interim CEO

Graham Moore, Interim
COO
      Tel: +44 (0)330 043 2395

Zeus Capital

(Financial adviser, Nominated Adviser and corporate broker to Xpediator)

David Foreman

Jamie Peel

James Hornigold
                                                 Tel:
+44 (0)20 3829 5000

Novella Communications

(Financial Public Relations to Xpediator)
Tim Robertson

Safia Colebrook
 
Tel: +44 (0)20 3151 7008

Travers Smith LLP is providing legal advice to BaltCap and Bidco. Addleshaw
Goddard LLP is providing legal advice to Xpediator.

Important notices

Rothschild & Co, which is authorised and regulated in the United Kingdom
by the FCA, is acting as financial adviser to Bidco and for no one else in
connection with subject matter of this announcement and will not be
responsible to anyone other than Bidco for providing the protections afforded
to its clients or for providing advice in relation to the subject matter of
this announcement, the contents of this announcement or any other matters
referred to in this announcement. Neither Rothschild & Co nor any of its
affiliates (nor their respective directors, officers, employees or agents)
owes or accepts any duty, liability or responsibility whatsoever (whether
direct or indirect, whether in contract, in tort, under statute or otherwise)
to any person who is not a client of Rothschild & Co in connection with
this announcement, any statement contained herein, the Offer or otherwise. No
representation or warranty, express or implied, is made by Rothschild & Co
as to the contents of this announcement.

Zeus Capital, which is authorised and regulated in the United Kingdom by the
FCA, is acting as financial adviser to Xpediator and for no one else in
connection with the Offer and will not be responsible to anyone other than
Xpediator for providing the protections afforded to its clients nor for
providing advice in relation to the Offer, the contents of this announcement
or any other matters referred to in this announcement. Neither Zeus Capital
nor any of its affiliates owes or accepts any duty, liability or
responsibility whatsoever (whether direct or indirect, whether in contract, in
tort, under statute or otherwise) to any person who is not a client of Zeus
Capital in connection with this announcement, any statement contained herein,
the Offer or otherwise. No representation or warranty, express or implied, is
made by Zeus Capital as to the contents of this announcement.

Further information

This announcement is for information purposes only and is not intended to and
does not constitute, or form any part of, an offer to sell or subscribe for or
any invitation to purchase or subscribe for any securities or the solicitation
of any vote or approval in any jurisdiction pursuant to the Offer or
otherwise. The Offer will be made solely through the Scheme Document and the
accompanying Forms of Proxy, which contain the full terms and conditions of
the Offer, including details of how to vote in respect of the Offer. Any
approval, decision or other response to the Offer should be made only on the
basis of the information in the Scheme Document. Xpediator Shareholders are
strongly advised to read the formal documentation in relation to the Offer.
Each Xpediator Shareholder is urged to consult its independent professional
adviser immediately regarding the tax consequences to it (or its beneficial
owners) of the Offer.

The statements contained in this announcement are made as at the date of this
announcement, unless some other time is specified in relation to them, and
service of this announcement shall not give rise to any implication that there
has been no change in the facts set forth in this announcement since such
date.

This announcement does not constitute a prospectus or prospectus equivalent
document.

Overseas shareholders

This announcement has been prepared in accordance with, and for the purposes
of complying with, English law, the Takeover Code, the Market Abuse Regulation
and the AIM Rules, and information disclosed may not be the same as that which
would have been disclosed if this announcement had been prepared in accordance
with the laws of jurisdictions outside of England.

The release, publication or distribution of this announcement in or into
jurisdictions other than the United Kingdom may be restricted by law and
therefore any persons who are subject to the laws of any jurisdiction other
than the United Kingdom should inform themselves about, and observe, any
applicable legal or regulatory requirements.

