NOT FOR DISTRIBUTION TO U.S. NEWSWIRE SERVICES OR FOR PUBLICATION, RELEASE OR DISSEMINATION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN THE UNITED STATES, AUSTRALIA, JAPAN, THE REPUBLIC OF SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH IT WOULD BE UNLAWFUL TO DO SO. ANY FAILURE TO COMPLY WITH THIS RESTRICTION MAY CONSTITUTE A VIOLATION OF THE SECURITIES LAWS OF SUCH JURISDICTIONS.
FURTHER, THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND SHALL NOT CONSTITUTE AN OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY, SUBSCRIBE FOR OR OTHERWISE ACQUIRE ANY NEW ORDINARY SHARES OF SHANTA GOLD LIMITED IN ANY JURISIDICTION IN WHICH ANY SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL.
20 June 2017
Shanta Gold Limited
("Shanta" or the "Company")
Proposed Fundraising to raise approximately US$14 million
Shanta Gold Limited (AIM: SHG), the East Africa-focused gold producer, developer and explorer, is pleased to announce a proposed capital raising to raise approximately US$14.0 million (£11.0 million) before expenses by way of placing (the "Placing") and direct subscription ("Subscription") (together, the "Fundraising").
The Placing is being conducted through an accelerated bookbuilding process to be undertaken by Peel Hunt LLP ("Peel Hunt") acting as sole bookrunner. The books for the Placing will open with immediate effect.
Certain directors and employees have indicated an intention to participate in the Placing.
Further, Odey Asset Management, the Company's current significant shareholder has also indicated their intention to participate in the Fundraising by way of Subscription for new ordinary shares of the Company ("Subscription Shares").
The Company refers to the announcements released earlier this morning which noted inter alia:
· the Company has accepted a credit approved commitment letter for a new US$50.0 million Investec debt facility to replace the current US$40.0 million Investec debt facility, of which US$35.3 million is outstanding, and is negotiating the definitive documentation;
· the Company is proposing to repurchase the outstanding senior secured subordinated convertible loan notes (the "Notes") which over 75% of holders have indicated they intend to support (together the "Restructuring"); and,
· the signing of an arrangement agreement for the proposed acquisition of the entire issued share capital of Helio Resource Corp. for consideration of 59.5 million shares of the Company, equal to approximately US$5.6 million (the "Helio Acquisition")
· Intention to raise gross proceeds of approximately US$14.0 million through the Fundraising;
· In conjunction with the Restructuring and the Helio Acquisition, the Fundraising will provide Shanta with a strong platform to deliver returns to its shareholders. The proceeds of the Fundraising will provide funds for growth allowing Shanta to deliver the Revised Mine Plan ("RMP"), integrate Helio's assets into the New Luika Gold Mine ("NLGM") mine plan and to seek out and firm up high grade opportunities in the surrounding area;
· Certain directors of the Company have indicated an intention to participate in the Placing; and,
· Separate from, but conditional upon the completion of, the Fundraising, it is also intended that certain directors will enter into a salary sacrifice arrangement for 12 months. The effect of this will be to provide the Company with an aggregate cash saving of $450,000 over the course of the 12 month period.
Toby Bradbury, Chief Executive Officer of Shanta, commented:
"The proposed fundraising, together with the proposed restructuring and the proposed Helio acquisition, would significantly strengthen Shanta's financial position as the Company progresses through the commercial underground production phase at its flagship New Luika Gold Mine, while the Company awaits repayment of the US$12.5 million in outstanding VAT receivables from the Tanzanian Government.
During the key phase in the mine's underground development, the proposed fundraising would provide the necessary financial headroom to the Company. At the same time it would assist Shanta to incorporate the substantial resource that currently sits outside the NLGM's mine plan, as well as the Helio assets following completion of the acquisition, expected in Q3 2017. Lastly, it would also enable the continued exploration at Singida and at targets within its highly prospective licence area of the Lupa Goldfield."
For more information please contact:
Shanta Gold Limited
Toby Bradbury (CEO)
Eric Zurrin (CFO)
+255 (0) 22 292 5148
Nominated Adviser and Sole Bookrunner
Peel Hunt LLP
Matthew Armitt / Ross Allister / Chris Burrows (Corporate)
+ 44 (0)20 7418 8900
Alastair Rae / Rory James-Duff (ECM Syndicate)
+ 44 (0)20 7418 8642
Financial Public Relations
Emily Fenton / Jos Simson / Barney Hayward
+44 (0)20 7920 3150
About Shanta Gold Limited
Shanta is an East Africa-focused gold producer, developer and explorer. It currently has defined ore resources on the New Luika, Nkuluwisi and Singida projects in Tanzania and holds exploration licences over a number of additional properties in the country. Shanta's flagship New Luika Gold Mine commenced production in 2012 and produced 87,713 ounces in 2016. The Company is admitted to trading on London's AIM Market. For further information please visit: www.Shantagold.com.
The technical information contained within this announcement has been reviewed and approved by Mr. Awie Pretorius MSc.Pri.Sci.Nat. Mr. Pretorius is a consultant to Shanta and a member of the South African Council for Natural Scientific Professionals (SACNASP Membership Number 400060/91). He has sufficient experience that is relevant to the style of mineralisation and type of deposit under consideration and to the activity being undertaken to qualify as a Competent Person as defined in the 2012 Edition of the 'Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves' and for the purposes of the AIM Guidance Note on Mining and Oil & Gas Companies dated June 2009.
Market Abuse Regulation
Market soundings, as defined in the Market Abuse Regulation ("MAR"), were taken in respect of the Placing, with the result that certain persons became aware of inside information, as permitted by MAR. 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 the Company and its securities.
Neither the contents of the Company's website nor the contents of any website accessible from hyperlinks on the Company's website (or any other website) is incorporated into, or forms part of, this announcement.
This announcement does not constitute, or form part of, a prospectus relating to the Company, nor does it constitute or contain any invitation or offer to any person, or any public offer, to subscribe for, purchase or otherwise acquire any shares in the Company or advise persons to do so in any jurisdiction, nor shall it, or any part of it form the basis of or be relied on in connection with any contract or as an inducement to enter into any contract or commitment with the Company.
The content of this announcement has not been approved by an authorised person within the meaning of the Financial Services and Markets Act 2000 ("FSMA"). This announcement has been issued by and is the sole responsibility of the Company. The information in this announcement is subject to change.
This announcement is not an offer of securities for sale into the United States. The securities referred to herein have not been and will not be registered under the U.S. Securities Act of 1933, as amended (the "Securities Act"), and may not be offered or sold, directly or indirectly, in or into the United States, except pursuant to an applicable exemption from registration. No public offering of securities is being made in the United States. This announcement is not for release, publication or distribution, directly or indirectly, in or into the United States, Australia, Japan, the Republic of South Africa or any jurisdiction where to do so might constitute a violation of local securities laws or regulations (a "Prohibited Jurisdiction"). This announcement and the information contained herein are not for release, publication or distribution, directly or indirectly, to persons in a Prohibited Jurisdiction unless permitted pursuant to an exemption under the relevant local law or regulation in any such jurisdiction.
This announcement is directed only at persons whose ordinary activities involve them in acquiring, holding, managing and disposing of investments (as principal or agent) for the purposes of their business and who have professional experience in matters relating to investments and: (i) if in a member state of the European Economic Area, are, unless otherwise agreed with Peel Hunt, qualified investors within the meaning of article 2(1)(e) of the Prospectus Directive ("Qualified Investors"); and (ii) if in the United Kingdom, fall within: (a) article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the "Order"); (b) article 49 of the Order; (c) article 43 of the Order; or (d) any other person to whom it may lawfully be communicated (all such persons together being referred to as "Relevant Persons"). This announcement must not be acted on or relied on by persons who are not Relevant Persons. Any investment or investment activity to which this announcement relates is available only to Relevant Persons and will be engaged in only with Relevant Persons.
