TIDMHAYD
RNS Number : 6198K
Haydale Graphene Industries PLC
23 September 2016
THIS ANNOUNCEMENT IS RESTRICTED AND IT IS NOT FOR RELEASE,
PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR
INDIRECTLY, IN OR INTO THE UNITED STATES, CANADA, JAPAN OR
AUSTRALIA OR ANY OTHER STATE OR JURISDICTION IN WHICH SUCH RELEASE,
PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL
Haydale Graphene Industries plc
("Haydale", the "Company" or the "Group")
Proposed Acquisition of ACMC Holding, Inc.
Proposed Placing by way of an accelerated bookbuild,
Subscription and Open Offer
to raise up to GBP2.6 million
Haydale Graphene Industries plc (AIM: HAYD), the Group focused
on enabling technology for the commercialisation of graphene and
other nanomaterials, is pleased to announce that it has entered
into a conditional agreement to acquire the entire issued share
capital of ACMC Holding, Inc. ("ACM"), a silicon carbide whisker
manufacturer based in South Carolina, United States, for a total
consideration of up to $7.0 million to be settled in cash and new
ordinary shares of Haydale (the "Acquisition").
To support the proposed Acquisition, the Company is carrying out
a placing and subscription of new ordinary shares of 2 pence each
("Ordinary Shares") (the "Placing") (the "Subscription") in Haydale
at a price of 160 pence per share (the "Issue Price") to raise
gross proceeds of up to approximately GBP2.1 million.
In addition to the proposed placing and subscription, the
Company is providing all Qualifying Shareholders with the
opportunity to subscribe for an aggregate of up to 312,500 new
Ordinary Shares ("Open Offer Shares") at a price of 160 pence per
share, to raise approximately GBP0.5 million (before expenses), on
the basis of 1 New Share for every 49.324 Existing Ordinary Shares
held on the Record Date (the "Open Offer"). Shareholders
subscribing for their full entitlement under the Open Offer may
also request additional Open Offer Shares through the Excess
Application Facility.
The proposed Placing, Subscription and Open Offer (together the
"Fundraising") are within the Company's existing allotment
authorities. The proposed Placing and Open Offer are not being
underwritten.
The Issue Price of 160 pence per share represents a discount of
approximately 6.8 per cent. to the price of 171.7 pence per
Existing Ordinary Share, being the average Closing Price for the
preceding 20 business days prior to this announcement.
The Placing is being conducted by way of an accelerated
bookbuild process (the "Bookbuild") which will be launched
immediately following this announcement, in accordance with the
terms and conditions set out in the Appendix to this announcement.
Cantor Fitzgerald Europe is acting as sole bookrunner in connection
with the Placing.
The final number of Placing Shares will be agreed by Cantor
Fitzgerald Europe and Haydale at the close of the Bookbuild, and
the results of the Placing and Subscription will be announced as
soon as practicable thereafter. The timing for the close of the
Bookbuild and the allocation of Placing Shares shall be at the
absolute discretion of Cantor Fitzgerald Europe. Haydale reserves
the right to issue and sell a greater or lesser number of shares
through the Placing.
Background to and reasons for the Acquisition and the
Fundraising
Haydale, having evaluated the North American market, has
concluded that the best way to secure a strategic territorial
foothold is to acquire a complementary business offering
significant growth potential and synergistic products, whilst also
allowing for substantial cross selling opportunities.
The proposed Acquisition would provide the Group with an
established base and market position in Silicon Carbide ("SiC")
fibre and whisker in North America which will be the first US
"Centre of Excellence", situated in the high growth technology
region of South Carolina. The strategy is to take advantage of a
fragmented and largely untapped graphene and nano technology
market. This operation has quality technical and now commercial
management following the recent appointment of Trevor Rudderham as
CEO of HTI.
The North American market appears generally untapped and of
equal importance to both Europe and the Far East. The decision to
have a full time staff member and the new acquisition of ACM is a
significant positive development for the Group's US operation. HTI,
having acquired ACM, will operate from Greenville, South Carolina,
with the ACM facility being capable of housing the Company's plasma
reactors and it is expected to install one there in 2017.
The expectation is for the proposed Acquisition to open sales
and collaboration opportunities in what is perceived as a
fragmented market offering significant revenue opportunities. The
Directors believe there are substantial cross selling opportunities
to increase ACM's existing profits through targeted sales of their
SiC products and the Company has already introduced a client to ACM
who requires an enhanced scratch resistant cookware coating that
ACM has previously supplied another user. Pleasingly, following a
rapid response by ACM to the inbound enquiry, the coating is now
under evaluation with encouraging results. In addition to the
Acquisition, discussions have commenced with two strategically
important parties in the US regarding the acquisition of Haydale
plasma reactors.
Details of the proposed Acquisition and Use of Proceeds from the
proposed Fundraising
The Acquisition will establish the Group's US base from which it
can start to expand its graphene capabilities in the North American
market and cross-sell ACM's nanomaterials through the Group's other
territories.
The initial consideration for the proposed Acquisition is
approximately $5.0 million in aggregate, to be settled in cash and
shares, as set out below:
-- repayment of existing asset backed loan of approximately $2.9 million;
-- repayment of existing working capital facility of approximately $0.5 million;
-- cash consideration payable to the vendors of ACM of $0.6 million; and
-- equity consideration of $1.0 million payable in Consideration
Shares at the Consideration Price.
The Consideration Shares are expected to be admitted to trading
on AIM on 3 January 2017.
In addition, an earn-out amount is payable upon the satisfaction
of certain conditions in the Acquisition Agreement which shall be
an amount of not more than $2.0 million and shall be payable at the
option of HTI in cash or the equivalent amount in new ordinary
shares of the Company based upon the mid-market share price of the
Company's shares on AIM on the close of business on the day before
the announcement of the annual accounts for the relevant earn-out
period.
The Fundraising has been undertaken to provide funding for the
Acquisition. The net proceeds of the Fundraising of up to $3.3
million (GBP2.4 million) will be used to:
-- satisfy the initial vendors' cash consideration of $0.6 million;
-- provide working capital to, supply new plasma reactor and
settle other costs totalling $1.0 million; and
-- make net loan repayments of $1.7 million after agreeing a new secured loan of $1.7 million.
ACM's existing management (who are also the vendors) and
technical team are keen to stay and assist in growing the US
business, where they have the opportunity to increase their
consideration dependent on agreed sales growth over the period to
30 June 2020.
Subject to the Placing and Subscription being subscribed in
full, the Company expects to publish a circular (the "Circular")
shortly in connection with the proposed Fundraising, which will be
available on the Company's website at www.haydale.com. Capitalised
terms shall have the same meaning as in the Circular unless the
context requires otherwise.
Ray Gibbs, CEO at Haydale, said:
The Acquisition will immediately provide Haydale with an
established base in the key North American market. We believe that
the potential to grow ACM, not only in North America, but across
our other territories is huge and we see significant cross-selling
opportunities. ACM's facility will allow us to expand to introduce
our graphene capabilities and products into the US. ACM provides
the Group with its important fourth strategic territory,
complementing our existing presence in the UK, mainland Europe and
the Far East.This announcement contains inside information for the
purposes of Article 7 of EU Regulation 596/2014.
