TIDMAGLD
RNS Number : 3638E
Allied Gold Limited
05 April 2011
THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR
PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR
INTO THE UNITED STATES OR ANY JURISDICTION IN WHICH SUCH
PUBLICATION RELEASE OR DISTRIBUTION WOULD BE UNLAWFUL
5 April 2011
ALLIED GOLD COMPLETES A$93.8 MILLION PLACEMENT
-- Proceeds to retire debt, improve Simberi (PNG) operational
efficiency, expand Simberi production and working capital
-- A$93.8 million / GBP60.1 million placement to institutional
and sophisticated investors
-- The placement shares represent 15% of current issued share
capital
-- New shares issued at A$0.60 / 38.5p per share
-- Allied to advance LSE Main Market listing
Allied Gold Limited ("Allied Gold" or the "Company") has
successfully completed the book build for a placement of new
ordinary shares ("Shares") to institutional and sophisticated
investors, raising gross proceeds of approximately A$93.8 million
(GBP60.3 million) (the "Placement").
The Shares under the Placement will be issued at a price of
A$0.60 (or 38.5p) per share ("Issue Price"), which represents a
discount of:
-- 5.5% to Allied Gold's last closing share price on the ASX of
A$0.635; and
-- 4.8% to Allied Gold's 5 day volume weighted average share
price on the ASX of A$0.630.
Under the Placement Allied Gold will issue approximately 156.3
million Shares with admission of the Shares on AIM expected to be
Monday 11 April 2011 and admission of shares on ASX expected to be
on Tuesday 12 April 2011.
Application has been made to the London Stock Exchange for the
Shares to be admitted to trading on AIM. The Placement is also
subject to receipt of approval from the Toronto Stock Exchange
("TSX").
The Shares, when issued, will rank pari passu with existing
ordinary shares of the Company. Immediately following the admission
of the Shares, Allied Gold will have approximately 1,199 million
ordinary shares on issue.
RBC Capital Markets is acting as Global Lead Manager and Sole
Bookrunner on the Placement, Casimir Capital L.P. is acting as
Joint Lead Manager and Mirabaud Securities LLP, Oriel Securities
Limited and Wilson HTM are acting as Co-Managers on the
Placement.
USE OF FUNDS
Allied Gold intends to use the net proceeds from the Placement
to:
-- Retire approximately A$50.0 million (GBP32.1 million) of
existing debt facilities, thus strengthening Allied Gold's balance
sheet;
-- At Simberi, replace diesel fuel electricity generation with
heavy fuel oil at a cost of approximately A$15.0 million (GBP9.6
million), to reduce Simberi's electricity generation costs by
approximately 25 per cent;
-- Provide the balance of funding required to expand the Simberi
gold mine ("Simberi") in Papua New Guinea (PNG) from 2.4Mtpa to
3.5Mtpa, to lift gold production from 70,000 ozpa to 100,000 ozpa;
and
-- Provide working capital for exploration and other corporate
purposes.
INTENTION TO MOVE TO THE MAIN MARKET OF THE LONDON STOCK
EXCHANGE
Allied Gold intends to apply for admission of its ordinary share
capital to the Official List of the UK Listing Authority (the
"Official List") and for a Premium Listing on the London Stock
Exchange's ("LSE") Main Market for listed securities.
The Company has been examining the merits of moving to the Main
Market for some time and believes it can assist the Company with
its profile, the liquidity of its shares, and an increased
potential investor base.
Such a move will be subject to shareholder approval.
Shareholders will be kept fully informed of this process as it
progresses and as the timetable is confirmed.
RBC Capital Markets has been appointed as sponsor in relation to
the move to the Main Market of the LSE.
COMMENTARY
Mark Caruso, Executive Chairman of Allied Gold, commented: "The
Placement was extremely well supported with investor demand
exceeding supply. It allows the Company to accelerate both its
production expansion and cost reduction initiatives at Simberi.
Allied is already hedge free and the Placement will further enhance
the Company's financial position by retiring inefficient debt
arrangements. We also look forward to progressing the Main Market
listing on the LSE, which we see as an important next step in the
Company's maturity."
The Company will have in issued 1,198,537,554 ordinary shares
following admission of Shares to trading on AIM and ASX.
CONTACTS
For further information, please contact:
Allied Gold
Australia - Simon Jemison - Investor and Media +
61-418-853-922
Canada - Rebecca Greco - Investor Relations +1 416-839-8610
London - David Simonson - C/. MerlinPR +44 (0) 20 7736 8400
Beaumont Cornish Limited (NOMAD)
Roland Cornish - +44 (0) 207 628 3396
Notes:
Application has been made or will be made, as the case may be,
to the London Stock Exchange, the Australian Securities Exchange
and the Toronto Stock Exchange for the Placement Shares to be
admitted to trading on AIM, ASX and TSX. Admission of the Placement
Shares is expected to occur on 11 April, 2011 in respect of the
Placement Shares to be admitted to trading on AIM and on 12 April
2011 in respect of the Placement Shares to be admitted to trading
on ASX. The Shares under the Placement will, when issued, be
credited as fully paid and will rank pari passu in all respects
with the existing ordinary shares of Allied Gold, including the
right to receive all dividends and other distributions declared
after the date of their issue.
The Appendix to this Announcement (which forms part of this
Announcement) sets out certain terms and conditions applicable to
the Placement.
This press release contains forward-looking statements
concerning the projects owned by Allied Gold. Statements concerning
mineral reserves and resources may also be deemed to be
forward-looking statements in that they involve estimates, based on
certain assumptions, of the mineralisation that will be found if
and when a deposit is developed and mined. Forward-looking
statements are not statements of historical fact, and actual events
or results may differ materially from those described in the
forward-looking statements, as the result of a variety of risks,
uncertainties and other factors, involved in the mining industry
generally and the particular properties in which Allied Gold has an
interest, such as fluctuation in gold prices; uncertainties
involved in interpreting drilling results and other tests; the
uncertainty of financial projections and cost estimates; the
possibility of cost overruns, accidents, strikes, delays and other
problems in development projects, the uncertain availability of
financing and uncertainties as to terms of any financings
completed; uncertainties relating to environmental risks and
government approvals, and possible political instability or changes
in government policy in jurisdictions in which properties are
located. Forward-looking statements are based on management's
beliefs, opinions and estimates as of the date they are made, and
no obligation is assumed to update forward-looking statements if
these beliefs, opinions or estimates should change or to reflect
other future developments.
No representation or warranty, express or implied, is or will be
made as to, or in relation to, and no responsibility or liability
is or will be accepted by any of the syndicate members or by any of
their respective affiliates or agents or brokers as to or in
relation to, the accuracy or completeness of this Announcement or
any other written or oral information made available to or publicly
available to any interested party or its advisers, and any
liability therefore is expressly disclaimed.
RBC is acting for Allied Gold and for no-one else in connection
with the Offer, and will not be responsible to anyone other than
Allied Gold for providing the protections afforded to customers of
RBC nor for providing advice to any other person in relation to the
Offer or any other matter referred to herein. Royal Bank of Canada
Europe Limited is authorised and regulated in the United Kingdom by
the FSA.
Casimir is acting for Allied Gold and for no-one else in
connection with the Offer, and will not be responsible to anyone
other than Allied Gold for providing the protections afforded to
customers of Casimir nor for providing advice to any other person
in relation to the Offer or any other matter referred to
herein.