Peel Hunt is authorised and regulated by the Financial Conduct Authority in the United Kingdom. Peel Hunt is acting solely as nominated adviser and sole broker exclusively for the Company and no one else in connection with the contents of this announcement and will not regard any other person (whether or not a recipient of this announcement) as its client in relation to the contents of this announcement nor will it be responsible to anyone other than the Company for providing the protections afforded to its clients or for providing advice in relation to the contents of this announcement. Apart from the responsibilities and liabilities, if any, which may be imposed on Peel Hunt by FSMA or the regulatory regime established thereunder, Peel Hunt accepts no responsibility whatsoever, and makes no representation or warranty, express or implied, for the contents of this announcement including its accuracy, completeness or verification or for any other statement made or purported to be made by it, or on behalf of it, the Company or any other person, in connection with the Company and the contents of this announcement, whether as to the past or the future. Peel Hunt accordingly disclaims all and any liability whatsoever, whether arising in tort, contract or otherwise (save as referred to above), which it might otherwise have in respect of the contents of this announcement or any such statement.
This announcement includes "forward-looking statements" which include all statements other than statements of historical facts, including, without limitation, those regarding the Company's business strategy, plans and objectives of management for future operations, or any statements proceeded by, followed by or that include the words "targets", "believes", "expects", "aims", "intends", "will", "may", "anticipates", "would", "could" or similar expressions or negatives thereof. Such forward-looking statements involve known and unknown risks, uncertainties and other important factors beyond the Company's control that could cause the actual results, performance or achievements of the Company to be materially different from future results, performance or achievements expressed or implied by such forward-looking statements. Such forward-looking statements are based on numerous assumptions regarding the Company's present and future business strategies and the environment in which the Company will operate in the future. No undue reliance should be placed upon forward-looking statements. These forward looking statements speak only as at the date of this announcement. The Company expressly disclaims any obligation or undertaking to disseminate any updates or revisions to any forward-looking statements contained herein to reflect any change in the Company's expectations with regard thereto or any change in events, conditions or circumstances on which any such statements are based, unless required to do so by applicable law or the AIM Rules for Companies.
Details of the Placing and Subscription
Investors who participate in the Placing will be required to make bids for Placing Shares in Pounds Sterling. The Placing is for invited placees only, members of the public are not entitled to participate in the Placing.
The Placing is subject to the terms and conditions set out at in the Appendix to this Announcement. Peel Hunt will today commence an accelerated bookbuilding process in respect of the Placing (the "Bookbuild"). The price per ordinary share at which the Placing Shares are to be placed (the "Placing Price") will be decided at the close of the Bookbuild Process. The book will open with immediate effect. The timing of the closing of the book, pricing and allocations is at the discretion of Peel Hunt and the Company. Details of the number of Placing Shares to be subscribed for in the Placing will be announced as soon as practicable after the close of the Bookbuild.
The Placing Shares will be credited as fully paid and will rank pari passu in all respects with the existing ordinary shares in the capital of the Company including the right to receive all dividends and other distributions declared, made or paid after their date of issue.
The Company has entered into a placing agreement (the "Placing Agreement") with Peel Hunt on customary terms and conditions pursuant to which Peel Hunt will use their reasonable endeavours to procure placees for the Placing Shares.
Investors who participate in the Placing will receive an allocation of Placing Shares at the discretion of Peel Hunt, and the Company. Placees should refer to their trade confirmation.
It is expected that Odey and certain other existing shareholders and directors and management will participate in the Fundraising subject to final allocations.
It is expected that certain directors will also enter into a salary sacrifice arrangement under which those directors will be issued with new ordinary shares in the Company. The effect of this will be to provide the Company with an aggregate cash saving of $450,000 over the 12 month period, demonstrating those directors' belief in the future prospects of the Company and further enhancing the Company's working capital position.
The Appendix to this Announcement (which forms part of this Announcement) sets out the terms and conditions of the Placing. By choosing to participate in the Placing and making an oral or written offer to acquire Placing Shares, investors will be deemed to have read and understood this Announcement in its entirety (including the Appendix) and to make a legally binding offer on the terms and subject to the terms and conditions in it, and to be providing the representations, warranties, undertakings and acknowledgments contained in the Appendix.
The Company announced its quarterly operational results on 20 April 2017 and its audited full year results for the year ended 31 December 2016 on 13 June 2017. Both results demonstrate Shanta's continued successful operational performance as well as its positive progression with the underground development at NLGM which achieved commercial production in May 2017. The Company delivered its RMP in March 2017 which increased low cost reserves and highlighted the long life potential at NLGM. The RMP envisages average gold production for the next four years (2017-2020) of 85,000 ounces ("oz") at average All In Sustaining Cost ("AISC") of US$736 per oz ("/oz"). This is before the incorporation of the resources of 9.47 million tonnes ("mt") at 2.24 g/t for 683,000 oz that sit outside of the RMP as well as the recently defined maiden resource of 4.0 mt at 1.1 grammes per tonne ("g/t") for 140,894 oz at the Nkuluwisi prospect and the SMP project resources that will be acquired from Helio in due course.
Shanta generated record gold production for 2016 of 87,713 oz, beating guidance of 82,000 - 87,000 oz, with average AISC of US$661 /oz against guidance of US$690-740 /oz. The Company generated cash of US$50 million from operations and reported US$50 million of EBITDA.
The Company reiterates its annual guidance for 2017 of 80,000 - 85,000 oz at AISC of US$800 - US$850 /oz.
During Q1 2017, a total of 23,252 oz of gold was sold at an average price of US$1,249 /oz. The average realised price was above the average spot price of US$1,219 /oz. As of 9 June 2017, the Company had sold forward 36,000 oz to December 2017 at an average price of US$1,281 /oz.
Cost guidance for 2017 was based on processing underground development ore as it became available with the development cost reporting to capital. On this basis, cash costs for Q1 were US$553 /oz (Q4 2016: US$486 /oz) and AISC were US$768 /oz (Q4 2016: US$747 /oz). Conventional accounting of capital projects requires the net revenue from development ore be offset against capital. Including the effect of accounting for underground development ore prior to commercial production, the AISC for Q1 was US$930 /oz and capital would be reduced by US$5.1 million. There is no cash impact of the different accounting scenarios. Unit cost performance benefited from record gold recoveries of 92%.
The development of underground operations at NLGM remains on track and commercial production was declared as of June 1, 2017. Shanta has been processing underground ore, with 40,000 tonnes at 8.0 g/t g/t mined to 31 May 2017. Due to the move underground, the Company did anticipate Q2 2017 production to be its lowest quarter for 2017, as it moves through the ramp-up process, although production for the quarter to date is better than was planned.
The Company's cash balance at the end of Q1 was US$11.7 million and at 31 May was US$2.8 million which excludes the US$10 million loan facility secured against the new power plant announced on 22 May 2017. The decrease in cash is due primarily to debt servicing, investment in capital expenditure and increase in VAT receivables. No VAT was returned to Shanta in Q1. US$12.5 million VAT has been paid by Shanta over the past 12 months with the last refund having been received for April 2016. The Company is in discussion with the government around progressing the refunding of VAT. The government of Tanzania is dealing with issues of corruption across its various ministries and departments and this work is to be commended. There are on-going audits to flush out the problem areas and, while none of these relate to Shanta, the process has caused delays to VAT refunds.
Background to and reasons for the Fundraising and the Restructuring
The proceeds of the Fundraising will provide working capital and funds to ensure Shanta has the financial flexibility to execute the RMP, incorporate the resources outside of the mine plan including the Helio assets following completion of the acquisition, and to continue to seek out and upgrade the high potential opportunities identified in the surrounding area.
Application will be made to the London Stock Exchange plc ("LSE") for the admission of the Placing Shares and Subscription Shares to trading on the AIM market of the LSE ("Admission"). Admission of the Placing Shares and Subscription Shares is expected to be effective on or around 23 June 2017.
The Placing Shares and Subscription Shares will be issued under the general authority to issue an unlimited number of shares for cash on a non-pre-emptive basis in accordance with the Company's articles of association.
