TIDMITM
RNS Number : 9745C
ITM Power PLC
22 October 2020
The information contained in this announcement is inside
information for the purposes of article 7 of Regulation (EU)
596/2014.
THIS ANNOUNCEMENT, INCLUDING THE APPIX AND THE INFORMATION
CONTAINED IN IT, IS RESTRICTED AND IS NOT FOR RELEASE, DISTRIBUTION
OR PUBLICATION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN OR
INTO THE UNITED STATES OF AMERICA (INCLUDING ITS TERRITORIES AND
POSSESSIONS, ANY STATE OF THE UNITED STATES AND THE DISTRICT OF
COLUMBIA) (THE UNITED STATES), AUSTRALIA, CANADA, JAPAN, THE
REPUBLIC OF SOUTH AFRICA, THE REPUBLIC OF IRELAND OR ANY OTHER
JURISDICTION WHERE IT IS UNLAWFUL TO RELEASE, PUBLISH OR DISTRIBUTE
THIS ANNOUNCEMENT.
22 October 2020
ITM POWER PLC
Proposed fundraising of at least GBP150m
(i) a strategic investment of GBP30m by Snam
(ii) a proposed Firm Placing of GBP120m; and
(iii) an Open Offer of up to c.GBP7m,
each at 235 pence per share
Entry into Commercial Partnership Agreement with Snam
ITM Power plc (AIM: ITM) (ITM Power, the Company or the Group)
is pleased to announce its intention to raise a minimum of GBP150.0
million (before expenses) through (i) a strategic investment of
GBP30.0 million at 235 pence per share by Snam S.p.A. (Snam) (the
Share Subscription); (ii) a conditional placing of GBP120.0 million
at 235 pence per share with certain existing and new institutional
investors (the Firm Placing); and a non-underwritten open offer of
up to GBP7.0 million at 235 pence per share (the Open Offer) (the
Share Subscription, Firm Placing and Open Offer together being the
Fundraising).
The Firm Placing is being conducted through an accelerated
bookbuild process (the Bookbuilding Process) which will be launched
immediately following this Announcement and is subject to the terms
and conditions set out in the Appendix to this announcement (such
announcement and its appendix together being the Announcement).
The Group has also entered into a Commercial Partnership
Agreement with Snam (the Commercial Partnership), conditional upon
successful completion of the Share Subscription, under which the
Group will be the preferred supplier for the first 100 Megawatts
(MW) of Polymer Electrolyte Membrane (PEM) electrolysis projects
ordered by Snam, which are intended to be deployed in the period
2021 to 2025. The Commercial Partnership also includes the
potential for collaboration on a global pipeline of further
projects.
Snam is one of the world's leading energy infrastructure
operators with operations in Europe, China and the UAE. It has an
extensive gas transportation network and storage capacity in Europe
of over 41,000km and c.20 billion cubic metres. It is heavily
committed to decarbonisation and innovation in energy transition,
including the hydrogen market, and in 2019 announced the
establishment of a business unit dedicated to the development of
hydrogen energy systems.
The net proceeds of the Fundraising will be used by the Group
principally to enable an acceleration of the Group's technology,
manufacturing and operational capabilities in response to the
rapidly growing global demand for large-scale electrolysis,
particularly:
-- GBP47 million to accelerate the Group's development and
production of large scale 5MW electrolyser stack platforms and
modular 20MW electrolyser trains;
-- GBP37 million to accelerate product standardisation and
maximisation of manufacturing capacity at the Group's Bessemer Park
facility, and to support the potential future development of a new
European gigafactory should additional future manufacturing
capacity be required;
-- GBP32 million to invest in the group's operational
capabilities, including developing the Group's after-sales support
and commissioning functions; and
-- GBP30 million for the injection of funding into ITM Power's
refuelling division in order to identify and develop potential new
large-MW capacity refuelling hubs
The Group has also today published its results for the year
ended 30 April 2020 in a separate announcement. A copy of the final
results announcement will be available on the Group's website at
www.itm-power.com.
Highlights of the Fundraising and Commercial Partnership
Agreement
-- ITM Power intends to raise a minimum of GBP150.0 million
pursuant to the conditional Fundraising at a price of 235 pence per
New Ordinary Share (the Issue Price).
-- Strategic investment of GBP30m by Snam, a leading energy
infrastructure operator, via a Share Subscription for 12,765,957
New Ordinary Shares at the Issue Price. On completion, Snam will
hold approximately 2.35% of the Group's enlarged share capital.
-- Certain of the directors of the Company (the Directors or the
Board) intend to subscribe for, in aggregate, 174,038 Firm Placing
Shares in the Firm Placing
-- Entry into the Commercial Partnership Agreement alongside
Snam's strategic investment. Under the Commercial Partnership
Agreement the Group will be the preferred supplier for the first
100 MW of PEM electrolysis projects ordered by Snam, which are
intended to be deployed in the period 2021 to 2025.
-- The Issue Price represents a discount of approximately 6.75%
per cent to the closing mid-market price of an Existing Ordinary
Share on 21 October 2020, being the latest practicable date prior
to the publication of this announcement.