The distribution of this Announcement and the offering of the
Shares under the Placement in certain jurisdictions may be
restricted by law. No action has been taken by Allied Gold, RBC or
Casimir that would permit an offering of such shares or possession
or distribution of this Announcement or any other offering or
publicity material relating to such shares in any jurisdiction
where action for that purpose is required. Persons into whose
possession this Announcement comes are required by Allied Gold, RBC
and Casimir to inform themselves about, and to observe, such
restrictions.
The price of the Shares and the income from them may go down as
well as up and investors may not get back the full amount invested
on disposal of the Shares.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACEMENT. THIS ANNOUNCEMENT (INCLUDING THE 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 ARTICLE
2(1)(E) OF EU DIRECTIVE 2003/71/EC (THE "PROSPECTUS DIRECTIVE"));
(B) PERSONS IN THE UNITED KINGDOM WHO ARE QUALIFIED INVESTORS AND
PERSONS WHO ARE (I) INVESTMENT PROFESSIONALS FALLING WITHIN ARTICLE
19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL
PROMOTION) ORDER 2005 (THE "ORDER"); (II) PERSONS FALLING WITHIN
ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED
ASSOCIATIONS, ETC") OF THE ORDER; OR (III) PERSONS TO WHOM IT MAY
OTHERWISE BE LAWFULLY COMMUNICATED OR (C) PERSONS OTHERWISE WITHIN
THE CLASSES OF PERSONS REFERRED TO IN PARAGRAPH 10(A) to (H) OF THE
APPENDIX TO THIS ANNOUNCEMENT, (ALL SUCH PERSONS TOGETHER BEING
REFERRED TO AS "RELEVANT PERSONS"). THIS ANNOUNCEMENT (INCLUDING
THE 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 ANNOUNCEMENT
(INCLUDING THE 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 ANNOUNCEMENT (INCLUDING
THE APPENDIX) DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR
SUBSCRIPTION OF ANY SECURITIES IN ALLIED GOLD.
Persons (including individuals, funds or otherwise) by whom or
on whose behalf a commitment to acquire Shares under the Placement
has been given ("Purchasers") will be deemed to have read and
understood this Announcement, including the 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 the Appendix. In
particular each such Purchaser represents, warrants and
acknowledges that it is: (i) a Relevant Person (as defined above)
and undertakes that it will acquire, hold, manage or dispose of any
Shares that are allocated to it under the Placement for the
purposes of its business; and (ii) outside the United States and is
subscribing for the Shares under the Placement in an "offshore
transaction" (within the meaning of Regulation S under the United
States Securities Act of 1933 (the "Securities Act")).
This Announcement, including the Appendix, is not for
distribution directly or indirectly in or into the United States
(including its territories and possessions, any State of the United
States and the District of Columbia) or any jurisdiction into which
the same would be unlawful. This Announcement does not constitute
or form part of an offer or solicitation to purchase or subscribe
for shares in the capital of Allied Gold in the United States or
any jurisdiction in which such an offer or solicitation is
unlawful. In particular, the Shares under the Placement referred to
in this Announcement have not been, and will not be, registered
under the Securities Act and may not be offered or sold in the
United States absent registration or an exemption from the
registration requirements under the Securities Act. No public
offering of securities of Allied Gold will be made in connection
with the Placement in the United Kingdom, the United States or
elsewhere.
The relevant clearances have not been, and nor will they be,
obtained from the securities commission of any province or
territory of Canada; no prospectus has been lodged with, or
registered by, the Australian Securities and Investments
Commission, the Monetary Authority of Singapore nor the Securities
and Futures Commission of Hong Kong; and the Shares have not been,
and nor will they be, registered under or offered in compliance
with the securities laws of any state, province or territory of
Canada, Australia, Hong Kong or Singapore. Accordingly, the Shares
under the Placement may not (unless an exemption under the relevant
securities laws is applicable) be offered, sold, resold or
delivered, directly or indirectly, in or into the United States,
Canada, Australia, Hong Kong or Singapore or any other
jurisdiction.
Persons (including, without limitation, nominees and trustees)
who have a contractual or other legal obligation to forward a copy
of the Appendix or this Announcement should seek appropriate advice
before taking any action.
The Shares to be issued pursuant to the Placement will not be
admitted to trading on any stock exchange other than the London
Stock Exchange, the Australian Securities Exchange and the Toronto
Stock Exchange. Neither the content of Allied Gold's website nor
any website accessible by hyperlinks on Allied Gold's website is
incorporated in, or forms part of, this Announcement.
APPENDIX
TERMS AND CONDITIONS - IMPORTANT INFORMATION FOR RELEVANT
PERSONS ONLY REGARDING THE OFFER
1. Offer
As agents and brokers on behalf of Allied Gold Limited (ACN 104
855 067), a company incorporated in Australia (ASX: ALD, AIM: AGLD,
TSX: ALG) (Company), Royal Bank of Canada, or its broker dealers,
affiliates or agents in applicable jurisdictions, including Royal
Bank of Canada Europe Limited (RBC) and Casimir Capital LP, its
broker dealers, affiliates or agents in applicable jurisdictions
(Casimir) (RBC and Casimir are individually a Joint Lead Manager
and together the Joint Lead Managers), have undertaken an
institutional bookbuild (Bookbuild) for a placement by the Company
of ordinary shares (Shares) (Offer).
2. Allocation and conditions to Offer
2.1 Shares under the Offer will be issued on the Payment Date
(as defined below) (Placement Shares)
2.2 The allocation of Placement Shares to prospective purchasers
in respect of bids made by prospective purchasers, including the
subscription amount payable, has been agreed between the Joint Lead
Managers and the Company following the Bookbuild.
2.3 Acceptances of the Offer and allocations of Placement Shares
(including the subscription amount payable) will be as:
2.3.1 confirmed (orally or in writing) with prospective
Purchasers who are in the United Kingdom or any other member state
of the European Union (or at the absolute discretion of a Joint
Lead Manager in any other jurisdiction) by one of the Joint Lead
Managers (or their agents as agent of Allied Gold). That
confirmation constitutes an irrevocable legally binding commitment
of that person (who will at that point become a purchaser
(Purchaser)) to subscribe for the number of Placement Shares
allocated to it on the terms and conditions set out in this
Appendix (a copy of the terms and conditions having been provided
to the Purchaser prior to or at the same time as such confirmation)
and in accordance with Allied Gold's articles of incorporation;
or
2.3.2 (unless paragraph 2.4.1 applies) by the completion and
return of such letter of confirmation and registration or other
forms as one of the Joint Lead Managers or their agents may in
their absolute discretion require and in that event the terms and
conditions set out in such letter of confirmation and registration
or other form shall apply to the exclusion of this Appendix.
2.4 For the avoidance of doubt, acceptance of the Offer
constitutes your irrevocable legally binding agreement, subject to
the Mandate Letter (as defined below) not having been terminated,
to pay the aggregate settlement amount of the Placement Shares
regardless of the total number of Placement Shares (if any)
subscribed for by any other investor(s).
2.5 In making an investment decision, Purchasers must rely on
their own examination of the Company and its prospects and the
terms of the Offer, including the merits and risks involved in
investing in the Placement Shares.
2.6 Settlement will occur on a date to be advised but expected
to be 11 April 2011 (Payment Date).
2.7 The Placement Shares are offered on the express
understanding and condition that the Offer does not need disclosure
in accordance with Section 708 of the Corporations Act 2001 (Cth)
(Corporations Act), and if a Purchaser is a Purchaser in Australia
that it is a sophisticated investor under section 708(8) of the
Corporations Act, a "professional investor" under section 708(11)
of the Corporations Act or a person who has obtained this Offer
through a financial services licensee in accordance with, and in
compliance with, section 708(10) of the Corporations Act.