Your attention is drawn to the detailed terms and conditions of the Placing described in the Appendix to this Announcement (which forms part of this Announcement) which sets out further information relating to the Bookbuild and the terms and conditions of the Placing.
The net proceeds of the Fundraising will be used in conjunction with cash flow generated from operations to fund the Company's upcoming capital expenditure and exploration programme at NLGM as well as the integration of resources that are outside of the mine plan and the incorporation of the Helio assets into the mine plan.
The Company delivered its RMP on 23 March 2017 providing an update to the 2015 Base Case Mine Plan ("BCMP"). The strategy for NLGM is to maximise value and mine life through the inclusion of additional resources and reserves within and around the mining license. For the purposes of the Plan, at this stage all reserves incorporated in the Plan are within the existing mining licence areas. The RMP is the culmination of a process that updates the BCMP to incorporate:
· Additional open pit reserves at Elizabeth Hill, originally announced in January 2016 and updated in the RMP with the benefit of reduced mining costs;
· Additional underground reserves at Ilunga, defined in the RMP, and announced as a resource in September 2016;
· Lower operating costs in the open pit operations;
· Optimised underground mine plans for Bauhinia Creek and Luika, relative to the BCMP; and,
· Reconciliation with depleted reserves as at 31 December 2016.
With the benefit of increased resources through exploration and reduced operating costs, reserves were increased from 2.66 mt at 5.93 g/t for 506,000 oz to 3.64 mt at 4.40 g/t for 515,000 oz. Importantly, this increase is after accounting for depletion in 2016 of 615,000 tonnes at 5.27 g/t for 104,000 oz contained.
The RMP delivers 500 koz at US$736 /oz after depletion compared to 443 koz at US$695 /oz in the 2015 BCMP. Production since the BCMP accounts for 117 koz at US$645 /oz. Production going forward under the BCMP would have been 326 koz at an AISC of US$713 /oz. After accounting for additional reserves and depletion, the RMP has added 174 koz of production at an AISC of US$779 /oz.
As has been emphasised regularly in previous announcements, Shanta uses its plans as the basis for on-going improvement and, as it has in the past, seeks to identify and implement initiatives that deliver even better outcomes. This applies to optimisation of operations and capital management.
In addition to the increased reserves, the resources not included in the RMP have increased to 9.47 mt at 2.24 g/t for 683,000 oz from 6.64 mt at 2.41 g/t for 514,000 oz in the BCMP (1 g/t cut-off for open pit; 3.0 g/t cut-off for underground). Further work on these resources is expected to deliver additional reserves in the future to further extend the life of the NLGM.
In May 2017 Shanta announced a maiden JORC Compliant Code (2012) reserve at its Nkuluwisi Mineralised Target ("Nkuluwisi"), located approximately 12 kilometres northwest of the NLGM's central processing hub. The significant scale of the Nkuluwisi resource provides for possible expansion options at NLGM to target lower grade orebodies which could increase production levels and add to mine life. The total resource recorded at Nkuluwisi was 4.0 Mt at 1.1 g/t for a total of 140,894 ounces of contained gold and was the result of a drilling campaign which included 44 Reverse Circulation ("RC") holes comprising 5,833 meters of drilling. Further upside remains along strike at Nkuluwisi and also at a series of highly prospective and proximate targets in the Lupa Goldfield identified through the Company's focused exploration program.
TERMS AND CONDITIONS OF THE PLACING
THE ANNOUNCEMENT INCLUDING THIS APPENDIX (TOGETHER THE "ANNOUNCEMENT") AND THE INFORMATION IN IT IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN, INTO OR FROM THE UNITED STATES, AUSTRALIA, JAPAN OR THE REPUBLIC OF SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH SUCH PUBLICATION, RELEASE OR DISTRIBUTION WOULD BE UNLAWFUL.
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES ONLY.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA WHO ARE QUALIFIED INVESTORS AS DEFINED IN SECTION 86(7) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 AS AMENDED, ("QUALIFIED INVESTORS") BEING PERSONS FALLING WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE EU PROSPECTUS DIRECTIVE (WHICH MEANS DIRECTIVE 2003/71/EC (AS AMENDED BY DIRECTIVE 2010/73/EC)) AND INCLUDES ANY RELEVANT IMPLEMENTING DIRECTIVE MEASURE IN ANY MEMBER STATE) (THE "PROSPECTUS DIRECTIVE"); (B) IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE PERSONS WHO (I) HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS AND ARE "INVESTMENT PROFESSIONALS" FALLING WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER''); AND (II) ARE PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER; (C) IN CANADA, PERSONS WHO ARE BOTH "ACCREDITED INVESTORS" AND "PERMITTED CLIENTS" AS DEFINED UNDER APPLICABLE SECURITIES LAWS IN CANADA, WHO (D) ARE PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS").
THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS APPENDIX DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY. THIS ANNOUNCEMENT IS NOT AN OFFER OF OR SOLICITATION TO PURCHASE OR SUBSCRIBE FOR SECURITIES IN THE UNITED STATES.
THE SECURITIES REFERRED TO HEREIN HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES, EXCEPT PURSUANT TO AN APPLICABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. NO PUBLIC OFFERING OF SECURITIES IS BEING MADE IN THE UNITED STATES. NEITHER THE U.S. SECURITIES AND EXCHANGE COMMISSION NOR ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES HAS APPROVED OR DISAPPROVED OF AN INVESTMENT IN THE SECURITIES OR PASSED UPON OR ENDORSED THE MERITS OF THE PLACING OR THE ACCURACY OR ADEQUACY OF THE CONTENTS OF THIS ANNOUNCEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE IN THE UNITED STATES.
EACH PLACEE (BEING THE PERSON PROCURED BY PEEL HUNT TO SUBSCRIBE FOR PLACING SHARES) SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF ANY INVESTMENT IN PLACING SHARES.
Persons who are invited to and who choose to participate in the Placing, by making (or on whose behalf there is made) an oral or written offer to subscribe for Placing Shares (the "Placees"), will be deemed to have read and understood this Announcement, including this Appendix, in its entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, acknowledgements, and undertakings contained in this Appendix. In particular, each such Placee represents, warrants and acknowledges to Peel Hunt and the Company that:
(a) it is a Relevant Person (as defined above) and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business;
(b) in the case of any Placing Shares acquired by it as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, (a) the Placing Shares acquired by it in the Placing have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons in any Member State of the European Economic Area (the "EEA") which has implemented the Prospectus Directive other than Qualified Investors or in circumstances in which the prior consent of Peel Hunt has been given to the offer or resale; or (b) where Placing Shares have been acquired by it on behalf of persons in any member state of the EEA other than Qualified Investors, the offer of those Placing Shares to it is not treated under the Prospectus Directive as having been made to such persons; and
(c) it is either (a) located outside the United States and acquiring the Placing Shares in an "'offshore transaction" meeting the requirements of Regulation S under the Securities Act; or (b) located in the United States and a "qualified institutional buyer" (a "QIB") (as defined in Rule 144A under the Securities Act) and it has duly executed an investor letter in a form provided to it and delivered the same to a Peel Hunt Person.
The Company and Peel Hunt will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and undertakings. Peel Hunt does not make any representation to any Placees regarding an investment in the Placing Shares referred to in this Announcement (including this Appendix).
This Announcement does not constitute an offer, and may not be used in connection with an offer, to sell or issue or the solicitation of an offer to buy or subscribe for Placing Shares in any jurisdiction in which such offer or solicitation is or may be unauthorised or unlawful and any failure to comply with these restrictions may constitute a violation of applicable securities laws in such jurisdiction. This Announcement and the information contained herein is not for publication or distribution, directly or indirectly, to persons in the United States, Australia, Japan or the Republic of South Africa or in any other jurisdiction in which such publication or distribution is unauthorised or unlawful. Persons (including, without limitation, custodians, nominees and trustees) into whose possession this Announcement and this Appendix may come are required by the Company to inform themselves about and to observe any restrictions of transfer of this Announcement. No public offer of securities of the Company is being made in the United Kingdom, the United States or elsewhere.