The availability of the Offer to Xpediator Shareholders who are not resident
in and citizens of the United Kingdom may be affected by the laws of the
relevant jurisdictions in which they are located or of which they are a
citizen. Persons who are not resident in the United Kingdom should inform
themselves of, and observe any applicable legal or regulatory requirements of
their jurisdictions. In particular, the ability of persons who are not
resident in the United Kingdom to vote their Xpediator Shares with respect to
the Scheme at the Meetings, or to execute and deliver Forms of Proxy (or other
proxy instructions) appointing another to vote at the Meetings on their
behalf, may be affected by the laws of the relevant jurisdictions in which
they are located. Any failure to comply with the applicable restrictions may
constitute a violation of the securities laws of any such jurisdiction. To the
fullest extent permitted by applicable law, the companies and persons involved
in the Offer disclaim any responsibility or liability for the violation of
such restrictions by any person. Further details in relation to Overseas
Shareholders are contained in the Scheme Document.

Neither this announcement nor the Scheme Document nor any of the accompanying
documents do or are intended to constitute or form part of any offer or
invitation to purchase, otherwise acquire, subscribe for, sell or otherwise
dispose of, any securities or the solicitation of any vote or approval
pursuant to the Scheme or otherwise, in any jurisdiction in which such offer,
invitation or solicitation is unlawful. This announcement, the Scheme Document
and the accompanying Forms of Proxy have been prepared for the purposes of
complying with English law, the rules of the London Stock Exchange, the AIM
Rules and the Takeover Code, and the information disclosed may not be the same
as that which would have been disclosed if this announcement had been prepared
in accordance with the laws of jurisdictions outside of England and Wales.

Unless otherwise determined by Bidco or required by the Takeover Code, and
permitted by applicable law and regulation, neither this announcement nor the
Scheme Document will be made available, in whole or in part, directly or
indirectly, in, into or from a Restricted Jurisdiction where to do so would
constitute a violation of the relevant laws or regulations of such
jurisdiction and no person may vote in favour of the Offer by any such use,
means, instrumentality or from within a Restricted Jurisdiction or any other
jurisdiction if to do so would constitute a violation of the laws of that
jurisdiction. Copies of this announcement and any formal documentation
relating to the Offer are not being, and must not be, directly or indirectly,
mailed or otherwise forwarded, distributed or sent in or into or from any
Restricted Jurisdiction and persons receiving such documents (including
custodians, nominees and trustees) must not mail or otherwise forward,
distribute or send it in or into or from any Restricted Jurisdiction. Doing so
may render invalid any related purported vote in respect of the Offer.

The Offer is subject to English law and the jurisdiction of the Court, and the
applicable requirements of the Takeover Code, the Panel, the FCA, the London
Stock Exchange (including pursuant to the AIM Rules) and the Registrar of
Companies.

Additional information for US investors

Xpediator Shareholders in the United States should note that the Offer relates
to the securities of a UK company and is proposed to be effected by means of a
scheme of arrangement under English law.  This announcement, the Scheme
Document and certain other documents relating to the Offer have been or will
be prepared in accordance with English law, the Takeover Code and UK
disclosure requirements, format and style, all of which differ from those in
the United States.  A transaction effected by means of a scheme of
arrangement is not subject to the tender offer rules or the proxy solicitation
rules under the US Exchange Act.  Accordingly, the Offer is subject to the
disclosure requirements of and practices applicable in the United Kingdom to
schemes of arrangement, which differ from the disclosure requirements of the
United States tender offer and proxy solicitation rules.  If, in the future,
Bidco exercises the right to implement the Offer by way of a Takeover Offer
and determines to extend the offer into the United States, the Offer will be
made in compliance with applicable United States laws and regulations,
including any applicable exemptions under the US Securities Act or US Exchange
Act.