3. Placement Shares and Quotation
3.1 The Placement Shares will rank equally, from the date of
issue, in all respects with the Company's existing issued
Shares.
3.2 Following the issue of each of the Placement Shares, the
Company will apply to the ASX to obtain quotation of the relevant
Placement Shares on the ASX. In accordance with the Listing Rules
of the ASX (ASX Listing Rules) the Company will also make an
announcement to the market at the time of completion of the issue
of the Placement Shares. Application for admission of the Placement
Shares to trading on AIM ("AIM Admission") will also be made in
accordance with the AIM Rules. It is anticipated that AIM Admission
will occur in respect of the Placement Shares on or about 8.00am
(London time) on 11 April 2011.
3.3 Please note that ASX Participating Organisations (as defined
in the ASX Business Rules) cannot trade in the Placement Shares
either as principal or agent until official quotation is granted in
respect of the Placement Shares in accordance with Chapter 2 of the
ASX Listing Rules.
3.5 The Company has agreed with the Joint Lead Managers that the
Company will, on the date of issue of the Placement Shares, prepare
and lodge a notice that complies with section 708A(5)(e) and
section 708A(6) of the Corporations Act. Subject to the lodgement
of the notices, the Placement Shares will be freely tradeable from
the date of their issue.
4. Mandate Letter
4.1 The Company and each of the Joint Lead Managers have entered
into a letter of engagement in connection with the Offer (Mandate
Letter). The termination events that would entitle either of the
Joint Lead Managers to terminate the Mandate Letter are (subject to
any variations which may be agreed between the parties).
(a) Any party may terminate the arrangements under the Mandate
Letter by giving 7 days of written notice to the other parties,
save that the Joint Lead Managers shall reserve the right to
terminate immediately should the Company commit an act of gross
negligence, fraud or wilful misconduct or refuse to provide the
Joint Lead Managers with information it has reasonably requested in
relation to its duties for the services or in the opinion of the
Joint Lead Managers, it is not appropriate for it to continue the
engagement under this letter on legal or regulatory reasons.
(b) Termination will be effective upon receipt of such
notice.
(c) Termination will not affect any legal rights or obligations
which may already have accrued or been incurred (including an
entitlement to fees and expenses in connection with this
engagement) or any representations, authorisations or confirmations
given by a Purchaser in or pursuant to the agreement constituted by
acceptance of the Offer which will remain in full force and
effect.
The Joint Lead Managers will notify Purchasers as soon as
practicable if the Mandate Letter is terminated.
4.2 Under the terms of the Mandate Letter, the Joint Lead
Managers will be paid customary fees for their services in relation
to this transaction.
4.3 Subject to the Joint Lead Managers' and the Company's right
to elect not to proceed with the Offer, any amendment to the
timetable for the Offer, the exercise of rights of termination, or
any other right, approval or consent under the Mandate Letter, will
be at the sole discretion of the Joint Lead Managers. If the Joint
Lead Managers choose not to terminate the Mandate Letter in
circumstances in which they may be entitled to do so, Purchasers
will be bound by such election and bound to fulfill your
obligations set out in this letter.
4.4 If the Offer does not proceed or the Joint Lead Managers
terminate the Mandate Letter (for whatever reason) prior to the
Payment Date then a Purchaser's rights in respect of the Placement
Shares shall also terminate immediately, including the right to
receive the Placement Shares. In such event, any settlement amount
received prior to termination of the arrangements will be returned
(without the payment of any interest) as soon as practicable.
5. Relationship of the Joint Lead Managers
5.1 The obligations of each Joint Lead Manager in connection
with the Offer (including any obligation to pay) are several, and
not joint or joint and several. A right of a Joint Lead Manager in
connection with the Offer (including any rights under the Mandate
Letter) is held by that Joint Lead Manager severally and each Joint
Lead Manager may exercise its rights, powers and benefits in
connection with the Offer separately and individually.
5.2 A Joint Lead Manager will not be responsible for the
performance obligations of the other Joint Lead Manager and will
not be liable for any claims, damages or liabilities arising out of
the actions taken, omissions of or advice given by that other Joint
Lead Manager. Any breach, non-performance or default by a Joint
Lead Manager will not constitute a breach, non-performance or
default of the other.
5.3 Nothing contained or implied hereby or by acceptance of the
Offer constitutes a Joint Lead Manager acting as the partner, agent
or representative of the other Joint Lead Manager for any purpose
or creates any partnership, agency or trust between the Joint Lead
Managers, and neither Joint Lead Manager has any authority to bind
the other in any way.
5.4 Neither Joint Lead Manager will be liable for any loss,
damage or claim arising out of the actions taken or advice given by
the other Joint Lead Manager. In addition, the rights of a Joint
Lead Manager and the Beneficiaries (as defined below) in respect of
that Joint Lead Manager under the representations, warranties,
acknowledgements and undertakings set out below will in no way be
affected by the actions taken or alleged to have been taken or
advice given or alleged to have been given by the other Joint Lead
Manager or its Beneficiaries.
6. Confidentiality
Each Purchaser agrees to treat any confidential information
provided to you in relation to the Company and the Offer as
strictly confidential and not to disclose it to any other person,
it being made available to you solely to consider the Offer and
further agrees that it will not purchase or sell any Shares or
procure another person to do so in breach of the insider trading
provisions of the Corporations Act.
7. Offer personal
The offer of Placement Shares and the agreement arising from
acceptance of the Offer is personal to each Purchaser and does not
constitute an offer to any other person or to the public generally
in Australia or anywhere else. A Purchaser may not assign,
transfer, or in any other manner, deal with its Placement Shares,
or its rights or obligations under the agreement arising from the
acceptance of the Offer, without the prior written agreement of the
Joint Lead Managers in accordance with all relevant legal
requirements.
8. No Prospectus
No offering document or prospectus has been or will be submitted
to be approved by the FSA in relation to the Offer and a
Purchaser's commitments will be made solely on the basis of the
information contained in this Announcement (including the Appendix)
released by Allied Gold today.
Each Purchaser, by accepting the Offer, agrees that the content
of this Announcement (including the Appendix) is exclusively the
responsibility of Allied Gold and confirms that it has neither
received nor relied on any other information, representation,
warranty, or statement made by or on behalf of Allied Gold or the
Joint Lead Managers or any other person and none of Allied Gold or
the Joint Lead Managers nor any other person will be liable for any
Purchaser's decision to participate in the Offer based on any other
information, representation, warranty or statement which Purchaser
may have obtained or received. Each Purchaser acknowledges and
agrees that it has relied on its own investigation of the business,
financial or other position of Allied Gold in accepting a
participation in the Offer. Nothing in this paragraph shall exclude
the liability of any person for fraudulent misrepresentation.
9. Registration and Settlement
Settlement of transactions in the Placement Shares will, unless
otherwise agreed, take place within the system administered by
Euroclear UK and Ireland Limited ("CREST"), subject to certain
exceptions. Allied Gold reserves the right to require settlement
for and delivery of the Placement Shares (or a portion thereof) to
Purchasers in certificated form if in the Joint Lead Managers'
reasonable opinion delivery or settlement is not possible or
practicable within the CREST system or would not be consistent with
the regulatory requirements in the Purchaser's jurisdiction.
Each Purchaser allocated Placement Shares in the Offer will be
sent a contract note stating the number of Placement Shares and the
subscription amount payable to be allocated to it. Each Purchaser
agrees that it will do all things necessary to ensure that delivery
and payment is completed in accordance with the standing CREST or
certificated settlement instructions that it has in place with the
Joint Lead Managers.