In particular, the Placing Shares referred to in this Announcement have not been and will not be registered under the Securities Act or any laws of or with any securities regulatory authority of any state or other jurisdiction of the United States, and may not be offered, sold, pledged or otherwise transferred within the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and the securities laws of any state or other jurisdiction of the United States. No public offering of the Placing Shares or any other securities is being made in the United States. No money, securities or other consideration from any person inside the United States is being solicited pursuant to this Announcement, the Placing, or the Bookbuild and, if sent in response to the information contained in the Announcement, will not be accepted. This Announcement is not an offer of securities for sale into the United States. The Placing Shares are being offered and sold outside the United States in accordance with Regulation S under the Securities Act. Any offering to be made in the United States will be made to a limited number of QIBs pursuant to an exemption from, or in a transaction not subject to, registration under the Securities Act or in a transaction not involving any public offering.
The Placing Shares have not been approved or disapproved by the US Securities and Exchange Commission, any state securities commission or other regulatory authority in the United States, nor have any of the foregoing authorities passed upon or endorsed the merits of the Placing or the accuracy or adequacy of this Announcement. Any representation to the contrary is a criminal offence in the United States.
The Placing Shares have not been and will not be qualified for distribution under applicable Canadian securities laws and, accordingly, any offer and distribution of the Placing Shares in Canada will be made on a basis that is exempt from the prospectus requirements of Canadian securities laws; no prospectus has been lodged with or registered by the Australian Securities and Investments Commission or the Japanese Ministry of Finance; and the Placing Shares have not been nor will they be, registered under or offered in compliance with the securities laws of any state, province or territory of Australia, Japan or the Republic of South Africa. Accordingly, the Placing Shares may not (unless an exemption under the relevant securities laws is applicable) be offered, sold resold or delivered, directly or indirectly, in or into Australia, Japan or the Republic of South Africa or any other jurisdiction outside the United Kingdom.
Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of this Appendix or the Announcement of which it forms part should seek appropriate advice before taking any action.
Notice to Canadian Residents
This press release is not, and under no circumstances is to be construed as, an advertisement or a public offering of the Placing Shares in Canada.
The distribution of the Placing Shares in Canada is being made on a private placement basis only in the provinces of Ontario and Quebec and is exempt from the requirement that the Company prepare and file a prospectus with the relevant securities regulatory authorities in Canada. No offer of securities is made pursuant to this Announcement in Canada except to a person who has represented to the Company and to Peel Hunt that such person (i) is purchasing as principal, or is deemed to be purchasing as principal in accordance with applicable Canadian securities laws, for investment only and not with a view to resale or redistribution; (ii) is an "accredited investor" as such term is defined in section 1.1 of NI 45-106 or, in Ontario, as such term is defined in section 73.3(1) of the Securities Act (Ontario); and (iii) is a "permitted client" as such term is defined in section 1.1 of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the Placing Shares acquired by a Canadian investor in this offering must be made in accordance with applicable Canadian securities laws, which may vary depending on the relevant jurisdiction, and which may require resales to be made in accordance with Canadian prospectus requirements, a statutory exemption from the prospectus requirements, in a transaction exempt from the prospectus requirements or otherwise under a discretionary exemption from the prospectus requirements granted by the local Canadian securities regulatory authority. These resale restrictions may under certain circumstances apply to resales of the Placing Shares outside of Canada. Canadian purchasers are advised to seek legal advice prior to any resale of the Placing Shares.
Canadian investors are further advised that the Company does not intend to file a prospectus or similar document with any securities regulatory authority in Canada qualifying the resale of the Placing Shares to the public in any province or territory of Canada in connection with the Placing.
Terms defined elsewhere in this document have the same meaning in this Appendix, unless the context requires otherwise. In this Appendix the following additional definition shall apply:
(a) "Peel Hunt Person" means any person being (i) Peel Hunt or any member (partner) of Peel Hunt, (ii) an undertaking which is a subsidiary undertaking of Peel Hunt, (iii) a parent undertaking of Peel Hunt or (other than Peel Hunt) a subsidiary undertaking of any such parent undertaking, or (iv) a director, partner, officer, agent or employee of any such person.
(b) Various dates referred to in this document are stated on the basis of the expected timetable for the Placing. It is possible that some of these dates may be changed. The expected date for Admission is 23 June 2017 and, in any event, the latest date for Admission is 7 July2017 (the "Long Stop Date").
Peel Hunt has entered into a placing agreement with the Company under which it has, on the terms and subject to the conditions set out therein, undertaken to use its reasonable endeavours to procure subscribers for the Placing Shares at the Placing Price which will be decided at the close of the Bookbuild Process. As part of the arrangements for the Bookbuild, the Company itself intends to procure certain Placees. To the extent Peel Hunt does not procure subscribers for Placing Shares as required, including those Placees procured by the Company, Peel Hunt will not itself subscribe for such shares.
Peel Hunt will today commence an accelerated bookbuilding process in respect of the Placing (the "Bookbuild") to determine demand for participation in the Placing by Placees at the Placing Price. This Appendix gives details of the terms and conditions of, and the mechanics of participation in, the Placing. The number of Placing Shares will be determined following completion of the Bookbuild as set out in this Announcement and the Placing Agreement. No commissions will be paid to Placees or by Placees in respect of any Placing Shares.
Peel Hunt and the Company shall be entitled to effect the Placing by such alternative method to the Bookbuild as it may, in its sole discretion, determine.
The Placing Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing issued ordinary shares in the capital of the Company ("Ordinary Shares"), including the right to receive all dividends and other distributions (if any) declared, made or paid on or in respect of the Ordinary Shares after the date of issue of the Placing Shares.
Peel Hunt and the Company reserve the right to scale back the number of Placing Shares to be allotted to any Placee in the event of an oversubscription under the Placing. Peel Hunt and the Company also reserve the right not to accept offers for Placing Shares or to accept such offers in part rather than in whole.
Each Placee will be required to pay to Peel Hunt, on the Company's behalf, an amount equal to the product of the Placing Price and the number of Placing Shares that such Placee is required to be allotted in accordance with the terms set out in or referred to in this Appendix. Each Placee's obligation to be allotted and pay for Placing Shares under the Placing will be owed to each of the Company and Peel Hunt. Each Placee will be deemed to have read this Appendix in its entirety.
Neither Peel Hunt nor any other Peel Hunt Person will have any liability (subject to applicable legislation and regulations) to Placees or to any person other than the Company in respect of the Placing.
Application for Admission to Trading on AIM
Application will be made to London Stock Exchange plc ("LSE") for the Placing Shares and Subscription Shares to be admitted to trading on AIM, the market owned and operated by the LSE ("AIM"), ("Admission"). It is expected that Admission will take place at 8.00 am on 23 June 2017 (or such later date as may be agreed between the Company and Peel Hunt, provided that such date is no later than the Long Stop Date).
Participation in, and principal terms of, the Placing
Participation in the Placing is only available to persons who may lawfully be, and are, invited to participate in it by Peel Hunt.
1) Restart Numbering Applied
1 Peel Hunt is arranging the Placing as bookrunner and agent of the Company.
2 Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by Peel Hunt. Peel Hunt and its respective affiliates are entitled to enter bids in the Bookbuild as principal.
3 The completion of the Bookbuild will be determined by Peel Hunt in its absolute discretion and shall then be announced on a Regulatory Information Service as soon as is practicable following the completion of the Bookbuild.
4 To bid in the Bookbuild, prospective Placees should communicate their bid by telephone to their usual sales contact at Peel Hunt. Each bid should state the number of Placing Shares which the prospective Placee wishes to subscribe for at the Placing Price will be decided at the close of the Bookbuild Process. Bids may be scaled down by Peel Hunt on the basis referred to paragraph 8 below.