-- The Firm Placing is being conducted, subject to the
satisfaction of certain conditions, on the Group's behalf by
Investec Bank plc (Investec). The Firm Placing and the Open Offer
are not being underwritten by Investec.
-- The Firm Placing is subject to the terms and conditions set
out in the Appendix to this Announcement. Investec will commence
the Bookbuilding Process and the book will open immediately
following the release of this Announcement. The timing of the
closing of the book, the number of Firm Placing Shares to be issued
and allocations are at the absolute discretion of Investec and the
Company. The results of the Firm Placing will be announced as soon
as practicable after the close of the Bookbuilding Process.
-- The New Ordinary Shares, if issued, will be fully paid and
will rank pari passu in all respects with the existing issued
ordinary shares of the Company, including, without limitation, the
right to receive all dividends and other distributions declared,
made or paid in respect of the ordinary shares after Admission (as
defined below).
-- The Share Subscription, the Firm Placing and the Open Offer
are inter-conditional. In particular, they are conditional on
(amongst other things): (i) the passing by the requisite majority
of shareholders of resolutions to grant authorities to Directors to
allot further shares for cash on a non-pre-emptive basis; and (ii)
admission of the New Ordinary Shares to trading on AIM on or before
8.00 a.m. on 12 November 2020 (or such later time and/or date as
may be agreed between the Group and Investec, being no later than
8.00 a.m. on 20 November 2020) (Admission).
The Fundraising is subject to shareholder approval. The Group
expects to publish a circular in connection with the Fundraising
tomorrow. Shareholders should read the Circular and the Group's
full year results in full before making any application for Open
Offer Shares. Further details of the Open Offer will be published
on completion of the Firm Placing.
Graham Cooley, Chief Executive Officer of ITM Power plc,
said:
"Our agreement and preferred supplier status with Snam more than
doubles our contract backlog, a signpost of future revenue
measuring amounts under contract and in the latter stages of
negotiations, to GBP118 million while our tender opportunity
pipeline, where we have provided written quotations over the last
12 months, now stands at some GBP325 million. Raising additional
funds allows us to accelerate our response to the growing worldwide
demand for green hydrogen as a key tool in meeting net zero
targets. I am delighted to add Snam to our roster of partners. Snam
is one of the world's leading energy infrastructure operators and
is committed to supporting our industry, showcased by our preferred
supplier status for 100MW of PEM electrolysis equipment."
Marco Alverà, Chief Executive Officer of Snam S.p.A, said:
"The agreement with one of the main global producers of
electrolysers is Snam's first external investment in the hydrogen
sector and stands alongside those we are already advancing to make
our infrastructure ready for the transport of this new clean energy
carrier. The partnership with ITM Power allows us to build on our
know-how in technologies for the production of green hydrogen in a
way that is functional to business development and to become a
player along the value chain. We want to develop new projects and
contribute to enabling the supply chain, both internationally and
in particular in Italy, which has the opportunity to become a green
hydrogen hub between Europe and North Africa. Our goal is to help
establish hydrogen and renewable gases, together with renewable
electricity, as decisive solutions to achieve the international
climate neutrality goals"
There will be a call for analysts and investors at 10.30 am BST
on Friday 23 October 2020 on the Investor Meet Company platform.
Those wishing to attend should register at:
https://www.investormeetcompany.com/itm-power-plc/register-investor
For further information please visit www.itm-power.com or
contact:
+44 (0)114 263
ITM Power plc 7646
Graham Cooley, CEO
Investec Bank plc (Nominated Adviser, Financial +44 (0)20 7597
Adviser and Broker) 4000
Jeremy Ellis / Chris Sim / Ben Griffiths /
Will Fenby
+44 (0)20 7920
Tavistock (Financial PR and IR) 3150
Simon Hudson / Edward Lee / Barney Hayward
The person responsible for arranging the release of this
Announcement on behalf of the Company is James Collins, Head of
Investor Relations.
Background to and reasons for the Fundraising and use of
proceeds
Hydrogen market growth
ITM Power is seeing a rapid acceleration in demand for green
hydrogen for large scale projects. The European Commission
announced in July 2020 a transformative green hydrogen package
across the European Union, alongside the publication of ambitious
gigawatt-scale targets for electrolyser capacity to 2030 and
beyond. The Group has market leading PEM electrolyser technology
and believes that additional capital will enable it to accelerate
development of its technology, manufacturing and operations in
order to position itself to capture this global opportunity for
green hydrogen.
The growth in green hydrogen markets is being driven by a
reduction of cost alongside volume deployment of renewable power
generation, and a growing role for hydrogen in grid balancing in
the energy system. Furthermore, the adoption of net zero targets
across the UK and Europe has led to hydrogen being recognised as a
key part of the energy transition to a net zero future, with the
European Commission's Hydrogen Strategy recognising that "Hydrogen
and carbon capture and storage must be deployed for net zero.
Industrial scale demonstration projects need to be operational this
decade".