Trade date: 6 April 2011
Settlement date: 11 April 2011
ISIN code for the Offer Shares: AU000000ALD4
Deadline for input instructions
into CREST: 6 April 2011
CREST participant ID of RBC: 388
Allied Gold will deliver the Placement Shares to a CREST account
operated by RBC as agent for Allied Gold in respect of Purchasers
procured by the Joint Lead Managers or their agents and RBC will
enter its delivery (DEL) instruction into the CREST system. The
input to CREST by a Purchaser of a matching or acceptance
instruction will then allow delivery of the relevant Placement
Shares to that Purchaser against payment.
If Placement Shares are to be delivered to a custodian or
settlement agent, Purchasers should ensure that the trade
confirmation is copied and delivered immediately to the relevant
person within that organisation. Insofar as Placement Shares are
registered in a Purchaser's name or that of its nominee or in the
name of any person for whom a Purchaser is contracting as agent or
that of a nominee for such person, such Placement Shares should,
subject as provided below, be so registered free from any liability
to UK stamp duty or stamp duty reserve tax. Purchasers will not be
entitled to receive any fee or commission in connection with the
Offer.
It is expected that settlement for the Placement Shares will be
on 11 April, 2011 on a T + 3 basis in accordance with the
instructions given to RBC.
Interest is chargeable daily on payments not received from
Purchasers on the due date in accordance with the arrangements set
out above at the rate of two percentage points above LIBOR as
determined by the Joint Lead Managers.
Each Purchaser is deemed to agree that, if it does not comply
with these obligations, Allied Gold may sell any or all of the
Placement Shares allocated to that Purchaser on such Purchaser's
behalf and retain from the proceeds, for Allied Gold's account and
benefit, an amount equal to the aggregate amount owed by the
Purchaser plus any interest due. The relevant Purchaser will,
however, remain liable for any shortfall below the aggregate amount
owed by it and may be required to bear any stamp, issue,
securities, transfer registration or similar duties or taxes
(together with any interest or penalties) which may arise upon the
sale of such Placement Shares on such Purchaser's behalf.
10. Representations and Warranties
By participating in the Offer and accepting the offer of
Placement Shares, each Purchaser (and each person acting on its
behalf) represents, warrants, acknowledges and undertakes for the
benefit of the Company, each of the Joint Lead Managers and each of
their respective "Related Bodies Corporate" (within the meaning of
the Corporations Act 2001 (Cth)) (Corporations Act), and their
respective officers, employees and advisers, and any person acting
on behalf of any of them (together the Beneficiaries) as
follows:
(a) if it is a resident of Australia, or if not an individual,
have a head office in Australia, it and each person, if any, for
whom it is acquiring Placement Shares that is a resident of
Australia or has a head office in Australia, is either:
(i) a "sophisticated investor" under section 708(8) of the
Corporations Act;
(ii) a "professional investor" under section 708(11) of the
Corporations Act; or
(iii) a person who has obtained this Offer through a financial
services licensee in accordance with, and in compliance with,
section 708(10) of the Corporations Act;
(b) it understands, acknowledges and undertakes that any
document or material in connection with the offer or sale, or
invitation for subscription or purchase, of Placement Shares may
not be circulated or distributed, nor may Placement Shares be
offered or sold, or be made the subject of an invitation for
subscription or purchase, whether directly or indirectly, to
persons in Singapore other than:
(i) to an institutional investor under Section 274 of the
Securities and Futures Act, Chapter 289 of Singapore (SFA);
(ii) to a relevant person pursuant to Section 275(1), or any
person pursuant to Section 275(1A), and in accordance with the
conditions, specified in Section 275 of the SFA; or
(iii) otherwise pursuant to, and in accordance with the
conditions of, any other applicable provision of the SFA.
Where it is a relevant person which is:
(i) a corporation (which is not an accredited investor (as
defined in Section 4A of the SFA)) the sole business of which is to
hold investments and the entire share capital of which is owned by
one or more individuals, each of whom is an accredited investor;
or
(ii) a trust (where the trustee is not an accredited investor)
whose sole purpose is tob hold investments and each beneficiary of
the trust is an individual who is an accredited investor,
and the Placement Shares are acquired under Section 275 of the
SFA, shares, debentures and units of shares and debentures of that
corporation or the beneficiaries' rights and interest (howsoever
described) in that trust shall not be transferable within 6 months
after that corporation or that trust has acquired the Placement
Shares under an offer made pursuant to Section 275 except:
(i) to an institutional investor or to a relevant person defined
in Section 275(2) of the SFA, or to any person pursuant to an offer
that is made on terms that such securities may only be acquired, or
such rights or interest are acquired, at a consideration of not
less than S$200,000 (or its equivalent in a foreign currency) for
each transaction, whether such amount is to be paid for in cash or
by exchange of securities or other assets;
(ii) where no consideration is or will be given for the
transfer;
(iii) where the transfer is by operation of law; or
(iv) as specified in Section 276(7) of the SFA.
(c) if it is a resident of Hong Kong or if not an individual,
have a head office in Hong Kong, you and each person, if any, for
whom it is acquiring Placement Shares that is a resident of Hong
Kong or has a head office in Hong Kong:
(i) is a person falling within the meaning of section 343(2) of
the Hong Kong Companies Ordinance (Chapter 32 of the Laws of Hong
Kong) whose ordinary business is to buy or sell shares or
debentures, whether as principal or agent, and a person falling
within the definition of "Professional Investor" under Schedule 1
of the Securities and Futures Ordinance (Chapter 571 of the Laws of
Hong Kong);
(ii) understands, recognises and acknowledges that a prospectus
or any other offering document will not be issued in Hong Kong;
(iii) understands, recognises and acknowledges that the
Placement Shares acquired by it under this letter agreement may not
be sold or transferred by it to any other person within a period of
six (6) months from the date of such acquisition unless such sale
or transfer is exempted from the prospectus and approval
requirements under the Hong Kong Companies Ordinance (Chapter 32 of
the Laws of Hong Kong); and
(iv) acknowledges that any holding statement or CHESS Allotment
CARD (as applicable) confirming the issue of the Placement Shares
may bear the following legend, "Unless permitted under the relevant
securities legislation, the holder of these securities must not
trade the securities before the date that is 6 months and 1 day
after the Payment Date, unless such trade is exempted from the
prospectus and approvals requirements under the Hong Kong Companies
Ordinance (Chapter 32 of the Laws of Hong Kong)";
(d) if it is and any beneficial purchaser for whom it is
contracting hereunder is resident, or if not an individual, has a
head office in Canada:
(i) it, on its own behalf and, if applicable, on behalf of each
beneficial purchaser for whom it is contracting hereunder,
acknowledge and consent to the fact that the Company and RBC are
collecting its personal information (as that term is defined under
applicable privacy legislation, including, without limitation, the
Personal Information Protection and Electronic Documents Act
(Canada), the Privacy Act 1988 (Commonwealth of Australia) and any
other applicable similar, replacement or supplemental state,
provincial or federal legislation or laws in effect from time to
time), or that of each beneficial purchaser for whom it is
contracting. It, on its own behalf and, if applicable, on behalf of
each beneficial purchaser for whom it is contracting, acknowledge
and consent to the Company and RBC retaining such personal
information for as long as permitted or required by law or business
practices. It, on its own behalf and, if applicable, on behalf of
each beneficial purchaser for whom it is contracting, further
acknowledge and consent to the fact that the Company and RBC may be
required by the securities laws of the offering jurisdiction, the