5 The Bookbuild is expected to close no later than 6.30 pm on 20 June 2017 but may be closed earlier or later at the discretion of Peel Hunt. Peel Hunt may, in agreement with the Company accept bids that are received after the Bookbuild has closed. The Company reserves the right to reduce or seek to increase the amount to be raised pursuant to the Placing, in its absolute discretion. The final allocations of the Placing Shares (including as to the identity of the Placees and the number of shares allocated to each Placee at the Placing Price) shall be determined by Peel Hunt in its absolute discretion.
6 Each Placee's allocation will be confirmed to Placees orally, or by email, by Peel Hunt following the close of the Bookbuild and a trade confirmation or contract note will be dispatched as soon as possible thereafter (the "Contract Note"). The terms of this Appendix will be deemed incorporated into the Contract Note. Peel Hunt's oral or emailed confirmation to such Placee will constitute an irrevocable legally binding commitment upon such person (who will at that point become a Placee) in favour of Peel Hunt and the Company, under which it agrees to subscribe for the number of Placing Shares allocated to it at the Placing Price on the terms and conditions set out in this Appendix (which are deemed to be incorporated in such trade confirmation or contract note) and in accordance with the Company's Articles of Association.
7 The Company will make a further announcement following the close of the Bookbuild detailing the number of Placing Shares to be issued.
8 Subject to paragraphs 3 and 4 above, Peel Hunt may choose to accept bids, either in whole or in part, on the basis of allocations determined at their discretion (in agreement with the Company) and may scale down any bids for this purpose on such basis as it may determine. Peel Hunt may also, notwithstanding paragraphs 3 and 4 above, but subject to the prior consent of the Company (i) allocate Placing Shares after the time of any initial allocation to any person submitting a bid after that time; and (ii) allocate Placing Shares after the Bookbuild has closed to any person submitting a bid after that time. The Company and Peel Hunt acting together reserve the right not to accept bids or to accept bids in part rather than in whole.
9 A bid in the Bookbuild will be made on the terms and subject to the conditions in this Appendix and will be legally binding on the Placee on behalf of which it is made and, except with Peel Hunts consent, will not be capable of variation or revocation after the time at which it is submitted. Each Placee will also have an immediate, separate, irrevocable and binding obligation, to pay Peel Hunt (or as Peel Hunt may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares for which such Placee has agreed to subscribe. Each Placee's obligations will be owed to Peel Hunt.
10 Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all Placing Shares to be acquired pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Settlement".
11 All obligations under the Bookbuild and Placing will be subject to fulfilment of the conditions referred to below under "Conditions of the Placing" and to the Placing not being terminated on the basis referred to below under "Conditions to the Placing".
12 By participating in the Bookbuild, each Placee agrees that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.
13 To the fullest extent permissible by law and the applicable rules of AIM, neither Peel Hunt nor any of their respective affiliates shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise whether or not a recipient of these terms and conditions) in respect of the Placing. Each Placee acknowledges and agrees that the Company is responsible for the allotment of the Placing Shares to the Placees and Peel Hunt shall have no liability to the Placees for the failure of the Company to fulfil those obligations. In particular, neither Peel Hunt nor any of its affiliates shall have any liability (including to the extent permissible by law, any fiduciary duties) in respect of Peel Hunt's conduct of the Bookbuild or of such alternative method of effecting the Placing as Peel Hunt and the Company may agree.
14 In making an investment decision, Placees must rely on their own examination of the Company and its prospects and the terms of the Placing, including the merit and risks involved in investing in the Placing Shares.
15 Settlement will occur on a date to be advised but expected to be on or around 23 June 2017 ("Closing Date").
All such times and dates will be subject to amendment at Peel Hunt's discretion, except that in no circumstances will the date scheduled for Admission be later than the Long Stop Date.
The Placing Shares are being offered to a limited number of specifically invited persons only and will not be offered in such a way as to require a prospectus in the United Kingdom or in any other jurisdiction. No offering document or prospectus has been or will be submitted to be approved by the Financial Conduct Authority, the LSE or any other regulatory body in relation to the Placing and Placees' commitments in respect of Placing Shares will be made solely on the basis of the information contained in this Announcement and the terms and conditions contained in this appendix.
Settlement of transactions in the Placing Shares will take place INSIDE the CREST system.
Settlement of transactions in the Placing Shares will, unless otherwise agreed, take place on a delivery versus payment basis within the CREST system administered by Euroclear UK and Ireland Limited ("CREST").
The Company will procure the delivery of the Placing Shares to CREST accounts operated by Peel Hunt for the Company and Peel Hunt will enter its delivery (DEL) instructions into the CREST system. The input to CREST by each Placee of a matching or acceptance instruction will then allow delivery of the relevant Placing Shares to that Placee against payment.
The Company reserves the right to require settlement for and delivery of the Placing Shares (or a portion thereof) to any Placee in any form it requires if, in Peel Hunt's opinion, delivery or settlement is not possible or practicable within CREST or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Following the close of the Bookbuild for the Placing, each Placee allocated Placing Shares in the Placing may be sent a conditional trade confirmation stating the number of Placing Shares, the Placing Price and the subscription amount payable to be allocated to it and will be required to provide Peel Hunt with funds sufficient to purchase such securities prior to the Closing Date.
Each Placee is deemed to agree that, if it does not comply with these obligations, the Company may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for the Company's account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf.
It is expected that settlement will take place on or about 23 June 2017 in CREST on a T+3 basis in accordance with the instructions set out in the conditional trade confirmation. Settlement will be through Peel Hunt against CREST ID: 871
Following the close of the Bookbuild for the Placing, each Placee allocated Placing Shares in the Placing will be sent a conditional trade confirmation(s) stating the number of Placing Shares to be allocated to it at the Placing Price and settlement instructions.
Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with the applicable registration and settlement procedures, including if applicable, CREST rules and regulations and settlement instructions that it has in place with Peel Hunt.
If the Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the conditional trade confirmation is copied and delivered immediately to the relevant person within that organisation.
Trade date: 20 June 2017
Settlement date: 23 June 2017 (Electronic)
ISIN code for the Placing Shares: GB00B0CGR828
No UK stamp duty or stamp duty reserve tax should be payable to the extent that the Placing Shares are issued into CREST to, or to the nominee of, a Placee who holds those shares beneficially (and not as agent or nominee for any other person) within the CREST system and registered in the name of such Placee or such Placee's nominee provided that the Placing Shares are not issued to a person whose business is or includes issuing depositary receipts or the provision of clearance services or to an agent or nominee for any such person.
The agreement to settle a Placee's subscription (and/or the subscription of a person for whom such Placee is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to a subscription by it and/or such person direct from the Company for the Placing Shares in question. Such agreement assumes that the Placing Shares are not being subscribed for in connection with arrangements to issue depositary receipts or to transfer the Placing Shares into a clearance service. If there are any such arrangements, or the settlement relates to any other subsequent dealing in the Placing Shares, UK stamp duty or stamp duty reserve tax may be payable, for which neither the Company nor Peel Hunt will be responsible, and the Placee to whom (or on behalf of whom, or in respect of the person for whom it is participating in the Placing as an agent or nominee) the allocation, allotment, issue or delivery of Placing Shares has given rise to such UK stamp duty or stamp duty reserve tax undertakes to pay such UK stamp duty or stamp duty reserve tax forthwith and to indemnify on an after-tax basis and to hold harmless the Company and Peel Hunt in the event that the Company or Peel Hunt has incurred any such liability to UK stamp duty or stamp duty reserve tax. If this is the case, each Placee should seek its own advice and notify Peel Hunt accordingly.
In addition, Placees should note that they will be liable for any stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by them or any other person on the subscription by them of any Placing Shares or the agreement by them to subscribe for any Placing Shares.
Peel Hunt entered into the Placing Agreement with the Company today under which Peel Hunt has agreed on a conditional basis to use its reasonable endeavours as agent of the Company to procure Placees at the Placing Price for the Placing Shares.