For further information, please contact:
Haydale Graphene Industries +44 (0) 1269 842
plc 946
John Knowles, Chairman
Ray Gibbs, Chief Executive
Officer
Cairn Financial Advisers LLP
(Nomad) +44 (0) 20 7148 7900
Tony Rawlinson
Emma Earl
Cantor Fitzgerald Europe (Broker) +44 (0) 20 7894 7000
David Foreman (Corporate Finance)
Will Goode (Corporate Finance)
David Banks (Sales)
Hermes Financial PR
+44 (0) 7889 153
628
Trevor Phillips +44 (0) 7979 604
Chris Steele 687
Information on ACM
ACM, founded in 1976 through a joint venture to develop and
licence new methods of synthesising SiC, is today a US-based
manufacturer of SiC materials, in particular high purity SiC
whiskers, which are used to reinforce and toughen ceramics and
polymers.
In 2006, ACM was acquired by way of a management buyout in
conjunction with existing management and private investors from
Tateho Chemical Industries Company, Ltd of Japan. Following the
management buyout ACM has continued to expand its capabilities to
develop and manufacture performance materials and solutions.
ACM reported audited revenues of approximately $3.8 million in
the year ended 31 December 2015 and has an existing order book in
excess of $4.5 million. ACM's annual sales are underpinned by a
recently signed 3-year contract with a Japanese customer who
accounts for approximately $2.0 million of ACM's annual revenue.ACM
is currently break-even.
Key terms of the Acquisition Agreement
The Company and HTI has entered into a conditional acquisition
agreement with Thomas Quantrille and Marvin Murrell (the "Sellers")
whereby the Sellers agreed to sell and HTI agreed to buy the shares
held by the Sellers which represented the entire issued share
capital of ACM.
Completion of the Acquisition Agreement is subject to the
satisfaction, inter alia, of various conditions including:
-- the Company having completed an equity fundraising with
investors to raise not less than GBP2 million before costs; and
-- HTI and ACM securing banking facilities with United Community Bank.
The consideration payable by HTI shall be satisfied by the
payment of $600,000 in cash on closing (expected to be in October
2016 and no later than 28 October 2016) and, on 3 January 2017, the
allotment and issue to the Sellers (pro rata in accordance with
their Sellers' percentage interests) of such number of new ordinary
shares of the Company equal to the quotient obtained by dividing
$1,000,000 with the mid-market share price of the Company at the
close of trading on 22 September 2016. HTI has also agreed to
procure that it would repay ACM's indebtedness. An earn-out amount
is payable upon the satisfaction of certain conditions in the
Acquisition Agreement which shall be an amount of no more than
$2,000,000 and shall be payable at the option of HTI in cash or the
equivalent amount in new ordinary shares of the Company based upon
the mid-market share price of the Company's shares on AIM on the
close of business on the day before the announcement of the annual
accounts for the relevant earn-out period.
Each of the Sellers gave warranties to HTI as to title of its
sale shares. The Sellers shall be subject to various lock-in and
orderly market restrictions in respect of the Company shares issued
to it pursuant to the Acquisition Agreement. HTI's obligations
under the Acquisition Agreement are guaranteed by the Company.
Details of the Placing and Subscription
The Placing and Subscription are expected to raise gross
proceeds of up to GBP2.1 million (before expenses). The issue and
allotment of the Placing Shares and Subscription Shares will not
exceed the Company's existing authorities and therefore does not
require Shareholder approval. In addition the Placing is not being
underwritten by Cantor Fitzgerald or any other person.
The Placing is conditional, amongst other things, on the
following:
i. the Placing Agreement not being terminated prior to Admission
of the new Ordinary Shares pursuant to the Placing, Subscription
and Open Offer and being otherwise unconditional in all
respects;
ii. the Acquisition Agreement becoming unconditional in all
respects (save for any condition in the Acquisition Agreement
relating to the Placing and Open Offer becoming unconditional);
and
iii. Admission becoming effective on or before 8.00 a.m. on 12
October 2016 (or such later date and/or time as the Company and
Cantor Fitzgerald may agree, being no later than 28 October
2016).
Certain Directors and key management of Haydale intend to
subscribe for approximately GBP55,600 of new Ordinary Shares at the
Issue Price following this announcement. The details of the
subscription will be announced separately in due course.
Details of the Open Offer
Alongside the Placing and Subscription, the Company is proposing
to raise a further amount of up to approximately GBP0.5 million
(before expenses) pursuant to the Open Offer. The proposed issue
price of 160 pence per Open Offer Share is the same price as the
price at which new Ordinary Shares Shares are being issued pursuant
to the Placing and Subscription, as the case may be.
Qualifying Shareholders may subscribe for Open Offer Shares in
proportion to their holding of Existing Ordinary Shares held on the
Record Date. Shareholders subscribing for their full entitlement
under the Open Offer may also request additional Open Offer Shares
as an Excess Entitlement, up to the total number of Open Offer
Shares available to Qualifying Shareholders under the Open
Offer.
The issue and allotment of the Open Offer Shares will not exceed
the Company's existing authorities and therefore does not require
Shareholder approval.
The Open Offer is conditional, amongst other things, on the
following:
i. completion of the Placing;
ii. the Placing Agreement not being terminated prior to
Admission and becoming and being declared otherwise unconditional
in all respects; and
iii. Admission becoming effective on or before 8.00 a.m. on 12
October 2016 (or such later date and/or time as the Company and
Cantor Fitzgerald may agree, being no later than 28 October
2016).
Basic Entitlement
On, and subject to the terms and conditions of the Open Offer,
the Company invites Qualifying Shareholders to apply for their
Basic Entitlement of Open Offer Shares at the Issue Price. Each
Qualifying Shareholder's Basic Entitlement has been calculated on
the following basis:
1 Open Offer Share for every 49.324 Existing Ordinary Shares
held at the Record Date
Basic Entitlements will be rounded down to the nearest whole
number of Ordinary Shares.
Excess Entitlement
Qualifying Shareholders are also invited to apply for additional
Open Offer Shares (up to the total number of Open Offer Shares
available to Qualifying Shareholders under the Open Offer) as an
Excess Entitlement. Any Open Offer Shares not issued to a
Qualifying Shareholder pursuant to their Basic Entitlement will be
apportioned between those Qualifying Shareholders who have applied
for an Excess Entitlement at the sole discretion of the Board,
provided that no Qualifying Shareholder shall be required to
subscribe for more Open Offer Shares than he or she has specified
on the Application Form or through CREST.
The Open Offer Shares will, when issued and fully paid, rank
pari passu in all respects with the Ordinary Shares in issue at
that time, including the right to receive all dividends and other
distributions declared, made or paid after the date of Admission of
them.
Qualifying Shareholders should note that the Open Offer is not a
"rights issue". Invitations to apply under the Open Offer are not
transferable unless to satisfy bona fide market claims. Qualifying
non-CREST Shareholders should be aware that the Application Form is
not a negotiable document and cannot be traded. Qualifying
Shareholders should also be aware that in the Open Offer, unlike in
a rights issue, any Open Offer Shares not applied for will not be
sold in the market nor will they be placed for the benefit of
Qualifying Shareholders who do not apply for Open Offer Shares
under the Open Offer.
