TIDMORPH
RNS Number : 1208W
Open Orphan PLC
09 December 2019
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 OF
SUCH JURISDICTION
INVESTORS SHOULD NOT MAKE ANY INVESTMENT DECISION IN RELATION TO
HVIVO SHARES OR NEW OPEN ORPHAN SHARES EXCEPT ON THE BASIS OF THE
INFORMATION IN THE OFFER DOCUMENT, WHICH IS PROPOSED TO BE
PUBLISHED IN DUE COURSE
9 December 2019
RECOMMED ALL-EQUITY OFFER
for
HVIVO ("HVIVO")
to merge with
OPEN ORPHAN PLC ("OPEN ORPHAN")
Summary
The Boards of Open Orphan and hVIVO have reached an agreement on
the terms of a recommended Offer to be made by Open Orphan for the
entire issued and to be issued share capital of hVIVO plc (the
"Offer").
The Offer is classified as a reverse takeover for Open Orphan
under the AIM Rules and the Euronext Growth Rules and will
therefore require the approval of the Open Orphan Shareholders at
the Open Orphan General Meeting.
Under the terms of the Offer, hVIVO Shareholders will be
entitled to receive:
2.47 New Open Orphan Shares for every 1 hVIVO Share
The exchange ratio of New Open Orphan Shares to hVIVO Shares has
been determined by reference to the average daily volume weighted
average price over the 90 days to 6 December 2019 for each of the
hVIVO and Open Orphan shares, being the latest practicable date
prior to the date of this announcement.
The Offer represents a value of approximately 15.56 pence per
hVIVO Share and a premium of 33.8 per cent. based upon the hVIVO
Closing Price on 6 December 2019, being the latest practicable date
prior to the date of this announcement, valuing hVIVO at
approximately GBP12.96 million.
The number of New Open Orphan Shares expected to be issued
pursuant to the terms of the Offer is 205,489,715.
The Offer is expected to result in hVIVO Shareholders owning
44.67 per cent. of the share capital of the Enlarged Group.
If any dividend or other distribution or return of value is
proposed, declared, made, paid or becomes payable to hVIVO in
respect of the hVIVO Shares on or after the date of this
announcement and prior to the Offer becoming unconditional, Open
Orphan will have the right to reduce the value of the consideration
payable for each hVIVO Share by up to the amount per hVIVO Share of
such dividend, distribution or return of value.
Offer Rationale
Open Orphan and hVIVO are AIM-quoted groups that share a similar
vision for the future of European Clinical Research Organisations
("CRO") and an entrepreneurial approach to developing further their
business through a focus on operational efficiency, organic growth
and targeted acquisitions to expand their geographic and service
capabilities.
The Open Orphan Directors and the hVIVO Directors believe that
the combination of the businesses will result in synergies across
the Enlarged Group with each business providing complementary
services with limited overlap in existing capabilities and
customers.
It is anticipated that the benefits to both hVIVO and Open
Orphan of the merger will include:
-- Complementary broader in-house clinical service offering;
-- Opportunity to increase margins and service revenues;
-- Expanded capability offering;
-- Commercialisation of hVIVO database through the Open Orphan platform; and
-- Operating synergies.
hVIVO Recommendation
The Independent hVIVO Directors, who have been so advised by MCF
as to the financial terms of the Offer, consider the terms of the
Offer to be fair and reasonable. Accordingly, the Independent hVIVO
Directors recommend unanimously that hVIVO Shareholders accept the
Offer, as they intend to do in respect of their own beneficial
holdings. In providing advice to the Independent hVIVO Directors,
MCF has taken into account the commercial assessments of the
Independent hVIVO Directors. MCF is providing independent financial
advice to the Independent hVIVO Directors for the purposes of Rule
3 of the Takeover Code.
Each of the hVIVO Directors has given irrevocable undertakings
to accept the Offer in respect of their registered holdings in
hVIVO Shares amounting in aggregate 205,001 hVIVO Shares,
representing, in aggregate, approximately 0.25 per cent. of the
hVIVO Issued Share Capital.
Open Orphan Recommendation
The Open Orphan Directors intend to recommend unanimously that
the Open Orphan Shareholders vote in favour of the resolutions to
be proposed at the Open Orphan General Meeting to approve the Offer
and related matters.
Shareholders and Irrevocable Undertakings
The hVIVO Directors have irrevocably undertaken to accept the
Offer in respect of their own entire legal and beneficial holdings
of hVIVO Shares (and those of connected persons) amounting to, in
aggregate, 205,001 hVIVO Shares, representing approximately 0.25
per cent. of the hVIVO Shares in issue on 6 December 2019.
Open Orphan has therefore received irrevocable undertakings in
respect of a total of 205,001 hVIVO Shares, representing, in
aggregate approximately 0.25 per cent. of the hVIVO Shares in issue
on 6 December 2019, to accept the Offer.
General
As a result of its size, the Offer constitutes a reverse
takeover for Open Orphan under the AIM Rules and Euronext Growth
Rules. Accordingly, Open Orphan is required to seek the approval of
its shareholders for the Offer at the Open Orphan General Meeting.
Open Orphan will publish the Admission Document and make
application for Admission of the Enlarged Group to AIM and Euronext
Growth.
The Offer Document, which will contain further information about
the Offer and the Forms of Acceptance will be published today.
It is intended that the Admission Document and the Open Orphan
Circular, which will contain further information about the Offer,
will be published at or around the same time as the Offer Document
is made available to hVIVO Shareholders.
It is expected that the Offer will become unconditional as to
acceptances by no later than Day 42, being 20 January 2020, subject
to the satisfaction or waiver of the conditions and certain further
terms set out in Appendix 1 to this announcement.
Commenting on the Offer, Cathal Friel, CEO of Open Orphan,
said:
"The merger of Open Orphan and hVIVO is a key milestone in the
execution of our strategy to become a larger-scale specialist
pharma services business and in complementary segments where
specialist skills and know-how command higher margins.
The leadership team has the skills, experience and commitment to
deliver the Enlarged Group's potential. The merger allows the
combined business to maximise shareholder value through delivering
cost and revenue synergies across the businesses and one that is
better positioned to consistently capture greater market share as
part of a properly profitable business with losses confined to the
past."
Commenting on the Offer, Dr. Trevor Philips, Executive Chairman
of hVIVO, said:
"The hVIVO Board believes this transaction offers our
shareholders the opportunity to participate in a larger business
with greater growth potential, diversified risk and a competitive
market position. Together, we share a similar vision for the future
of European CROs and an entrepreneurial approach to developing
further the Enlarged Group through a focus on operational
efficiency, organic growth and targeted acquisitions to expand
geographic and service capabilities."
The Offer will be subject to the Conditions and certain further
terms set out in Appendix 1 to this announcement and to the full
terms and conditions which will be set out in the Offer Document.
The bases of calculations and sources of certain financial
information contained in this announcement, and certain additional
financial and operational information, are set out in Appendix 2 to
this announcement. Details of the irrevocable undertakings received
by Open Orphan and hVIVO in relation to the Offer are set out in
Appendix 4 to this announcement. Certain definitions and terms used
in this announcement are set out in Appendix 4 to this
announcement.
This summary should be read in conjunction with, and is subject
to, the following full text of this announcement and the
Appendices.
For further information please contact:
Open Orphan plc +353 (0)1 644 0007
Cathal Friel, Chief Executive Officer
hVIVO plc +44 (0)20 7756 1300
Dr. Trevor Phillips, Executive Chairman
Anesh Patel, Interim Finance Director and Company Secretary
Fleur Wood, EVP, Investor Relations & Communications
Arden Partners plc (Nominated Adviser and Joint Broker to +44 (0)20 7614 5900
Open Orphan)
John Llewellyn-Lloyd / Benjamin Cryer / Adam Cowl
MCF (Financial Adviser to hVIVO) +44 (0)20 7968 2760
Sam Evans / Tor-Oskar Karlberg
Davy (Euronext Growth Adviser and Joint Broker to Open Orphan) +353 (0)1 679 6363
Anthony Farrell
Numis Securities Limited (Nominated Adviser to hVIVO) +44 (0)20 7260 1000
Freddie Barnfield / Huw Jeremy
Camarco (Open Orphan Financial PR) +44 (0)20 3757 4980
Tom Huddart / Billy Clegg / Daniel Sherwen
FTI Consulting (hVIVO Financial PR) +44 (0)20 3727 100
Simon Conway / Victoria Foster Mitchell
Disclaimers
Arden Partners plc, which, in the United Kingdom, is authorised
and regulated by the Financial Conduct Authority, is acting
exclusively and respectively for Open Orphan and no one else in
connection with this announcement and the matters referred to
herein and will not be responsible to anyone other than Open Orphan
for providing the protections afforded to clients of Arden Partners
plc nor for providing advice in relation to the contents of this
announcement and the matters referred to herein. Arden Partners plc
has given and not withdrawn its consent to the inclusion in this
announcement of reference to its advice to the Open Orphan
Directors in the form and context in which it appears.
MCF Ltd, which, in the United Kingdom, is authorised and
regulated by the Financial Conduct Authority, is acting exclusively
and respectively for hVIVO and no one else in connection with this
announcement and the matters referred to herein and will not be
responsible to anyone other than hVIVO for providing the
protections afforded to clients of MCF Ltd nor for providing advice
in relation to the contents of this announcement and the matters
referred to herein. MCF Ltd has given and not withdrawn its consent
to the inclusion in this announcement of reference to its advice to
the hVIVO Directors in the form and context in which it
appears.
Numis Securities plc which, in the United Kingdom, is authorised
and regulated by the Financial Conduct Authority, is acting
exclusively for hVIVO and no one else in connection with this
announcement and the matters referred to herein and will not be
responsible to anyone other than hVIVO for providing the
protections afforded to clients of Numis Securities plc nor for
providing advice in relation to the contents of this announcement
and the matters referred to herein.
Davy, which is authorised and regulated in Ireland by the
Central Bank of Ireland, has been appointed as Euronext Growth
Advisor (pursuant to the Euronext Growth Rules) and broker to the
Company. Davy is acting exclusively for the Company in connection
with arrangements described in this document and is not acting for
any other person and will not be responsible to any person for
providing the protections afforded to customers of Davy or for
advising any other person in connection with the arrangements
described in this document. In accordance with the Euronext Growth
Rules and Rules for Euronext Growth Advisors, Davy has confirmed to
Euronext Dublin that it has satisfied itself that the Directors
have received advice and guidance as to the nature of their
responsibilities and obligations to ensure compliance by the
Company with the Euronext Growth Rules. Davy accepts no liability
whatsoever for the accuracy of any information or opinions
contained in this document or for the omission of any material
information, for which it is not responsible. Davy has not
authorised the contents of, or any part of, this document and no
liability whatsoever is accepted by Davy for the accuracy of any
information or opinions contained in this document or for the
omission of any information from this announcement.
IMPORTANT NOTES
Publication of certain documents in connection with the
Offer
The release, publication or distribution of this announcement in
jurisdictions other than the United Kingdom may be restricted by
law and therefore persons into whose possession this announcement
comes should inform themselves about and observe any applicable
restrictions or requirements. Any failure to comply with such
restrictions may constitute a violation of the securities laws of
any such jurisdiction. To the fullest extent possible, the
companies involved in the Offer disclaim any responsibility or
liability for the violation of such requirements by any person.
This announcement has been prepared for the purposes of complying
with English law, the Code, the rules of the London Stock Exchange,
the AIM Rules and the Euronext Growth Rules 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 and regulations of any jurisdiction outside England and
Wales.
This announcement is for information purposes only. It is not
intended to and does not constitute, an offer or form part of any
offer or an invitation to purchase, subscribe for, sell or issue,
any securities or a solicitation of any offer to purchase,
subscribe for, sell or issue any securities pursuant to this
announcement or otherwise in any jurisdiction in which such offer
or solicitation is unlawful. This announcement does not comprise a
prospectus or a prospectus equivalent document. The Offer will be
effected solely by means of the Offer Document which, together with
the Forms of Acceptance, will contain the full terms and conditions
of the Offer, including details of how to vote in respect of the
Offer.
The Offer Document, together with the relevant Forms of
Acceptance, will be issued, with the consent of hVIVO, to hVIVO
Shareholders today.
The Admission Document and the Open Orphan Circular will be
posted to Open Orphan Shareholders at the same time as the Offer
Document is made available to hVIVO Shareholders.
Those documents will also be made available at the same time on
Open Orphan's website at www.openorphan.com and on hVIVO's website
at www.hvivo.com. Notwithstanding the above, those documents will
not be posted into, or made available within, a Restricted
Jurisdiction and may not be capable of being accessed by Restricted
Overseas Persons. hVIVO urges hVIVO Shareholders to read the Offer
Document, in its entirety because it will contain important
information in relation to the Offer. Any response in relation to
the Offer should be made only on the basis of the information
contained in the Offer Document.
Open Orphan urges Open Orphan Shareholders to read the Admission
Document and the Open Orphan Circular, in their entirety because
they will contain important information in relation to the Offer.
Any vote by Open Orphan Shareholders in respect of the Offer or
other response in relation to the Offer should be made only on the
basis of the information contained in the Admission Document and
the Open Orphan Circular.
The statements contained herein 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
herein since such date. Nothing contained in this announcement
shall be deemed to be a forecast, projection or estimate of the
future financial performance of hVIVO, or of Open Orphan or of the
Enlarged Group, except where otherwise stated.
Overseas jurisdictions
The release, publication or distribution of this announcement in
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 requirements. In particular, the
ability of persons who are not resident in the United Kingdom to
vote their hVIVO Shares in respect of the Offer, to execute and
deliver Forms of Proxy, may be affected by the laws of the relevant
jurisdictions in which they are located. This announcement has been
prepared for the purpose of complying with English law and the Code
and the information disclosed may not be the same as that which
would have been disclosed if this announcement had been prepared in
accordance with the laws of jurisdictions outside the United
Kingdom.
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 them in or into
or from any Restricted Jurisdiction. If the Offer is implemented by
way of a Takeover Offer (unless otherwise permitted by applicable
law and regulation), the Takeover Offer may not be made, directly
or indirectly, in or into, or by the use of mails or any means or
instrumentality (including, but not limited to, facsimile, email or
other electronic transmission, telex or telephone) of interstate or
foreign commerce of, or of any facility of a national, state or
other securities exchange of any Restricted Jurisdiction and the
Takeover Offer may not be capable of acceptance by any such use,
means, instrumentality or facilities.
Please be aware that addresses, electronic addresses and certain
other information provided by hVIVO Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from hVIVO may be provided to Open Orphan during the
Offer Period as required under Section 4 of Appendix 4 of the
Code.
Notice regarding financial information
The financial information included in this announcement relating
to hVIVO has been prepared in accordance with accounting standards
applicable in the United Kingdom that may not be comparable to the
financial statements of US or Australian companies (or companies in
any other jurisdiction). US generally accepted accounting
principles ("US GAAP") and Australian generally accepted accounting
principles differ in certain significant respects from each of UK
GAAP and IFRS. None of the financial information in this
announcement has been audited in accordance with auditing standards
generally accepted in the United States or Australia, or the
auditing standards of the Public Company Accounting Oversight Board
(United States) or the Auditing and Assurance Standards Board
(Australia).
Cautionary note regarding forward-looking statements
This announcement, including certain information incorporated by
reference, contains certain forward-looking statements with respect
to the financial condition, results of operations and business of
hVIVO or the hVIVO Group and Open Orphan or the Open Orphan Group
and certain plans and objectives of the hVIVO Board and the Open
Orphan Board. These forward-looking statements can be identified by
the fact that they do not relate to historical or current facts.
Forward looking statements often use words such as "anticipate",
"target", "expect", "estimate", "intend", "plan", "goal",
"believe", "will", "may", "should", "would", "could" or other words
of similar meaning. These statements are based on assumptions and
assessments made by the hVIVO Board and the Open Orphan Board in
the light of their experience and their perception of historical
trends, current conditions, expected future developments and other
factors they believe appropriate. By their nature, forward-looking
statements involve risk and uncertainty and the factors described
in the context of such forward-looking statements in this
announcement could cause actual results and developments to differ
materially from those expressed in or implied by such
forward-looking statements.
Should one or more of these risks or uncertainties materialise,
or should underlying assumptions prove incorrect, actual results
may vary materially from those described in this announcement.
Except as required by the FCA, the London Stock Exchange, the AIM
Rules, the Code or any other applicable law, hVIVO and Open Orphan
assume no obligation to update or correct the information contained
in this announcement.
No profit forecasts or estimates
No statement in this announcement is intended as a profit
forecast or estimate for any period and no statement in this
announcement should be interpreted to mean that earnings or
earnings per ordinary share for Open Orphan or hVIVO, as
appropriate, for the current or future financial years would
necessarily match or exceed the historical published earnings or
earnings per ordinary share for Open Orphan or hVIVO, as
appropriate.
Disclosure requirements of the Takeover Code
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) of the Takeover Code
applies must be made by no later than 3.30 p.m. (London time) on
the 10th Business Day following the commencement of the offer
period and, if appropriate, by no later than 3.30 p.m. (London
time) on the 10th Business Day following the announcement in which
any 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 one per cent. or more of any class of
relevant securities of the offeree company or of any securities
exchange offeror must make a Dealing Disclosure if the person deals
in any relevant securities of the offeree company or of any
securities exchange offeror. A Dealing Disclosure must contain
details of the dealing concerned and of the person's interests and
short positions in, and rights to subscribe for, any relevant
securities of each of: (i) the offeree company; and (ii) any
securities exchange offeror(s), except to the extent that these
details have previously been disclosed under Rule 8 of the Takeover
Code. A Dealing Disclosure by a person to whom Rule 8.3(b) of the
Takeover Code applies must be made by no later than 3.30 p.m.
(London time) on the Business Day following the date of the
relevant dealing.
If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
interest in relevant securities of an offeree company or a
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3 of the Code.
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 of
the Takeover Code).
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 of this announcement and availability of hard
copies
A copy of this announcement and the display documents required
to be published pursuant to Rule 26.1 and Rule 26.2 of the Code
will be available, subject to certain restrictions relating to
persons resident in Restricted Jurisdictions, on Open Orphan's and
hVIVO 's websites at www.openorphan.com and www.hvivo.com by no
later than 12 noon on 10 December 2019 until the end of the Offer
Period.
Neither the content of hVIVO's website nor the content of any
websites accessible from hyperlinks on such website (or any other
websites) are incorporated into, or form part of, this announcement
nor, unless previously published by means of a Regulatory
Information Service, should any such content be relied upon in
reaching a decision regarding the matters referred to in this
announcement.
In addition, a hard copy of this announcement and any
information incorporated by reference in this announcement may be
requested free of charge by writing to hVIVO at Queen Mary
BioEnterprises Innovation Centre, 42 New Road, London, E1 2AX.
hVIVO Shareholders may also request that all future documents,
announcements and information to be sent to them in relation to the
Offer should be in hard copy form.
The Offer is subject to the provisions of the Code.
Rounding
Certain figures included in this announcement have been subject
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 the figures that precede them.
Inside information and Market Abuse Regulation
Certain hVIVO Shareholders were, with the consent of the Panel,
formally brought inside in order to discuss giving irrevocable
commitments to accept the Offer. That inside information is set out
in this announcement and has been disclosed as soon as possible in
accordance with paragraph 7 of article 17 of MAR. Therefore, those
persons that received inside information in a market sounding are
no longer in possession of inside information relating to hVIVO and
Open Orphan, and their respective securities.
The person responsible for arranging release of this
announcement on behalf of Open Orphan is Cathal Friel, CEO.
The person responsible for arranging release of this
announcement on behalf of hVIVO is Trevor Phillips, Executive
Chairman.
Status of announcement
This announcement does not constitute a prospectus or prospectus
equivalent document.