The Loan Notes have not been, and will not be, registered under the US
Securities Act or with any securities regulatory authority of any state or
other jurisdiction of the United States and may not be offered, sold,
exercised, resold, transferred or delivered, directly or indirectly, in or
into the United States except pursuant to an exemption from the registration
requirements of the US Securities Act. There will be no public offer of Loan
Notes in the United States. Accordingly, the Loan Note Alternative is not
being offered, and will not be offered, directly or indirectly in or into, or
by use of the mails of, or by any means or instrumentality of interstate or
foreign commerce of or of any facilities of a national securities exchange of,
the United States. This includes, but is not limited to, facsimile
transmission, electronic mail, telex, telephone, the internet and other forms
of electronic communication. The Loan Note Alternative may not be applied to
by any such use, means, instrumentality or facility from or within the United
States or by persons located or resident in the United States. Accordingly,
materials allowing for the Loan Note Alternative are not being, and must not
be, directly or indirectly mailed or otherwise published, transmitted,
distributed or forwarded (including, without limitation, by custodians,
nominees or trustees) in or into the United States or to any US persons or any
persons located or resident in the United States. Any purported applicability
of the Loan Note Alternative resulting directly or indirectly from a violation
of these restrictions will be invalid and any purported applicability of the
Loan Note Alternative made by a person located in the United States or any
agent, fiduciary or other intermediary acting on a non-discretionary basis for
a principal giving instructions from within the United States will be invalid
and will not be accepted.

Each person electing to receive the Loan Note Alternative will represent that
it is not a US person, it is not located in the United States and it is not
participating in the Offer from the United States or acting on a
non-discretionary basis for a principal that is not a US person, it is located
outside the United States and that it is not giving an order to participate in
the Loan Note Alternative from the United States. For the purposes of this and
the above paragraph, "United States" means United States of America, its
territories and possessions (including Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands), any state
of the United States of America and the District of Columbia.

Xpediator's financial statements, and all financial information that is
included in this announcement or that may be included in the Scheme Document,
or any other documents relating to the Offer, have been or will be prepared in
accordance with International Financial Reporting Standards and may not be
comparable to financial statements of companies in the United States or other
companies whose financial statements are prepared in accordance with US
generally accepted accounting principles.

The receipt of cash pursuant to the Offer by a US holder as consideration for
the transfer of its Scheme Shares pursuant to the Scheme will likely be a
taxable transaction for United States federal income tax purposes and under
applicable United States state and local, as well as foreign and other, tax
laws.  Each Xpediator Shareholder is urged to consult his independent
professional adviser immediately regarding the tax consequences of the Offer
applicable to him.

It may be difficult for US holders to enforce their rights and claims arising
out of the US federal securities laws, since Bidco and Xpediator are located
in countries other than the US, and some or all of their officers and
directors may be residents of countries other than the US.  US holders may
not be able to sue a non-US company or its officers or directors in a non-US
court for violations of US securities laws.  Further, it may be difficult to
compel a non-US company and its affiliates to subject themselves to a US
court's judgement.

In accordance with normal UK practice and consistent with Rule 14e-5(b) of the
US Exchange Act, Bidco, certain affiliated companies and their nominees or
brokers (acting as agents) may make certain purchases of, or arrangements to
purchase, shares in Xpediator outside of the US, other than pursuant to the
Offer, until the date on which the Scheme and/ or the Takeover Offer becomes
Effective, lapses or is otherwise withdrawn.  If such purchases or
arrangements to purchase were to be made they would occur either in the open
market at prevailing prices or in private transactions at negotiated prices
and comply with applicable law, including the US Exchange Act.  Any
information about such purchases or arrangements to purchase will be disclosed
as required in the United Kingdom, will be reported to a Regulatory
Information Service and will be available on the London Stock Exchange website
at www.londonstockexchange.com.

Cautionary Note Regarding Forward-looking statements

This announcement (including information incorporated by reference in this
announcement) and other information published by Bidco, BaltCap, any member of
the Consortium or Xpediator contain statements about Bidco, BaltCap, any
member of the Consortium and Xpediator that are or may be deemed to be forward
looking statements.  All statements other than statements of historical facts
included in this announcement may be forward looking statements.  Without
limitation, any statements preceded or followed by or that include the words
"targets", "plans", "believes", "expects", "aims", "intends", "will", "may",
"anticipates", "estimates", "projects" or words or terms of similar substance
or the negative thereof, are forward looking statements. Forward looking
statements include statements relating to the following: (i) future capital
expenditures, expenses, revenues, earnings, synergies, economic performance,
indebtedness, financial condition, dividend policy, losses and future
prospects; (ii) business and management strategies and the expansion and
growth of Bidco's or Xpediator's operations and potential synergies resulting
from the Offer; and (iii) the effects of government regulation on Bidco's or
Xpediator's business.