Settlement and dealings
Application will be made to the London Stock Exchange for
Admission of the Open Offer Shares. It is expected that such
Admission will become effective and that dealings will commence at
8.00 a.m. on 12 October 2016.
Overseas Shareholders
The Open Offer Shares have not been and are not intended to be
registered or qualified for sale in any jurisdiction other than the
United Kingdom. Accordingly, unless otherwise determined by the
Company and effected by the Company in a lawful manner, the
Application Form will not be sent to Shareholders with registered
addresses in any jurisdiction other than the United Kingdom since
to do so would require compliance with the relevant securities laws
of that jurisdiction. The Company reserves the right to treat as
invalid any application or purported application for Open Offer
Shares which appears to the Company or its agents or professional
advisers to have been executed, effected or despatched in a manner
which may involve a breach of the laws or regulations of any
jurisdiction or if the Company or its agents or professional
advisers believe that the same may violate applicable legal or
regulatory requirements or if it provides an address for delivery
of share certificates for Open Offer Shares, or in the case of a
credit of Open Offer Shares in CREST, to a CREST member whose
registered address would not be in the UK.
Notwithstanding the foregoing and any other provision of the
Circular or the Application Form, the Company reserves the right to
permit any Qualifying Shareholder to apply for Open Offer Shares if
the Company, in its sole and absolute discretion, is satisfied that
the transaction in question is exempt from, or not subject to, the
legislation or regulations giving rise to the restrictions in
question.
This announcement and the Circular together with the
accompanying Application Form, in the case of Qualifying non-CREST
Shareholders, contains the terms and conditions of the Open
Offer.
If a Qualifying Shareholder does not wish to apply for Open
Offer Shares he should not complete or return the Application Form
or send a USE message through CREST.
Qualifying non-CREST Shareholders
If you are a Qualifying non-CREST Shareholder you will receive
an Application Form which gives details of your Basic Entitlement
(as shown by the number of the Open Offer Shares allocated to you).
If you wish to apply for Open Offer Shares under the Open Offer you
should complete the Application Form in accordance with the
procedure for application set out in the Circular and on the
Application Form itself. The completed Application Form,
accompanied by full payment, should be returned by post to Share
Registrars Limited at The Courtyard, 17 West Street, Farnham,
Surrey, GU9 7DR so as to arrive as soon as possible and in any
event no later than 11.00 a.m. on 10 October 2016.
Qualifying CREST Shareholders
Application has been made for the Open Offer Entitlements of
Qualifying CREST Shareholders to be admitted to CREST. It is
expected that the Open Offer Entitlements will be admitted to CREST
on 26 September 2016. Applications through the CREST system may
only be made by the Qualifying CREST Shareholder originally
entitled or by a person entitled by virtue of a bona fide market
claim. If you are a Qualifying CREST Shareholder, no Application
Form will be sent to you but you will receive credits to your
appropriate stock account in CREST in respect of the Basic
Entitlements to which you are entitled. You should refer to the
procedure for application set out in the Circular. The relevant
CREST instruction must have settled by no later than 11.00 a.m. on
10 October 2016.
Action to be taken
Open Offer
Qualifying non-CREST Shareholders wishing to apply for Open
Offer Shares or the Excess Shares must complete the Application
Form in accordance with the instructions set out in the Circular
(Terms and Conditions of the Open Offer) and on the Application
Form and return it with the appropriate payment to Share Registrars
Limited at The Courtyard, 17 West Street, Farnham, Surrey GU9 7DR,
so as to arrive no later than 11.00 a.m. on 10 October 2016.
If you do not wish to apply for any Open Offer Shares under the
Open Offer, you should not complete or return the Application Form.
If you are a Qualifying CREST Shareholder, no Application Form will
be sent to you. Qualifying CREST Shareholders will have Open Offer
Entitlements and Excess CREST Open Offer Entitlements credited to
their stock accounts in CREST. You should refer to the procedure
for application set out in the Circular (Terms and Conditions of
the Open Offer). The relevant CREST instructions must have settled
in accordance with the instructions in the Circular by no later
than 11.00 a.m. on 10 October 2016.
Qualifying CREST Shareholders who are CREST sponsored members
should refer to their CREST sponsors regarding the action to be
taken in connection with this announcement, the Circular and the
Open Offer.
Expected Timetable of Principal Events
Record Date for entitlement 21 September
under the Open Offer 2016
Announcement of the Fundraising 23 September
2016
Publication of Circular and 23 September
Application Form posted to Qualifying 2016
Shareholders
Ex-entitlement Date of the Open 8.00 a.m. 26 September
Offer 2016
Open Offer Entitlements credited As soon as 26 September
to stock accounts of Qualifying possible 2016
CREST Shareholders in CREST after 8.00
a.m.
Recommended latest time for 4.30 p.m. 4 October
requesting withdrawal of Open 2016
Offer Entitlements from CREST
Latest time and date for depositing 3.00 p.m. 5 October
Open Offer Entitlements into 2016
CREST
Latest time and date for splitting 3.00 p.m. 6 October
Application Forms (to satisfy 2016
bona fide market claims only)
Latest time and date for receipt 11.00 a.m. 10 October
of completed Application Forms 2016
and payment in full under the
Open Offer and settlement of
relevant CREST instructions
(as appropriate)
Announcement of result of Open 11 October
Offer 2016
Admission and commencement of 8.00 a.m. 12 October
dealings in new Ordinary Shares 2016
pursuant to the Fundraising
New Shares in uncertificated As soon as 12 October
form expected to be credited possible 2016
to accounts in CREST after 8.00
a.m.