rules and policies of any stock exchange or the rules of the
Investment Dealers Association of Canada to provide regulatory
authorities with any personal information provided by it and will
assist the Company or RBC in respect thereof. It represents and
warrants that it has the authority to provide the consents and
acknowledgements set out in this paragraph on behalf of each
beneficial purchaser for whom it is contracting. In addition to the
foregoing, it agrees and acknowledges that the Company or RBC, as
the case may be, may use and disclose your personal information, or
that of each beneficial purchaser for whom it is contracting
hereunder, as follows:
(A) for internal use with respect to managing the relationships
between and contractual obligations of the Company and RBC and it
or any beneficial purchaser for whom it is contracting
hereunder;
(B) for use and disclosure for income tax related purposes,
including without limitation, where required by law, disclosure to
the Australian Taxation Office or the Canada Revenue Agency;
(C) disclosure to securities regulatory authorities and other
regulatory bodies with jurisdiction with respect to reports of
trade and similar regulatory filings;
(D) disclosure to a governmental or other authority to which the
disclosure is required by court order or subpoena compelling such
disclosure and where there is no reasonable alternative to such
disclosure;
(E) disclosure to professional advisers of the Company and RBC
in connection with the performance of their professional
services;
(F) disclosure to any person where such disclosure is necessary
for legitimate business reasons and is made with your prior written
consent;
(G) disclosure to a court determining the rights of the parties
hereunder; or
(H) for use and disclosure as otherwise required or permitted by
law;
Without limiting the foregoing, each Person represents that none
of the funds being or to be provided by it or on its behalf to RBC
are being tendered by or on behalf of a person not identified to
you and that funds being used to purchase Placement Shares and
advanced by it to RBC do not represent proceeds of crime or other
funds for the purposes of the Proceeds of Crime (Money Laundering)
and Terrorist Financing Act (Canada) or similar legislation
relating to the financing of terrorism or the restriction of
advancing funds to certain designated countries;
(ii) one of subparagraph (1) or (2) below is applicable to a
Purchaser:
(1) in the case of the purchase by it of the Placement
Shares:
-- as principal, it is purchasing the Placement Shares as
principal for its own account, and not for the benefit of any other
person, or it is deemed under the securities laws of the applicable
Province of Canada to be purchasing the Placement Shares as
principal, and in either case it is purchasing the Placement Shares
for investment only and not with a view to the resale or
distribution of any or all of the Placement Shares and you will be
purchasing a sufficient number of Placement Shares so that it has
an aggregate acquisition cost for such Placement Shares of not less
than C$150,000 and it is not a syndicate whose individual share of
the aggregate acquisition cost of such Placement Shares is less
than C$150,000, or if it is a syndicate, the share or any portion
of each shareholder, member or partner of the syndicate, of the
aggregate acquisition cost to it is not less than C$150,000; or
-- as agent for a disclosed principal, such disclosed principal
is purchasing as principal for its own account and not for the
benefit of any other person and is purchasing for investment only
and not with a view to the resale of the Placement Shares and no
other person will have a beneficial interest in the Placement
Shares, it is purchasing a sufficient number of Placement Shares so
that such disclosed principal has an aggregate acquisition cost for
such Placement Shares of not less than C$150,000, such disclosed
principal is resident in a Province of Canada, and it is an agent
with proper authority to execute all documents required in
connection with the purchase on behalf of the disclosed principal
and such disclosed principal on whose behalf it is acting is not a
syndicate whose individual share of the aggregate acquisition cost
of such Placement Shares is less than C$150,000, or if such
disclosed principal is a syndicate, the share or any portion of
each shareholder, member or partner of the syndicate, of the
aggregate acquisition cost to such disclosed principal is not less
than C$150,000;
(2) it, or, where permitted by law, any ultimate purchaser for
which it is acting as agent, are entitled under applicable Canadian
securities laws to purchase the Placement Shares without the
benefit of a prospectus qualified under such securities laws, and
without limiting the generality of the foregoing are an "accredited
investor" as defined in Section 1.1 of National Instrument 45-106
Prospectus and Registration Exemptions and:
-- are purchasing the Placement Shares from a dealer registered
as an "investment dealer" or "exempt market dealer" as defined
under applicable securities laws; or
-- are a "permitted client" as defined in Section 1.1. of NI
31-103 Registration Requirements and Exemptions ("NI 31-103") and
are purchasing the Placement Shares from a dealer permitted to rely
on the "international dealer exemption" contained in Section 8.18
of NI 31-103; or
-- are a resident in British Columbia, Alberta, Saskatchewan or
Manitoba and are purchasing the Placement Shares from a dealer
entitled to rely on a dealer registration exemption for trades with
"accredited investors" made available under a blanket order issued
by the applicable securities regulatory authority.
(iii) it acknowledges that any holding statement confirming the
issuance of the Placement Shares MAY bear the following legend:
"UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF
THIS SECURITY SHALL NOT TRADE THE SECURITY BEFORE THE DATE THAT IS
FOUR (4) MONTHS AND ONE (1) DAY AFTER THE LATER OF (i) [INSERT
DISTRIBUTION DATE], AND (ii) THE DATE THE ISSUER BECAME A REPORTING
ISSUER IN ANY PROVINCE OR TERRITORY.";
(iv) it agrees that it has not received any "offering
memorandum" as defined under applicable securities laws in respect
of the Placement Shares; and
(v) it acknowledges and agrees that the resale of shares
purchased hereunder may be subject to restrictions under applicable
law, that it is its responsibility for determining applicable
restrictions and it agrees not to resell the shares except in
accordance with applicable Canadian laws and to reign resale
restrictions and in accordance with the terms of applicable
restrictions.
(e) if it and any beneficial purchaser for whom it is
contracting hereunder are a purchaser in the United States or a
U.S. Person (as defined in Rule 902(k) of Regulation S under the
U.S. Securities Act of 1933, as amended) (U.S. Person):
(i) it is an institutional "accredited investor" that satisfies
the criteria set forth in Rule 501(a)(1),(2),(3) or (7) of
Regulation D under the U.S. Securities Act of 1933 (U.S. Securities
Act)) (an Institutional Accredited Investor) and purchasing the
Placement Shares for its own account or for an account of one or
more other Institutional Accredited Investors as to which you
exercise sole investment discretion and not with a view to any
resale or distribution;
(ii) it is not purchasing the Placement Shares as a result of
any form of "general solicitation" or "general advertising" (as
such terms are defined in Regulation D of the U.S. Securities Act),
including advertisements, articles, notices or other communications
published in any newspaper, magazine or similar media or broadcast
over radio, or television, or any seminar or meeting whose
attendees have been invited by general solicitation or general
advertising;
(iii) it agrees that if it decides to offer, sell or otherwise
transfer the Placement Shares, it will not offer, sell or otherwise
transfer any of such Placement Shares directly or indirectly,
unless:
(i) the transfer is to the Company;
(ii) the transfer is made outside the United States in
accordance with Rule 904 of Regulation S under the U.S. Securities
Act and in compliance with applicable local laws and
regulations;
(iii) the transfer is made within the United States in
accordance with:
(A) Rule 144A under the U.S. Securities Act to a person
reasonably believed to be a Qualified Institutional Buyer (as
defined under Rule 144A of the Securities Act) that purchases for
its own account or for the account of one or more Qualified
Institutional Buyers and to whom notice is given that the offer,
sale or transfer is made in reliance on Rule 144A under the U.S.