9 December 2019
RECOMMED ALL-EQUITY OFFER
for
HVIVO PLC ("HVIVO")
to merge with
OPEN ORPHAN PLC ("OPEN ORPHAN")
1. Introduction
The Boards of Open Orphan and hVIVO are pleased to announce the
terms of a recommended Offer. The Offer will be effected by way of
an Offer pursuant to which Open Orphan will acquire the entire
issued and to be issued ordinary share capital of hVIVO plc. The
Offer is classified as a reverse takeover for Open Orphan under the
AIM Rules and Euronext Growth Rules and will therefore require the
approval of the Open Orphan Shareholders at the Open Orphan General
Meeting.
This announcement explains the background to the Merger and the
reasons why the hVIVO Independent Directors recommend that hVIVO
Shareholders accept the Offer.
The Offer Document, which will contain further information about
the Offer, and the Form of Acceptances will be published today.
The Offer will be subject to the Conditions set out below and in
Appendix 1 to this announcement and the full terms and conditions
to be set out in the Offer Document.
2. Terms of the Offer
Under the terms of the Offer, which is subject to the
satisfaction (or where applicable, waiver) of the conditions and
further terms set out in Appendix 1 of this document, hVIVO
Shareholders will be entitled to receive:
2.47 new Open Orphan Shares for every 1 hVIVO Share
-- The exchange ratio of New Open Orphan Shares to hVIVO Shares
has been determined by reference to the average daily volume
weighted average price over the 90 days to 6 December 2019 for each
of hVIVO and Open Orphan.
-- The Offer represents a value of approximately 15.56 pence per Share representing:
o a premium of 33.8 per cent. to the hVIVO Closing Price on 6
December 2019, being the latest practicable date prior to the
Announcement, and
o a premium of 15.6 per cent. to the 30 day volume weighted
average price per hVIVO Share as at close of business on 6 December
2019 (being the latest practicable date prior to the
Announcement).
The New Open Orphan Shares will be allotted and issued credited
as fully paid and will rank pari passu in all respects with the
existing Open Orphan Shares in issue at the time the New Open
Orphan Shares are allotted and issued pursuant to the Offer,
including the right to receive and retain dividends and other
distributions declared, made or paid by reference to a record date
falling after the Effective Date.
The existing Open Orphan Shares are admitted to trading on AIM
and Euronext Growth. The Offer will constitute a reverse takeover
for Open Orphan for the purposes of the AIM Rules and the Euronext
Growth Rules; accordingly, Open Orphan is required to seek the
approval of its shareholders for the Offer at the Open Orphan
General Meeting. Application will be made for the admission of the
share capital of the Enlarged Group to trading on AIM and Euronext
Growth. It is expected that Admission will become effective and
that trading in the share capital of the Enlarged Group will
commence at 8:00 a.m. on 17 January 2020 assuming that the Offer
becomes unconditional as to acceptances on the First Closing
Date.
If any dividend or other distribution or return of value is
proposed, declared, made, paid or becomes payable by hVIVO in
respect of the hVIVO Shares on or after the date of this
announcement and prior to the Offer becoming unconditional, Open
Orphan will have the right to reduce the value of the consideration
payable for each hVIVO Share by up to the amount per hVIVO Share of
such dividend, distribution or return of value.
3. Background to and reasons for the Offer
Open Orphan and hVIVO are AIM-quoted groups that share a similar
vision for the future of European Clinical Research Organisations
("CRO") and an entrepreneurial approach to further developing their
business through a focus on operational efficiency, organic growth
and targeted acquisitions to expand geographic and service
capabilities.
The Open Orphan Directors believe that the European CRO sector
is fragmented and following the re-admission of Open Orphan in June
2019, have been reviewing the market for opportunities to expand
the Open Orphan Group's service suite and unlock cross-selling
opportunities to drive revenue, EBITDA and EBITDA margin growth.
The merger of Open Orphan and Venn Life Sciences positioned the
Open Orphan Group as a specialist CRO with a focus on the orphan
drug sector and supporting product development for global
customers. The Open Orphan Directors believe that the hVIVO human
challenge study and laboratory services expertise complements the
Open Orphan services and enhances the Enlarged Group's service
offering while maintaining a specialist capability in discrete
competencies where the Enlarged Group's expertise can offer a
competitive advantage, with potential for cross-selling of
complementary services.
Offer Synergies
The Open Orphan and hVIVO Directors believe that the combination
of the businesses will result in synergies across the Enlarged
Group with each business providing complementary services with
limited overlap in existing capabilities and customers. It is
anticipated that the benefits to both hVIVO and Open Orphan of the
merger will include:
i. Complementary broader in-house clinical service offering
Both hVIVO and Open Orphan supplement their primary service
offering through the use of external third party subcontractors. On
completion of the Offer it is expected that a significant
proportion of these subcontracted services could be fulfilled by
resource and expertise within the Enlarged Group. This represents
services central to each Group's existing product that is currently
passed over to third parties but could be undertaken in house.
The Directors of Open Orphan and hVIVO have identified a number
of areas where enhanced co-operation can support each group's
market position and service proposition. Complementary broader
in-house clinical trial service offerings include:
-- Data management, statistics, medical writing, regulatory and project management, which are sub-contracted either in part, or in full, by hVIVO and where Open Orphan has significant expertise; and
-- A proportion of the Phase I studies, including laboratory
services, currently sub-contracted by Open Orphan but that are
capable of being run at the hVIVO facility in London.
In addition to complementary services, the Directors also
believe that the Enlarged Group will benefit from an enlarged sales
and marketing team and a broader services base to market to both
new and existing customers.
ii. Opportunity to increase operational utilisation
The broader service offerings are expected to increase the
overall utilisation of resources across the Enlarged Group. Both
Open Orphan and hVIVO outsource certain services to third parties.
Certain of these outsourced services are capable of being provided
from within the Enlarged Group thereby increasing the overall
operational efficiency and maximising existing resources. This
could result in revenues retained by the Enlarged Group and not
disbursed to subcontractors. The use of integrated resource is also
expected to enhance the service proposition to be offered to
customers through one-stop-shop clinical trial service
solutions.
iii. Expanded capability offering
In addition to the complementary broader in-house service
offerings provided by each group, the Directors believe that there
is an opportunity for the Enlarged Group to strengthen customer
relationships and cross sell an expanded capability offering. Phase
two field studies are currently beyond the hVIVO capability, the
commissioning of phase two field studies for vaccines and antiviral
products could be undertaken by the Enlarged Group, using Open
Orphan's project management and monitoring capabilities and hVIVO's
laboratory services, following the successful completion of human
challenge studies. Laboratory services, typically required to
support Phase two clinical trials managed by Open Orphan, could
also be undertaken at hVIVO's laboratory facilities.
iv. Commercialisation of hVIVO database through the Open Orphan
platform
Open Orphan has invested significant resources in developing its
health data platform to facilitate drug research and patient access
to specialist drugs. The Open Orphan Directors believe the viral
induced disease development data and genomic data created, and
owned by hVIVO can be further utilised to accelerate the
commercialisation of its viral challenge models and supplement
existing orphan disease genomic data being developed by Open
Orphan.
v. Operating Synergies
The Open Orphan Directors believe that the Enlarged Group will
benefit from cost savings as duplicative functions and systems are
rationalised and the Enlarged Group realises benefits of increased
scale. Cost synergies are expected to include:
-- consolidation of the central support functions into the London headquarters of hVIVO;
-- consolidation of IT and enterprise systems across the two businesses;
-- removal of duplicative public company and advisor costs; and
-- re-organisation of management functions and roles.
4. Recommendation of the Offer by the hVIVO Independent Directors
The Independent hVIVO Directors, who have been so advised by MCF
as to the financial terms of the Offer, consider the terms of the
Offer to be fair and reasonable. Accordingly the Independent hVIVO
Directors recommend unanimously that hVIVO Shareholders accept the
Offer, as they intend to do in respect of their own beneficial
holdings. In providing advice to the Independent hVIVO Directors,
MCF has taken into account the commercial assessments of the
Independent hVIVO Directors. MCF is providing independent financial
advice to the Independent hVIVO Directors for the purposes of Rule
3 of the Takeover Code.
Each of the hVIVO Directors has given irrevocable undertakings
to accept the Offer in respect of their registered holdings in
hVIVO Shares amounting in aggregate 205,001 hVIVO Shares,
representing, in aggregate, approximately 0.25 per cent. of the
hVIVO Issued Share Capital.
5. Recommendation of the Offer by the Open Orphan Directors
The Open Orphan Board, having been so advised by Arden, believes
that the Offer and the resolutions to be proposed at the Open
Orphan General Meeting are in the best interests of Open Orphan and
Open Orphan Shareholders as a whole.
Open Orphan has also received irrevocable undertakings in
respect of a total of 76,504,416 Open Orphan Shares, representing,
in aggregate approximately 30.0 per cent. of the Open Orphan Shares
in issue on 6 December 2019, to accept the Offer.
Accordingly, the Open Orphan Directors intend to recommend
unanimously that Open Orphan Shareholders vote in favour of the
resolutions to be proposed at the Open Orphan General Meeting to
approve the Offer and related matters, which will be described in
the Open Orphan Circular.
6. Irrevocable undertakings
Irrevocable undertakings from hVIVO Shareholders
The hVIVO Directors have irrevocably undertaken to accept the
Offer in respect of their own entire legal and beneficial holdings
of hVIVO Shares (and those of connected persons) amounting to, in
aggregate, 205,001 hVIVO Shares, representing approximately 0.25
per cent. of the hVIVO Shares in issue on 6 December 2019.
Open Orphan has therefore received irrevocable undertakings in
respect of a total of 205,001 hVIVO Shares, representing, in
aggregate approximately 0.25 per cent. of the hVIVO Shares in issue
on 6 December 2019, to accept the Offer.
7. Information on hVIVO
hVIVO was established in 1989 as a spin-out from Queen Mary
University, London, and is a clinical development services business
pioneering human disease models based upon viral challenge. Using
human challenge studies to establish early proof-of-concept,
hVIVO's clinical trial platform can accelerate drug and vaccine
development in respiratory and infectious diseases, hVIVO has
leveraged its insights in established human disease challenge
models in influenza ("Flu"), respiratory syncytial virus ("RSV")
and human rhinovirus ("HRV") to expand the use of viral challenge
in additional respiratory indications including asthma, chronic
obstructive pulmonary disease ("COPD") and cough and in special
populations. hVIVO currently employs around 112 people.
hVIVO has over 15 years' experience conducting and analysing
human models of disease, challenging both healthy volunteers and
patients with Flu, RSV or HRV. As a result, hVIVO has established
extensive experience in:
-- virology; and
-- virus production, viral challenge and host response related to viral insult.
The hVIVO human challenge models and expertise provide disease
insights enabling early indications of efficacy of new products;
and identification of key biological traits of patients who respond
to a novel therapy.
In addition to the full-service human challenge models in
infectious and respiratory diseases, hVIVO is able to provide
complementary laboratory services.
The hVIVO Group's depth of insight into the design, execution
and analysis of viral challenge models has created a wealth of
expertise that is invaluable to companies seeking to develop new
products targeting Flu, RSV, HRV, cough, asthma and COPD.
Challenge models
Infectious Diseases
Within infectious diseases hVIVO has established challenge
models for Flu, HRV and RSV. hVIVO's human challenge studies
support the development of new-generation vaccines and treatments
including antivirals and immunomodulators. Challenge models can
provide early evidence of proof-of-principle in humans for new
products, enabling companies to proceed with confidence into larger
Phase II and Phase III field trials.
hVIVO has been studying influenza for over 20 years and been
conducting influenza human challenge studies with its Flu disease
models for more than 15 years. The company has conducted numerous
Flu challenge studies for a range of industry, governmental and
academic customers, making the hVIVO models among the most
well-used commercial Flu disease models available on the
market.
hVIVO also has established one of the only validated RSV
challenge models commercially available to customers and it has
also been heavily utilised by companies seeking to understand if
their therapy is effective against RSV.
Respiratory Disease
The hVIVO Directors believe that the challenge model is not only
helpful as a proof-of-concept for the effectiveness of agents
directed at the viruses, but also as proof-of-mechanism for novel
products in diseases where respiratory viruses are known to induce
exacerbations. hVIVO has expanded its offering into airways
diseases such as asthma, cough and COPD and has created a viral
model using HRV to induce exacerbations and acute cough. These
expanded services offerings have the potential to provide hVIVO
with additional revenue streams.
Laboratory Services
During the clinical trials, conducted at hVIVO's 24 bed clinical
facility, many of the samples taken from volunteers, including
blood and nasal swabs, will be processed in their dedicated
laboratory facilities. Consolidating biomarker analysis to a single
source lab can reduce time and costs throughout development
programmes and is an opportunity for further expansion of series to
support samples generated from field studies. Innovative assays can
also speed up the testing process considerably, supporting swift
market delivery of customer products.
Reliable laboratory analysis underpinned by scientific expertise
is essential when processing and analysing clinical samples. Robust
quality processes support the team of scientists in the delivery of
submission-ready data. The specialist virology laboratory services
are also utilised by customers for analysis of samples generated
independently of challenge studies undertaken with the hVIVO
Group.
Development Assets
Imutex Limited ("Imutex")
hVIVO is a minority partner in Imutex, a joint venture with SEEK
Group to support the development upside of new vaccine candidates.
The joint venture was formed in 2016 under the previous management
of hVIVO and represented a departure from the historical and now
current strategy of services provision for third party client
product development. These vaccines remain in clinical development
and accordingly there is no guarantee of future revenue. The
potential total costs and time to commercialisation remain unknown
at this stage. The lead asset, FLU-v, has achieved positive Phase
II data and is regarded as a licensable asset. Imutex continues to
explore options for the FLU-v vaccine programme and has engaged in
multiple business development discussions, some of which are still
active. Imutex is also establishing schedules for meetings with key
regulatory authorities, FDA and EMEA, where it hopes to gain
further insight into some of the key areas of interest expressed by
potential partners.
The historical cost of investment in Imutex is held on the
balance sheet however it is not utilised in the hVIVO Group's
operations. hVIVO contributes management oversight over the future
direction of the development of the vaccine candidates, but makes
no capital investment to the ongoing development work undertaken by
the joint venture. The hVIVO management expect to review the
carrying value and consider any requirement for impairment
following the year end.
PrEP Biopharm Limited ("PrEP Biopharm")
hVIVO has an equity investment in PrEP Biopharm which holds the
PrEP-001 asset, a novel pan-viral prophylactic in development. The
management of PrEP Biopharm continue to plan for the future
development of PrEP- 001. However, in 2018 hVIVO performed an
impairment assessment and determined that a full impairment of the
carrying amount of the investment in PrEP Biopharm was required due
to consideration of the economic performance of this asset. The
impairment of hVIVO's investment in PrEP Biopharm was not an
indication or an opinion on the utility of PrEP-001 but recognising
that further development will need additional investment and this
was no longer part of hVIVO's re-focussed business model.
Current Strategy and Restructuring
During the year ended 31 December 2018, there were a number of
senior management changes at hVIVO following which the current
senior management instigated a review of the business and strategy.
This resulted in a refocussed business model centred on the
provision of human challenge study services and reset strategic
priorities to the provision of clinical development services. As
part of the review, hVIVO undertook measures to ensure the business
is better placed to operate efficiently, maximise revenue growth
opportunities and begin a transition to cash-generation and
sustainable profitability. This resulted in a significant reduction
in administrative expenses driven by headcount reductions and
process improvements, and R&D expenses primarily due to
discontinuing its discovery activities and instead focussing
resources on the enhancement of the hVIVO challenge services
including new virus manufacture and biomarker assay development.
This process continued during 2019 with the implementation of the
hVIVO management's strategy expected to continue into 2020. Up to
30 June 2019, this has resulted in annualised cost savings of
approximately GBP11 million compared to 2017.
Broadened Service Offerings
In addition to reducing the cost base, the new management have
implemented a number of key actions to enhance the breadth of
revenue opportunities through the addition of new services:
-- Phase I studies
-- Extended leading position in RSV
-- Respiratory models
-- Laboratory services extended
These actions are expected to increase the long term
sustainability of the hVIVO Group and its growth potential.
8. Information on Open Orphan
Open Orphan DAC was founded in July 2017, and acquired
AIM-listed Venn Life Sciences on 28 June 2019 in a reverse
takeover. Following completion of the reverse takeover, Venn Life
Sciences changed its name to Open Orphan plc and has pursued a
strategy to develop a market-leading European services platform for
pharmaceutical and biotech companies with a focus upon orphan
drugs. The Open Orphan Directors believe that the market in Europe
is fragmented with half of the European pharma services sector made
up of large CRO consultancies, but the remainder consisting of a
dispersed group of smaller consultancies and that there is an
opportunity to pursue a consolidator based strategy utilising the
Open Orphan Group's publicly quoted equity.
The pharmaceutical services being provided by Open Orphan to its
large pharma customers include initial pre-clinical consultancy
services through to pre-clinical trials and Phase I and Phase II
clinical trials where Venn Life Sciences has particular expertise.
In addition, Open Orphan also facilitates the obtaining of EMA
approval and reimbursement for orphan and rare disease products for
clients in Europe. Alongside its consulting services, Open Orphan
is also developing a rare disease digital platform, aiming to
become a leading broker of rare disease patient data and developing
a remote pharmaceutical sales service.
Open Orphan plc is organised into three divisions: Open Orphan
Services, Open Orphan Virtual Rep and Open Orphan Health Data.
Open Orphan Services
Venn Life Sciences is a Contract Research Organisation (CRO)
offering drug development services and clinical trial design and
management to pharmaceutical, biotechnology and medical device
organisations. Venn previously acquired Cardinal Systems in France
and Kinesis Pharma in the Netherlands, both of which had been
operating for a combined total of 26 years and have relationships
with many of Europe's leading pharmaceutical companies and a number
of orphan drug companies.
Venn Life Sciences' consultants, scientists and operational
teams are organised into Early Development Services and Clinical
Research Services, and offer a broad range of services. Services
range from drug candidate selection over CMC (chemistry,
manufacturing, controls) and data management, statistics and
medical writing, all the way through to post-market quality
assurance. This enables Venn Life Sciences to create, plan and
execute drug development for its clients providing consulting and
clinical trial services to pharmaceutical and biotechnology
organisations. It specialises in supporting European-wide
pre-clinical trial and Phase I to IV clinical trials. Venn Life
Sciences has a customer base of major European, Japanese and North
American pharmaceutical and biotech companies, including a
significant number of orphan drug companies. Venn Life Sciences has
a team of 120 employees, supplemented by contractors across 14
territories with dedicated operations in Ireland, France, Germany,
the Netherlands and the UK. As such Open Orphan, through Venn, has
a relationship with over 100 pharmaceutical and biotech companies
throughout the world.
One of Venn's larger successful programmes has been recent
months is a large US FDA and European EMA Phase II trial for a
North American biotech company which Venn managed from start to
finish. Following the successful completion of this trial, the
biotech client was acquired for $1.4 billion in November 2019.
Since the reverse takeover of Venn Life Sciences Holdings plc of
Open Orphan DAC on 28 June 2019, the Open Orphan Directors have
undertaken a review of the existing Venn Life Sciences operations.
The Open Orphan Directors have focussed on reducing the overall
cost base and securing additional contracts to both generate
revenue and increase staff utilisation. As part of this process,
total office space has been reduced through sub-letting unused
space to third parties.
Open Orphan Health Data
Open Orphan Health Data is targeting becoming one of the largest
databases of rare disease patients in Europe and a leading broker
of rare disease patient data. The Open Orphan Directors' plan is to
build the database using a low-cost data collection model for
already existing data and making extensive use of AI tools in
constructing the database. Researchers at large pharma companies
are looking for specific anonymised data for their drug discovery
programmes and are prepared to pay to access it, to speed up their
work. In return, patient advocacy groups will gain revenue that can
be used to improve services for patients; this should incentivise
patients to participate.
Under the EU's GDPR regulations, patients have a right to
request a portable copy of their clinical and other healthcare
data, collected by investigators and other data processors. Open
Orphan Health Data is approaching more than 800 patient advocacy
groups for rare diseases in Europe with an offer to host patient
data and broker access to that data for pharma companies. The
advocacy group will be offered, in return, receive a share of the
revenues generated from selling access.