Despatch of definitive share By 19 October
certificates for the new Ordinary 2016
Shares pursuant to the Fundraising
in certificated form
DEFINITIONS
The following definitions apply throughout this document, unless
the context otherwise requires:
"Act" the Companies Act 2006 (as
amended)
"Acquisition Agreement" the conditional share purchase
agreement entered into between
the Company (as guarantor),
HTI (as buyer) and Thomas
Quantrille and Marvin Murrell
relating to the Acquisition
"Applicant" a Qualifying Shareholder or
a person by virtue of a bona
fide market claim who lodges
an Application Form or relevant
CREST instruction under the
Open Offer
"Application Form" the application form relating
to the Open Offer and enclosed
with this document for use
by Qualifying non-CREST Shareholders
"Basic Entitlement(s)" the pro rata entitlement for
Qualifying Shareholders to
subscribe for Open Offer Shares,
pursuant to the Open Offer
as described in Part IV of
this document
"certified" or "in in relation to a share or
certificated form" other security, a share or
other security that is not
in uncertificated form, that
is not in CREST
"Closing Price" the closing middle market
quotation of a share as derived
from the AIM Appendix to the
Daily Official List of the
London Stock Exchange
"Consideration Price" 184.0 pence, being the closing
share price of the Company
the day prior to the announcement
of the Acquisition
"Consideration Shares" 415,618 new Ordinary Shares
to be issued at the Consideration
Price pursuant to the Acquisition
Agreement
"CREST" the relevant system (as defined
in the CREST Regulations 2001)
for the paperless settlement
of trades and the holding
of uncertificated securities,
operated by Euroclear, in
accordance with the same regulations
"CREST Manual" the rules governing the operation
of CREST, as published by
Euroclear
"CREST member" a person who has been admitted
by Euroclear as a system-member
(as defined in the CREST Regulations)
"CREST participant" a person who is, in relation
to CREST, a system participant
(as defined in the CREST Regulations)
"CREST payment" shall have the meaning given
in the CREST Manual issued
by Euroclear
"CREST Regulations" the Uncertified Securities
Regulations 2001 (SI 2001
No. 3875), as amended
"CREST sponsor" a CREST participant admitted
to CREST as a CREST sponsor
"CREST sponsored a CREST member admitted to
member" CREST as a sponsored member
(which includes all CREST
Personal Members)
"Enlarged Share the issued Ordinary Share
Capital" capital of the Company immediately
following the issue of the
new Ordinary Shares pursuant
to the Fundraising
"EU" the European Union
"Euroclear" Euroclear UK & Ireland Limited,
the operator of CREST
"Excess Entitlement(s)" Open Offer Shares in excess
of the Basic Entitlement,
but not in excess of the total
number of Open Offer Shares,
allocated to a Qualifying
Shareholder pursuant to the
Open Offer as described in
Part IV of this document
"Excess Application the arrangement pursuant to
Facility" which Qualifying Shareholders
may apply for additional Open
Offer Shares in excess of
the Basic Entitlement in accordance
with the terms and conditions
of the Open Offer
"Excess CREST Open in respect of each Qualifying
Offer Entitlement" CREST Shareholder, the entitlement
to apply for Open Offer Shares
in addition to the Basic Entitlement
credited to the Qualifying
CREST Shareholder's account
in CREST, pursuant to the
Excess Application Facility,
which is conditional on the
Qualifying CREST Shareholder
taking up his Basic Entitlement
in full and which may be subject
to scaleback in accordance
with the provisions of this
document
"Excess Shares" the Open Offer Shares for
which Qualifying Shareholders
may apply under the Excess
Application Facility in addition
to their Basic Entitlement
"Ex-entitlement the date on which the Existing
Date" Ordinary Shares are marked
'ex' for entitlement under
the Open Offer being 26 September
2016
"Existing Ordinary the 15,413,898 Ordinary Shares
Shares" in issue as at the date of
this document being the entire
issued share capital of the
Company prior to the Fundraising
"FCA" the Financial Conduct Authority
of the UK
"FSMA" the Financial Services and
Markets Act 2000 (as amended)
"HTI" Haydale Technologies, Inc.,
a subsidiary of the Company
"London Stock Exchange" London Stock Exchange plc
"member account the identification code or
ID" number attached to any member
account in CREST
"Official List" the Official List of the UKLA
"Open Offer" the conditional invitation
to Qualifying Shareholders
to apply for the Open Offer
Shares at the Issue Price
on the terms and conditions
outlined in this document
and, where relevant, in the
Application Form
"Open Offer Entitlements" entitlements for Qualifying
Shareholders to subscribe
for Open Offer Shares pursuant
to the Basic Entitlement and
Excess Entitlement
"Overseas Shareholders" Shareholders with registered
addresses, or who are citizens
or residents of, or incorporated
in, countries outside of the
United Kingdom
"Publicly Available any information published
Information" by the Company using a Regulatory
Information Service
"Qualifying CREST Qualifying Shareholders holding
Shareholders" Existing Ordinary Shares which,
on the register of members
of the Company on the Record
Date, are in uncertificated
form in CREST
"Qualifying non-CREST Qualifying Shareholders holding
Shareholders" Existing Ordinary Shares which,
on the register of members
of the Company on the Record
Date, are in certificated
form
"Qualifying Shareholders" subject to any restrictions
imposed on Overseas Shareholders,
holders of Existing Ordinary
Shares whose names appear
on the register of members
of the Company on the Record
Date as holders of Existing
Ordinary Shares and who are
eligible to be offered Open
Offer Shares under the Open
Offer in accordance with the
terms and conditions set out
in this document
"Registrar", "Receiving Share Registrars Limited The
Agent" or "Share Courtyard, 17 West Street,
Registrars" Farnham, Surrey GU9 7DR
"Restricted Jurisdictions" the United States, Australia,
Canada, Japan and any other
jurisdiction where the extension
or availability of the Open
Offer would breach any applicable
law
"Securities Act" the United States Securities
Act of 1933, as amended
"Shareholders" registered holders of Ordinary
Shares
"UK" the United Kingdom of Great
Britain and Northern Ireland
"UKLA" the UK Listing Authority,
being the FCA acting as the
competent authority for the
purposes of Part VI of the
FSMA
"uncertificated" a share or other security
or "in uncertificated recorded on the relevant register
form" of the share or security concerned
as being held in uncertificated
from in CREST and title to
which, by virtue of the CREST
Regulations, 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
and the District of Columbia
"USE" unmatched stock event
A reference to GBP is to pounds sterling, being the lawful
currency of the UK.
A reference to $ or US$ is to United States of America (USA)
dollars, being the lawful currency of the USA.
A reference to EUR or Euro is to the lawful currency of the Euro
area.
APPIX - TERMS AND CONDITIONS OF THE PLACING
TERMS AND CONDITIONS OF THE PLACING
FOR INVITED PLACEES ONLY - IMPORTANT INFORMATION
The information contained herein is restricted and is not for
publication, release or distribution in or into the United States,
Canada, Australia, Japan, Singapore, the Republic of South Africa,
or any other jurisdiction where to do so would constitute a
violation of the relevant laws of such jurisdiction.
Each Placee should consult with its own advisers as to legal,
tax, business and related aspects of any subscription for Placing
Shares.
These Terms and Conditions (the "Terms and Conditions") do not
constitute an offer or invitation to acquire, underwrite or dispose
of, or any solicitation of any offer or invitation to acquire,
underwrite or dispose of, any Ordinary Shares or other securities
of the Company to any person in any jurisdiction to whom it is
unlawful to make such offer, invitation or solicitation in such
jurisdiction. Persons who seek to participate in the Placing must
inform themselves about and observe any such restrictions and must
be persons who are able to lawfully receive this Announcement in
their jurisdiction (all such persons being "Relevant Persons"). In
particular, these Terms and Conditions do not constitute an offer
or invitation (or a solicitation of any offer or invitation) to
acquire, underwrite or dispose of or otherwise deal in any Ordinary
Shares or other securities of the Company in the United States,
Canada, Australia, Japan, Singapore or the Republic of South
Africa, subject to certain limited exemptions.
Members of the public are not eligible to take part in the
Placing and each Placee agrees and warrants that it is not
acquiring Placing Shares on behalf of members of the public or its
Retail clients (as that term is defined in the Rules of the FCA),
save where the Placee does so on a fully discretionary basis and
without reference to any such Retail clients. In the UK, the Terms
and Conditions are directed only at persons whose ordinary
activities involve them acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their
businesses and who have professional experience in matters relating
to investments falling within the definition of 'investment
professionals' in Article 19 of the Financial Services and Markets
Act 2000 (Financial Promotion) Order 2005, as amended (the "Order")
or are high net worth body corporates, unincorporated associations
or partnerships or trustees of high value trusts as described in
Article 49 of the Order or to whom it may otherwise lawfully be
communicated.