Securities Act; or
(B) the exemption from registration under the U.S. Securities
Act provided by Rule 144 thereunder, if available, and in
compliance with applicable state laws and regulations; or
(iv) the Placement Shares are transferred in a transaction that
does not require registration under the U.S. Securities Act or any
applicable state laws and regulations governing the offer and sale
of securities and you have prior to such sale furnished to the
Company an opinion of counsel or other evidence of exemption, in
either case reasonably satisfactory to the Company;
(iv) it understands that, and it will inform each Institutional
Accredited Investor, if any, for whose account it is acquiring any
Placement Shares that, the Placement Shares will constitute
"restricted securities" within the meaning of Rule 144 under the
U.S. Securities Act and that the Placement Shares are being issued
in non-certificated form; it further understands that upon the
original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the U.S.
Securities Act or applicable U.S. state laws and regulations, the
confirmation of the issuance of the Placement Shares, and all
certificates issued in exchange for those non-certificated
securities, will bear the following legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"U.S. SECURITIES ACT") OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE
BENEFIT OF ALLIED GOLD LIMITED THAT SUCH SECURITIES MAY BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED ONLY (A) TO ALLIED GOLD LIMITED, (B)
OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 904 OF REGULATION
S UNDER THE U.S. SECURITIES ACT, (C) WITHIN THE UNITED STATES IN
ACCORDANCE WITH (i) RULE 144A UNDER THE U.S. SECURITIES ACT, OR
(ii) RULE 144 UNDER THE U.S. SECURITIES ACT, IF AVAILABLE, AND IN
EACH CASE IN COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS,
OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER
THE U.S. SECURITIES ACT OR APPLICABLE STATE SECURITIES LAWS, AND IN
THE CASE OF (C)(ii) AND (D) ABOVE, THE SELLER HAS FURNISHED TO
ALLIED GOLD LIMITED AN OPINION TO SUCH EFFECT, FROM COUNSEL OF
RECOGNIZED STANDING REASONABLY SATISFACTORY TO ALLIED GOLD LIMITED,
PRIOR TO SUCH OFFER, SALE OR TRANSFER.
SUBJECT TO APPLICABLE AUSTRALIAN LAW, AND PROVIDED THAT ALLIED
GOLD IS A "FOREIGN ISSUER" WITHIN THE MEANING OF REGULATION S AT
THE TIME OF SALE, AND PROVIDED FURTHER THAT THE FOLLOWING PROCEDURE
COMPLIES WITH U.S. SECURITIES LAWS AT THE TIME OF SALE, A NEW
CERTIFICATE BEARING NO U.S. RESTRICTIVE LEGENDS MAY BE OBTAINED
FROM ALLIED GOLD LIMITED UPON DELIVERY OF THIS CERTIFICATE AND A
DULY EXECUTED DECLARATION, IN A FORM SATISFACTORY TO ALLIED GOLD
LIMITED, TO THE EFFECT THAT SUCH SALE IS BEING MADE IN ACCORDANCE
WITH REGULATION S UNDER THE U.S. SECURITIES ACT."
provided, that (i) if the Placement Shares are being sold under
clause (B) above, at a time when the Company is a "foreign issuer"
as defined in Rule 902 under the U.S. Securities Act, the legend
set forth above on any certificated securities may be removed by
providing a declaration in such form as the Company may from time
to time prescribe to the Company's transfer agent, to the effect
that the sale of the securities is being made in compliance with
Rule 904 of Regulation S under the U.S. Securities Act; and (ii) if
any of the Placement Shares are being sold pursuant to Rule 144 of
the U.S. Securities Act, the legend may be removed by delivery to
the Company's transfer agent of an opinion of counsel satisfactory
to the Company to the effect that the legend is no longer required
under applicable requirements of the U.S. Securities Act or state
securities laws;
(v) it understands that the Company may instruct its registrar
and transfer agent not to record any transfer of Placement Shares
without first being notified by the Company that it is satisfied
that such transfer is exempt from or not subject to the
registration requirements of the U.S. Securities Act and applicable
state securities laws;
(vi) it consents to the Company making a notation on its records
or giving instruction to the registrar and transfer agent of the
Company in order to implement the restrictions on transfer set
forth and described herein;
(vii) it understands and acknowledges that the Company has no
obligation or present intention of filing with the United States
Securities and Exchange Commission or with any state securities
administrator any registration statement in respect of resales of
the Placement Shares in the United States;
(viii) it and each other Institutional Accredited Investor, if
any, for whose account it is acquiring any Placement Shares have
the financial ability to bear the economic risk of the investment
in the Placement Shares, adequate means to provide for your or
their current needs and other contingencies and to withstand the
loss of the entire investment in the Placement Shares and no need
for liquidity with respect to the investment in the Placement
Shares;
(f) if it is a Purchaser in the United Kingdom it:
(i) is a "qualified investor" for the purposes of section 86(7)
of the Financial Services and Markets Act 2000 ("FSMA") who is
purchasing the Placement Shares as principal for its own account
and not for others, except in circumstances, to section 86(2) of
FSMA applies;
(ii) is also a person falling within one or more of the
categories of persons referred to in article 19 (investment
professionals) or 49 (high net worth companies, etc) of the
Financial Services and Markets Act 2000 (Financial Promotions)
Order 2005; and
(iii) understands, recognises and acknowledges that no
prospectus has been or will be approved in connection with the
Offer by the Financial Services Authority in the United Kingdom
under section 87A of FSMA; or
(iv) if it is not in the United Kingdom but are acting for the
account of a purchaser in the United Kingdom, that (i), (ii) and
(iii) applies in respect of each such purchaser;
(g) If it is a purchaser in or otherwise subject to the laws of
a member state of the European Union (other than, for the avoidance
of doubt, the UK), (i) it is a "qualified investor" (as defined in
Article 2(1)(e) of the Prospectus Directive 2003/71 EC) acting as a
principal for its own account to whom an invitation or offer to
subscribe for Placement Shares in the manner contemplated by this
agreement and any communication or correspondence in connection
therewith is permitted by the laws of that member state or (ii) if
it is not in any such member state but are acting for the account
of such person then (i) applies in respect of each such
purchaser.
(h) if it is in a jurisdiction outside Australia, Hong Kong,
Singapore, Canada, the United States, the United Kingdom or other
member states of the European Union, it is a person to whom an
invitation or offer to subscribe for the Placement Shares in the
manner contemplated by this agreement and any communication or
correspondence therewith is permitted by the laws of the
jurisdiction in which it is situated or from where you submitted
your bid to subscribe for Placement Shares and it is a person to
whom the Placement Shares can lawfully be offered and issued under
all applicable laws, without the need for any approval,
registration, filing or lodgement of any kind, including a
prospectus or other disclosure document;
(i) it confirms that its acceptance of the offer of Placement
Shares and its performance of the obligations under the agreement
arising on acceptance of such offer does not breach and complies
with the requirements of all relevant laws and regulations of
Australia (including, without limitation, the requirements of the
Foreign Acquisitions and Takeovers Act 1975 (Cth)) and any other
applicable jurisdiction;
(j) if it is not in the United States, nor a U.S. Person, or
acting for the account or benefit of a person in the United States
or a U.S. Person, it is acquiring the Placement Shares in an
offshore transaction in accordance with Regulation S under the U.S.
Securities Act as such term is defined in Rule 903 under the U.S.