The digital platforms are leveraging Open Orphan's expertise
within the sector. The Health Data Platform will be supporting the
discovery and development of new drugs and treatments, with a
particular focus on orphan diseases. Ahead of its expected launch
during 2020, Open Orphan has signed agreements with several
pharmaceutical and biotechnology companies to test the database and
ensure that it meets their needs.
Open Orphan Virtual Rep
Open Orphan Virtual Rep, which is expected to launch during
2020, will offer drug companies a cost-effective sales solution,
rather than an in-house sales force. The Virtual Rep platform is
expected to benefit from a growth in digital marketing in place of
maintaining a large physical marketing network to engage key
opinion leaders and physicians remotely. The platform can be
implemented at any stage of the lifecycle of a rare/orphan drug
product post regulatory approval, either as a tool to support the
launch of a new product, or to promote mature brands without
incurring the expense of additional field representatives. Instead
of having expensive sales reps setting up their own appointments,
lower-cost call centre staff are scheduling appointments, mailing
information packs and speaking with physicians by telephone or
video call, according to the doctor's preference. Specialist orphan
drug sales staff are contracted as needed for tailored services.
Open Orphan Virtual Rep has built a database of over 4,000
physicians prescribing orphan drugs, and is using staff based in
Dublin to contact doctors throughout Europe.
9. Future intentions for hVIVO, its management and employees and the Enlarged Group
Other than set out in the paragraph 'staff terms and
conditions', Open Orphan's strategic plans for hVIVO is to continue
with the headcount and overhead reduction initiated by the existing
management led by Trevor Philips and Tim Sharpington. The Open
Orphan Board anticipates that in order to achieve some of the
expected benefits of the Offer, it will be necessary to generate
cost-savings, including additional headcount and overhead
reductions and managerial changes. Open Orphan understands that
some of these changes may have a material impact on the employee
base in administrative functions at hVIVO. hVIVO where there may be
overlap with Open Orphan functions beyond the headcount reduction
resulting from the current restructuring plan that is substantially
complete. Open Orphan's plans are described in the 'staff terms and
conditions' paragraph below.
Open Orphan has no plans that that will result in changes to the
location of the hVIVO places of business (including on the location
of hVIVO's headquarters and headquarter functions) and Open Orphan
has no plans to make any changes in relation to (i) the conditions
of employment; (ii) the balance of the skills and functions of the
hVIVO employees and management; (iii) the pension contributions
made by hVIVO into the hVIVO pension scheme(s) and the admission of
new members to such pension schemes; (iv) the deployment of hVIVO's
fixed assets; or (v) the research and development functions of
hVIVO. No statements in this paragraph 10 are "post-offer
undertakings" for the purposes of Rule 19.5 of the Code.
No statements in this paragraph 10 are "post-offer undertakings"
for the purposes of Rule 19.5 of the Code.
Locations
Open Orphan envisages that operations will continue from hVIVO's
sites outlined above for the next 12 months. Open Orphan
anticipates that it will continue to rationalise the Open Orphan
office space as part of an ongoing review of requirements being
undertaken by Open Orphan as part of previously announced
restructuring plans put in place by Open Orphan. This has included
the sub-letting of excess office space at its Paris office and will
extend to subletting up to one third of the current office space in
Breda, Holland. This process is continuing and may lead to a
further reduction in Open Orphan's office space, overheads and
number of offices as part of a relocation of certain operations of
the Enlarged Group into existing Open Orphan and hVIVO sites.
Staff terms and conditions
Open Orphan confirms that, save for those changes as outlined
above and specified to the executive management and Enlarged Group
Board, as detailed below, it has no intention to make material
changes to the conditions of employment of the remaining Open
Orphan or hVIVO employees and intends to safeguard fully the
existing employment and pension rights of hVIVO local management
and employees in accordance with applicable law and to comply with
hVIVO's pension obligations for existing employees and members of
hVIVO's pension schemes.
The Open Orphan Board envisages revenue synergies from the
offer. In addition, it believes that some cost savings will be
available from an operational and administrative review of the
Enlarged Group, which is likely to be required following the offer
to reduce costs arising from duplicated administrative functions.
Open Orphan anticipates that could result in the relocation of its
central administrative function in order that it is located
alongside complementary hVIVO functions. It is anticipated that
such relocation may lead to a reduction in headcount of employees
in these areas given the overlap in expertise between the Open
Orphan Group and hVIVO Group.
Whilst any review is subject to detailed planning, the overall
impact of the finalisation of any such plans would be subject to
appropriate engagement with stakeholders, including employee
representative bodies.
Further, following completion of the offer, the Enlarged Group
will undertake a review of the business to ensure that all its
businesses and operations are operating at the required level to
help grow the Enlarged Group in the future. Open Orphan has not yet
developed any specific proposals as to how this review would be
implemented and Open Orphan will have regard to ensuring that an
appropriate balance of skills and functions across the Enlarged
Group is maintained.
Both Open Orphan and hVIVO are cognisant that in order to
incentivise management, appropriate arrangements for the Enlarged
Group will be required. Consequently, the board of the Enlarged
Group will review suitable structures, which may include
share-based awards, and performance criteria with the view of
implementing new executive and senior management arrangements
following the Offer being declared unconditional. Open Orphan has
separately proposed an incentive plan for Trevor Phillips and Tim
Sharpington. This is proposed to be options over 4 per cent. and 2
per cent. of the Enlarged Open Orphan Share Capital for each of
Trevor Phillips and Tim Sharpington respectively, vesting over 3
years and subject to annual performance conditions.
Operations
Following completion of the offer, it is intended that the hVIVO
and Open Orphan company names will continue to be employed with
respect to the services offered by each group respectively under
the ultimate holding company Open Orphan with the hVIVO name used
in respect for the hVIVO operations alongside the Open Orphan and
Venn Life Sciences names.
The Enlarged Group's focus will be to build the group profitably
both organically and by acquisition. Both groups have recently been
undertaking cost and overhead restructuring to improve operational
efficiency and best position themselves for future
profitability.
Open Orphan does not intend to redeploy fixed assets of hVIVO
following completion of the offer.
Management
Following completion of the offer, it is intended that Dr Trevor
Phillips, the current Executive Chairman of hVIVO, will become
Chief Executive Officer of the Enlarged Group. Cathal Friel, the
current Chief Executive Officer of Open Orphan, will become
Executive Chairman of the Enlarged Group. They will be joined on
the Enlarged Group's Board by Brendan Buckley, Mark Warne and
Michael Meade as non-executive Directors.
Following Admission, the board of the Enlarged Group is expected
to be composed of five directors of whom three will be
non-executive Directors. Of the non-executive Directors, Mark Warne
and Michael Meade are considered by the Board to be
independent.
Notwithstanding the above (and save in respect of Dr Trevor
Phillips and Tim Sharpington) no proposals have been made on the
terms of any incentive arrangements for relevant managers or the
continuing hVIVO Directors and there have been no discussions in
respect of the terms of these arrangements.
Research and Development functions of hVIVO
Open Orphan intends to maintain the existing research and
development activities of hVIVO, relative to supporting hVIVO's
clinical developments services offering, subject to the completion
of the ongoing operational restructuring instigated, and
substantially completed, by the existing hVIVO management.
10. hVIVO share schemes
Under the Code, by virtue of its making an offer for the voting
equity share capital of hVIVO, Open Orphan must make an appropriate
offer or proposal to the participants in the hVIVO Share Schemes to
ensure that their interests are safeguarded. Equality of treatment
is required.
Given the financial terms of the Offer, neither the option
granted to Dr Nicholls by hVIVO on 2 April 2014 nor the options
granted under the hVIVO Company Share Option Plan 2015 have any
value on a "see-through" basis and accordingly the Panel has agreed
that Open Orphan need not make any offer or proposal to
participants in those two hVIVO Share Schemes. Accordingly, it is
expected that these options will lapse, following the Offer
becoming unconditional in all respects, and that consequently no
new Ordinary Shares will be issued to participants in those two
hVIVO Share Schemes.
Based on the financial terms of the Offer, the options granted
under the hVIVO Long Term Incentive Plan 2017 will have a value on
a "see-through" basis and therefore Open Orphan intends to publish,
separately in due course and in accordance with the Code, an
appropriate offer or proposal to the participants in the hVIVO Long
Term Incentive Plan 2017.
11. hVIVO current trading and prospects
In the period following the results for the six months ended 30
June 2019, the hVIVO Directors have continued to implement cost
savings in line with its stated intention to result in annualised
savings of GBP11 million compared to 2017. However, hVIVO has
continued to manage the impact from a high level of cancelled
contracts earlier in the current financial year. The level of
cancellations was unprecedented for hVIVO as a result of some
clients reprioritising their pipelines. These cancellations, which
occurred post expenditure to prepare the hVIVO facility for
significant levels occupancy, have had a negative impact on hVIVO's
cash position with the hVIVO Directors expecting hVIVO to continue
consuming cash through to the year end.
The hVIVO Directors believe that hVIVO has a strong pipeline of
demand into 2020 and expect that this pipeline can be converted
into contracted work, and following the ongoing restructuring, to
move hVIVO towards profitability. However, the hVIVO Directors
consider the conversion of hVIVO's pipeline is linked to hVIVO
being able to demonstrate long term balance sheet strength.
However, until contracts are signed, there can be no certainty that
the pipeline will convert to revenue producing contracts.
Over the past two months there has been a slight worsening in
the hVIVO's trading. hVIVO will report a modest cash balance as at
the end of its financial year ending 31 December 2019. hVIVO still
expects to have a level of cash headroom through its projected cash
low-point in Q1 2020. However that is dependent on management
signing certain contracts in the first quarter of 2020, based on
the existing pipeline.
12. Open Orphan current trading and prospects
Since its readmission in June 2019, the Open Orphan Directors
have focussed on restructuring the historic Venn Life Sciences
business. Open Orphan has continued to carefully manage its cash
reserves to realise the full potential of the group with the cash
burn rate significantly reduced through a strategic focus on
operational efficiencies to resolve staff under-utilisation and
reduce overheads, including excessive office space and office
facilities. The action taken to make Open Orphan more efficient is
expected to result in growth and return to profitability. The Open
Orphan Group recently signed a number of preferred partner
agreements, such as that announced with Ipsen, that the Directors
expect to deliver revenues over an extended period, with initial
revenue under these contracts expected to be recognised in the
current period with further revenue to be recognised into 2020. The
Open Orphan Group has also focused on cross-selling its services to
existing clients and has made progress as regards the same as
evidenced by the announced contract with Carna Bioscience for First
In Human Clinical pharmacology trial following several years of
existing work between the Company and Carna during which both
parties closely collaborated on drug development planning and
pre-clinical activities services contracts.
The Open Orphan Directors believe that Open Orphan has a strong
pipeline for 2020 and this pipeline will be converted into
contracted work. Currently, Open Orphan has an order book of
contracted work in excess of EUR10 million. This pipeline of work
will deliver revenue growth and support the Open Orphan groups cash
position and following the ongoing restructuring, enable it to move
towards profitability. However, until contracts are signed, there
can be no certainty that the pipeline will convert to
revenue-producing contracts.
13. Open Orphan shareholder approval and Admission Document
The Offer will constitute a reverse takeover for Open Orphan for
the purposes of the AIM Rules and the Euronext Growth Rules;
accordingly, Open Orphan is required to seek the approval of its
shareholders for the Offer at the Open Orphan General Meeting.
Application will be made for the admission of the Enlarged Open
Orphan Share Capital (and consequently the Enlarged Group) to
trading on AIM and Euronext Growth. It is expected that, subject to
the satisfaction of certain conditions, Admission will become
effective and trading in the Enlarged Open Orphan Share Capital
will commence at 7:00 a.m. on 17 January 2020.
The Open Orphan Directors do not currently have authority to
issue and allot the New Open Orphan Shares in accordance with
section 551 of the Act and, accordingly, the approval of Open
Orphan Shareholders is required. The Offer is therefore conditional
upon, amongst other things, the Merger Resolutions being passed by
the Open Orphan Shareholders at the Open Orphan General Meeting
which has been convened for 11.00 a.m. on 6 January 2020. Open
Orphan has today sent to Open Orphan Shareholders a circular
containing, amongst other things, notice of the Open Orphan General
Meeting.
Open Orphan has also received irrevocable undertakings in
respect of a total of 76,504,416 Open Orphan Shares, representing,
in aggregate approximately 30.0 per cent. of the Open Orphan Shares
in issue on 6 December 2019 (being the latest practicable date
prior to the date of this document), to vote in favour of the
Merger Resolutions at the Open Orphan General Meeting.
14. Permitted Offer-related Arrangements
Open Orphan recognises the need to incentivise key management
and has proposed the implementation of an option plan to align
management incentives to shareholder returns. Dr Trevor Phillips,
Chief Executive Officer of the Enlarged Group, is proposed to
receive 18,402,491 options and Tim Sharpington, Chief Operating
Officer of the Enlarged Group, is proposed to receive 9,201,246
options. The options will vest over a three year period, subject to
meeting various performance conditions.
Dr Trevor Phillips will enter into an agreement with Open Orphan
and hVIVO amending his current service agreement, conditional upon
the Offer becoming unconditional in all respects, so that
references to hVIVO are treated as references to Open Orphan.
However, the other terms of Dr Phillips' service agreement will
remain the same.
It is intended that, on and from the Offer becoming
unconditional in all respects, Dr Warne will continue to serve as a
non-executive director. Accordingly, Dr Warne will enter into an
agreement reflecting the terms of his appointment as a
non-executive director of Open Orphan, conditional upon the Offer
becoming unconditional in all respects.
MCF, which has advised the Independent hVIVO Directors,
considers the terms of the arrangements between management and
described above to be fair and reasonable so far as hVIVO
Shareholders are concerned.
15. The Placing
Details of the Proposed Placing
The Company intends to place up to 160,000,000 New Ordinary
Shares at the Placing Price to raise up to GBP10 million before
expenses. The Proposed Placing is being underwritten up to GBP2.5
million by Raglan Capital pursuant to the terms of the Underwriting
Agreement.
The Proposed Placing is expected to be conditional upon, amongst
other things:
-- the passing of the Resolutions at the General Meeting; and
-- Admission taking place on or before 17 January 2020 (or such
later date as Arden Partners and the Company may agree being not
later than 28 February 2020).
The Placing Shares will be credited as fully paid and will, on
Admission, rank pari passu in all respects with all other Ordinary
Shares then in issue, including the right to receive all dividends
or other distributions declared, paid or made on or after
Admission.
Further announcements on the Proposed Placing will be made in
due course.
Proposed Placing Agreement
Pursuant to the Proposed Placing Agreement, Arden Partners has
agreed to use its reasonable endeavours as agents of the Company to
procure subscribers for the Placing Shares at the Placing
Price.
The Proposed Placing Agreement contains certain warranties and
indemnities from the Company, the Directors and the Proposed
Directors in favour of Arden Partners and is conditional, inter
alia, upon:
a) Shareholder approval of the Resolutions at the General Meeting;
b) the Offer having become unconditional in all respects (save
only for any condition relating to Admission occurring); and
c) Admission becoming effective not later than 8.00 a.m. on 17
January 2020 or such later time and/or date (being no later than
8.00 a.m. on 28 February 2020) as Arden Partners and the Company
may agree.
Arden Partners may terminate the Proposed Placing Agreement in
certain circumstances, if, inter alia, the Company fails to comply
with its obligations under the Proposed Placing Agreement; if there
is a material adverse change in the business or in the financial or
trading position or prospects of the Enlarged Group or the Company;
or if there is a change in the financial, political, economic or
market conditions, which in the opinion of Arden Partners, acting
in good faith, makes it impractical or inadvisable to proceed with
the Proposed Placing.
16. Related Party Transaction
As noted in paragraph 15 above, the Company proposes to enter
into the following agreement with Raglan Capital Limited ("Raglan
Capital"). Cathal Friel is a director of Raglan Capital and also a
director of the Company.
The underwriting from Raglan Capital is considered a
related-party transaction for the purposes of Rule 13 of the AIM
Rules for Companies. The directors (other than Cathal Friel)
consider, having consulted with Arden Partners, the Company's
nominated adviser, that the terms of the underwriting are fair and
reasonable in so far as Open orphan's shareholders are
concerned.
The underwriting from Raglan Capital is considered a
related-party transaction for the purposes of the Euronext Growth
Rules. The directors (other than Cathal Friel) consider, having
consulted with Davy, the Company's Euronext Growth Adviser, that
the terms of the underwriting are fair and reasonable in so far as
Open Orphan's shareholders are concerned.
17. Compulsory acquisition and cancellation of admission to
trading on AIM of hVIVO Shares
If Open Orphan acquires, whether through acceptances under the
Offer or otherwise, 90 per cent. or more of the hVIVO Shares to
which the Offer relates and the Offer becomes or is declared
unconditional in all respects, Open Orphan will exercise its rights
pursuant to the provisions of sections 974-991 of the Companies Act
to acquire compulsorily the remaining hVIVO Shares. In exercising
such rights in respect of hVIVO Shares held by hVIVO Shareholders
in, or with a registered address in, a Restricted Jurisdiction,
Open Orphan may elect to arrange for such hVIVO Shares to be sold
on behalf of the relevant hVIVO Shareholder and the proceeds (less
the costs and expenses of such sale) remitted to such hVIVO
Shareholder.
If the Offer becomes or is declared unconditional in all
respects and Open Orphan has acquired or agreed to acquire hVIVO
Shares which represent 75 per cent. or more of the voting rights
attaching to the hVIVO Shares then Open Orphan intends to procure
the making of an application by hVIVO to the London Stock Exchange
for the cancellation of the admission to trading of hVIVO Shares on
AIM and to re-register hVIVO as a private company as soon as it is
appropriate to do so under the provisions of the Companies Act.
It is anticipated that any cancellation of admission to trading
on AIM would take effect no earlier than twenty Business Days after
hVIVO has acquired or agreed to acquire 75 per cent. of the voting
rights attaching to the hVIVO Shares. Cancellation of admission to
trading on AIM would significantly reduce the liquidity and
marketability of all hVIVO Shares not assented to the Offer at that
time.
18. Interests
As at 6 December 2019 (being the latest practicable date prior
to the date of this announcement) neither Open Orphan nor, so far
Open Orphan is aware, any person acting in concert (within the
meaning of the Takeover Code) with Open Orphan:
-- has any interest in, or right to subscribe for, any hVIVO
Shares nor does any such person have any short position in hVIVO
Shares, including any short position under a derivative, any
agreement to sell, any delivery obligation or right to require
another person to purchase or take delivery of hVIVO Shares; or
-- has borrowed or lent any hVIVO Shares; or
-- is party to any dealing arrangement on the definition of
acting in concert in the Takeover Code in relation to hVIVO
Shares.
19. Publication of associated documents on websites
In accordance with Rule 26.2 of the Code copies of the following
documents will by no later than 12.00 p.m. (London time) on 10
December 2019 be published on Open Orphan's website
(www.openorphan.com) and hVIVO's website (www.hvivo.com) until the
end of the Offer Period:
-- a copy of this announcement;
-- the Offer Document; and
-- the irrevocable undertakings referred to above in paragraph 6
Enquiries
Open Orphan plc +353 (0)1 644 0007
Cathal Friel, Chief Executive Officer
hVIVO plc +44 (0)20 7756 1300
Dr. Trevor Phillips, Executive Chairman
Anesh Patel, Interim Finance Director and Company Secretary
Fleur Wood, EVP, Investor Relations & Communications
Arden Partners plc (Nominated Adviser and Joint Broker to +44 (0)20 7614 5900
Open Orphan)
John Llewellyn-Lloyd / Benjamin Cryer / Adam Cowl
MCF (Financial Adviser to hVIVO) +44 (0)20 7968 2760
Sam Evans / Tor-Oskar Karlberg
Davy (Euronext Growth Adviser and Joint Broker +353 (0)1 679 6363
To Open Orphan)
Anthony Farrell
Numis Securities Limited (Nominated Adviser to hVIVO) +44 (0)20 7260 1000
Freddie Barnfield / Huw Jeremy
Camarco (Open Orphan Financial PR) +44 (0)20 3757 4980
Tom Huddart / Billy Clegg / Daniel Sherwen
FTI Consulting (hVIVO Financial PR) +44 (0)20 3727 100
Simon Conway / Victoria Foster Mitchell
Disclaimers
Arden Partners plc, which, in the United Kingdom, is authorised
and regulated by the Financial Conduct Authority, is acting
exclusively and respectively for Open Orphan and no one else in
connection with this announcement and the matters referred to
herein and will not be responsible to anyone other than Open Orphan
for providing the protections afforded to clients of Arden Partners
plc nor for providing advice in relation to the contents of this
announcement and the matters referred to herein. Arden Partners plc
has given and not withdrawn its consent to the inclusion in this
announcement of reference to its advice to the Open Orphan
Directors in the form and context in which it appears.