Conditions to the Placing
The Placing is conditional on, among other things:
1 the Company having complied with its obligations and satisfying all conditions to be satisfied by them under the Placing Agreement or the terms of this Appendix which fall to be performed or satisfied on or prior to Admission;
2 the Placing Agreement not being terminated in accordance with its terms by Peel Hunt;
3 the subscription agreement being entered into between the Company and Odey in relation to the Subscription and having become unconditional other than in respect of: (i) Admission; and (ii) any provision relating to the Placing Agreement becoming unconditional;
4 Admission taking place by the relevant time and date to be stated in the Announcement; and
5 the Placing Agreement becoming unconditional in all other respects.
1 any of the conditions contained in the Placing Agreement in relation to the Placing Shares are not fulfilled or waived (if capable of being waived) by Peel Hunt by the respective time or date where specified (or such later time or date as the Company and Peel Hunt may agree);
2 any of such conditions becomes incapable of being fulfilled; or
3 the Placing Agreement is terminated in the circumstances specified below,
the Placing in relation to the Placing Shares will lapse and the Placee's rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by the Placee in respect thereof.
Peel Hunt may, in its absolute discretion, upon such terms as it thinks fit, waive compliance by the Company with certain of the Company's obligations in relation to the conditions in the Placing Agreement save that the certain conditions including the condition relating to Admission taking place may not be waived. Any such extension or waiver will not affect the Placees' commitments as set out in this Announcement,
Peel Hunt reserves the right to waive or extend the time and or date for the fulfilment of any of the conditions in the Placing Agreement to a time no later than 8 00 a.m. on the Long Stop Date.
If any condition in the Placing Agreement is not fulfilled or waived by Peel Hunt by the relevant time, the Placing will lapse and each Placee's rights and obligations in respect of the Placing will cease and terminate at such time.
Neither the Company nor Peel Hunt shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision it may make as to whether or not to waive or to extend the time and /or date for the satisfaction of any condition to the Placing nor for any decision they may make as to the satisfaction of any condition or in respect of the Placing generally and by participating in the Placing each Placee agrees that any such decision is within the absolute discretion of the Company and Peel Hunt.
The Placing Agreement may be terminated by Peel Hunt at any time prior to Admission in certain circumstances including, among other things, following a material breach of the Placing Agreement by the Company or the occurrence of certain force majeure events. The exercise of any right of termination pursuant to the Placing Agreement, any waiver of any condition in the Placing Agreement and any decision by Peel Hunt whether or not to extend the time for satisfaction of any condition in the Placing Agreement will be within the absolute discretion of Peel Hunt. Following Admission, the Placing Agreement is not capable of rescission or termination.
The rights and obligations of the Placees shall terminate only in the circumstances described in these terms and conditions and will not be subject to termination by the Placee or any prospective Placee at any time or in any circumstances. By participating in the Placing, Placees agree that the exercise by Peel Hunt of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of Peel Hunt, and that it need not make any reference to Placees and that it shall have no liability to Placees whatsoever in connection with any such exercise.
The offering of Placing Shares and the agreement arising from acceptance of the Placing is personal to each Placee and does not constitute an offering to any other person or to the public. A Placee may not assign, transfer, or in any other manner, deal with its rights or obligations under the agreement arising from the acceptance of the Placing, without the prior written agreement of Peel Hunt in accordance with all relevant legal requirements.
A Placee's entitlement to receive any Placing Shares under the Placing will be conditional on Peel Hunt's receipt of payment in full for such Placing Shares by the relevant time to be stated in the written confirmation referred to above, or by such later time and date as Peel Hunt and the Company may in their absolute discretion determine, and otherwise in accordance with that confirmation's terms.
If any Placee fails to make such payment by the required time for any Placing Shares:
1 the Company may release itself, and (if at its absolute discretion it decides to do so) will be released from, all obligations it may have to allot and/or issue any such Placing Shares to such Placee or at its direction which are then unallotted and/or unissued;
2 the Company may exercise all rights of lien, forfeiture and set-off over and in respect of any such Placing Shares to the full extent permitted under its Articles of Association or by law and to the extent that such Placee then has any interest in or rights in respect of any such shares;
3 the Company or Peel Hunt may sell (and each of them is irrevocably authorised by such Placee to do so) all or any of such shares on such Placee's behalf and then retain from the proceeds, for the account and benefit of the Company relating to (or where applicable and in relation to (iii) below only, Peel Hunt): (i) any amount up to the total amount due to it as, or in respect of, allotment monies, or as interest on such monies, for any Placing Shares, (ii) any amount required to cover any stamp duty or stamp duty reserve tax arising on the sale, and (iii) any amount required to cover dealing costs and/or commissions necessarily or reasonably incurred by it in respect of such sale; and
4 (such Placee will remain liable to the Company and to Peel Hunt for the full amount of any losses and of any costs which either of them may suffer or incur as a result of it (i) not receiving payment in full for such Placing Shares by the required time, and/or (ii) the sale of any such Placing Shares to any other person at whatever price and on whatever terms as are actually obtained for such sale by or for it. Interest may be charged in respect of payments not received by Peel Hunt for value by the required time referred to above at the rate of two percentage points above the base rate of Barclays Bank plc.
Placees' representations, warranties and undertakings to the Company and Peel Hunt
By agreeing with Peel Hunt to be allotted Placing Shares under the Placing and participating in the Bookbuild, each Placee (and any person acting on a Placee's behalf) irrevocably acknowledges and confirms and represents and warrants and undertakes to, and agrees with, each of the Company and Peel Hunt (in its capacity as placing agent) and each of their respective affiliates, in each case as a fundamental term of such Placee's acceptance of its Placing participation and of the Company's obligation to allot and/or issue any Placing Shares to it or at its direction, that:
1 it has read the Announcement in full, including this Appendix, and agrees to and accepts all the terms set out in the Announcement, including this Appendix, and that its acquisition of the Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, acknowledgements, agreements and undertakings and other information contained therein;
2 its rights and obligations in respect of the Placing will terminate only in the circumstances referred to in this Appendix and will not be subject to rescission or termination by it in any circumstances;
3 it accepts that the content of the Announcement is exclusively the responsibility of the Company and that Peel Hunt nor any person acting on its respective behalf has or shall have any liability for any information, representation or statement contained in this announcement or any information previously published by or on behalf of the Company and will not be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this announcement or otherwise;
4 the only information on which it is entitled to rely and on which such Placee has relied in committing itself to subscribe for the Placing Shares is contained in the Announcement and any information previously published by the Company by notification to a Regulatory Information Service, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares and that it has neither received nor relied on any other information given or representations, warranties or statements made by any Peel Hunt Person or the Company or their respective directors, employees, officers or agents or any other person and neither Peel Hunt nor the Company, including employees or agents nor any person acting on behalf of any of Peel Hunt or the Company will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement;
5 it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placing;
6 that the Placing Shares have not been and will not be qualified by a prospectus under applicable securities laws in Canada and if it is resident in Canada, it is resident in Ontario or Quebec and are an "accredited investor" and a "permitted client" pursuant to Canadian securities laws; it is entitled to purchase the Placing Shares in the Placing pursuant to the terms of the Placing in accordance with all applicable Canadian laws (including the securities laws of all relevant provinces); where required by law, it is purchasing as principal, or is deemed to be purchasing as principal in accordance with applicable securities laws of the province in which it is resident, for its own account and not as agent for the benefit of another preson; it is not a person created or used solely to purchase or hold securities as an "accredited investor" as described in paragraph (m) of the definition of "accredited investor" in section 1.1 of NI 45-106; it acknowledges that any Placing Shares subscribed for are restricted securities in Canada and any resale of the Placing Shares must be made in accordance with applicable Canadian securities laws; it further acknowledges that the Company may disclose certain personal information pertaining to it to the relevant Canadian securities regulatory authorities and this information may become public under Canadian law and it consents to such disclosure; and if resident in Quebec, it confirms that it has expressly requested that all documents evidencing or relating in any way to the sale of the Placing Shares described herein (including for greater certainty any purchase confirmation or any notice) be drawn up in the English language only;