Securities Act;
(k) you understand that the offer and sale to it of the
Placement Shares has not been and will not be registered under the
U.S. Securities Act or the laws of any state of the United States;
Therefore, it agrees that it will not offer, sell or pledge any
Placement Shares in the United States or to any person acting for
the account of any U.S. Person unless and until the Placement
Shares are registered under the U.S. Securities Act (which you
acknowledge the Company has no obligation to do) or offered, sold
or pledged in a transaction exempt from, or not subject to, the
registration requirements of the U.S. Securities Act and the laws
of any state of the United States;
(l) it is purchasing the Placement Shares for its account or for
the account of one or more persons for investment purposes only and
not with the purpose of, or with a view to, the resale, transfer or
distribution or granting, issuing or transferring interests in, or
options over, the Placement Shares and in particular, neither you
nor any other person for whose account it is purchasing the
Placement Shares has any intention to distribute either directly or
indirectly any of the Placement Shares in the United States,
provided, however, that the Placement Shares may be offered, sold
or otherwise disposed of pursuant to registration thereof pursuant
to the U.S. Securities Act and any applicable state securities laws
or under an exemption from such registration requirements;
(m) it has such knowledge and experience in financial and
business matters and expertise in assessing credit and all other
relevant risks that it is capable of evaluating independently, and
have evaluated independently and conducted an in-depth detailed
analysis on, the merits and risks of a purchase of the Placement
Shares for itself and each other person, if any, for whose account
it is acquiring any Placement Shares, and it has determined that
the Placement Shares are a suitable investment for itself and each
other person, if any, for whose account it is acquiring any
Placement Shares, both in the nature and the number of the
Placement Shares being acquired;
(n) it acknowledges that the Placement Shares are being issued
to you in reliance on section 708A(5) of the Corporations Act, that
the Company will be providing the ASX with a notice that complies
with section 708A(5)(e) and 708A(6) of the Corporations Act within
5 business days of the date of issue of the Placement Shares, and
that the Offer has not been made by way of a disclosure document or
other offering memoranda;
(o) it is, or any beneficial purchaser for whom it is
contracting hereunder is, acquiring the Placement Shares pursuant
to and in compliance with an exemption from the prospectus
requirements of securities laws of the jurisdiction of residence
and will provide the Company and the Joint Lead Managers, on
request, whether before or after the Payment Date, with evidence of
such compliance;
(p) it is aware that publicly available information about the
Company can be obtained from the Australian Securities and
Investments Commission (including its website at
http://www.asic.gov.au), the ASX (including its website at
http://www.asx.com.au) and that certain publicly available
information about the Company can be obtained from the Company's
website at www.alliedgold.com.au;
(q) it has had access to all information that it believes is
necessary or appropriate in connection with, and for an adequate
time prior to, your purchase of the Placement Shares. It
acknowledges and agrees that it will not hold the Beneficiaries
responsible for any misstatements in, or omissions from, any
publicly available information concerning the Company;
(r) it has made and relied entirely upon its own assessment of
the Company, and have conducted your own independent investigation
with respect to the Placement Shares and the Company;
(s) it shall obtain its own advice regarding the tax
consequences in any jurisdiction of purchasing, owning or disposing
of any Placement Shares;
(t) it has not relied on any investigation that any Beneficiary
may have conducted with respect to the Placement Shares or the
Company. No Beneficiary has made any representation to you, express
or implied, with respect to the Placement Shares or the
Company;
(u) it acknowledges that the offer of Placement Shares does not
constitute a securities recommendation or advice in relation to any
securities, and that no securities recommendation or advice has
been made or given to you by any Beneficiary in relation to such
offer or the Placement Shares;
(v) it acknowledges that an investment in the Placement Shares
involves a degree of risk;
(w) except to the extent that liability cannot by law be
excluded, it acknowledges that none of the Beneficiaries accept any
responsibility in relation to the offer of the Placement Shares or
for the accuracy or completeness of any information given to it in
connection with the Offer;
(x) it acknowledges and agrees that you will accept the
decisions and actions of the Joint Lead Managers in respect of the
offer of the Placement Shares and the acceptance of any offer of
Placement Shares does not oblige the Joint Lead Managers to consult
with you as to any matter or qualify the exercise or non-exercise
of rights arising under or in relation to the offer of the
Placement Shares;
(y) it has been independently advised as to any resale
restrictions under applicable securities laws, including without
limitation any resale restrictions under the Corporations Act or in
your own jurisdiction;
(z) it is not a Related Party (as defined in section 228 of the
Corporations Act) of the Company and it is not an Associate (as
defined in Division 2 of Part 1.2 of the Corporations Act) of the
Company;
(aa) it acknowledges and agrees that if RBC takes title to the
Placement Shares it does so only as agent for the Company for the
purposes of effecting settlement and it agrees to release RBC from
any liability incurred by it in acting in such capacity (whether
arising out of any act or omission by the Company in relation to
the offer or to the Placement Shares or otherwise);
(bb) if it is acquiring any Placement Shares for an account of
one or more persons, it has full power to make the
acknowledgements, representations, warranties and agreements
hereunder on behalf of each such person and it will take reasonable
steps to ensure that each such person will comply with its
obligations hereunder; and
(cc) it acknowledges that the Beneficiaries will rely upon the
truth and accuracy of the foregoing acknowledgements,
representations, warranties and agreements in conducting and
undertaking the Offer.
(dd) it has read this Announcement, including the Appendix, in
its entirety;
(ee) the exercise by the Joint Lead Managers of any right of
termination or any right of waiver exercisable by them contained in
the Mandate Letter, without limitation, the right to terminate the
Mandate Letter, is within their absolute discretion and neither
will have any liability to any Purchaser whatsoever in connection
with any decision to exercise or not exercise any such rights;
(ff) if (i) any of the conditions in the Mandate Letter are not
satisfied (or, where relevant, waived), or (ii) the Mandate Letter
is terminated or does not otherwise become unconditional in all
respects prior to the admission of the Placement Shares, the Offer
will lapse and its rights hereunder shall cease and determine at
such time and no claim shall be made by any Purchaser in respect
thereof;
(gg) no offering document or prospectus has been, or will be,
prepared in connection with the Offer of the Placement Shares and
represents and warrants that it has not received a prospectus or
other offering document in connection therewith;
(hh) the ordinary shares are (and the Placement Shares will be)
listed on AIM, ASX and TSX, and Allied Gold is therefore required
to publish certain business and financial information in accordance
with the rules and practices of AIM, ASX and the Canadian
securities regulatory authorities and that it is able to obtain or
access such information without undue difficulty, and is able to
obtain access to such information or comparable information
concerning any other AIM, ASX or TSX Listed company, without undue
difficulty;
(ii) none of the Joint Lead Managers or Allied Gold nor any of
their affiliates nor any person acting on behalf of any of them has
provided, and will not provide it, with any material regarding the
Placement Shares or Allied Gold or any other person other than this
Announcement; nor has it requested any of the Brokers or Allied
Gold nor any of their affiliates or any person acting on behalf of
any of them to provide it with any such information;
(jj) the content of this Announcement is exclusively the
responsibility of Allied Gold and that none of the Joint Lead
Managers nor any person acting on their 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 Allied Gold and will not be liable for
any Purchaser's decision to participate in the Offer based on any
information, representation or statement contained in this
Announcement or otherwise. Each Purchaser further represents,
warrants and agrees that the only information on which it is
entitled to rely and on which such Purchaser has relied in
committing itself to subscribe for the Placement Shares is
contained in this Announcement and any information previously
published by Allied Gold, such information being all that it deems
necessary to make an investment decision in respect of the