MCF Ltd, which, in the United Kingdom, is authorised and
regulated by the Financial Conduct Authority, is acting exclusively
and respectively for hVIVO and no one else in connection with this
announcement and the matters referred to herein and will not be
responsible to anyone other than hVIVO for providing the
protections afforded to clients of MCF Ltd nor for providing advice
in relation to the contents of this announcement and the matters
referred to herein. MCF Ltd has given and not withdrawn its consent
to the inclusion in this announcement of reference to its advice to
the hVIVO Directors in the form and context in which it
appears.
Numis Securities plc which, in the United Kingdom, is authorised
and regulated by the Financial Conduct Authority, is acting
exclusively for hVIVO and no one else in connection with this
announcement and the matters referred to herein and will not be
responsible to anyone other than hVIVO for providing the
protections afforded to clients of Numis Securities plc nor for
providing advice in relation to the contents of this announcement
and the matters referred to herein.
Davy, which is authorised and regulated in Ireland by the
Central Bank of Ireland, has been appointed as Euronext Growth
Advisor (pursuant to the Euronext Growth Rules) and broker to the
Company. Davy is acting exclusively for the Company in connection
with arrangements described in this document and is not acting for
any other person and will not be responsible to any person for
providing the protections afforded to customers of Davy or for
advising any other person in connection with the arrangements
described in this document. In accordance with the Euronext Growth
Rules and Rules for Euronext Growth Advisors, Davy has confirmed to
Euronext Dublin that it has satisfied itself that the Directors
have received advice and guidance as to the nature of their
responsibilities and obligations to ensure compliance by the
Company with the Euronext Growth Rules. Davy accepts no liability
whatsoever for the accuracy of any information or opinions
contained in this document or for the omission of any material
information, for which it is not responsible. Davy has not
authorised the contents of, or any part of, this document and no
liability whatsoever is accepted by Davy for the accuracy of any
information or opinions contained in this document or for the
omission of any information from this announcement.
IMPORTANT NOTES
Publication of certain documents in connection with the
Offer
The release, publication or distribution of this announcement in
jurisdictions other than the United Kingdom may be restricted by
law and therefore persons into whose possession this announcement
comes should inform themselves about and observe any applicable
restrictions or requirements. Any failure to comply with such
restrictions may constitute a violation of the securities laws of
any such jurisdiction. To the fullest extent possible, the
companies involved in the Offer disclaim any responsibility or
liability for the violation of such requirements by any person.
This announcement has been prepared for the purposes of complying
with English law, the Code, the rules of the London Stock Exchange
and the AIM Rules and the Euronext Growth Rules 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 and regulations of any jurisdiction outside England and
Wales.
This announcement is for information purposes only. It is not
intended to and does not constitute, an offer or form part of any
offer or an invitation to purchase, subscribe for, sell or issue,
any securities or a solicitation of any offer to purchase,
subscribe for, sell or issue any securities pursuant to this
announcement or otherwise in any jurisdiction in which such offer
or solicitation is unlawful. This announcement does not comprise a
prospectus or a prospectus equivalent document. The Offer will be
effected solely by means of the Offer Document which, together with
the Forms of Proxy, will contain the full terms and conditions of
the Offer, including details of how to vote in respect of the
Offer.
The Offer Document, together with the relevant Forms of
Acceptance, will be issued, with the consent of hVIVO, to hVIVO
Shareholders today.
The Admission Document and the Open Orphan Circular will be
posted to Open Orphan Shareholders at the same time as the Offer
Document is made available to hVIVO Shareholders.
Those documents will also be made available at the same time on
Open Orphan's website at www.openorphan.com and on hVIVO's website
at www.hvivo.com. Notwithstanding the above, those documents will
not be posted into, or made available within, a Restricted
Jurisdiction and may not be capable of being accessed by Restricted
Overseas Persons. hVIVO urges hVIVO Shareholders to read the Offer
Document, when it becomes available, in its entirety because it
will contain important information in relation to the Offer. Any
vote in respect of the Offer or other response in relation to the
Offer should be made only on the basis of the information contained
in the Offer Document.
Open Orphan urges Open Orphan Shareholders to read the Admission
Document and the Open Orphan Circular, when they become available,
in their entirety because they will contain important information
in relation to the Offer. Any vote by Open Orphan Shareholders in
respect of the Offer or other response in relation to the Offer
should be made only on the basis of the information contained in
the Admission Document and the Open Orphan Circular.
The statements contained herein 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
herein since such date. Nothing contained in this announcement
shall be deemed to be a forecast, projection or estimate of the
future financial performance of hVIVO or, or of Open Orphan or of
the Enlarged Group, except where otherwise stated.
Overseas jurisdictions
The release, publication or distribution of this announcement in
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 requirements. In particular, the
ability of persons who are not resident in the United Kingdom to
vote their hVIVO Shares in respect of the Offer, to execute and
deliver Forms of Proxy, may be affected by the laws of the relevant
jurisdictions in which they are located. This announcement has been
prepared for the purpose of complying with English law and the Code
and the information disclosed may not be the same as that which
would have been disclosed if this announcement had been prepared in
accordance with the laws of jurisdictions outside the United
Kingdom.
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 them in or into
or from any Restricted Jurisdiction. If the Offer is implemented by
way of a Takeover Offer (unless otherwise permitted by applicable
law and regulation), the Takeover Offer may not be made, directly
or indirectly, in or into, or by the use of mails or any means or
instrumentality (including, but not limited to, facsimile, email or
other electronic transmission, telex or telephone) of interstate or
foreign commerce of, or of any facility of a national, state or
other securities exchange of any Restricted Jurisdiction and the
Takeover Offer may not be capable of acceptance by any such use,
means, instrumentality or facilities.
Please be aware that addresses, electronic addresses and certain
other information provided by hVIVO Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from hVIVO may be provided to Open Orphan during the
Offer Period as required under Section 4 of Appendix 4 of the
Code.
Notice regarding financial information
The financial information included in this announcement relating
to hVIVO has been prepared in accordance with accounting standards
applicable in the United Kingdom that may not be comparable to the
financial statements of US or Australian companies (or companies in
any other jurisdiction). US generally accepted accounting
principles ("US GAAP") and Australian generally accepted accounting
principles differ in certain significant respects from each of UK
GAAP and IFRS. None of the financial information in this
announcement has been audited in accordance with auditing standards
generally accepted in the United States or Australia, or the
auditing standards of the Public Company Accounting Oversight Board
(United States) or the Auditing and Assurance Standards Board
(Australia).
Cautionary note regarding forward-looking statements
This announcement, including certain information incorporated by
reference, contains certain forward-looking statements with respect
to the financial condition, results of operations and business of
hVIVO or the hVIVO Group and Open Orphan or the Open Orphan Group
and certain plans and objectives of the hVIVO Board and the Open
Orphan Board. These forward-looking statements can be identified by
the fact that they do not relate to historical or current facts.
Forward looking statements often use words such as "anticipate",
"target", "expect", "estimate", "intend", "plan", "goal",
"believe", "will", "may", "should", "would", "could" or other words
of similar meaning. These statements are based on assumptions and
assessments made by the hVIVO Board and the Open Orphan Board in
the light of their experience and their perception of historical
trends, current conditions, expected future developments and other
factors they believe appropriate. By their nature, forward-looking
statements involve risk and uncertainty and the factors described
in the context of such forward-looking statements in this
announcement could cause actual results and developments to differ
materially from those expressed in or implied by such
forward-looking statements.
Should one or more of these risks or uncertainties materialise,
or should underlying assumptions prove incorrect, actual results
may vary materially from those described in this announcement.
Except as required by the FCA, the London Stock Exchange, the AIM
Rules, the Code or any other applicable law, hVIVO and Open Orphan
assume no obligation to update or correct the information contained
in this announcement.
No profit forecasts or estimates
No statement in this announcement is intended as a profit
forecast or estimate for any period and no statement in this
announcement should be interpreted to mean that earnings or
earnings per ordinary share for Open Orphan or hVIVO, as
appropriate, for the current or future financial years would
necessarily match or exceed the historical published earnings or
earnings per ordinary share for Open Orphan or hVIVO, as
appropriate.
Disclosure requirements of the Takeover Code
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) of the Takeover Code
applies must be made by no later than 3.30 p.m. (London time) on
the 10th Business Day following the commencement of the offer
period and, if appropriate, by no later than 3.30 p.m. (London
time) on the 10th Business Day following the announcement in which
any 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 one per cent. or more of any class of
relevant securities of the offeree company or of any securities
exchange offeror must make a Dealing Disclosure if the person deals
in any relevant securities of the offeree company or of any
securities exchange offeror. A Dealing Disclosure must contain
details of the dealing concerned and of the person's interests and
short positions in, and rights to subscribe for, any relevant
securities of each of: (i) the offeree company; and (ii) any
securities exchange offeror(s), except to the extent that these
details have previously been disclosed under Rule 8 of the Takeover
Code. A Dealing Disclosure by a person to whom Rule 8.3(b) of the
Takeover Code applies must be made by no later than 3.30 p.m.
(London time) on the Business Day following the date of the
relevant dealing.
If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
interest in relevant securities of an offeree company or a
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3 of the Code.
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 of
the Takeover Code).
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 of this announcement and availability of hard
copies
A copy of this announcement and the display documents required
to be published pursuant to Rule 26.1 and Rule 26.2 of the Code
will be available, subject to certain restrictions relating to
persons resident in Restricted Jurisdictions, on Open Orphan's and
hVIVO 's websites at www.openorphan.com and www.hvivo.com by no
later than 12 noon on 9 December 2019 until the end of the Offer
Period.
Neither the content of hVIVO's website nor the content of any
websites accessible from hyperlinks on such website (or any other
websites) are incorporated into, or form part of, this announcement
nor, unless previously published by means of a Regulatory
Information Service, should any such content be relied upon in
reaching a decision regarding the matters referred to in this
announcement.
In addition, a hard copy of this announcement and any
information incorporated by reference in this announcement may be
requested free of charge by writing to them at Queen Mary
BioEnterprises Innovation Centre, 42 New Road, London, E1 2AX.
hVIVO Shareholders may also request that all future documents,
announcements and information to be sent to them in relation to the
Offer should be in hard copy form.
The Offer is subject to the provisions of the Code.
Rounding
Certain figures included in this announcement have been subject
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 the figures that precede them.
Inside information and Market Abuse Regulation
Certain hVIVO Shareholders were, with the consent of the Panel,
formally brought inside in order to discuss giving irrevocable
commitments to accept the Offer. That inside information is set out
in this announcement and has been disclosed as soon as possible in
accordance with paragraph 7 of article 17 of MAR. Therefore, those
persons that received inside information in a market sounding are
no longer in possession of inside information relating to hVIVO and
Open Orphan, and their respective securities.
The person responsible for arranging release of this
announcement on behalf of Open Orphan is Cathal Friel, CEO.
The person responsible for arranging release of this
announcement on behalf of hVIVO is Dr Trevor Phillips, Executive
Chairman.
Status of announcement
This announcement does not constitute a prospectus or prospectus
equivalent document.
APPIX 1
CONDITIONS AND FURTHER TERMS OF THE OFFER
PART A CONDITIONS OF THE OFFER
1 Conditions
The Offer will be subject to the conditions and terms set out
below, in this document and (in respect of certificated hVIVO
Shares) in the Form of Acceptance and to the applicable rules and
regulations of the London Stock Exchange and the Code and will be
governed by English law and subject to the jurisdiction of the
courts of England:
1.1 Acceptance condition
valid acceptances of the Offer being received (and not, where
permitted, withdrawn) by not later than 1.00 pm (London time) on
the First Closing Date (or such later time(s) and/or date(s) as
Open Orphan may, subject to the rules of the Code or with the
consent of the Panel, decide) in respect of hVIVO Shares which,
together with all other hVIVO Shares acquired by Open Orphan
(whether pursuant to the Offer or otherwise will result in Open
Orphan, and any other person acting in concert with Open Orphan,
holding in aggregate) carry not less than 90 per cent. (or such
lower percentage as Open Orphan may decide) in nominal value of the
hVIVO Shares to which the Offer relates and of the voting rights
attached to those shares, provided that this Condition will not be
satisfied unless Open Orphan and/or any of its associates shall
have acquired or agreed to acquire (whether pursuant to the Offer
or otherwise) hVIVO Shares carrying in aggregate more than 50 per
cent. of the voting rights then normally exercisable at general
meetings of hVIVO, including for this purpose (except to the extent
otherwise agreed by the Panel), any voting rights attaching to any
hVIVO Shares which are unconditionally allotted or issued before
the Offer becomes or is declared unconditional as to acceptances
(whether pursuant to the exercise of outstanding conversion or
subscription rights or otherwise). For the purposes of this
Condition 1.1:
1.1.1 hVIVO Shares which have been unconditionally allotted but
not issued before the Offer becomes or is declared unconditional as
to acceptances, whether pursuant to the exercise of any outstanding
subscription or conversion rights or otherwise, shall be deemed to
carry the voting rights they will carry on being entered into the
register of members of hVIVO;
1.1.2 the expressions 'shares to which the Offer relates' and
'associates' shall be construed in accordance with Part 28 of the
Act;
1.1.3 hVIVO Shares that cease to be held in treasury before the
Offer becomes or is declared unconditional as to acceptances are
hVIVO Shares to which the Offer relates; and
1.1.4 valid acceptances shall be deemed to have been received in
respect of hVIVO Shares which are treated for the purposes of Part
28 of the Act as having been acquired or contracted to be acquired
by Open Orphan by virtue of acceptances of the Offer;
1.2 CMA clearance
to the extent that the European Commission refers any aspect of
the Offer to the CMA under Article 4(4) or Article 9 of the Council
Regulation (EC) 139/2004 (the EU Merger Regulation), or if it does
not constitute a concentration with an Community dimension, but
Open Orphan and hVIVO agree (such agreement to take due account of
their relative legal obligations, and not to be unreasonably
withheld) that a CMA filing is otherwise desirable, the CMA
confirming, in terms reasonably satisfactory to Open Orphan and
hVIVO, that there will not be a reference by the CMA of the Offer,
any part of it or any matter arising from it to its chair for the
constitution of a group under schedule 4 to the Enterprise and
Regulatory Reform Act 2013;
1.3 Approval of Open Orphan Shareholders and Admission of the New Open Orphan Shares
1.3.1 the passing at the Open Orphan General Meeting (or at any
adjournment thereof) of the Merger Resolutions;
1.3.2 the admission to trading on AIM and Euronext Growth of the
New Open Orphan Shares to be issued in connection with the Offer
becoming effective in accordance with the AIM Rules or if Open
Orphan and Arden so determine (and subject to the consent of the
Panel), the London Stock Exchange having acknowledged to Open
Orphan or its agent (and such acknowledgement not having been
withdrawn) that the New Open Orphan Shares will be admitted to
trading on AIM and Euronext Growth;
1.4 General regulatory matters
other than in respect of Condition 1.2, no central bank,
government or governmental, quasi-governmental, supranational,
statutory, regulatory, environmental or investigative body,
authority, court, trade agency, association, institution or
professional or environmental body, private body or any other body
or person whatsoever in any jurisdiction (each a "Relevant
Authority") having instituted, implemented or threatened or having
announced its intention to institute, implement or threaten any
action, proceedings, suit, investigation, enquiry or reference, or
enacted, made or proposed any statute, regulation, decision or
order, or having required any action to be taken or information to
be provided or otherwise having taken any other steps which would
or might reasonably be expected to:
1.4.1 make the Offer or its implementation, or the acquisition
or the proposed acquisition by Open Orphan of any shares or other
securities in, or control of, hVIVO or any of its subsidiaries or
subsidiary undertakings void, illegal or unenforceable under the
laws of any jurisdiction, or otherwise directly or indirectly
restrain, prohibit, restrict, prevent or delay the same or impose
additional adverse conditions or financial or other obligations
with respect thereto, or otherwise challenge or interfere
therewith;
1.4.2 impose any limitation on, or result in a delay in, the
ability of any member of the Open Orphan Group to acquire or hold
or exercise effectively, directly or indirectly, all rights of all
or any of the hVIVO Shares (whether acquired pursuant to the Offer
or otherwise);
1.4.3 require, prevent or delay the divestiture or alter the
terms envisaged for any proposed divestiture by any member of the
Open Orphan Group or the hVIVO Group of all or any portion of their
respective businesses, assets or property, or impose any limitation
on the ability of any of them to conduct all or any part of their
respective businesses or to own or control any of their respective
assets or properties;
1.4.4 require, prevent or delay the divestiture by any member of
the Open Orphan Group of any shares, securities or other interests
in any member of the hVIVO Group of all or any portion of their
respective businesses, assets or properties or impose any
limitation on the ability of any of them to conduct their
businesses or own their respective assets or properties or any part
thereof;
1.4.5 impose any limitation on, or result in a delay in, the
ability of any member of the Open Orphan Group to acquire or hold
or exercise effectively, directly or indirectly, any rights of
ownership of shares or other securities convertible into shares or
any other securities (or the equivalent) in any member of the hVIVO
Group or on the ability of any member of the hVIVO Group to hold or
exercise effectively, directly or indirectly, any rights of
ownership of shares or other securities (or the equivalent) in, or
to exercise management control over, any other member of the hVIVO
Group;
1.4.6 result in any member of the Open Orphan Group or the hVIVO
Group ceasing to be able to carry on their respective businesses
under any name under which it is presently carried on;
1.4.7 require any member of the Open Orphan Group or of the
hVIVO Group to acquire or offer to acquire any shares or other
securities (or the equivalent) owned by any third party in any
member of the Open Orphan Group or any member of the hVIVO Group,
other than as a result of the implementation of the Offer;
1.4.8 make the Offer or its implementation or the proposed
acquisition by the Offeror of any shares or other securities in the
Offeree or the acquisition or control of hVIVO or any member of the
hVIVO Group, illegal, void or unenforceable in or under the laws of
any jurisdiction or directly or indirectly restrict or delay,
prohibit or otherwise interfere with the implementation of, or
impose additional conditions or obligations with respect to, or
otherwise challenge, the Offer or the acquisition of any shares in
hVIVO, or control of hVIVO, by Open Orphan;
1.4.9 impose any limitation on, or result in any delay in, the
ability of any member of the Open Orphan Group or of the hVIVO
Group to conduct or co-ordinate or integrate its business, or any
part of it, with the business of any other member of the Open
Orphan Group or the hVIVO Group;
1.4.10 otherwise adversely affect the business, assets,
financial or trading position or profits or prospects of any member
of the Open Orphan Group or of the hVIVO Group; or
1.4.11 result in the refusal, withholding, suspension,
withdrawal, cancellation, termination or modification in whole or
in part of any licence, authority, permission or privilege held or
enjoyed by any member of the Open Orphan Group or of the hVIVO
Group which is necessary for the proper carrying on of its business
or the imposition of any conditions, restrictions or limitations
upon such licence, authority, permission or privilege which would
materially inhibit the exercise thereof,
and all applicable waiting and other time periods (including any
extensions thereof) during which any Relevant Authority could
decide to take, institute, implement or threaten any action,
proceeding, suit, investigation, enquiry or reference or any other
step under the laws of any jurisdiction in respect of the Offer or
the acquisition of any shares or other securities in hVIVO, or
control of hVIVO, by Open Orphan, having expired, lapsed or been
terminated;
1.5 Notifications, filings, authorisations