The Placing Shares have not been, and will not be, registered
under the United States Securities Act of 1933, as amended (the
"Securities Act") or under any other securities legislation of any
state of the United States or registered or qualified under the
applicable securities laws of any province of Canada or Australia,
Japan, Singapore or the Republic of South Africa. Accordingly, the
Placing Shares may not, subject to certain limited exceptions, be
offered or sold, directly or indirectly, within the United States,
any province of Canada or Australia, Japan, Singapore or the
Republic of South Africa or a national, citizen or resident of any
province of Canada or Australia, Japan, Singapore or the Republic
of South Africa. The Placing Shares are being offered and sold
outside the United States in offshore transactions complying with
Regulation S under the Securities Act, which provides an exemption
from the requirement to register the offer and sale under the
Securities Act.
These Terms and Conditions apply to any person who offers to
subscribe for Placing Shares in the Placing. Each person (a
"Placee") to whom these Terms and Conditions apply, as described
above, who confirms his agreement, whether by telephone or
otherwise, with Cantor Fitzgerald Europe to subscribe for Placing
Shares in the Placing, hereby agrees with Cantor Fitzgerald Europe
to be legally and irrevocably bound by these Terms and Conditions
which will be the Terms and Conditions on which the Placing Shares
will be acquired in the Placing.
Capitalised terms not otherwise defined in this Appendix are as
defined in the Announcement relating to the Placing of which this
Appendix forms a part.
The Terms and Conditions must not be acted on or relied on by
persons who are not Relevant Persons. Any investment or investment
activity to which the Terms and Conditions set out herein relates
is available only to Relevant Persons and will be engaged in only
with Relevant Persons. A Placee may not assign, transfer, or in any
manner, deal with its rights and obligations under the agreement
arising from the acceptance of the Placing, without the prior
written agreement of Cantor Fitzgerald Europe, in accordance with
all relevant requirements.
All times and dates in this Appendix are references to times and
dates in London (United Kingdom).
All defined terms used in this Appendix but not defined herein
shall have the meanings ascribed to those terms in the announcement
of which this Appendix forms part.
Terms of the Placing
Each Placee's commitment to subscribe for a fixed number of
Placing Shares under the Placing will be agreed orally with Cantor
Fitzgerald Europe and such agreement will constitute a binding
irrevocable commitment by a Placee, subject to the Terms and
Conditions set out in this Appendix, to subscribe and pay for the
relevant number of Placing Shares (the "Placing Participation") at
the Issue Price. Such commitment is not capable of termination or
rescission by the Placee in any circumstances except fraud. All
such obligations are entered into by the Placee with Cantor
Fitzgerald Europe acting in its capacity as agent of the Company
and are therefore directly enforceable by the Company.
After such agreement is entered into, each Placee allocated
Placing Shares in the Placing will be sent a confirmatory email
stating the number of Placing Shares allocated to it at the Issue
Price, the total subscription amount payable to Cantor Fitzgerald
Europe and including settlement instructions (the "Confirmation
Note").
Each Placee will be deemed to have read this Appendix in its
entirety. Cantor Fitzgerald Europe is acting for the Company and no
one else in connection with the Placing and will not regard any
other person (whether or not a recipient of these Terms and
Conditions) as a client in relation to the Placing and to the
fullest extent permitted by law and applicable FCA rules, neither
Cantor Fitzgerald Europe nor any of its affiliates will have any
liability, obligation or duty to Placees or to any person other
than the Company in respect of the Placing.
The Placing Shares will rank pari passu in all respects and form
one class with the Existing Ordinary Shares of the Company in issue
on Admission, including the right to receive dividends or other
distributions, if any. The Placing Shares will be issued free of
any encumbrance, lien or other security interest.
Application for Admission
Application will be made to London Stock Exchange plc for
Admission of the Placing Shares to trading on AIM. It is
anticipated that Admission of the Placing Shares to AIM will become
effective at 8.00 a.m. on 12 October 2016 and that dealings in the
Placing Shares will commence at that time and date for normal
account settlement.
Placing Participation Conditions
Placing Participations are in all respects conditional
upon:-
(i) the Placing Agreement entered into between Cantor Fitzgerald
Europe and the Company relating to the placing of the Placing
Shares becoming unconditional in all respects and not having been
terminated in accordance with its terms; and
(ii) Admission having become effective,
in each case by 8.00 a.m. on 12 October 2016 (or such later time
and / or date as the Company and Cantor Fitzgerald Europe agree,
but in any event being no later than 8.00 a.m. on 28 October 2016
(the "Long Stop Date")).
Scaling back
Cantor Fitzgerald Europe (after consulting with the Company)
reserves the right to scale back the number of Placing Shares to be
subscribed by any Placee or the number of Placing Shares to be
subscribed for by all Placees in aggregate. The Company and Cantor
Fitzgerald Europe also reserve the right not to offer allocations
of Placing Shares to any person and not to accept offers to
subscribe for Placing Shares or to accept such offers in part
rather than in whole. Cantor Fitzgerald Europe shall be entitled to
effect the Placing by such method as it shall in its sole
discretion determine.
To the fullest extent permissible by law, neither Cantor
Fitzgerald Europe or any holding company thereof, nor any
subsidiary, branch or affiliate of Cantor Fitzgerald Europe (each
an "Affiliate") nor any person acting on behalf of any of the
foregoing shall have any liability to Placees (or to any other
person whether acting on behalf of a Placee or otherwise). In
particular, none of Cantor Fitzgerald Europe nor any of its
Affiliates nor any person acting on behalf of any such person shall
have any liability to Placees in respect of its conduct of the
Placing.
Placing Agreement
Pursuant to the Placing Agreement, Cantor Fitzgerald Europe has
agreed on behalf of and as agent of the Company, to use its
reasonable endeavours to procure persons who will subscribe for the
Placing Shares at the Issue Price, subject to these Terms and
Conditions. The Placing is not underwritten.
Conditions of the Placing
Cantor Fitzgerald Europe's obligations under the Placing
Agreement in respect of the Placing Shares are conditional on,
inter alia:-
(a) there having been no breach of any of the warranties,
representations or undertakings given by the vendors in the
Acquisition Agreement, and the Acquisition Agreement not having
been terminated or rescinded by any party to it;
(b) the Facilities Agreement not having been terminated or
rescinded by any party to it and each condition precedent to
drawdown under the Facilities Agreement (save for any condition
relating to Admission) having been satisfied or unconditionally
waived;
(c) none of the warranties or undertakings contained in the
Placing Agreement being untrue, inaccurate or misleading in any
material respect at any time before Admission and no fact or
circumstance having occurred or arisen which would constitute a
material breach of any of the warranties or undertakings on the
part of the Company contained in the Placing Agreement;
(d) there having been no breach of any of the warranties,
representations or undertakings given by the Sellers in the
Acquisition Agreement which gives or has given the Company the
right to rescind the Acquisition Agreement (whether or not the
Company does so rescind for such breach);
(e) all the conditions to completion of the Acquisition
Agreement having been satisfied or fulfilled in accordance with its
terms, the Acquisition Agreement not having been rescinded by the
Company or the Vendors (as defined therein) and the Acquisition
Agreement having been completed (subject only to Admission);
(f) the Placing Shares having been allotted, subject only to
Admission, in accordance with the Placing Agreement; and
(g) Admission taking place not later than 8.00 a.m. on 12
October 2016 or such later date as the Company and Cantor
Fitzgerald Europe may otherwise agree (but not being later than
8.00 a.m. on the Long Stop Date).