Placement Shares and that it has neither received nor relied on any
other information given or representations, warranties or
statements made by any of the Joint Lead Managers or Allied Gold
and none of the Joint Lead Managers or Allied Gold will be liable
for any Purchaser's decision to accept an invitation to participate
in the Offer based on any other information, representation,
warranty or statement. Each Purchaser further acknowledges and
agrees that it has relied on its own investigation of the business,
financial or other position of Allied Gold in deciding to
participate in the Offer;
(kk) neither it, nor the person specified by it for registration
as a holder of Placement Shares is, or is acting as nominee or
agent for, and that the Placement Shares will not be allotted to, a
person who is or may be liable to stamp duty or stamp duty reserve
tax under any of sections 67, 70, 93 and 96 of the Finance Act 1986
(depositary receipts and clearance services);
(ll) it has complied with its obligations in connection with
money laundering and terrorist financing under the Proceeds of
Crime Act 2002, the Terrorism Act 2003 and the Money Laundering
Regulations 2007 (the Regulations) and, if making payment on behalf
of a third party, that satisfactory evidence has been obtained and
recorded by it to verify the identity of the third party as
required by the Regulations. If within a reasonable time after a
request for verification of identity the Joint Lead Managers have
not received such satisfactory evidence, the Joint Lead Managers
may, in their absolute discretion, terminate your Offer
Participation in which event all funds delivered by you to the
Joint Lead Managers (if any) will be returned without interest to
the account of the drawee bank or CREST account from which they
were originally debited;
(mm) it has not offered or sold and, prior to the expiry of a
period of six months from the admission of the Placement Shares,
will not offer or sell any Placement Shares to persons in the
United Kingdom, except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of investments
(as principal or agent) for the purposes of their business or
otherwise in circumstances which have not resulted and which will
not result in an offer to the public in the United Kingdom within
the meaning of section 85(1) of the FSMA;
(nn) it has not offered or sold and will not offer or sell any
Placement Shares to persons in the European Union prior to the
admission of the Placement Shares, except to persons whose ordinary
activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes
of their business or otherwise in circumstances which have not
resulted in and which will not result in an offer to the public in
any member state of the European Union within the meaning of the
Prospectus Directive (including any relevant implementing measure
in any member state);
(oo) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
section 21 of FSMA) relating to the Placement Shares in
circumstances in which section 21(1) of FSMA does not require
approval of the communication by an authorised person;
(pp) it has complied and will comply with all applicable
provisions of FSMA with respect to anything done by it in relation
to the Placement Shares in, from or otherwise involving, the United
Kingdom;
(qq) it and any person acting on its behalf is entitled to
subscribe for and purchase the Placement Shares under the laws of
all relevant jurisdictions which would apply to it, and that it and
any person acting on its behalf is in compliance with applicable
laws in the jurisdiction of its residence, the residence of the
Company, or otherwise;
(rr) it (and any person acting on its behalf) will make or
procure payment for the Placement Shares allocated to it in
accordance with this Announcement on the due time and date set out
herein, failing which the relevant Placement Shares may be placed
with other subscribers or sold as the Joint Lead Managers may in
their discretion determine and without liability to such
Purchaser;
(ss) the person whom it specifies for registration as holder of
the Placement Shares will be (i) itself or (ii) its nominee, as the
case may be. Neither of the Joint Lead Managers nor Allied Gold
will be responsible for any liability to stamp duty or stamp duty
reserve tax resulting from a failure to observe this requirement.
Each Purchaser and any person acting on behalf of such Purchaser
agrees to participate in the Offer and it agrees to indemnify
Allied Gold and the Joint Lead Managers in respect of the same on
the basis that the Placement Shares will be allotted to the CREST
stock account of the Joint Lead Managers who will hold them as
nominee on behalf of such Purchaser until settlement in accordance
with its standing settlement instructions;
(tt) Allied Gold and the Joint Lead Managers and their
respective affiliates and others will rely upon the truth and
accuracy of the foregoing representations, warranties,
acknowledgements and undertakings which are given to the Joint Lead
Managers on its own behalf and on behalf of Allied Gold and are
irrevocable;
(uu) to indemnify and hold Allied Gold and the Joint Lead
Managers 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
Offer;
(vv) its commitment to subscribe Placement Shares on the terms
set out herein will continue notwithstanding any amendment that may
in future be made to the terms of the Offer and that Purchasers
will have no right to be consulted or require that their consent be
obtained with respect to Allied Gold's conduct of the Offer. The
foregoing representations, warranties and confirmations are given
for the benefit of Allied Gold and the Joint Lead Managers. The
agreement to settle a Purchaser's subscription (and/or the
subscription of a person for whom such Purchaser is contracting as
agent) free of stamp duty and stamp duty reserve tax depends on the
settlement relating only to the subscription by it and/or such
person direct from Allied Gold for the Offer Shares in question.
Such agreement assumes, and is based on the warranty above from
each Purchaser, that neither it, nor the person specified by it for
registration as holder, of Offer Shares is, or is acting as nominee
or agent for, and that the Placement Shares will not be allotted
to, a person who is or may be liable to stamp duty or stamp
duty reserve tax under any of sections 67, 70, 93 and 96 of the
Finance Act 1986 (depositary receipts and clearance services). If
there are any such arrangements, or the settlement relates to any
other dealing in the Placement Shares, stamp duty or stamp duty
reserve tax may be payable. In that event the Purchaser agrees that
it shall be responsible for such stamp duty or stamp duty reserve
tax, and neither Allied Gold nor the Joint Lead Managers shall be
responsible for such stamp duty or stamp duty reserve tax. If this
is the case, each Purchaser should seek its own advice and notify
the Brokers accordingly;
(ww) that no action has been or will be taken by any of Allied
Gold, the Joint Lead Managers or any person acting on behalf of
Allied Gold or the Joint Lead Managers that would, or is intended
to, permit a public offer of the Placement Shares in any country or
jurisdiction where any such action for that purpose is
required;
(xx) 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 Placement Shares or the
agreement by them to subscribe for any Placement Shares; and
(yy) that the Joint Lead Managers or any of their affiliates
may, at their absolute discretion, agree to become a Purchaser in
respect of some or all of the Placement Shares.
(zz) When a Purchaser or person acting on behalf of the
Purchaser is dealing with the Joint Lead Managers, any money held
in an account with any of the Joint Lead Managers on behalf of the
Purchaser and/or any person acting on behalf of the Purchaser will
not be treated as client money within the meaning of the rules and
regulations of the FSA made under FSMA.
(aaa) The Purchaser acknowledges that the money will not be
subject to the protections conferred by the client money rules; as
a consequence, this money will not be segregated from the relevant
Joint Lead Managers' money in accordance with the client money
rules and will be used by the relevant Joint Bookrunner in the
course of its own business; and the Purchaser will rank only as a
general creditor of the Joint Bookrunner. All times and dates in
this Announcement may be subject to amendment. The Joint Lead
Managers shall notify the Purchasers and any person acting on
behalf of the Purchasers of any changes.
(bbb) Past performance is no guide to future performance and
persons needing advice should consult an independent financial
adviser.
11. Entire Agreement
The terms set out in this Appendix and the allocation of
Placement Shares (including the subscription amount payable) as
confirmed to a Purchaser, constitute the entire agreement to the
terms of the Offer and a Purchaser's participation in the Offer to
the exclusion of prior representations, understandings and
agreements between them. Any variation of such terms must be in
writing.
12. Governing Law and Jurisdiction
The agreement arising out of acceptance of the Offer shall be
governed by and construed in accordance with the laws of New South
Wales, Australia and each Purchaser agrees to submit to the
exclusive jurisdiction of the courts of that State.
This information is provided by RNS
The company news service from the London Stock Exchange
END
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