other than in relation to the competition law and regulatory
approvals referred to in Condition 1.2, all necessary filings or
applications having been made, and all statutory or regulatory
obligations having been complied with, in each case in any
jurisdiction and under any applicable legislation or regulation in
relation to the Offer or the acquisition of hVIVO securities by any
member of the Open Orphan Group or change of control of hVIVO, and
all authorisations, orders, grants, recognitions, confirmations,
licences, consents, clearances, permissions and approvals (together
authorisations) necessary in any jurisdiction for or in respect of
the Offer or the acquisition of hVIVO securities by any member of
the Open Orphan Group or change of control of hVIVO having been
obtained (in terms and form reasonably satisfactory to Open Orphan)
from any Relevant Authority or other person or body with whom any
member of the Open Orphan Group or the hVIVO Group has entered into
an agreement or arrangement, and such authorisations and any other
authorisations necessary or appropriate for any member of the Open
Orphan Group or of the hVIVO Group to carry on any business now
carried on by it remaining in full force and effect, and no notice
having been given or threatened to revoke, suspend or not renew any
of the same;
1.6 Events since last accounts date
save as Disclosed, no member of the hVIVO Group having, since 31
December 2018:
1.6.1 save as between hVIVO and its wholly-owned subsidiaries or
for hVIVO Shares issued pursuant to the exercise of options or
vesting of awards granted under the hVIVO Share Schemes, issued or
agreed to issue or authorised or proposed the issue of additional
shares of any class;
1.6.2 save as between hVIVO and its wholly-owned subsidiaries or
for the grant of options or awards pursuant to the hVIVO Share
Schemes, issued or agreed to issue or authorised or proposed the
issue of securities convertible into shares of any class, or
rights, warrants or options to subscribe for, or acquire, any such
shares or convertible securities;
1.6.3 other than to another member of the hVIVO Group,
recommended, declared, paid or made or proposed to recommend,
declare, pay or make any bonus, dividend or other distribution,
whether payable in cash or otherwise;
1.6.4 save for transactions with another member of the hVIVO
Group, merged with or demerged from any body corporate, partnership
or business, or acquired or disposed of or transferred, mortgaged
or charged or created any security interest of any kind whatsoever
over any assets or any right, title or interest in any asset
(including shares and trade investments), or authorised or proposed
or announced any intention to propose, enter into or create any
merger, demerger, acquisition or disposal, transfer, mortgage,
charge or security interest of any kind;
1.6.5 save for transactions with another member of the hVIVO
Group, made or authorised, or announced a proposal to make, any
change in its loan capital or the issue of any debentures;
1.6.6 incurred or increased any indebtedness or become subject
to any guarantee or contingent liability other (in any such case)
than in the ordinary course of business;
1.6.7 been unable to pay its debts, or having admitted such
inability in writing, having stopped or suspended payment of its
debts generally (or having threatened to do either such thing), or
having ceased, or having threatened to cease, carrying on all or a
substantial part of its business;
1.6.8 purchased, redeemed or repaid, or announced any proposal
to purchase, redeem or repay, any of its own shares or other
securities, or reduced or made any other change (excepting any
change referred to in sub-paragraph 1.6.1 above) to any part of its
share capital;
1.6.9 other than pursuant to the Offer (and except for
transactions with another member of the hVIVO Group which are not
material in the context of the hVIVO Group taken as a whole)
entered into, implemented, effected or authorised, or proposed or
announced its intention to enter into, implement, effect or
authorise, any merger, demerger, reconstruction, amalgamation,
scheme, commitment or other transaction or arrangement with a
substantially equivalent effect;
1.6.10 entered into, or varied in any material respect the terms
of, any contract with any director or senior executive of hVIVO or
any of its subsidiaries;
1.6.11 other than in the ordinary course of business, entered
into or varied or authorised, proposed or announced its intention
to enter into, vary or authorise any contract, transaction or
commitment (whether in respect of capital expenditure or otherwise)
which is of a long term, onerous or unusual nature or magnitude, or
involves or could involve an obligation of such a nature or
magnitude, or which is or could be (in a manner or to an extent
abnormal in the context of the business concerned) restrictive on
any business of any member of the hVIVO Group;
1.6.12 (other than in respect of a member which is dormant and
was solvent at the relevant time) taken any corporate action or had
any legal proceedings started or threatened against it for its
winding-up, dissolution, reorganisation or any analogous
proceedings in any jurisdiction, or for the appointment of a
receiver, administrative receiver, administrator, trustee or
similar officer of all or any of its assets or revenues, or had any
such person appointed;
1.6.13 entered into any contract, transaction or arrangement
which would be restrictive on the business of any member of the
hVIVO Group other than to a nature and extent which is normal in
the context of the business concerned;
1.6.14 waived or compromised any claim otherwise than in the ordinary course of business;
1.6.15 entered into or varied the terms of any contract,
commitment, arrangement or agreement otherwise than in the ordinary
course of business, or passed any resolution or made any offer
(which remains open for acceptance) with respect to, or announced
any intention or proposal to effect, any of the transactions,
matters or events referred to in this Condition;
1.6.16 made any amendment to its articles of association;
1.6.17 made or agreed or consented to any change to:
(a) the terms of any trust deed constituting any pension scheme
established by any member of the hVIVO Group for its directors,
employees and/or their dependents,
(b) the contributions payable to any such scheme, or the
benefits which accrue or the pensions which are payable
thereunder,
(c) the basis on which qualification for, or accrual or
entitlement to, such benefits or pensions are calculated or
determined, or
(d) the basis upon which the liabilities (including pensions) of
any such pension schemes are funded, valued or made; or
1.6.18 proposed, modified the terms of, or agreed to provide,
any share scheme, incentive scheme or other benefit relating to the
employment or termination of employment of any person employed by
the hVIVO Group, other than in accordance with the terms of the
Offer;
1.7 Matters arising from agreement, arrangement etc.
save as Disclosed, there being no provision of any agreement,
arrangement, licence, permit or other instrument to which any
member of the hVIVO Group is a party, or in or from which any such
member may be interested or be entitled to benefit, or by or to
which any such member or any of its assets may be bound or subject,
which in consequence of the Offer or because of a change in the
control of hVIVO or otherwise, could or might result in:
1.7.1 any moneys borrowed by, or any other indebtedness (actual
or contingent) of, or any grant available to, any such member,
being or becoming repayable or capable of being declared repayable
immediately or earlier than their or its stated repayment or
maturity date, or the ability of any such member to borrow moneys
or incur any indebtedness being withdrawn or restricted, or being
or becoming capable of being withdrawn or restricted;
1.7.2 any such agreement, arrangement, licence, permit or
instrument or the rights, liabilities, obligations or interests of
any such member thereunder being terminated or adversely modified
or affected, or any obligation or liability arising or any adverse
action being taken or arising thereunder;
1.7.3 any assets or interests of any such member being or
falling to be disposed of or charged or any right arising under
which any such asset or interest could be required to be disposed
of or charged;
1.7.4 the creation or enforcement of any mortgage, charge or
other security interest of any kind whatsoever over the whole or
any part of the business, property, assets or other interests of
any such member or any such security;
1.7.5 the rights, liabilities, obligations or interests of any
such member in or in respect of any agreement or arrangement, or
the business of any such member, with any person, firm or body
being terminated or adversely modified or affected;
1.7.6 the value of any such member or its financial or trading
position being prejudiced or adversely affected;
1.7.7 any such member ceasing to be able to carry on business
under any name under which it currently does so; or
1.7.8 the imposition of any liability (actual or contingent) on,
or an increase in the liability (whether actual or contingent) of,
any such member;
and no event having occurred which, under any provision of any
agreement, arrangement, licence, permit or other instrument to
which any member of the hVIVO Group is a party or by or to which
any such member or any of its assets may be bound, entitled or
subject, could result in the occurrence of any of the events or
circumstances described or referred to in paragraphs 1.7.1 to 1.7.8
of this Condition;
1.8 No adverse change, litigation etc.
save as Disclosed, since the date to which hVIVO's most recently
published annual report and accounts were made up:
1.8.1 no adverse change or deterioration having occurred in the
business, assets, financial or trading position or profits of any
member of the hVIVO Group;
1.8.2 no litigation, arbitration or mediation proceedings,
prosecution or other legal proceedings to which any member of the
hVIVO Group is or may become a party (whether as a claimant,
defendant or otherwise), and no investigation by any Relevant
Authority against or in respect of any member of the hVIVO Group
remaining outstanding, or having been instituted, announced or
threatened by or against any member of the hVIVO Group; and
1.8.3 no contingent or other liability of any member of the
hVIVO Group which has not previously been disclosed having arisen
which would be likely to adversely affect the business, assets,
financial or trading position, profits, prospects or operational
performance of any member of the hVIVO Group;
1.9 No withdrawal, cancellation, termination or modification of licence
no steps having been taken and no omissions having been made
which are likely to result in the withdrawal, cancellation,
termination or modification of any licence held by any member of
the hVIVO Group which is necessary for the proper carrying on of
its business;
1.10 No discovery of adverse information
save as Disclosed, Open Orphan not having discovered in relation
to any member of the hVIVO Group:
1.10.1 that any financial, business or other information
concerning the hVIVO Group as contained in the information publicly
announced at any time by or on behalf of any member of the hVIVO
Group is misleading, contains a misrepresentation of fact or omits
to state a fact necessary to make that information not
misleading;
1.10.2 that any member of the hVIVO Group, or any partnership,
company or other entity which is not a member of the hVIVO Group
but in which any member of the hVIVO Group has a significant
economic interest, is subject to any liability (contingent or
otherwise; or
1.10.3 any information which affects the importance of any other
information disclosed at any time by or on behalf of any member of
the hVIVO Group and whose importance is material in the context of
the hVIVO Group taken as a whole.
PART B: FURTHER TERMS OF THE OFFER
Definitions
Except where the context requires otherwise, any reference in
this Part B of this Appendix 1 and (in respect of the certificated
hVIVO Shares) in the Form of Acceptance to:
1 the "acceptance condition" means the condition set out in
paragraph 1.1 of Part A of this Appendix 1;
2 the "Offer" includes any election or alternative available
under the Offer and any revision, variation, renewal or extension
of the Offer;
3 the "Offer becoming unconditional as to acceptances" means the
Offer being or becoming or being declared unconditional as to
acceptances by virtue of the acceptance condition having become or
been declared fulfilled, whether or not any other condition to the
Offer remains to be satisfied;
4 the "Offer becoming wholly unconditional" or the "Offer
becoming unconditional in all respects" (and similar terms) means
all of the Conditions to the Offer becoming, or being declared,
satisfied, or where capable of being waived, waived, and references
to the Offer having become, or having been declared, unconditional
in all respects shall be construed accordingly;
5 "acceptance of the Offer" includes deemed acceptance of the Offer;
6 a person "acting in concert with" Open Orphan is a reference
to a person acting, or deemed to be acting, in concert with Open
Orphan for the purposes of the Code and/or the Offer;
7 "send", "sent" or "sending" or a similar expression in
relation to any document, announcement or other information shall
include distribution in hard copy form or electronic form or
publication on a website in such manner as shall be permitted by
the Code or otherwise with the Panel's consent;
8 "Shareholders" means holders of hVIVO Shares and shall include
reference to the person or persons (in respect of certified hVIVO
Shares) executing a Form of Acceptance and, in the event of more
than one person executing a Form of Acceptance, the provisions of
Part B of Appendix 1 shall apply to them jointly and to each of
them. References to the masculine gender shall include the
feminine;
9 "Day 21" means 30 December 2019 (or any later time and/or date
as the Panel may determine);
10 "Day 39" means 17 January 2020 (or any later time and/or date
as the Panel may determine);
11 "Day 42" means 20 January 2020 (or any later time and/or date
as the Panel may determine);
12 "Day 46" means 24 January 2020 (or any later time and/or date
as the Panel may determine); and
13 "Day 60" means 7 February 2020 (or any later time and/or date
as the Panel may determine).
The following further terms apply, unless the context requires
otherwise, to the Offer.
14 Acceptance Period
14.1 The Offer will initially be open for acceptance until 1.00
pm (London time) on Day 21 of the Offer. Open Orphan reserves the
right (but will not be obliged, other than as may be required by
the Code) at any time and from time to time after that date to
extend the Offer and, in such event, it will make an announcement
of such extension as described in paragraph 15.1 below and give
oral or written notice of such extension to the Registrars. If the
Offer has not become unconditional by Day 21, Open Orphan will have
the option to extend the Offer until such time as the Offer becomes
unconditional as to acceptances. There can be no assurance,
however, that Open Orphan will, in such circumstances, extend the
Offer and, if no such extension is made, the Offer will lapse on
Day 21 of the Offer and no hVIVO Shares will be purchased pursuant
to the Offer.
14.2 Although no revision is contemplated, if the Offer is
revised, a revised offer document will be published and sent to
hVIVO Shareholders. On the day of publication, Open Orphan will
place the revised offer document on display, make it available on
its website and announce that the document has been sent and where
it can be inspected and otherwise accessed. If the Offer is
revised, a revised offer document will be published and sent to if
the Offer is revised (in its original or previously revised form)
it will remain open for acceptance for a period of at least 14 days
(or such other period as may be permitted by the Panel) from the
date on which the document containing details of the revision is
posted to hVIVO Shareholders. Except with the Panel's consent, no
revision of the Offer may be made or revised offer documentation
published after Day 46 of the Offer or, if later, the date falling
14 days before the last date on which the Offer can become
unconditional as to acceptances.
14.3 The Offer, whether revised or not, shall not (except with
the consent of the Panel) be capable of becoming unconditional as
to acceptances after midnight (London time) on Day 60 (or any
earlier time and/or date beyond which Open Orphan has stated that
the Offer will not be extended and in respect of which it has not,
where permitted, withdrawn that statement) nor of being kept open
after that time and/or date unless it has previously become
unconditional as to acceptances. However, Open Orphan reserves the
right, with the consent of the Panel, to extend the Offer to a
later time(s) and/or date(s). If the Offer has not become
unconditional as to acceptances at such time (or any later time
and/or date to which the Offer has been extended), the Offer will
lapse, unless the Panel agrees otherwise. If the Offer lapses for
any reason, the Offer shall cease to be capable of further
acceptance and Open Orphan shall cease to be bound by prior
acceptances.
14.4 Except with the consent of the Panel, Open Orphan may not,
for the purpose of determining whether the acceptance condition has
been satisfied, take into account acceptances received, or
purchases of hVIVO Shares made, in respect of which relevant
electronic instructions or documents have been received by the
Registrars after 1.00 pm (London time) on Day 60 of the Offer (or
any earlier time and/or date beyond which Open Orphan has stated
that the Offer will not be extended and in respect of which it has
not, where permitted, withdrawn that statement) or such later time
and/or date as Open Orphan may, with the permission of the Panel,
decide. If the Offer is extended beyond midnight (London time) on
Day 60 of the Offer, acceptances received and purchases made in
respect of which relevant documents have been received by the
Registrars after 1.00 pm (London time) on the relevant date may
(except where the Code otherwise permits) only be taken into
account with the consent of the Panel.
14.5 If the Offer becomes unconditional as to acceptances, it
will remain open for acceptance for not less than 14 days from the
date on which it would otherwise have expired. If the Offer has
become unconditional as to acceptances and it is stated by or on
behalf of Open Orphan that the Offer will remain open until further
notice or if the Offer will remain open for acceptance beyond the
70th day following the sending of this document, then not less than
14 days' notice in writing will be given prior to the closing of
the Offer to those hVIVO Shareholders who have not accepted the
Offer.
14.6 If a competitive situation arises after Open Orphan has
made a 'no extension' statement or a 'no increase' statement (as
referred to in the Code), Open Orphan may, if it specifically
reserved the right to do so at the time such statement was made (or
otherwise with the Panel's consent), choose not to be bound by and
withdraw that statement and extend or revise the Offer (as
appropriate) provided that it complies with the requirements of the
Code and, in particular, that:
14.6.1 it announces the withdrawal and that it is free to extend
or revise the Offer (as appropriate) as soon as possible (and in
any event within four Business Days of the firm announcement of the
competing offer or other competitive situation);
14.6.2 hVIVO Shareholders and persons with information rights
are informed in writing at the earliest practicable opportunity or,
in the case of hVIVO Shareholders with registered addresses outside
the UK or whom Open Orphan knows to be a nominee, trustee or
custodian hVIVO Shares for such persons, by announcement in the UK
at the earliest practicable opportunity; and
14.6.3 any hVIVO Shareholders who accepted the Offer after the
date of the 'no extension' or 'no increase' statement are given a
right of withdrawal in accordance with paragraph 16.4 of this Part
B of Appendix 1.
14.7 Open Orphan may choose not to be bound by a 'no increase'
or 'no extension' statement if, having reserved the right to do so,
it publishes an increased or improved offer (either as to the value
or form of the consideration or otherwise) which is recommended for
acceptance by the hVIVO Directors, or in other circumstances
permitted by the Panel.
14.8 If hVIVO makes an announcement of the kind referred to in
Rule 31.9 of the Code after Day 39, Open Orphan may, if it has
reserved the right to do so (or otherwise with the consent of the
Panel) choose not to be bound by a 'no increase' or a 'no
extension' statement, and to revise or extend the Offer with the
consent of the Panel, provided that Open Orphan complies with the
requirements of the Code and in particular that notice to this
effect is given as soon as possible (and in any event within four
Business Days of the date of hVIVO's announcement) and hVIVO
Shareholders (except those resident in Restricted Jurisdictions)
are informed in writing at the earliest opportunity.
14.9 If a competitive situation arises and is continuing on Day
60, Open Orphan will enable holders of hVIVO Shares in
uncertificated form who have not already validly accepted the Offer
but who have previously accepted the competing offer to accept the
Offer by special form of acceptance to take effect on Day 60. The
special form of acceptance shall constitute a valid acceptance of
the Offer provided that:
14.9.1 it is received by the Registrars on or before Day 60 of the Offer;
14.9.2 the relevant hVIVO Shareholder shall have applied to
withdraw its acceptance of the competing offer but that the hVIVO
Shares to which such withdrawal relates shall not have been
released from escrow before Day 60 by the escrow agent to the
competing offer; and
14.9.3 the hVIVO Shares to which the special form of acceptance
relates are not transferred to escrow in accordance with the
procedure for acceptance set out in this document on or before Day
60, but an undertaking is given that they will be so transferred as
soon as possible thereafter.
hVIVO Shareholders wishing to use such forms of acceptance
should contact the Receiving Agents, Equiniti Limited, on 0371 384
2050 (from within the UK) and +44 121 415 0259 (if calling from
outside the UK). Calls are charged at the standard geographic rate
and will vary by provider. Calls to the helpline from outside the
United Kingdom will be charged at the applicable international
rate. Other network providers' costs may vary. Lines are open 8.30
am to 5.30 pm (London time) Monday to Friday excluding public
holidays in England and Wales. Different charges may apply to calls
from mobile telephones and calls may be recorded and randomly
monitored for security and training purposes. Please note that for
legal reasons, the Receiving Agent will only be able to provide you
with information contained in this document and will be unable to
give advice on the merits of the Offer nor give any financial,
legal or tax advice on the contents of the document. Subject to the
right to use such special form of acceptance in the terms of this
paragraph 14.9, holders of hVIVO Shares in uncertified form may not
use a Form of Acceptance (or any other purported acceptance form)
for the purpose of accepting the Offer in respect of such
shares.
Calls to the helpline from outside the UK will be charged at the
applicable international rate. Different charges may apply to calls
made from mobile telephones and calls may be recorded and randomly
monitored for security and training purposes. Subject to the right
to use such special form of acceptance in the terms of this
paragraph 14.9, holders of hVIVO Shares in uncertificated form may
not use a Form of Acceptance (or any other purported acceptance
form) for the purpose of accepting the Offer in respect of such
shares.