The Placing Agreement contains, inter alia, certain warranties
and indemnities from the Company for the benefit of Cantor
Fitzgerald Europe.
Right to terminate under the Placing Agreement
Cantor Fitzgerald Europe may, in its absolute discretion,
terminate the Placing Agreement (i) if any of the warranties given
by the Company to Cantor Fitzgerald Europe in the Placing Agreement
(a) was not true or accurate or was misleading at the date of the
Placing Agreement (b) would not be true and accurate, or would be
misleading, if they were to be repeated at any time prior to
Admission (by reference to the facts and circumstances in each case
then existing), in the case of each of (a) and (b) in a respect
which Cantor Fitzgerald considers to be material in the context of
the Placing, (ii) in the event of the failure of the Company to
comply with its obligations under the Placing Agreement (iii) in
the event of the occurrence (in the sole judgement of Cantor
Fitzgerald) a material adverse change in the financial or trading
position or prospects of the Company and the Group as a whole; or
(iv) in the event of the occurrence of a 'force majeure' event
which, in the opinion of Cantor Fitzgerald, is likely to have a
materially prejudicial effect on the Placing or make it
impracticable or inadvisable to proceed with the Placing. The
exercise by Cantor Fitzgerald Europe of any right of termination
(or any right of waiver exercisable by Cantor Fitzgerald Europe)
contained in the Placing Agreement or the exercise of any
discretion under the Terms and Conditions set out herein is within
the absolute discretion of the Cantor Fitzgerald Europe and Cantor
Fitzgerald Europe will not have any liability to Placees whatsoever
in connection with any decision to exercise or not exercise any
such rights.
By accepting the Placing Shares referred to in the Announcement
to which this Appendix is annexed, each Placee agrees that, without
having any liability to such Placee, Cantor Fitzgerald Europe may,
in its absolute discretion, exercise the right, (i) to extend the
time for fulfilment of any of the conditions in the Placing
Agreement (provided that Placees' commitments are not extended
beyond the Long Stop Date), (ii) to waive, in whole or in part,
fulfilment of certain of the conditions; or (iii) to terminate the
Placing Agreement, in each case without consulting Placees (or any
of them).
If (i) any of the conditions in the Placing Agreement are not
satisfied (or, where relevant, waived) or (ii) the Placing
Agreement is terminated or (iii) the Placing Agreement does not
otherwise become unconditional in all respects, the Placing will
not proceed and all funds delivered by Placees to Cantor Fitzgerald
Europe or the Company pursuant to the Placing and this Appendix
will be returned to Placees at their risk without interest, and
Placees' rights and obligations under the Placing shall cease and
determine at such time and no claim shall be made by Placees in
respect thereof.
Registration and Settlement
Settlement of transactions in the Placing Shares (ISIN:
GB00B4QY1P51) following Admission will take place within CREST
(subject to certain exceptions). If a Placee wishes to receive its
Placing Shares in certificated form, it should contact (Kellyann
Leeds at Cantor Fitzgerald Europe (+44 (0)20 7894 7913) as soon as
possible after receipt of its Confirmation Note. Cantor Fitzgerald
Europe reserves the right to require settlement for, and delivery
of, the Placing Shares (or a portion thereof) to Placees by such
other means that it deems necessary if delivery or settlement is
not possible or practicable within CREST within the timetable set
out in this Announcement or would not be consistent with the
regulatory requirements in any Placee's jurisdiction.
It is expected that settlement will be on 12 October 2016 in
accordance with the instructions set out in the Confirmation
Note.
Interest is chargeable daily on payments not received from
Placees on the due date in accordance with the arrangements set out
above at the rate of 3 percentage points above The Royal Bank of
Scotland plc's base rate, with interest compounded on a daily
basis.
Each Placee is deemed to agree that, if it does not comply with
these obligations, Cantor Fitzgerald Europe may sell any or all of
the Placing Shares allocated to that Placee on such Placee's behalf
and retain from the proceeds, for Cantor Fitzgerald Europe's
account and benefit (as agent for the Company), 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 or securities transfer tax
(together with any interest or penalties) which may arise upon the
sale of such Placing Shares on such Placee's behalf. By
communicating a bid for Placing Shares, each Placee confers on
Cantor Fitzgerald Europe all such authorities and powers necessary
to carry out any such sale and agrees to ratify and confirm all
actions which Cantor Fitzgerald Europe lawfully takes in pursuance
of such sale.
If Placing Shares are to be delivered to a custodian or
settlement agent, Placees should ensure that the Confirmation Note
is copied and delivered immediately to the relevant person within
that organisation.
Insofar as Placing Shares are registered in a Placee's name or
that of its nominee or in the name of any person for whom a Placee
is contracting as agent or that of a nominee for such person, such
Placing Shares should, subject as provided below, be so registered
free from any liability to UK stamp duty or stamp duty reserve tax
or securities transfer tax.
Placees will not be entitled to receive any fee or commission in
connection with the Placing.