These forward-looking statements are not guarantees of future performance.
Such forward-looking statements involve known and unknown risks and
uncertainties that could significantly affect expected results and are based
on certain key assumptions.  Many factors could cause actual results to
differ materially from those projected or implied in any forward-looking
statements.  These factors include, but are not limited to, the satisfaction
of the conditions to the Offer, as well as additional factors, such as changes
in political and economic conditions, changes in the level of capital
investment, retention of key employees, changes in customer habits, success of
business and operating initiatives and restructuring objectives, impact of any
acquisitions or similar transactions, changes in customers' strategies and
stability, competitive product and pricing measures, changes in the regulatory
environment, fluctuations of interest and exchange rates, and the outcome of
any litigation.  Due to such uncertainties and risks, readers are cautioned
not to place undue reliance on such forward-looking statements, which speak
only as of the date of this announcement.  All subsequent forward-looking
statements attributable to Bidco, BaltCap, any member of the Consortium or
Xpediator or any of their respective members, directors, officers or employees
or any persons acting on their behalf are expressly qualified in their
entirety by the cautionary statement above.  Bidco, BaltCap, any member of
the Consortium and Xpediator disclaim any obligation to update any
forward-looking or other statements contained in this announcement, except as
required by applicable law.

Dealing and Opening Position Disclosure requirements

Under Rule 8.3(a) of the Takeover Code, any person who is interested in one
per cent. or more of any class of relevant securities of an offeree company or
of any securities exchange offeror (being any offeror other than an offeror in
respect of which it has been announced that its offer is, or is likely to be,
solely in cash) must make an Opening Position Disclosure following the
commencement of the Offer Period and, if later, following the announcement in
which any securities exchange offeror is first identified. An Opening Position
Disclosure must contain details of the person's interests and short positions
in, and rights to subscribe for, any relevant securities of each of (i) the
offeree company and (ii) any securities exchange offeror(s). An Opening
Position Disclosure by a person to whom Rule 8.3(a) applies must be made by no
later than 3.30 pm (London time) on the 10(th) business day following the
commencement of the Offer Period and, if appropriate, by no later than 3.30 pm
(London time) on the 10(th) business day following the announcement in which
any securities exchange offeror is first identified. Relevant persons who deal
in the relevant securities of the offeree company or of a securities exchange
offeror prior to the deadline for making an Opening Position Disclosure must
instead make a Dealing Disclosure.

 

Under Rule 8.3(b) of the Takeover Code, any person who is, or becomes,
interested in 1% or more of any class of relevant securities of the offeree
company or of any securities exchange offeror must make a Dealing Disclosure
if the person deals in any relevant securities of the offeree company or of
any securities exchange offeror. A Dealing Disclosure must contain details of
the dealing concerned and of the person's interests and short positions in,
and rights to subscribe for, any relevant securities of each of (i) the
offeree company and (ii) any securities exchange offeror, save to the extent
that these details have previously been disclosed under Rule 8. A Dealing
Disclosure by a person to whom Rule 8.3(b) applies must be made by no later
than 3.30 pm (London time) on the business day following the date of the
relevant dealing.

 

If two or more persons act together pursuant to an agreement or understanding,
whether formal or informal, to acquire or control an interest in relevant
securities of an offeree company or a securities exchange offeror, they will
be deemed to be a single person for the purpose of Rule 8.3.

 

Opening Position Disclosures must also be made by the offeree company and by
any offeror and Dealing Disclosures must also be made by the offeree company,
by any offeror and by any persons acting in concert with any of them (see
Rules 8.1, 8.2 and 8.4).

 

Details of the offeree and offeror companies in respect of whose relevant
securities Opening Position Disclosures and Dealing Disclosures must be made
can be found in the Disclosure Table on the Panel's website at
www.thetakeoverpanel.org.uk, including details of the number of relevant
securities in issue, when the Offer Period commenced and when any offeror was
first identified. You should contact the Panel's Market Surveillance Unit on
+44 (0)20 7638 0129 if you are in any doubt as to whether you are required to
make an Opening Position Disclosure or a Dealing Disclosure.