14.10 For the purposes of determining at any particular time
whether the acceptance condition is satisfied, Open Orphan is not
bound (unless otherwise required by the Panel) to take into account
any hVIVO Shares which have been issued or unconditionally allotted
or which arise as the result of the exercise of subscription or
conversion rights before the determination takes place unless hVIVO
or its agent has given written notice containing relevant details
of the allotment, issue, subscription or conversion before that
time to Open Orphan or the Registrars on behalf of Open Orphan at
one of the addresses specified in paragraph 16.2 of this Part B of
Appendix 1. Notification by e-mail, or facsimile or other
electronic transmission or copies shall not be sufficient to
constitute written notice for this purpose.
15 Announcements
15.1 Without prejudice to paragraph 16.2 of this Part B, by 8.00
am (London time) on the Business Day (the "relevant day") next
following the day on which the Offer is due to expire or becomes or
is declared wholly unconditional or is revised or extended, as the
case may be (or such later time(s) or date(s) as the Panel may
agree), Open Orphan will make an appropriate announcement and
simultaneously inform a Regulatory Information Service. The
announcement will also state (unless otherwise permitted by the
Panel):
15.1.1 the number of hVIVO Shares and rights over hVIVO Shares
(as nearly as practicable) for which acceptances of the Offer have
been received (showing the extent, if any, to which such
acceptances have been received from persons acting in concert with
Open Orphan or in respect of hVIVO Shares which were subject to an
irrevocable commitment, or letter of intent, to accept the Offer
procured by Open Orphan or any of its concert parties);
15.1.2 details of any relevant securities of hVIVO in which Open
Orphan or any person acting in concert with it has an interest or
in respect of which it has a right to subscribe, in each case
specifying the nature of the interests or rights concerned. Similar
details of any short positions (whether conditional or absolute and
whether in the money or otherwise), including any short position
under a derivative, any agreement to sell or any delivery
obligation or right to require another person to purchase or take
delivery, will also be stated;
15.1.3 details of any relevant securities of hVIVO in respect of
which Open Orphan or any of its concert parties has an outstanding
irrevocable commitment or letter of intent; and
15.1.4 details of any relevant securities of hVIVO which Open
Orphan or any person acting in concert with it has borrowed or
lent, save for any borrowed shares which have been either on-lent
or sold,
and will in each case specify the percentage of each class of
relevant securities of hVIVO represented by each of these
figures.
Any such announcement shall include a prominent statement of the
total number of hVIVO Shares which Open Orphan may count towards
the satisfaction of the acceptance condition and the percentage of
hVIVO Shares represented by this figure.
15.2 Any decision to extend the time and/or date by which the
acceptance condition has to be fulfilled may be made at any time up
to, and will be announced not later than, 8.00 am (London time) on
the relevant day (as defined above in paragraph 15.1 of this Part
B) or such later time(s) and/or date(s) as the Panel may agree. The
announcement will state the next expiry date unless the Offer is
then unconditional as to acceptances, in which case a statement may
instead be made that the Offer will remain open until further
notice.
15.3 In computing the number of hVIVO Shares represented by
acceptances and/or purchases, an acceptance or purchase shall only
be counted towards fulfilling the acceptance condition if the
requirements of Notes 4, 5 and 6 (as applicable) on Rule 10 of the
Code are satisfied (unless the Panel agrees otherwise). Subject to
this, Open Orphan may include or exclude for announcement purposes
acceptances and purchases which are not complete in all respects or
which are subject to verification.
15.4 In this Appendix 1, references to the making of an
announcement or the giving of notice by or on behalf of Open Orphan
include: (i) the release of an announcement by public relations
consultants or by Arden to the press; and (ii) the delivery by hand
or telephone or telex or facsimile or other electronic transmission
of an announcement to a Regulatory Information Service. An
announcement made otherwise than to a Regulatory Information
Service shall be notified simultaneously to a Regulatory
Information Service (unless otherwise agreed by the Panel).
16 Rights of withdrawal
16.1 Except as provided by this paragraph 16 or as otherwise
permitted by Open Orphan (either generally or for any particular
hVIVO Shareholder), acceptances of and elections under the Offer
shall be irrevocable.
16.2 If Open Orphan, having announced the Offer to be
unconditional as to acceptances, fails to comply by 3.30 pm (London
time) on the relevant day (as defined in paragraph 15.1 of this
Part B) (or such later time(s) and/or date(s) as the Panel may
agree) with any of the other requirements specified in paragraph
15.1 of this Part B, an accepting hVIVO Shareholder may (unless the
Panel agrees otherwise) immediately thereafter withdraw its
acceptance of the Offer: (i) by written notice received by post or,
during normal business hours only, by hand to the Receiving Agent,
Equiniti Limited, at Corporate Actions, Aspect House, Spencer Road,
Lancing, BN99 6DA; or (ii) if the relevant hVIVO Shares are held in
uncertificated form, in the manner set out in paragraph 16.6 of
this Part B. Subject to paragraph 14.3 of this Part B, this right
of withdrawal may be terminated not less than eight days after the
relevant day by Open Orphan confirming, if it be the case, that the
Offer is still unconditional, and complying with the other
requirements specified in paragraph 15.1 of this Part B. If any
such confirmation is given, the first period of 14 days referred to
in paragraph 14.5 of this Part B will run from the date of such
confirmation and compliance.
16.3 If by 1.00 pm (London time) on Day 42 (or such later
time(s) and/or date(s) as the Panel may agree) the Offer has not
become unconditional, an accepting hVIVO Shareholder may withdraw
its acceptance at any time thereafter: (i) in respect of hVIVO
Shares held in certified form, by written notice in the manner
referred to in paragraph 16.2 of this Part B; or (ii) if the
relevant hVIVO Shares are held in uncertificated form, in the
manner set out in paragraph 16.6 of this Part B, until the earlier
of:
16.3.1 the time when the Offer becomes unconditional; and
16.3.2 the final time for the lodging of acceptances of the
Offer which can be taken into account in accordance with paragraph
14.3 of this Part B.
16.4 If a 'no extension' statement and/or a 'no increase'
statement has been withdrawn in accordance with paragraph 14.6 of
this Part B, any hVIVO Shareholder who accepts the Offer after the
date of the statement may withdraw its acceptance: (i) in respect
of hVIVO Shares held in certified form, in the manner referred to
in paragraph 16.2 of this Part B; or (ii) if the relevant hVIVO
Shares are held in uncertificated form, in the manner set out in
paragraph 16.6 of this Part B, not later than the eighth day after
the date on which written notice of withdrawal of the statement is
posted to hVIVO Shareholders.
16.5 In this paragraph 16, written notice (including any letter
of appointment, direction or authority) means notice in writing
bearing the original signature(s) of the relevant accepting hVIVO
Shareholder(s) or its/their agent(s) duly appointed in writing
(evidence of whose appointment is produced with the notice in a
form reasonably satisfactory to Open Orphan). E-mail, telex,
facsimile or other electronic transmission, or copies, will not be
sufficient to constitute written notice. If a notice from an hVIVO
Shareholder withdrawing its acceptance is received in an envelope
post-marked in, or which otherwise appears to Open Orphan or its
agents to have been sent from, a Restricted Jurisdiction, Open
Orphan reserves the right in its absolute discretion to treat that
notice as invalid.
16.6 In the case of hVIVO Shares held in uncertificated form, if
withdrawals are permitted pursuant to paragraphs 16.2, 16.3 or 16.4
of this Part B, an accepting hVIVO Shareholder may withdraw its
acceptance through CREST by sending (or, if a CREST sponsored
member, procuring that its CREST sponsor sends) an ESA instruction
to settle in CREST in relation to each Electronic Acceptance to be
withdrawn. Each ESA instruction must, in order for it to be valid
and settle, include the following details:
16.6.1 the number of hVIVO Shares to be withdrawn, together with
their ISIN number (which is GB00B6ZM0X53);
16.6.2 the member account ID of the accepting shareholder;
16.6.3 the participant ID of the accepting shareholder;
16.6.4 the Escrow Agent's participant ID (which is 2RA70);
16.6.5 the member account ID of the Escrow Agent included in the
relevant Electronic Acceptance (which is OPEHVI01);
16.6.6 the CREST transaction ID of the Electronic Acceptance to
be withdrawn, to be inserted at the beginning of the shared note
field;
16.6.7 the intended settlement date for the withdrawal;
16.6.8 the corporate action number for the Offer allocated by Euroclear;
16.6.9 input with a standard delivery instruction priority of 80; and
16.6.10 a contact telephone number in the shared note field.
Any such withdrawal will be conditional upon the Registrars
verifying that the withdrawal request is validly made. Accordingly,
the Registrars will on behalf of Open Orphan either reject the
withdrawal by transmitting in CREST a receiving agent reject (AEAD)
message or accept the withdrawal by transmitting in CREST a
receiving agent accept (AEAN) message.
16.7 If an accepting Shareholder withdraws its acceptance, all
documents of title and other documents lodged with the Form of
Acceptance will be returned by the Registrars as soon as
practicable following the receipt of the withdrawal (and in any
event within 14 days) by post (or by such other method as may be
approved by the Panel). All documents sent to certificated
Shareholders (or their appointed agents) will be sent at their own
risk.
16.8 Any question as to the validity (including time of receipt)
of any notice of withdrawal will be determined by Open Orphan whose
determination (save as the Panel otherwise determines) will be
final and binding. None of Open Orphan, hVIVO, the Registrars,
Arden or any other person will be under any duty to give
notification of any defect in any notice of withdrawal or will
incur any liability for failure to do so or for any determination
under this paragraph 16.
16.9 Except as stated in this paragraph 16, acceptances of the Offer shall be irrevocable.
16.10 hVIVO Shares in respect of which acceptances have been
validly withdrawn in accordance with this paragraph 16 may
subsequently be the subject of a new acceptance where the
procedures set out in Part C of this document are followed while
the Offer remains open for acceptance.
16.11 To accept the Offer in respect of your hVIVO Shares
To accept the Offer in respect of hVIVO Shares held in
uncertified form, you should send (or, if you are a CREST sponsor
member, procure that your CREST sponsor sends) to Equiniti a TTE
instruction in relation to such shares. A TTE instruction to XXX
must be properly authenticated in accordance with Equiniti's
specifications for transfers to escrow and must contain the
following details:
(i) the ISIN number for hVIVO Shares. This is GB00B6ZMOX53
(ii) the number of hVIVO Shares in respect of which you wish to
accept the Offer (i.e. the number of hVIVO Shares to be transferred
to escrow);
(iii) your participant ID;
(iv) your member account ID;
(v) the participant ID of the Escrow Account. This is 2RA70;
(vi) the member account ID of the Escrow Agent for the Offer, which is OPEHVI01;
(vii) the intended settlement date. This should be as soon as
possible and, in any event, not later than 1.00 p.m. (London time)
on 30 December 2019;
(viii) the corporate action number of the Offer. This is
allocated by Equiniti and will be available on screen from
Equiniti;
(ix) input with a standard delivery instruction priority of 80; and
(x) a contact name and telephone number in the shared note field.
17 Revisions of the Offer
17.1 No revision of the Offer is contemplated, but if the Offer
(in its original or any previously revised form(s)) is revised
(either in its terms and conditions or in the value or nature of
the consideration offered or otherwise) (which Open Orphan reserves
the right to do) and such revision represents on the date on which
it is announced (on such basis as Arden may consider appropriate)
an improvement or no diminution in the value of the revised Offer
compared with the consideration or terms previously offered or in
the overall value received and/or retained by an hVIVO Shareholder
(under the Offer or otherwise), the benefit of the revised Offer
will, subject to paragraphs 17.3, 17.4 and 21 of this Part B, be
made available to any hVIVO Shareholder who has accepted the Offer
in its original or any previously revised form(s) and who has not
validly withdrawn such acceptance (a previous acceptor). The
acceptance of the Offer by or on behalf of a previous acceptor in
its original or any previously revised form(s) shall, subject as
provided in paragraphs 17.3, 17.4 and 7 of this Part B, be deemed
an acceptance of the revised Offer and shall constitute the
separate appointment of each of Open Orphan and any director of, or
person authorised by, Open Orphan or any of Open Orphan's financial
advisers as its attorney and/or agent with authority:
17.1.1 to accept any such revised Offer on behalf of such previous acceptor;
17.1.2 if the revised Offer includes alternative forms of
consideration, to make on its behalf elections for and/or accept
alternative forms of consideration in the proportions which the
attorney and/or agent in its absolute discretion thinks fit;
and
17.1.3 to execute on behalf of and in the name of such previous
acceptor all further documents (if any) and to do all things (if
any) as may be required to give effect to such acceptances and/or
elections.
In making any such election and/or acceptance, the attorney
and/or agent shall take into account the nature of any previous
acceptance(s) or election(s) made by or on behalf of the previous
acceptor and such other facts or matters as it may reasonably
consider relevant, and shall not be liable to any hVIVO Shareholder
or other person with respect to the making of any such election
and/or acceptance or in making any determination relating
thereto.
17.2 Subject to paragraph 17.3 and paragraph 17.4 of this Part
B, the powers of attorney and authorities conferred by this
paragraph 17 and any acceptance of a revised Offer and/or any
election pursuant thereto shall be irrevocable unless and until the
previous acceptor becomes entitled to withdraw its acceptance under
paragraph 16 of this Part B and duly and validly does so.
17.3 The deemed acceptance and/or election referred to in
paragraph 17.1 of this Part B shall not apply, and the power of
attorney and authorities conferred by that paragraph shall not be
exercised, to the extent that a previous acceptor:
17.3.1 in respect of hVIVO Shares in certificated form, lodges
with the Registrars, within 14 days of the posting of the document
containing the revised Offer, a Form of Acceptance (or other form
validly issued by or on behalf of Open Orphan) in which it validly
elects to receive the consideration receivable by it under such
revised Offer in some other manner than that set out in its
original or any previous acceptance; or
17.3.2 in respect of hVIVO Shares in uncertificated form, sends
(or, if a CREST sponsored member, procures that its CREST sponsor
sends) an ESA instruction to settle in CREST in relation to each
Electronic Acceptance in respect of which an election is to be
varied. Each ESA instruction must, in order for it to be valid and
settle, include the following details:
(a) the number of hVIVO Shares in respect of which the changed
election is made, together with their ISIN number (this is
GB00B6ZM0X53);
(b) the member account ID of the previous acceptor;
(c) the participant ID of the previous acceptor;
(d) the member account ID of the Escrow Agent included in the
relevant Electronic Acceptance, which is 2RA70;
(e) the Escrow Agent's participant ID, which is OPEHVI01;
(f) the CREST transaction ID of the Electronic Acceptance in
respect of which the election is to be changed to be inserted at
the beginning of the shared note field;
(g) the intended settlement date for the changed election;
(h) the corporate action number for the Offer allocated by Euroclear;
(i) the member account ID of the Escrow Agent relevant to the new election; and
(j) input with a standard delivery instruction priority of 80.
Any such change of election will be conditional upon the
Registrars verifying that the request is validly made. Accordingly,
the Registrars will on behalf of Open Orphan reject or accept the
requested change of election by transmitting in CREST a receiving
agent reject (AEAD) or receiving agent accept (AEAN) message as
appropriate.
17.4 The deemed acceptance and/or election referred to in
paragraph 17.1 of this Part B shall not apply, and the power of
attorney and authorities conferred by that paragraph shall not be
exercised, if, as a result thereof, the previous acceptor would (on
such basis as Arden may reasonably consider appropriate) thereby
receive and/or retain less in aggregate in consideration under the
revised Offer than it would have received and/or retained in
aggregate as a result of acceptance of the Offer in the form in
which it was previously accepted by or on its behalf, unless the
previous acceptor has previously agreed in writing. The authorities
conferred by paragraph 17.1 of this Part B shall not be exercised
in respect of any election available under the revised Offer save
in accordance with this paragraph.
17.5 Open Orphan and the Registrars reserve the right to treat
an executed Form of Acceptance or TTE instruction in respect of the
Offer (in its original or any previously revised form(s)) which is
received (or dated) on or after the announcement of any revised
Offer as a valid acceptance of the revised Offer (and, where
applicable, a valid election for or acceptance of any of the
alternative forms of consideration). Such acceptance shall
constitute an authority in the terms of paragraph 17.1 of this Part
B, mutatis mutandis, on behalf of the relevant hVIVO
Shareholder.
18 Dividends
18.1 If after the date of this document, any dividend,
distribution and/or return of capital is declared, paid or made or
becomes payable by hVIVO, Open Orphan reserves the right (without
prejudice to any of its other rights) to reduce the consideration
payable under the Offer by the aggregate amount of such dividend,
distribution and/or return of capital. Any exercise by Open Orphan
of its rights referred to in this paragraph will be the subject of
an announcement and, for the avoidance of doubt, will not be
regarded as constituting any revision or variation of the Offer.
Furthermore, Open Orphan reserves the right to reduce the
consideration payable under the Offer in such circumstances as are,
and by such amount as is, permitted by the Panel.
18.2 If Open Orphan exercises the right to reduce the
consideration payable under the Offer by all or part of the amount
of a dividend, distribution and/or return of capital that has not
been paid or made, hVIVO shareholders will be entitled to receive
and retain the amount of that dividend, distribution and/or return
of capital. Subject to the foregoing and notwithstanding the
Conditions on which the hVIVO Shares are expressed to be acquired
by Open Orphan pursuant to the Offer, the hVIVO Shares will be
acquired by or on behalf of Open Orphan pursuant to the Offer fully
paid and free from all liens, charges, encumbrances and other
rights and interests of whatsoever nature and together with all
rights now attaching and to become attached thereto, including the
right to receive all dividends and other distributions declared,
paid or made at any time after the date of this document.
18.3 To the extent that such a dividend, distribution and/or
return of capital has been declared, paid, made or is payable and
it is: (i) transferred pursuant to the Offer on a basis which
entitles Open Orphan to receive the dividend, distribution and/or
return of capital and to retain it; or (ii) cancelled, the
consideration payable under the Offer will not be subject to change
in accordance with this paragraph.
19 Acceptances and purchases
19.1 Without prejudice to any other provisions of this Part B,
Open Orphan, the Registrars and Arden reserve the right to treat as
valid in whole or in part any acceptance of the Offer which is not
entirely in order or which is not accompanied by the relevant share
certificate(s) and/or other relevant document(s) of title or not
accompanied by the relevant transfer to escrow ("TTE") instruction,
or if received by or on behalf of any of them at any place or
places or in any manner determined by any of them or otherwise than
as set out in this document or (in respect of hVIVO Shares held in
certificated form) in the Form of Acceptance (subject to paragraph
19.2).
19.2 Except as otherwise agreed by the Panel:
19.2.1 an acceptance of the Offer shall not be treated as valid
for the purposes of the acceptance condition unless the
requirements of Note 4 and, if applicable, Note 6 on Rule 10 of the
Code are satisfied with respect to it (and the hVIVO Shares to
which such acceptance relates do not fall within Note 8 on Rule 10
of the Code);
19.2.2 a purchase of hVIVO Shares by Open Orphan or its
nominee(s) (or, if Open Orphan is required to make an offer or
offers under the provisions of Rule 9 of the Code, by a person
acting in concert with Open Orphan or its nominee(s) for the
purpose of such offer(s)) will be treated as valid for the purposes
of the acceptance condition only if the requirements of Note 5 and,
if applicable, Note 6 on Rule 10 of the Code are satisfied with
respect to it (and the hVIVO Shares to which such acceptance
relates do not fall within Note 8 on Rule 10 of the Code);
19.2.3 hVIVO Shares which have been borrowed by Open Orphan may
not be counted towards fulfilling the acceptance condition; and
19.2.4 before the Offer may become or be declared unconditional
as to acceptances, the Registrars must have issued a certificate to
Open Orphan which states: (i) the number of hVIVO Shares in respect
of which acceptances have been received and which comply with
paragraph 19.2.1; (ii) the number of hVIVO Shares otherwise
acquired, whether before or during the Offer Period, which comply
with paragraph 19.2.2; and (iii) the number of hVIVO Shares
subscribed by Open Orphan during the Offer Period and which comply
with paragraph 19.2.3.