Further Terms, Confirmations and Warranties
By accepting the Placing Participation referred to in the
Confirmation Note, each Placee makes the following confirmations,
acknowledgements, representations, warranties and/or undertakings
to Cantor Fitzgerald Europe and the Company and their respective
directors, agents and advisers:
1 each Placee confirms, represents and warrants that it has read
and understood this Announcement (including this Appendix) in its
entirety and acknowledges that its Placing Participation will be
governed by the terms, conditions, representations, warranties,
acknowledgements, agreements and undertakings of this Appendix;
2 each Placee acknowledges and agrees that its Placing
Participation on the Terms and Conditions set out in this Appendix
is legally binding, irrevocable and is not capable of termination
or rescission by such Placee in any circumstances;
3 each Placee confirms, represents and warrants that it has not
relied on, received or requested nor does it have any need to
receive, any prospectus, offering memorandum, listing particulars
or any other document (other than the Announcement), any
information given or any representations, warranties agreements or
undertakings (express or implied), written or oral, or statements
made at any time by the Company, Cantor Fitzgerald Europe or by any
subsidiary, holding company, branch or associate of the Company,
Cantor Fitzgerald Europe, or any of their respective officers,
directors, agents, employees or advisers, or any other person in
connection with the Placing, the Company and its subsidiaries or
the Placing Shares and that in making its application under the
Placing it is relying solely on the information contained in the
Announcement and this Appendix and it will not be relying on any
agreements by the Company and its subsidiaries or Cantor Fitzgerald
Europe or any director, employee or agent of the Company, Cantor
Fitzgerald Europe other than as expressly set out in this Appendix
for which none of Cantor Fitzgerald Europe or any of their
directors and/or employees and/or person(s) acting on behalf of any
of them shall to the maximum extent permitted under law have any
liability except in the case of fraud;
4 each Placee confirms, represents and warrants that it is
sufficiently knowledgeable to understand and be aware of the risks
associated with, and other characteristics of, the Placing Shares
and, among others, of the fact that it may not be able to resell
the Placing Shares except in accordance with certain limited
exemptions under applicable securities legislation and regulatory
instruments;
5 each Placee confirms, represents and warrants, if a company,
that it is a valid and subsisting company and has all the necessary
corporate capacity and authority to execute its obligations in
connection with the Placing Participation and confirms, represents
and warrants that any person who confirms to Cantor Fitzgerald
Europe on behalf of a Placee an agreement to subscribe for Placing
Shares is duly authorised to provide such confirmation to Cantor
Fitzgerald Europe;
6 each Placee agrees that the exercise by Cantor Fitzgerald
Europe of any right of termination or any right of waiver
exercisable by Cantor Fitzgerald Europe contained in the Placing
Agreement or the exercise of any discretion including (without
limitation) the right not to enter into the Placing Agreement is
within the absolute discretion of Cantor Fitzgerald Europe and
Cantor Fitzgerald Europe will not have any liability to any Placee
whatsoever in connection with any decision to exercise or not
exercise any such rights. Each Placee acknowledges that if (i) any
of the conditions in the Placing Agreement are not satisfied (or,
where relevant, waived) or (ii) the Placing Agreement is terminated
or (iii) the Placing Agreement does not otherwise become
unconditional in all respects, the Placing will lapse and such
Placee's rights and obligations in relation to the Placing shall
cease and determine at such time and no claim shall be made by any
Placee in respect thereof;
7 each Placee acknowledges and agrees that Cantor Fitzgerald
Europe is not acting for, and that it does not expect Cantor
Fitzgerald Europe to have any duties or responsibilities towards,
such Placee, including, without limitation, for providing
protections afforded to customers or clients of Cantor Fitzgerald
Europe under the FCA's Conduct of Business Source Book or advising
such Placee with regard to its Placing Participation and that such
Placee is not, and will not be, a customer or client of Cantor
Fitzgerald Europe as defined by the FCA's Conduct of Business
Source Book in connection with the Placing. Likewise, Cantor
Fitzgerald Europe will not treat any payment by such Placee
pursuant to its Placing Participation as Client Money governed by
the FCA's Client Assets Sourcebook;
8 each Placee undertakes and agrees that it will be responsible
for any stamp duty or stamp duty reserve tax in relation to the
Placing Shares comprised in its Placing Participation and that
neither Cantor Fitzgerald Europe nor the Company will be
responsible for any liability to stamp duty or stamp duty reserve
tax in relation to the Placing Shares comprised in such Placee's
Placing Participation;
9 each Placee confirms, represents and warrants that it is a
Relevant Person and that it may lawfully subscribe for or acquire
the Placing Shares comprised in such Placee's Placing Participation
and that it has complied with and will comply with all applicable
provisions of FSMA with respect to anything done by such Placee in
relation to the Placing Shares in, from or otherwise involving, the
United Kingdom;
10 each Placee acknowledges and agrees that the agreement
confirmed by the Confirmation Note is a legally binding contract
between it and the Company and the Terms and Conditions of such
Placee's Placing Participation will be governed by, and construed
in accordance with, the laws of England and Wales to the exclusive
jurisdiction of whose courts such Placee irrevocably agrees to
submit;
11 each Placee agrees that it will ensure delivery and payment
is completed in accordance with the settlement instructions set out
in the Confirmation Note (or as separately agreed with Cantor
Fitzgerald Europe in the case of certificated settlement) and
acknowledges and agrees that time shall be of the essence as
regards such Placee's obligations pursuant to its Placing
Participation;
12 each Placee acknowledges and agrees that it is the
responsibility of such Placee (if it is outside of the United
Kingdom) to satisfy itself that, in doing so, such Placee complies
with the laws of any relevant territory in connection with its
Placing Participation and that it obtains any requisite
governmental or other consents and observes any other applicable
formalities;
13 each Placee acknowledges and agrees that the Announcement
does not constitute an offer to sell, or the solicitation of an
offer to subscribe for or buy, Placing Shares in any jurisdiction
in which such an offer or solicitation is unlawful. Accordingly,
such Placee acknowledges and agrees that the Placing Shares may
not, subject to certain limited exceptions, be offered or sold,
directly or indirectly, in or into the United States, any province
of Canada or Australia, Japan, Singapore or the Republic of South
Africa or offered or sold to, or for the account or benefit of, a
national, citizen or resident of the United States, any province of
Canada or Australia, Japan, Singapore or the Republic of South
Africa, in each case subject to limited exemptions, or any other
jurisdiction where to do so would constitute a violation of the
relevant laws of such jurisdiction;
14 each Placee acknowledges and agrees that the Placing Shares
have not been and will not be registered under the Securities Act
or with any securities regulatory authority of any state or
jurisdiction of the United States, or the relevant Canadian,
Japanese, Australian, Singapore or South African securities
legislation and therefore the Placing Shares may not be offered,
sold, transferred or delivered directly or indirectly into the
United States, Canada, Japan, Australia, Singapore or the Republic
of South Africa or their respective territories and possessions,
subject to limited exemptions, and in the case of the United
States, pursuant to an exemption from, or in a transaction not
subject to the registration requirements of the Securities Act and
in compliance with United States securities laws;
15 each Placee confirms, represents and warrants that it has
complied with all relevant laws of all relevant territories,
obtained all requisite governmental or other consents which may be
required in connection with its Placing Participation, complied
with all requisite formalities and that it has not taken any action
or omitted to take any action which will or may result in Cantor
Fitzgerald Europe, the Company or any of their respective
directors, officers, agents, employees or advisers acting in breach
of the legal or regulatory requirements of any territory in
connection with the Placing or such Placee's Placing
Participation;
16 each Placee confirms, represents and warrants that its
subscription for Placing Shares does not trigger, in the
jurisdiction in which such Placee is resident or located: (i) any
obligation to prepare or file a prospectus or similar document or
any other report with respect to such subscription; (ii) any
disclosure or reporting obligation of the Company; or (iii) any
registration or other obligation on the part of Cantor Fitzgerald
Europe or the Company;
17 each Placee confirms, represents and warrants it is acting as
principal and for no other person and that its Placing
Participation will not give any other person a contractual right to
require the issue by the Company of any Placing Shares.