 

Publication on website

In accordance with Rule 26 of the Takeover Code, a copy of this announcement
will be made available free of charge, subject to certain restrictions
relating to persons resident in Restricted Jurisdictions, on Xpediator's
website at https://www.xpediator.com/offer-for-xpediator-plc/
(https://www.xpediator.com/offer-for-xpediator-plc/) and on BaltCap's website
at  https://www.baltcap.com/offer-for-xpediator-plc/
(https://www.baltcap.com/offer-for-xpediator-plc/) by no later than 12 noon
(London time) on the first business day following the date of this
announcement. For the avoidance of doubt, neither the contents of these
websites nor the contents of any websites accessible from any hyperlinks are
incorporated into or form part of this announcement.

Neither the contents of Xpediator's website, nor those of BaltCap's website,
nor those of any other website accessible from hyperlinks on either
Xpediator's or BaltCap's websites, are incorporated into or form part of this
announcement.

No profit forecasts, profit estimates or quantified benefits statements

No statement in this announcement is intended as a profit forecast, profit
estimate or quantified benefits statement for any period and no statement in
this announcement should be interpreted to mean that earnings or earnings per
share for Xpediator for the current or future financial years would
necessarily match or exceed the historical published earnings or earnings per
share for Xpediator.

Requesting hard copy documents

 

In accordance with Rule 30.3 of the Takeover Code, Xpediator Shareholders and
participants in the Xpediator Share Plans may request a hard copy of this
announcement, free of charge, by contacting Xpediator's registrar, Share
Registrars Limited, by: (i) submitting a request in writing to Share
Registrars Limited, 3 The Millennium Centre, Crosby Way, Farnham, Surrey, GU9
7XX, United Kingdom; or (ii) calling +44 (0) 1252 821390. Calls are charged at
the standard geographic rate and will vary by provider. Calls outside the
United Kingdom will be charged at the applicable international rate. The
helpline is open between 9.00 a.m. and 5.30 p.m. (London time), Monday to
Friday (excluding public holidays in England and Wales). Please note that
Share Registrars cannot provide any financial, legal or tax advice and calls
may be recorded and monitored for security and training purposes.

 

For any of such persons who receive a copy of this announcement in electronic
form, a hard copy of this announcement will not be sent unless so requested.
Such persons may also request that all future documents, announcements and
information to be sent to them in relation to the Offer should be in hard copy
form.

 

Electronic Communications

Please be aware that addresses, electronic addresses and certain other
information provided by Xpediator Shareholders, persons with information
rights and other relevant persons for the receipt of communications from
Xpediator may be provided to Bidco during the Offer Period as required under
Section 4 of Appendix 4 to the Takeover Code to comply with Rule 2.11(c) of
the Takeover Code.

Rounding

Certain figures included in this announcement have been subjected to rounding
adjustments. Accordingly, figures shown for the same category presented in
different tables may vary slightly and figures shown as totals in certain
tables may not be an arithmetic aggregation of figures that precede them.

General

 

Bidco reserves the right to elect, with the consent of the Panel (where
necessary), and subject to the terms and conditions of the Co-operation
Agreement, to implement the Offer by way of a Takeover Offer for the entire
issued and to be issued share capital of Xpediator not already held by Bidco
as an alternative to the Scheme. In such an event, a Takeover Offer will be
implemented on substantially the same terms, so far as applicable, as those
which would apply to the Scheme.

 

If the Offer is effected by way of Takeover Offer, and such Takeover Offer
becomes or is declared unconditional in all respects and sufficient
acceptances are received, Bidco intends to exercise its rights to apply the
provisions of Chapter 3 of Part 28 of the Companies Act so as to acquire
compulsorily the remaining Xpediator Shares in respect of which the Takeover
Offer has not been accepted.

 

If you are in any doubt about the contents of this announcement or the action
you should take, you are recommended to seek your own independent financial
advice immediately from your stockbroker, bank manager, solicitor or
independent financial adviser duly authorised under the Financial Services and
Markets Act 2000 (as amended) if you are resident in the United Kingdom or, if
not, from another appropriately authorised independent financial adviser.

 

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