19.3 For the purpose of determining at any particular time
whether the acceptance condition has been satisfied, Open Orphan
shall be entitled to take account only of those hVIVO Shares
carrying voting rights which have been unconditionally allotted or
issued before that time, and written notice of allotment or issue
of which, containing all the relevant details, has been received
before that time by the Registrars from hVIVO or its agents at the
address specified in paragraph 16.2 of this Part B. E-mail, telex,
facsimile, the internet or other electronic transmission, or
copies, will not be sufficient to constitute written notice.
19.4 In relation to any acceptance of the Offer in respect of
hVIVO Shares which are in uncertificated form, Open Orphan reserves
the right to make such alterations, additions or modifications as
may be necessary or desirable to give effect to any purported
acceptance of the Offer, whether in order to comply with the
facilities or requirements of CREST or otherwise, provided such
alterations, additions or modifications are consistent with the
requirements of the Code or are otherwise made with the Panel's
consent.
19.5 For the purposes of this document, the time of receipt of a
TTE instruction, an ESA instruction or an Electronic Acceptance
shall be the time at which the relevant instruction settles in
CREST.
20 General
20.1 The Offer is made at 1.00 pm (London time) on 9 December
2019 and is capable of acceptance from that date and after that
time. Copies of this document, the Form of Acceptance and any
related documents are available, subject to certain restrictions
relating to persons resident in Restricted Jurisdictions, for
inspection on the website maintained by Open Orphan in relation to
the Offer at www.openorphan.com and from the Registrars at the
address set out in paragraph 16.2 of this Part B from that
time.
20.2 The Offeror reserves the right (subject to the requirements
of the Code and the Panel) to waive all or any of Conditions (other
than the acceptance condition), in whole or in part, at its
absolute discretion.
20.3 The Offeror shall be under no obligation to waive or treat
as fulfilled any of the Conditions, by a date earlier than the
latest date specified below for the fulfilment of them
notwithstanding that the other Conditions may at such earlier date
have been waived or fulfilled and that there are at such earlier
date no circumstances indicating that any of such Conditions may
not be capable of fulfilment.
20.4 Except with the consent of the Panel, the Offer will lapse
unless all the Conditions to the Offer set out in Part A of this
Appendix 1 have been fulfilled or (if capable of waiver) waived or
(where appropriate) have been determined by Open Orphan to be or
remain satisfied, by midnight (London time) on the date which is 21
days after the later of the First Closing Date and the date on
which the Offer becomes or is declared unconditional as to
acceptances or such later date as Open Orphan may, with the consent
of the Panel, decide.
20.5 The Offer will lapse if, before 1.00 pm (London time) on
the later of the First Closing Date and the date on which the Offer
becomes or is declared unconditional as to acceptances:
20.5.1 it is referred to the Competition and Markets Authority; or
20.5.2 the European Commission either initiates proceedings
under Article 6(1)(c) of the EU Merger Regulation or, there is a
Phase 2 CMA reference following a referral of the Offer by the
European Commission under Article 9.1 of the EU Merger Regulation
to a competent authority in the United Kingdom.
20.6 If the Offer lapses, not only will it cease to be capable
of further acceptance, but also Open Orphan and hVIVO Shareholders
will cease to be bound by prior acceptances.
20.7 If the Offeror is required by the Panel to make a mandatory
offer for hVIVO Shares under Rule 9 of the Code, the Open Orphan
may make such alterations to the Conditions as are necessary to
comply with the provisions of that Rule.
20.8 Open Orphan reserves the right (with the consent of the
Panel) to implement the Offer by way of a scheme of arrangement
pursuant to Part 26 of the Act. In such event, the scheme of
arrangement will be implemented on the same terms (subject to
appropriate amendments), so far as applicable, as those which would
apply to the Offer. In particular, the Condition set out in
paragraph 1.1 of Part A of this Appendix 1 will not apply and the
scheme of arrangement will become subject to the following further
conditions which are not intended to be capable of waiver:
20.8.1 approval of the scheme of arrangement at the court
meeting (or any adjournment thereof) being given by a majority in
number, representing 75 per cent. or more in value present and
voting, either in person or by proxy, of the holders of the hVIVO
Shares (or the relevant class or classes thereof) (excluding any
hVIVO Shares held by Open Orphan and any person acting in concert
with it);
20.8.2 the resolution(s) required to approve and implement the
scheme of arrangement and to be set out in the notice of the
general meeting of the hVIVO Shareholders, being passed by the
requisite majority at such general meeting; and
20.8.3 sanction of the scheme of arrangement by the court (with
or without modifications on terms reasonably acceptable to Open
Orphan and hVIVO) and an office copy of the orders of the court
sanctioning the scheme of arrangement being delivered for
registration to the Registrar of Companies in England and Wales and
being registered by it.
20.9 The Offer will extend to all hVIVO Shares unconditionally
allotted or issued and fully paid on the date of the Offer, and any
further hVIVO Shares unconditionally allotted or issued and fully
paid including pursuant to the exercise of options and awards under
the hVIVO Share Schemes, before the date on which the Offer closes
or such earlier date as Open Orphan may, subject to the Code,
decide.
20.10 The hVIVO Shares will be acquired by Open Orphan under the
Offer fully paid and free from all liens, charges, encumbrances,
equitable interests, options, rights of pre-emption and other third
party rights and interests of whatsoever nature and together with
all rights now or hereafter attaching or accruing to them,
including voting rights and the right to receive and retain, in
full, all dividends, interest and other distributions (if any)
declared, made or paid, or any other return of capital (whether by
way of reduction of share capital or share premium account or
otherwise) made on or after the date of this document.
20.11 The terms, provisions, instructions and authorities
contained or deemed to be incorporated in the Form of Acceptance
constitute part of the terms of the Offer, and the provisions of
this Appendix 1 shall be deemed to be incorporated in and form part
of the Form of Acceptance. Words and expressions defined in this
document have the same meanings when used in the Form of Acceptance
unless the context otherwise requires.
20.12 Except with the Panel's consent, settlement of the
consideration to which any hVIVO Shareholder is entitled under the
Offer will be implemented in full in accordance with the terms of
the Offer without regard to any lien, right of set-off,
counterclaim or other analogous right to which Open Orphan may
otherwise be, or claim to be, entitled as against such hVIVO
Shareholder. No consideration will be sent to an address in a
Restricted Jurisdiction.
20.13 Any omission or failure to despatch this document, (where
relevant) the Form of Acceptance, any other document relating to
the Offer or any notice required to be despatched under the terms
of the Offer, to (or any failure to receive the same by) any person
to whom the Offer is made, or should be made, shall not invalidate
the Offer in any way nor be treated as meaning, expressly or by
implication, that the Offer has not been made to any such person.
Subject to paragraph 21 of this Part B, the Offer extends to any
such person and to all hVIVO Shareholders to whom this document,
the Form of Acceptance and any related documents may not be
despatched, or who may not receive such documents. Any and all such
persons may collect copies of all such documents from the
Registrars at the address set out in paragraph 16.2 of this Part B
or inspect this document, subject to certain restrictions relating
to persons resident in Restricted Jurisdictions, on the website
maintained by Open Orphan in relation to the Offer at
www.openorphan.com while the Offer remains open for
acceptances.
20.14 All powers of attorney, appointments as agent and
authorities on the terms conferred by or referred to in this
Appendix 1, or (where relevant) in the Form of Acceptance, are
given by way of security for the performance of the obligations of
the hVIVO Shareholder concerned and are irrevocable (in respect of
powers of attorney, in accordance with section 4 of the Powers of
Attorney Act 1971) except in the circumstances where the donor of
such power of attorney, appointment or authority is entitled to
withdraw its acceptance in accordance with paragraph 16 of this
Part B and duly and validly does so.
20.15 All communications, notices, certificates, documents of
title and remittances to be delivered by or sent to or from any
hVIVO Shareholders (or their designated agent(s)) will be delivered
by or sent to or from them (or their designated agents) at their
risk. No acknOpen Orphanedgement of receipt of any Form of
Acceptance, Electronic Acceptance, transfer by means of CREST,
communication, notice, share certificate and/or other document of
title will be given by or on behalf of Open Orphan.
20.16 Open Orphan reserves the right to notify any matter
(including the making of the Offer) to all or any hVIVO
Shareholder(s) with registered address(es) outside the UK or whom
Open Orphan knows to be nominees, trustees or custodians for such
persons by announcement or paid advertisement in any daily
newspaper published and circulated in the UK in which case such
notice shall be deemed to have been sufficiently given
notwithstanding any failure by any such hVIVO Shareholders to
receive or see such notice, and all references in this document to
notice in writing (other than in paragraph 16 of this Part B) shall
be construed accordingly.
20.17 If all Conditions are satisfied, fulfilled or, to the
extent permitted, waived and sufficient acceptances under the Offer
are received and/or sufficient hVIVO Shares are otherwise acquired
whether pursuant to the Offer or otherwise, Open Orphan intends to
apply the provisions of Chapter 3 of Part 28 of the Act to acquire
compulsorily any outstanding hVIVO Shares to which the Offer
relates on the same terms as the Offer.
20.18 Open Orphan also intends, following the Offer becoming or
being declared unconditional in all respects and subject to any
applicable requirements of the AIM Rules and if sufficient
acceptances are received under the Offer such that Open Orphan
holds not less than 75 per cent. of the voting rights of hVIVO,
that it will procure the making of an application by hVIVO to the
London Stock Exchange for cancellation of trading in the hVIVO
Shares on AIM. It is anticipated that such cancellation will take
effect no earlier than 20 Business Days after the date on which the
Offer becomes wholly unconditional (subject to compliance with
applicable requirements of the AIM Rules). The cancellation of
trading of the hVIVO Shares will significantly reduce the liquidity
and marketability of any hVIVO Shares not acquired by Open
Orphan.
20.19 If the Offer does not become, or is not declared,
unconditional in all respects and lapses:
20.19.1 in respect of hVIVO Shares held in certificated form,
Forms of Acceptance, share certificates and other documents of
title will be returned by post (or by such other method as may be
approved by the Panel) within 14 days of the Offer lapsing to the
person or agent whose name and address outside a Restricted
Jurisdiction is set out in the relevant box in the Form of
Acceptance or, if none is set out, to the first-named holder at its
registered address outside a Restricted Jurisdiction. No such
documents will be sent to an address in a Restricted Jurisdiction;
and
20.19.2 in respect of hVIVO Shares held in uncertificated form,
the Registrars will, immediately after the lapsing of the Offer (or
within such longer period as the Panel may permit, not exceeding 14
days from the lapsing of the Offer), give instructions to Euroclear
to transfer all hVIVO Shares held in escrow balances and in
relation to which it is the Escrow Agent for the purposes of the
Offer to the original available balances of Shareholders
concerned.
20.20 If sufficient acceptances and voting rights in respect of
hVIVO Shares are received and/or are otherwise acquired, Petards
intends to apply the provisions of sections 974 to 991 (inclusive)
of the Act to acquire compulsorily any outstanding hVIVO Shares and
to apply for cancellation of hVIVO's admission to trading on
AIM.
20.21 In relation to any acceptance of the Offer in respect of
hVIVO Shares which are held in uncertificated form, Open Orphan
reserves the right to make such alterations, additions or
modifications to the terms of the Offer as may be necessary or
desirable to give effect to any purported acceptance of the Offer,
whether in order to comply with the facilities or requirements of
CREST or otherwise, provided such alterations, additions or
modifications are consistent with the requirements of the Code or
are otherwise made with the consent of the Panel.
20.22 For the purposes of this document, the time of receipt of
a TTE instruction, an ESA instruction or an Electronic Acceptance
shall be the time at which the relevant instruction settles in
CREST.
20.23 All references in this Appendix 1 to any statute or
statutory provision shall include a statute or statutory provision
which amends, consolidates or replaces the same (whether before or
after the date of this document).
20.24 Each of the Conditions shall be regarded as a separate
Condition and shall not be limited by reference to any other
Condition.
20.25 The Offer, this document, all acceptances of it and all
elections pursuant to it, the Form of Acceptance and Electronic
Acceptances, all contracts made pursuant to the Offer, all action
taken or made or deemed to be taken or made pursuant to any of
these terms, the relationship between an hVIVO Shareholder and Open
Orphan and/or the Registrars and/or Arden, and all contractual and
non-contractual obligations arising from any of the foregoing,
shall be governed by and interpreted in accordance with English
law. Execution of a Form of Acceptance or the making of an
Electronic Acceptance by or on behalf of an hVIVO Shareholder will
constitute that shareholder's agreement that:
20.25.1 the courts of England are (subject to paragraph 20.25.2
below) to have exclusive jurisdiction to settle any dispute which
may arise in connection with the creation, validity, effect,
interpretation or performance of, or the legal relationships
established by, the Offer and the Form of Acceptance or the
Electronic Acceptance or otherwise arising in connection with the
Offer and the Form of Acceptance or the Electronic Acceptance, and
for such purposes that it irrevocably submits to the jurisdiction
of the courts of England; and
20.25.2 the agreement in paragraph 20.25.1 above is included for
the benefit of Open Orphan, Arden and the Registrars and
accordingly each of Open Orphan, Arden and the Registrars shall
each retain the right to, and may in their absolute discretion,
bring proceedings in any other courts which may have jurisdiction,
and that the accepting hVIVO Shareholder irrevocably submits to the
jurisdiction of such courts.
21 Overseas Shareholders
21.1 The making of the Offer to Overseas Shareholders or in
jurisdictions outside the UK may be prohibited or affected by the
laws of such a jurisdiction. Overseas Shareholders should fully
inform themselves about and observe any applicable legal
requirements.
It is the responsibility of each Overseas Shareholder receiving
a copy of this document and/or Form of Acceptance and wishing to
accept the Offer to satisfy itself as to the full observance of the
laws and regulatory requirements of the relevant jurisdiction in
connection with the Offer, including obtaining any governmental,
exchange control or other consents which may be required, or
compliance with other necessary formalities needing to be observed
and payment of any issue, transfer or other taxes or duties due in
such jurisdiction. Each Overseas Shareholder will be responsible
for any such issue, transfer or other taxes or other payments by
whomsoever payable, and Open Orphan (and any person acting on its
behalf) shall be fully indemnified and held harmless by the hVIVO
Shareholder concerned for any such issue, transfer or other taxes
or duties which Open Orphan (or any such person) may be required to
pay.
If you are an Overseas Shareholder and you are in any doubt
about your position, you should consult your independent financial
adviser in the relevant jurisdiction.
21.2 The Offer is being made for all the hVIVO Shares, and is
being made into all jurisdictions where it is capable of being
lawfully made in compliance with local laws. The Offer is not being
extended directly or indirectly in or into, by use of mails or any
other means or instrumentality (including, without limitation,
electronic mail, facsimile transmission, telex, telephone, internet
or other forms of electronic communication) of foreign or
interstate commerce of, or any facilities of a securities exchange
of, any jurisdiction, where to do so would violate the laws of that
jurisdiction. Accordingly, copies of this document and of the
documents accompanying it are not being (unless otherwise
determined by Open Orphan), and must not be, directly or indirectly
mailed, transmitted or otherwise forwarded, distributed or sent in,
into or from a Restricted Jurisdiction including to hVIVO
Shareholders with registered addresses in a Restricted Jurisdiction
or to persons whom Open Orphan knows to be custodians, trustees or
nominees holding hVIVO Shares for persons with registered addresses
in a Restricted Jurisdiction.
21.3 Persons receiving such documents (including, without
limitation, custodians, nominees and trustees) should observe these
restrictions and must not mail or otherwise forward, distribute or
send them in, into or from a Restricted Jurisdiction. Doing so may
render any purported acceptance of the Offer invalid.
21.4 Persons wishing to accept the Offer must not use the mail
or any other means or instrumentality (including, without
limitation, electronic mail, facsimile transmission, telex,
telephone, internet or other forms of electronic communication) of
foreign or interstate commerce of, or any facilities of a
securities exchange of, any jurisdiction, where to do so would
violate, directly or indirectly, the laws of that jurisdiction for
any purpose relating to acceptance of the Offer. All hVIVO
Shareholders (including nominees, trustees or custodians) who may
have a contractual or legal obligation, or may otherwise intend, to
forward this document and/or Form of Acceptance, should read the
further details in this regard which are contained in this
paragraph 21 before taking any action. Envelopes containing Forms
of Acceptance, evidence of title or other documents relating to the
Offer should not be despatched from a Restricted Jurisdiction
(whether or not postmarked in the Restricted Jurisdiction). All
acceptors of the Offer must provide an address outside a Restricted
Jurisdiction for the receipt of the consideration to which they are
entitled under the Offer or for the return of Forms of Acceptance
or documents of title; otherwise any purported acceptance may be
rendered invalid. Open Orphan reserves the right, in its absolute
discretion, to treat any acceptance as invalid if it believes that
such acceptance may violate applicable legal or regulatory
requirements.
21.5 If, in connection with the making of the Offer and
notwithstanding the restrictions set out in paragraphs 21.2 and
21.4 above, any person (including, without limitation, any
custodian, nominee and/or trustee) sends, forwards or otherwise
distributes this document, the Form of Acceptance or any related
documents, whether pursuant to a legal obligation or otherwise, in,
into or from a Restricted Jurisdiction or uses the mail of, or any
other means or instrumentality (including, without limitation,
electronic mail, facsimile transmission, telex, telephone, internet
or other forms of electronic communication) of foreign or
interstate commerce of, or any facilities of a securities exchange
of, a Restricted Jurisdiction in connection with such forwarding,
such person should:
21.5.1 inform the recipient of such fact;
21.5.2 explain to the recipient that such action may invalidate
any purported acceptance or election by the recipient; and
21.5.3 draw the attention of the recipient to this paragraph 21.
21.6 Subject to the provisions of this paragraph 21 and
applicable laws, an hVIVO Shareholder may be deemed not to have
validly accepted the Offer if:
21.6.1 it puts 'NO' in Box 5 of the Form of Acceptance and
thereby does not give the representations and warranties;
21.6.2 it has a registered address in a Restricted Jurisdiction
or completes Box 6 of the Form of Acceptance with an address in a
Restricted Jurisdiction and in either case does not insert in Box 6
of the Form of Acceptance the name and address of a person or agent
outside a Restricted Jurisdiction to whom it wishes the
consideration to which it is entitled under the Offer to be sent,
subject to the provisions of this paragraph and applicable
laws;
21.6.3 it inserts in Box 6 of the Form of Acceptance the name
and address of a person or agent in a Restricted Jurisdiction to
whom it wishes the consideration to which it is entitled under the
Offer to be sent;
21.6.4 a Form of Acceptance received from it is received in an
envelope postmarked in, or otherwise appears to Open Orphan or its
agents to have been sent from, any Restricted Jurisdiction;
21.6.5 it inserts in Box 2 of the Form of Acceptance a telephone
number in a Restricted Jurisdiction for use in the event of
queries; or
21.6.6 it makes a Restricted Escrow Transfer pursuant to
paragraph 21.7 below without also making a related Restricted ESA
instruction which is accepted by the Registrars.
Open Orphan reserves the right, in its sole discretion, to
investigate, in relation to any acceptance, whether the
representations and warranties could have been truthfully given by
the relevant hVIVO Shareholder and, if such investigation is made
and, as a result, Open Orphan cannot satisfy itself that such
representation and warranty was true and correct, the acceptance
may be rejected as invalid. Any acceptance of the Offer by an hVIVO
Shareholder who is unable to give the representations and
warranties is liable to be disregarded.