18 each Placee confirms, represents and warrants that in
accepting its Placing Participation it is not applying for
registration as, or as a nominee or agent for, a person who is or
may be a person mentioned in sections 67 to 72 inclusive and
sections 93 to 97 inclusive of the Finance Act 1986;
19 each Placee confirms, represents and warrants that, to the
extent applicable to it, it is aware of its obligations in
connection with the Criminal Justice Act 1993, the Terrorism Act
2006, the UK Anti-Terrorism Crime and Security Act 2001, the Money
Laundering Regulations 2007, the Proceeds of Crime Act 2002 and
Part VIII of the Financial Services and Markets Act 2000 (as
amended), it has identified its clients in accordance with the
Money Laundering Regulations 2007 and it has complied fully with
its obligations pursuant to those Regulations;
20 each Placee acknowledges and agrees that all times and dates
in this Announcement and the Terms and Conditions set out in this
Appendix, may be subject to amendment and that Cantor Fitzgerald
Europe will notify it of any such amendments;
21 each Placee acknowledges and agrees that no term of the
agreement confirmed by the Confirmation Note shall be enforceable
under the Contracts (Rights of Third Parties) Act 1999 by any
person other than Cantor Fitzgerald Europe or any affiliate of
Cantor Fitzgerald Europe or any Indemnified Person (as hereinafter
defined);
22 each Placee acknowledges that any of its monies held or
received by Cantor Fitzgerald Europe will not be subject to the
protections conferred by the FCA's Client Money Rules;
23 each Placee confirms, represents and warrants that it
understands that the Placing Shares have not been and will not be
registered under the Securities Act or with any securities
regulatory authority of any state or other jurisdiction of the
United States and, accordingly, may not be offered or sold or
otherwise transferred in the United States or to, or for the
account or benefit of, US Persons except pursuant to a registration
statement under the Securities Act or an exemption from the
registration requirements of the Securities Act, and, in connection
with any such transfer, the Company will have the right to obtain,
as a condition to transfer, a legal opinion of counsel, in form and
by counsel reasonably satisfactory to the Company, that no such
Securities Act registration is or will be required along with
appropriate certifications by the transferee as to the 'Accredited
Investor' status and/or other appropriate matters;
24 each Placee confirms, represents and warrants that it has not
distributed, forwarded, transferred or otherwise transmitted this
Announcement or any other presentation or offering materials
concerning the Placing Shares within the United States, nor will it
do any of the foregoing. Such Placee further confirms that it
understands that the information in this Announcement, including
financial information, may be materially different from any
disclosure that would be provided in a US offering;
25 each Placee agrees, confirms, represents, warrants and undertakes as follows:-
25.1 it is, at the time of the offer and acceptance of the
Placing Shares, outside the United States for the purposes of
Regulation S;
25.2 it will not offer or sell the Placing Shares in the United
States absent registration or an exemption from registration under
the Securities Act;
25.3 it is aware that the Placing Shares are being offered
outside the United States in reliance on Regulation S; and
25.4 it did not purchase or otherwise acquire the Placing Shares
based on or due to directed selling efforts (as defined in Rule 902
under the Securities Act), including based on an advertisement in a
publication with a general circulation in the United States, nor
has it seen or been aware of any activity that, to its knowledge,
constitutes directed selling efforts in the United States;
26 if it is subscribing for the Placing Shares in the United
Kingdom, each Placee is a person falling within the exemption
contained in Section 86(1)(a) of the Financial Services and Markets
Act 2000 (as amended) or falling within one or more of the
categories of persons set out in Article 19 (Investment
Professionals) or Article 49 (High net worth companies,
unincorporated associations etc.) of the Order;
27 each Placee confirms, represents and warrants that, in making
the investment decision with respect to the Placing Shares, it
has:-
27.1 not relied on the Company or any of its respective
affiliates or on any document published by any of them;
27.2 the ability to bear the economic risk of its investment in
the Placing Shares and has no need for liquidity with respect to
its investment in the Placing Shares;
27.3 such knowledge and experience in financial and business
matters that it is capable of evaluating the merits, risks and
suitability of investing in the Placing Shares, and is able to
sustain a complete loss of any investment in the Placing Shares;
and
27.4 investigated independently and made its own assessment and
satisfied itself concerning the relevant tax, legal, currency and
other economic considerations relevant to its investment in the
Placing Shares, including any federal, state and local tax
consequences, affecting it in connection with its subscription for
and any subsequent disposal of the Placing Shares;
28 each Placee acknowledges and agrees that it is not entitled
to the protections afforded to clients of Cantor Fitzgerald Europe
in connection with the Placing and that neither Cantor Fitzgerald
Europe nor any of its affiliates nor any of their respective
officers, directors, employees or advisers shall be liable for any
losses (including, without limitation, loss of profit, loss of
business or opportunity and special interest or consequential
losses), damages or costs of the Placee save as a result of fraud
or for death or personal injury;
29 each Placee acknowledges that the Company, Cantor Fitzgerald
Europe, CREST, the registrar, any transfer agent, any distributors
or dealers and their respective affiliates and others will rely on
the truth and accuracy of the foregoing warranties,
acknowledgements, representations, undertakings and agreements, and
agrees to notify the Company and Cantor Fitzgerald Europe promptly
in writing if any of its warranties, acknowledgements,
representations, undertakings or agreements set out above cease to
be accurate and complete and to indemnify and hold harmless on an
after-tax basis the Company, Cantor Fitzgerald Europe and any of
their respective officers, directors, agents, employees or advisers
(the "Indemnified Persons") from and against any and all loss,
damage, liability or expense, including reasonable costs and
attorneys' fees and disbursements, which an Indemnified Person may
incur by reason of, or in connection with, any representation or
warranty made by such Placee as set out above not having been true
when made, any misrepresentation made or any failure by such Placee
to fulfil any of its undertakings or agreements set out above or
any other document such Placee provides to the Company or Cantor
Fitzgerald Europe. Such Placee irrevocably authorises each of the
Company, and Cantor Fitzgerald Europe to produce a copy hereof to
any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby;
30 each Placee acknowledges that the rights and remedies of
Cantor Fitzgerald Europe and the Company under these Terms and
Conditions are in addition to any rights and remedies which would
otherwise be available to each of them and the exercise or partial
exercise of one right or remedy will not prevent the exercise of
the other rights and/or remedies; and
31 each Placee undertakes that it (and any person acting on its
behalf) will make payment for the Placing Shares allocated to it in
accordance with this Announcement on the due time and date set out
herein, failing which the relevant Placing Shares may be placed
with other subscribers or sold as Cantor Fitzgerald Europe may in
its sole discretion determine and without liability to such Placee
and such Placee will remain liable for any shortfall below the net
proceeds of such sale and the placing proceeds of such Placing
Shares and may be required to bear the liability for any stamp duty
or stamp duty reserve tax (together with any interest or penalties
due pursuant to or referred to in these Terms and Conditions) which
may arise upon the placing or sale of such Placee's Placing Shares
on its behalf.
CREST and certificated Placing Shares
Placing Shares, once issued, will be admitted to CREST with
effect from Admission. Placees will receive Placing Shares
comprised in their Placing Participation in uncertificated form
registered in their CREST member account. Alternatively, those
Placees who wish to receive their Placing Shares in certificated
form should contact Kellyann Leeds at Cantor Fitzgerald Europe (+44
(0)20 7894 7913)) and are expected to receive their certificates
for their Placing Shares by no later than 19 October 2016. If
Placees do not provide any CREST details or if Placees provide
insufficient CREST details to match within the CREST system to
their details, Cantor Fitzgerald Europe may, at its discretion,
deliver Placing Shares comprised in any such Placee's Placing
Participation in certificated form provided payment has been made
in terms satisfactory to Cantor Fitzgerald Europe and all
conditions in relation to the Placing have been satisfied or
waived.
Responsibility
The Terms and Conditions set out in this Appendix and the
Announcement of which it forms part have been issued by the Company
and are the sole responsibility
This information is provided by RNS
The company news service from the London Stock Exchange
END
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