7 it has not been, and will not be, given any warranty or representation in relation to the Placing Shares or to the Company or to any other member of its Group in connection with the Placing, other than (i) as included in the Announcement by the person(s) responsible for the Announcement, (ii) by the Company as included in this document, and (iii) by the Company to the effect that (1) the Announcement will comply with all relevant requirements of the AIM Rules for Companies at the time of its publication and (2) at the time that the Placee enters into a legally binding commitment to be allotted Placing Shares pursuant to the Placing the Company will not then be in breach of its obligations under the AIM Rules for Companies or applicable law to disclose publicly in the correct manner all such information as is required to be so disclosed by the Company;
8 it has not relied on any representation or warranty in reaching its decision to be allotted Placing Shares under the Placing, save as given or made by the Company as referred to in the previous paragraph;
9 it is not a client of Peel Hunt in relation to the Placing and Peel Hunt is not acting for it in connection with the Placing and will not be responsible to it in respect of the Placing for providing protections afforded to it or its clients under the rules of the FCA (the "FCA Rules") or for advising it with regard to the Placing Shares and Peel Hunt shall not be responsible to it or any other person for providing the protections afforded to its customers whether under the FCA Rules or otherwise, or for advising it or any other person in respect of or in connection with such arrangements. In addition any payment by it will not be treated as client money governed by the FCA Rules. It agrees that Peel Hunt shall not be liable to it for any matter arising out of its role as placing agent or otherwise in connection with the Placing and that, where any such liability nevertheless arises as a matter of law, it will immediately waive any claim against Peel Hunt which it may have in respect thereof;
10 it (or any person acting on its behalf) will pay the full allotment amount at the Placing Price as and when required in respect of all Placing Shares for which it is required to be allotted under its Placing participation and will do all things necessary on its part to ensure that payment for such shares and their delivery to it or at its direction is completed in accordance with the standing CREST instructions (or, where applicable, standing certificated settlement instructions) that it has or puts in place with Peel Hunt, failing which the relevant Placing Shares may be placed with other placees or sold as Peel Hunt may, in its sole discretion and without liability to such Placee decide, and it will remain liable for the shortfall below the net proceeds of such sale and the placing proceeds of the Placing Shares, and may be required to bear any stamp duty or stamp duty reserve tax which may arise upon the placing or sale of such Placee's Placing Shares on its behalf;
11 its allocation (if any) of Placing Shares will represent a maximum number of Placing Shares which it will be entitled, and required, to be allotted, and that the Company and/or Peel Hunt may call upon it to be allotted a lower number of Placing Shares (if any), but in no event in aggregate more than the aforementioned maximum;
12 it is entitled to be allotted Placing Shares under the laws of all relevant jurisdictions which apply to it and it has complied, and will fully comply, with all such laws (including where applicable, the Criminal Justice Act 1993, money laundering and terrorist financing under the Anti-Terrorism, Crime and Security Act 2001, the Proceeds of Crime Act 2002, the Terrorism Act 2000, the Terrorism Act 2003, the Terrorism Act 2006, MAR, the Money Laundering Regulations 2007 and part VIII of the Financial Services and Markets Act 2000 (the "Regulations")) and has obtained all governmental and other consents (if any) which may be required for the purpose of, or as a consequence of, such allotment, and it will provide promptly to Peel Hunt such evidence, if any, as to the identity or location or legal status of any person which Peel Hunt may request from it in connection with the Placing (for the purpose of complying with any such laws or ascertaining the nationality of any person or the jurisdiction(s) to which any person is subject or otherwise) in the form and manner requested by Peel Hunt on the basis that any failure by it to do so may result in the number of Placing Shares that are to be allotted and/or issued to it or at its direction pursuant to the Placing being reduced to such number, or to nil, as Peel Hunt may decide at its sole discretion;
13 that it has identified its clients in accordance with the Regulations and that it has complied fully with its obligations pursuant to the Regulations;
14 it has observed the laws of all requisite territories, obtained any requisite governmental or other consents, complied with all requisite formalities and paid any issue, transfer or other taxes due in connection with its application in any territory and that it has not taken any action which will or might result in the Company, or Peel Hunt acting in breach of the regulatory or legal requirements of any territory in connection with the Placing, application for Placing Shares or the admission to AIM of the Placing Shares;
15 it will not distribute any press announcement relating to the Placing or any other offering material, directly or indirectly, in or into the United States, Japan, New Zealand, South Africa or Australia or in or into any other jurisdiction where it would be unlawful to do so or to any person resident in such countries;
16 it has complied and will comply with all applicable provisions of the FSMA with respect to anything done or to be done by it in relation to any Placing Shares in, from or otherwise involving the United Kingdom and it has not made or communicated or caused to be made or communicated, and it will not make or communicate or cause to be made or communicated, any "financial promotion" in relation to Placing Shares in contravention of section 21 of FSMA;
17 it is a Relevant Person and it is acting as principal only in respect of the Placing or, if it is acting for any other person (i) it is duly authorised to do so, (ii) it is and will remain liable to the Company and/or Peel Hunt for the performance of all its obligations as a Placee in respect of the Placing (regardless of the fact that it is acting for another person), (iii) it is both an "authorised person" for the purposes of FSMA and a "qualified investor" as defined at Article 2.1(e)(i) of the Prospectus Directive acting as agent for such person, and (iv) such person is either (1) a Qualified Investor or (2) its "client" (as defined in section 86(2) of FSMA) that has engaged it to act as his agent on terms which enable it to make decisions concerning the Placing or any other offers of transferable securities on his behalf without reference to him;
18 in the case of a Relevant Person who acquires any Placing Shares pursuant to the Placing acquired by it as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, it represents and warrants that:
(a) the Placing Shares acquired by it in the Placing have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons other than Relevant Persons or in circumstances in which the prior consent of Peel Hunt has been given to the offer or resale; or
(b) where Placing Shares have been acquired by it on behalf of persons in any member state of the EEA other than Relevant Persons, the offer of those Placing Shares to it is not treated under the Prospectus Directive as having been made to such persons;
19 the Placee acknowledges that no offering document, admission document or prospectus has been, or will be, prepared in connection with the Placing and it has not received a prospectus, admission document or other offering document in connection therewith;
20 it has not and will not make any offer to the public of the Placing Shares for the purposes of section 102B FSMA;
21 it agrees to be bound by the terms of the articles of association of the Company;
22 nothing has been done or will be done by it in relation to the Placing or to any Placing Shares that has resulted or will result in any person being required to publish a prospectus in relation to the Company or to any shares in the capital of the Company in accordance with FSMA or the UK Prospectus Rules or in accordance with any other laws applicable in any part of the European Union or the European Economic Area;
23 (i) it is not, and is not acting in relation to the Placing as nominee or agent for, a person who is or may be liable to stamp duty or stamp duty reserve tax in respect of any agreement to acquire (or any acquisition of) shares or other securities at a rate in excess of 0.5% (including, without limitation, under sections 67, 70, 93 or 96 of the Finance Act 1986 concerning depositary receipts and clearance services), and the allocation, allotment, issue and/or delivery to it, or any person specified by it for registration as holder, of Placing Shares will not give rise to a liability under any such section, (ii) the person whom it specifies for registration as holder of Placing Shares will be the Placee or the Placee's nominee, and (iii) neither Peel Hunt nor the Company will be responsible to it or anyone else for any liability to pay stamp duty or stamp duty reserve tax resulting from any breach of, or non-compliance, with this paragraph. Each Placee and any person acting on behalf of such Placee agrees to participate in the Placing and it agrees to indemnify the Company and Peel Hunt in respect of the same on the basis that the Placing Shares will be allotted to the CREST account or its affiliate or agent who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions;