21.7 If an hVIVO Shareholder holding hVIVO Shares in
uncertificated form cannot give the warranty, but nevertheless can
provide evidence satisfactory to Open Orphan that it can accept the
Offer in compliance with all relevant legal and regulatory
requirements, it may purport to accept the Offer by sending (or if
a CREST sponsored member, procuring that its CREST sponsor sends)
both:
21.7.1 a TTE instruction to a designated escrow balance detailed
below (a "Restricted Escrow Transfer"); and
21.7.2 one or more valid ESA instructions (a "Restricted ESA
instruction") which specify the form of consideration which it
wishes to receive (consistent with any alternatives which may from
time to time be offered under the Offer).
Such purported acceptance will not be treated as a valid
acceptance unless both the Restricted Escrow Transfer and the
Restricted ESA instruction(s) settle in CREST and Open Orphan
decides, in its absolute discretion, to exercise its right
described in paragraph 21.10 of this Part B to waive, vary or
modify the terms of the Offer relating to Overseas Shareholders, to
the extent required to permit such acceptance to be made, in each
case during the acceptance period set out in paragraph 14.1 of this
Part B. If Open Orphan accordingly decides to permit such
acceptance to be made, the Registrars will, on behalf of Open
Orphan, accept the purported acceptance as an Electronic Acceptance
on the terms of this document (as so waived, varied or modified) by
transmitting in CREST a receiving agent accept (AEAN) message.
Otherwise, the Registrars will, on behalf of Open Orphan, reject
the purported acceptance by transmitting in CREST a receiving agent
reject (AEAD) message.
Each Restricted Escrow Transfer must, in order for it to be
valid and settle, include the following details:
21.7.3 the ISIN number for the hVIVO Shares, which is GB00B6ZM0X53;
21.7.4 the number of hVIVO Shares in uncertificated form in
respect of which the Offer is to be accepted;
21.7.5 the member account ID of the hVIVO Shareholder;
21.7.6 the participant ID of the hVIVO Shareholder;
21.7.7 the participant ID of the Escrow Agent, which is 2RA70;
21.7.8 the member account ID specific to a Restricted Escrow Transfer, which is RESTRICT;
21.7.9 the intended settlement date;
21.7.10 the corporate action number for the Offer allocated by
Euroclear;
21.7.11 input with a standard delivery instruction priority of
80; and
21.7.12 the contact name and telephone number inserted in the
shared note file.
Each Restricted ESA instruction must, in order for it to be
valid and settle, include the following details:
21.7.13 the ISIN number for the hVIVO Shares, which is
GB00B6ZM0X53;
21.7.14 the number of hVIVO Shares relevant to that Restricted
ESA instruction;
21.7.15 the member account ID of the accepting hVIVO
Shareholder;
21.7.16 the participant ID of the accepting hVIVO
Shareholder;
21.7.17 the member account ID of the Escrow Agent set out in the
Restricted Escrow Transfer;
21.7.18 the participant ID of the Escrow Agent set out in the
Restricted Escrow Transfer;
21.7.19 the participant ID and the member account ID of the
Escrow Agent relevant to the form of consideration required
(details of which are set out above);
21.7.20 the CREST transaction ID of the Restricted Escrow
Transfer to which the Restricted ESA instruction relates to be
inserted at the beginning of the shared note field;
21.7.21 the intended settlement date. This should be as soon as
possible and in any event not later than 1.00 pm (London time) on
30 December 2019;
21.7.22 input with a standard delivery instruction priority of
80; and
21.7.23 the corporate action number for the Offer.
21.8 Open Orphan and Arden reserve the right to notify any
matter (including the making of the Offer) to all or any Overseas
Shareholders by announcement in the UK through a Regulatory
Information Service or by notice in the London Gazette or paid
advertisement in any daily newspaper published and circulated in
the UK, or in any other appropriate manner. Where such
announcement, notice or advertisement is duly made, the relevant
notice shall be deemed to have been sufficiently given
notwithstanding any failure by any Overseas Shareholders to receive
or see such notice. All references in this document to 'notice in
writing' (other than in paragraph 16 of this Part B) shall be
construed accordingly.
21.9 Notwithstanding any other provision of this paragraph 21,
Open Orphan may in its sole and absolute discretion make the Offer
to a resident in a Restricted Jurisdiction if Open Orphan is
satisfied, in that particular case, that to do so would not
constitute a breach of any securities or other relevant legislation
of a Restricted Jurisdiction
21.10 These provisions and any other terms of the Offer relating
to Overseas Shareholders may be waived, varied or modified as
regards specific Overseas Shareholders or on a general basis by
Open Orphan in its absolute discretion. Subject to this discretion,
the provisions of this paragraph 21 supersede any terms of the
Offer inconsistent with them. Without prejudice to the generality
of the foregoing, in exercising any compulsory acquisition rights
it may have from time to time pursuant to the provisions of
sections 974-991 of the Companies Act in respect of hVIVO Shares
held by hVIVO Shareholders in, or with a registered address in, a
Restricted Jurisdiction, Open Orphan may elect to arrange for such
hVIVO Shares to be sold on behalf of the relevant hVIVO Shareholder
and the proceeds (less the costs and expenses of such sale)
remitted to such hVIVO Shareholder.
21.11 References in this paragraph 21 to an hVIVO Shareholder
include references to the person or persons executing a Form of
Acceptance and, if more than one person executes the Form of
Acceptance, the provisions of this paragraph 21 shall apply to them
jointly and severally.
21.12 None of Open Orphan, Arden or the Registrars, nor any
agent or director of Open Orphan, Arden or the Registrars shall
have any liability whatsoever to any person for any loss or alleged
loss arising from any decision as to the treatment of acceptances
of the Offer on any of the bases set out above in this paragraph 21
of this Part B or otherwise in connection with any such
decision.
21.13 The provisions of this paragraph 21 of this Part B
override any terms of the Offer inconsistent with such
provisions.
APPIX 2
SOURCES AND BASES OF CALCULATION
In this Announcement:
(i) The value attributed to the Offer is based on the value of
15.56 per hVIVO Share, determined by reference to the average daily
volume weighted average price over the 90 days to 3 December 2019
for each hVIVO and Open Orphan.
(ii) Unless otherwise stated, all closing share prices for hVIVO
shares referred to in this Announcement are closing middle market
quotations derived from Fidessa.
(iii) The premium calculations to the price per hVIVO Share have
been calculated by reference to a price of 15.56 pence per hVIVO
share, determined by reference to the average daily volume weighted
average price over the 90 days to 3 December 2019 for each hVIVO
and Open Orphan.
(iv) References to a percentage of hVIVO Shares are based on the
83,120,420 hVIVO Shares in issue on 6 December 2019, being the
latest practicable date prior to the date of this Announcement.
(v) References to a percentage of Open Orphan Shares are based
on the 254,572,567 Open Orphan Shares in issue on 6 December 2019,
being the latest practicable date prior to the date of this
Announcement.
(vi) Unless otherwise stated, the financial information relating
to hVIVO has been extracted or derived (without any adjustment)
from the audited consolidated accounts of hVIVO for the financial
year ended 31 December 2018, prepared in accordance with IFRS.
(vii) Unless otherwise stated, the financial information
relating to Open Orphan has been extracted or derived (without any
adjustment) from the audited consolidated accounts of Open Orphan
for the financial year ended 31 December 2018, prepared in
accordance with IFRS.
All references to times in this Announcement are to London times
unless otherwise stated.
APPIX 3
SCHEDULE OF IRREVOCABLE UNDERTAKINGS
hVIVO Directors
Irrevocable undertakings
All hVIVO Directors who hold hVIVO Shares or otherwise control
the voting rights in respect of such hVIVO Shares have, on the
basis set out below, given irrevocable undertakings to Open Orphan
to accept the Offer.
Name of hVIVO Director Number of hVIVO Shares Percentage of hVIVO
issued share capital
Trevor Phillips 44,776 0.05%
----------------------- ----------------------
Mark Warne 5,677 0.01%
----------------------- ----------------------
James Winschel 154,516 0.19%
----------------------- ----------------------
Total 204,969 0.25%
----------------------- ----------------------
All of these irrevocable undertakings terminate and
automatically cease to have any effect:
a) if the Announcement (as defined in the undertakings) is not
released by 11.59 pm (London time) on 6 January 2020 or such later
date as Open Orphan and hVIVO may agree;
b) if the Offer Document is not published within 28 days of the
date of release of the Announcement (or within such longer period
as Open Orphan and hVIVO, with the consent of the Panel, agree);
or
c) the time and date on which the Transaction lapses, is
withdrawn or otherwise terminates in accordance with its terms;
d) if Open Orphan publicly announces, with the consent of any
relevant authority (if required and before the Offer Document is
posted, that it does not intend to proceed with the
Transaction;
e) if the Offer is not approved by the requisite majority of
shareholders of Open Orphan at the General Meeting; and
f) if any competing offer for the issued and to be issued share
capital of hVIVO is made which is declared unconditional in all
respects (if implemented by way of a takeover offer) or otherwise
becomes effective (if implemented by way of a scheme of
arrangement).
These undertakings will remain binding in the event that a
higher competing offer for hVIVO is made.
All of these irrevocable undertakings terminate and
automatically cease to have any effect:
a) if the Announcement (as defined in the undertakings) is not
released by 5.00 pm (London time) on 13 December 2019 or such later
date as Open Orphan and hVIVO may agree;
b) if the Offer Document is not published within 28 days of the
date of release of the Announcement (or within such longer period
as Open Orphan and hVIVO, with the consent of the Panel,
agree);
c) the Offer announced in implementation of the Transaction has
not become effective or been declared unconditional in all respects
in accordance with the requirements of the Code (as the case may
be) prior to 28 February 2020; or
d) the Transaction, if made, terminates, lapses or is withdrawn as the case may be.
These undertakings will remain binding in the event that a
higher competing offer for hVIVO is made.
APPIX 4
DEFINITIONS
In this announcement, the following words and expressions have
the following meaning, unless the context requires otherwise:
"Act" or "Companies Act" the Companies Act 2006 (as amended or re-enacted)
"Acquisition" the acquisition by Open Orphan of the entire issued and to be issued
share capital of hVIVO
pursuant to the Offer
"Admission" the admission of the Enlarged Open Orphan Share Capital (and
consequently the Enlarged Group)
to trading on AIM in accordance with Rule 6 of the AIM Rules
"Admission Document" the admission document, relating to the approval of the Offer, the
issue of new Open Orphan
Shares and Admission, to be published and sent to Open Orphan
Shareholders
"AIM" the AIM Market of the London Stock Exchange
"AIM Rules" the rules applicable to companies governing their admission to AIM,
and following admission
their continuing obligations to AIM, as set out in the AIM Rules for
Companies published by
the London Stock Exchange from time to time
"Announcement" the announcement of the Offer dated 9 December 2019 made by Open
Orphan and hVIVO
"Arden" means Arden Partners plc, financial adviser to Open Orphan
"Articles" the articles of association of hVIVO as at the date of the Offer and
"Article" shall mean
any article of those Articles
"business day" a day (excluding Saturdays, Sundays and public holidays) on which
banks are generally open
for business in the City of London
"certificated" or in "certificated form" where a share or other security is not in uncertificated form (that
is, not in CREST)
"Closing Price" the closing middle market quotation of a hVIVO Share or an Open
Orphan Share (as the case
may be) as derived from the AIM Appendix of the Daily Official List
"CMA" the Competition and Markets Authority
"Code" the City Code on Takeovers and Mergers, issued by the Panel
"Conditions" the conditions to the Offer which are set out in Appendix 1 of this
document
"connected person" as defined in section 252 of the Act
"CREST" the relevant system (as defined in the CREST Regulations) in respect
of which Euroclear is
the Operator (as defined in the CREST Regulations)
"CREST Manual" the CREST Manual referred to in agreements entered into by Euroclear
and available at www.euroclear.com/CREST
"CREST payment" has the meaning given in the CREST Manual
"CREST Proxy Instruction" the appropriate CREST message to make a proxy appointment by means
of CREST
"CREST Regulations" the Uncertificated Securities Regulations 2001 (SI 2001 No. 3755)
"CREST sponsor" a CREST participant admitted to CREST as a CREST sponsor
"COPD" Chronic Obstructive Pulmonary Disease
"CRO" Clinical Research Organisation
"Daily Official List" the daily official list of the London Stock Exchange
"Davy" J&E Davy, trading as Davy, the Company's Euronext Growth Adviser and
broker
"Dealing Disclosure" the announcement concerning dealings in relevant securities of any
party to the Merger required
for the purposes of Rule 8 of the Code
"Disclosed" the information which has been fairly disclosed by or on behalf of
hVIVO: (i) in writing prior
to the date of this document to Open Orphan or Open Orphan's
professional advisers (in their
capacity as such in relation to the Merger); (ii) in the Annual
Report and Financial Statements
of hVIVO; (iii) in the Announcement; (iv) in this document or (v) in
any other public announcement
made by hVIVO after 31 December 2018 and prior to the date of this
Announcement in accordance
with the Market Abuse Regulation, the AIM Rules or the Disclosure
Guidance and Transparency
Rules
"Disclosure Guidance and Transparency Rules" the Disclosure Guidance and Transparency Rules of the FCA under FSMA
and contained in the
FCA's publication of the same name (as amended from time to time)
"EC Merger Regulation" Council Regulation 139/2004/EC (as amended)
"electronic form" as defined in the Code
"Enlarged Group" the combined businesses of the Open Orphan Group and the hVIVO Group
following the completion
of the Offer
"Enlarged Open Orphan Share Capital" the entire issued ordinary share capital of the Company immediately
following Admission comprising
the existing ordinary share capital, the New Open Orphan Shares and
the ordinary shares of
the capital of the Company to be issued pursuant to the Placing
"Euroclear" Euroclear UK & Ireland Limited, a company incorporated under the
laws of England and Wales
"FCA" the UK Financial Conduct Authority
"First Closing Date" 30 December 2019
"Flu" Influenza Virus
"Form of Acceptance" the form of acceptance and authority relating to the Offer which has
been sent to hVIVO Shareholders
with this document.
"FSMA" the Financial Services and Markets Act 2000 (as amended)
"hard copy form" as defined in the Code
"hVIVO" hVIVO plc
"hVIVO Board" or "hVIVO Directors" the board of directors of hVIVO and "hVIVO Director" means any
member of the hVIVO Board
"hVIVO Group" hVIVO and its subsidiaries and subsidiary undertakings (ah as
defined in the Act
"hVIVO Options" options, awards or other rights to acquire hVIVO Shares granted
pursuant to the hVIVO Share
Schemes or otherwise
"hVIVO Shareholders" holders of hVIVO Shares
"hVIVO Shares" or "Ordinary Shares" ordinary shares of one penny each in the capital of hVIVO
"hVIVO Share Schemes" the option granted to Mr Nicholls by hVIVO on 2 April 2014, the
hVIVO Company Share Option
Plan 2015 and the hVIVO Long Term Incentive Plan 2017
"HMRC" Her Majesty's Revenue and Customs
"holder" a registered holder of shares, including any person entitled by
transmission
"HRV" Human Rhinovirus
"IFRS" International Financial Reporting Standards as adopted by the
European Union
"Ireland" the island of Ireland, excluding Northern Ireland (the counties of
Antrim, Armagh, Derry,
Down, Fermanagh and Tyrone), and the word "Irish" shall be construed
accordingly
"London Stock Exchange" London Stock Exchange plc
"MCF" means MCF Ltd, financial adviser to hVIVO
"Merger Resolutions" the resolutions numbered 1 and 2 to be proposed at the Open Orphan
General Meeting for approval
of the Offer pursuant to rule 14 of the AIM Rules and rule 14 of the
Euronext Growth Rules
and the issue and allotment of the New Open Orphan Shares
"New Open Orphan Shares" the Open Orphan Shares which are to be issued to pursuant to the
Offer
"Offer" the recommended offer by Open Orphan for the entire issued share
capital of hVIVO details
"Offer Document" the offer document, relating to the terms of the Offer and the issue
of New Open Orphan Shares
to be published and sent to hVIVO Shareholders
"Offer Period" the period commencing on 9 December 2019 and ending in accordance
with the rules of the Code
"Opening Position Disclosure" the announcement required for the purposes of Rule 8 of the Code
containing details of interests
or short positions in, or rights to subscribe for, any relevant
securities of a party to the
Offer if the person concerned has such a position
"Overseas Shareholders" hVIVO Shareholders who are resident in, ordinarily resident in, or
citizens of, jurisdictions
outside the United Kingdom
"Open Orphan" or "Company" Open Orphan plc
"Open Orphan Board" or "Open Orphan Directors" the board of directors of Open Orphan and "Open Orphan Director"
means any member of the Open
Orphan Board
"Open Orphan General Meeting" the general meeting of Open Orphan to be held at 11.00 a.m. on 6
January 2019 at the offices
of DAC Beachcroft, The Walbrook Building, 25 Walbrook, London, EC4N
8AF and which has been
convened pursuant to the Notice.
"Open Orphan Group" Open Orphan and its subsidiaries and subsidiary undertakings (each
as defined in the Act)
"Panel" the UK Panel on Takeovers and Mergers
"participant ID" means the identification code or membership number used in CREST to
identify a particular
CREST member or other CREST participant
"persons with information rights" as defined in the Code
"Placing" the proposed placing of new ordinary shares to be undertaken by Open
Orphan and referred to
in paragraph 15 of the Announcement
"pounds", "GBP", "pence", "p" or "Sterling" the lawful currency of the United Kingdom
"Prospectus Rules" the prospectus rules made by the FCA pursuant to section 73A of the
FSMA
"Receiving Agent" Equiniti Limited, a company incorporated under the laws of England
and Wales
"Registrar of Companies" the Registrar of Companies for England and Wales, within the meaning
of the Act
"Regulatory Information Service" one of the regulatory information services authorised by the London
Stock Exchange to receive,
process and disseminate regulatory information in respect of
companies trading on AIM
"Restricted Jurisdiction" the United States, Canada, Australia or Japan or any other
jurisdiction where extension or
acceptance of the Offer would violate the law of that jurisdiction
"Restricted Overseas Shareholder" a person (including, without limitation, an individual, partnership,
unincorporated syndicate,
limited liability company, unincorporated organisation, trust,
trustee, executor, administrator
or other legal representative) in, or resident in, or any person
whom Open Orphan (following
consultation with hVIVO) reasonably believes to be in, or resident
in, any Restricted Jurisdiction
and persons in any other jurisdiction (other than US persons or
persons in the UK) whom Open
Orphan (following consultation with hVIVO) is advised to treat as
restricted overseas persons
in order to observe the laws of such jurisdiction or to avoid the
requirement to comply with
any governmental or other consent or any registration, filing or
other formality which Open
Orphan (following consultation with hVIVO) regards as unduly onerous
"RSV" Respiratory Syncytial Virus
"SDRT" stamp duty reserve tax
"UK" or "United Kingdom" the United Kingdom of Great Britain and Northern Ireland
"UK GAAP" generally accepted accounting principles in the United Kingdom
"uncertificated" or in "uncertificated form" in respect of a share or other security, where that share or other
security is recorded on
the relevant register of the share or security concerned as being
held in uncertificated form
in CREST and title to which may be transferred by means of CREST
"US" or "United States" the United States of America, its territories and possessions, any
state of the United States
of America and the District of Columbia and all other areas subject
to its jurisdiction
"US Exchange Act" the US Securities Exchange Act 1934, as amended
"US hVIVO Shareholders" hVIVO Shareholders located or resident in the United States
"US person" as defined in Regulation S, as promulgated under the US Securities
Act
"US Securities Act" the United States Securities Act 1933, as amended, and the rules and
regulations promulgated
under such Act
"VAT" value added tax as provided under the Value Added Tax Act 1994
"Venn" or "Venn Life Sciences" Venn Life Sciences plc
This information is provided by RNS, the news service of the
London Stock Exchange. RNS is approved by the Financial Conduct
Authority to act as a Primary Information Provider in the United
Kingdom. Terms and conditions relating to the use and distribution
of this information may apply. For further information, please
contact rns@lseg.com or visit www.rns.com.
END
OUPLLFLEFALDIIA
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December 09, 2019 02:00 ET (07:00 GMT)
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