24 it will not treat any Placing Shares in any manner that would contravene any legal or regulatory requirement applicable in any territory or jurisdiction and no aspect of its participation in the Placing will contravene any legal or regulatory requirement applicable in any territory or jurisdiction in any respect or cause the Company or Peel Hunt or their respective directors, officers, employees or agents to contravene any such legal or regulatory requirement in any respect and it has obtained all governmental and other consents which may be required under the laws of the applicable territory or jurisdiction;
25 if a Placee is a resident in the UK: i) it is a "qualified investor" within the meaning of Section 86(7) of FSMA; ii) it is a person of a kind described in Article 19 and/or Article 49 and/or 43 (2) of the Order and it understands that the information contained in this Appendix is only directed at any of the following: (A) persons falling within Article 19 of the Order having professional experience in matters relating to investments; (B) persons falling within Article 49 of the Order (including companies and unincorporated associations of high net worth and trusts of high value); or (C) persons to whom it would otherwise be lawful to distribute it; and that, accordingly, any investment or investment activity to which this Appendix relates is available to it as such a person or will be engaged in only with it as such a person;
26 if a Placee is an investor located within a member state of the European Economic Area, it is: (i) a "qualified investor" within the meaning of Article 2(1)(e) of the Prospectus Directive; and (ii) a "professional client" or an "eligible counterparty" within the meaning of Article 4(1)(11) and Article 24(2), (3) and (4), respectively, of Directive 2004/39/EC as implemented into national law of the relevant EEA state;
27 (applicable terms and expressions used in this paragraph have the meanings that they have in Regulation S made under the Securities Act) (i) the Placing Shares have not been and will not be registered under the Securities Act or under the securities laws of any State of or other jurisdiction within the United States, (ii) subject to certain exceptions, Placing Shares may not be offered or sold, resold, or delivered, directly or indirectly, into or within the United States (iii) it is (and any such account for which it is acting is) either (a) a QIB, who will execute and return a representation letter to that effect to the Company and Peel Hunt prior to Admission; or (b) is not within the United States and will be acquiring Placing Shares in an "offshore transaction" (iii) neither it, its affiliates, nor any persons acting on its behalf, has engaged or will engage in any directed selling efforts with respect to the Placing Shares, (iv) it will not distribute this document or any offering material relating to Placing Shares, directly or indirectly, in or into the United States or to any persons resident in the United States;
28 it is not and, if different, the intended beneficial owner of the Placing Shares allocated to it is not, and at the time the Placing Shares are acquired will not be, a resident or national of Japan, Australia or the Republic of South Africa or a corporation, partnership or other entity organised under the laws of Australia, the Republic of South Africa or Japan, and the Placing Shares have not been and will not be registered under the securities legislation of Japan, Australia or the Republic of South Africa and, subject to certain exceptions, may not be offered, sold, taken up, renounced or delivered or transferred, directly or indirectly, in or into those jurisdictions;
29 the Placee has consented to receive "inside information" for the purposes of the Market Abuse Regulation (EU) No.596/2014 ("MAR"), and it agrees not to deal in any securities of the Company until such time as the inside information of which it has been made aware has been made public for purposes of MAR or it has been notified by Peel Hunt or the Company that the proposed Placing will not proceed and any unpublished price sensitive information of which the Placee is aware has been publicly announced, and, other than in respect of its knowledge of the proposed Placing, it has neither received nor relied on any confidential price sensitive information concerning the Company or the Placing Shares;
30 where the Placee is acquiring Placing Shares for one or more managed accounts, it represents and warrants that it is authorised in writing by each managed account: (a) to acquire the Placing Shares for each managed account; (b) to make on its behalf the representations, warranties, acknowledgments, undertakings and agreements in this Appendix; and (c) to receive on its behalf any investment letter relating to the Placing in the form provided to it by Peel Hunt;
31 Peel Hunt may (at its absolute discretion) satisfy its obligations to procure Placees by itself agreeing to become a Placee in respect of some or all of the Placing Shares or by nominating any other Peel Hunt Person or any person associated with any Peel Hunt Person to do so;
32 time is of the essence as regards its obligations under this Appendix;
33 each right or remedy of the Company or Peel Hunt provided for in this Appendix is in addition to any other right or remedy which is available to such person and the exercise of any such right or remedy in whole or in part will not preclude the subsequent exercise of any such right or remedy;
34 any document that is to be sent to it in connection with the Placing will be sent at its risk and may be sent to it at any address provided by it to Peel Hunt:
35 nothing in this Appendix will exclude any liability of any person (i) for any contents of the Announcement as a result of such person being responsible for such contents pursuant to the AIM Rules for Companies, MAR or applicable law or (ii) for fraud on its part, and all times and dates in this Appendix are subject to amendment at the discretion of Peel Hunt except that in no circumstances will the date scheduled for Admission be later than the Long Stop Date;
36 none of its rights or obligations in respect of the Placing is conditional on any other person agreeing to be allotted any Placing Shares under the Placing and no failure by any other Placee to meet any of its obligations in respect of the Placing will affect any of its obligations in respect of the Placing;
37 it has substantial experience in evaluating and investing in shares of companies similar to the Company such that it is capable of evaluating the merits and risks of an investment in the Company, it has such knowledge and experience in financial and business matters as to be capable of protecting its own interests and evaluating the merits and risks of an investment in the Company and it is able to bear the economic risk of a complete loss of its investment in the Company;
38 it has made an investigation of the pertinent facts relating to the operation of the Company to the extent it deems necessary in order to be fully informed with respect thereto;
39 it will indemnify on an after tax basis and hold the Company and Peel Hunt and their respective affiliates harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in this appendix and further agrees that the provisions of this appendix shall survive after completion of the Placing;
40 Peel Hunt does not have any duty to it similar or comparable to rules of "best execution", "suitability" and "risk warnings" as set out in the Conduct of Business Sourcebook of the FCA;
41 it accepts that it is not relying on Peel Hunt to advise whether or not the Placing Shares are in any way a suitable investment for it;
42 it is entitled to subscribe for or purchase the Placing Shares under the laws of all relevant jurisdictions which apply to it and that it has fully observed such laws and obtained all governmental and other consents which may be required thereunder and complied with all necessary formalities;
43 it irrevocably appoints any director or employee of Peel Hunt as its agent for the purpose of executing and delivering to the Company and/or its registrars any document on its behalf necessary to enable it to be registered as the holder of the Placing Shares being issued to it;
44 it is not presently acting in concert, as defined in the City Code on Takeovers and Mergers, with any existing shareholder or other Placee;
45 each right or remedy of the Company and Peel Hunt provided for in this Appendix is in addition to any other right or remedy which is available to such person and the exercise of any such right or remedy in whole or in part shall not preclude the subsequent exercise of any such right or remedy;
46 none of its rights or obligations in respect of the Placing is conditional on any other person agreeing to acquire any Placing Shares under the Placing and no failure by any other Placee to meet any of its obligations in respect of the Placing shall affect any of its obligations in respect of the Placing;
47 Peel Hunt does not owe any fiduciary or other duties to any Placee in respect of any representations, warranties, undertakings or indemnities in the Placing Agreement; and
48 the Placee agrees that the Company and Peel Hunt and others will rely upon the truth and accuracy of the foregoing conformations, representations, warranties, acknowledgements undertakings and agreements which are given by each Placee (or persons acting on their behalf) to Peel Hunt and the Company and are irrevocable.
The terms set out in this Announcement (including the Appendix) and the allocation of Placing Shares (including the subscription amount payable) as confirmed to a Placee, constitute the entire agreement to the terms of the Placing and a Placee's participation in the Placing to the exclusion of prior representations, understandings and agreements between them. Any variation of such terms must be in writing.
Governing Law and Jurisdiction
The agreement arising out of acceptance of the Placing and any dispute or claim arising out of or in connection with the Placing or formation thereof (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England. Each Placee irrevocably agrees to submit to the exclusive jurisdiction of the courts of England to settle any claim or dispute that arises out of or in connection with the agreement arising out of acceptance of the Placing or its subject matter or formation (including non-contractual disputes or claims).
This information is provided by RNS