The Group is already recognised as one of the market leaders in
green hydrogen, with global technology leadership through the
Group's development of the 5MW stack platform and manufacturing
scale in the Company's new Bessemer Park factory, the world's first
1GW capacity hydrogen electrolyser factory. The Group welcomes the
opportunity to add Snam to its roster of strong existing global
partners alongside Shell, Linde, Orsted and Scottish Power
Renewables (Iberdrola) and believes with the support of these
partners that it stands well placed to benefit from the rapid
acceleration in the green hydrogen market.
Snam strategic investment into ITM Power and Commercial
Partnership Agreement between ITM Power and Snam
The Group has entered into an agreement with Snam under which
the Group will be the preferred supplier for the first 100 MW of
PEM electrolysis projects ordered by Snam up to 2025, which
(subject to the availability of suitable projects and agreement of
terms) ITM Power and Snam intend to be deployed between the period
2021 to 2025. The Commercial Partnership Agreement also provides
for further collaboration opportunities between the Group and Snam
as regards the right to make an offer on future potential PEM
projects identified by Snam above the 100 MW initial preferred
supplier projects.
Snam is a leading energy infrastructure operator with a market
capitalization of over EUR15bn at the end of 2019 and a presence in
Europe, China and the UAE. It has an extensive gas transportation
network in Europe at over 41,000km, and natural gas storage
capacity in Europe of c.20bn cubic metres. It is heavily committed
to decarbonisation and innovation in energy transition, including
the hydrogen market. In 2019 Snam announced the establishment of a
business unit dedicated to hydrogen and is engaged in research and
development in the sector.
The award of preferred supplier status by Snam will have a
transformative effect on the Group's contract backlog, which
measures amounts under contract and in the final stages of
negotiation and which is a signpost of potential future revenue.
Approximately GBP70m of contract backlog has been attributed to the
Group's status as preferred PEM electrolyser supplier for the first
100MW PEM electrolysis projects order by Snam under the Commercial
Partnership Agreement. The potential for future tender
opportunities available to the Group through the Commercial
Partnership Agreement is further expected to support continued
growth in the Group's pipeline.
The Directors believe that through the commercial partnership,
Snam's recognised leadership in hydrogen and extensive global
network can support the Group in its positioning to capture the
global green hydrogen opportunity. The Directors also recognise the
opportunity that Snam's extensive energy network experience and
commitment to a sustainable energy transition present to identify
and deliver future projects through both the Group and ITM Linde
Electrolysis GmbH (ILE), the Group's joint venture with Linde Group
incorporated earlier this year.
Acceleration of the Group's activities - technology
The Group continues to accelerate development of its proprietary
electrolyser stack technology with a focus on developing a superior
offering for the extra-large electrolyser market through a focus on
standardisation of products and modularity at scale.
The fourth generation two-stack 5MW Gigastack platform builds on
the Group's market-leading experience in large electrolyser systems
gained through the 10MW Shell Refhyne project and is designed for
the extra-large market. The Group's work with other strategic
partners on the UK's Gigastack project supports this development,
through a 100MW FEED study focussed on pre-engineering the fourth
generation stack platforms into modular 20MW packages for rapid
deployment.
The acceleration of the Group's solutions for extra-large
electrolyser systems will enable the Group to gain exposure to
larger projects faster by reducing design time as well as
minimising on-site works to reduce complexity and lead times.
The Directors intend to use the proceeds of the Fundraising to
support the acceleration of the Group's technology with an
allocation of GBP47m of raised amounts to be applied to
acceleration of technologies, split as follows:
-- GBP22m in order to support the next-generation 5MW stack
platform and the 20MW pre-engineered modular packages;
-- GBP19m to support the Group's development of its integrated
"plug and play" electrolyser products; and
-- GBP6m to support the Group's work in developing global compliance frameworks.
Acceleration of the Group's activities - manufacturing
Earlier this year the Group took occupation of its new Bessemer
Park electrolyser factory in Sheffield. The facility is designed
with a total maximum manufacturing capability of 1GW of
electrolysers per annum, which will be realised through product
standardisation, semi-automation within the factory as well as
increasing the minimum levels of stock held in order to reduce lead
times (through securing framework agreements with key suppliers)
and maximise throughput. Bessemer Park is scheduled to reach a
manufacturing capacity of 1GW per annum by the end of 2023.
The design and fit-out of Bessemer Park has given the Group a
replicable blueprint that the Group can use in order to establish a
new factory of equivalent capacity in other locations. The Group
intends to raise funds as working capital in order to support the
potential identification and deployment of a new "gigafactory" in a
strategic European location based on the Bessemer Park model,
should ITM Power's order volumes and project pipeline indicate that
additional manufacturing capacity will be necessary. The location
of the new factory remains to be determined, however the opening of
a new factory in a strategic location will present opportunities to
optimise cost, quality and supply in the locality of the new
factory, as well as to optimise the opportunity for localised
experience while maintaining an existing and familiar blueprint
across factories.
In both optimising Bessemer Park and (subject to demand)
targeting a new European gigafactory, the Group has identified that
a rapid increase in manufacturing capacity will be necessary in
order to meet the predicted market demand through to 2030 and
beyond. Opening a second gigafactory to ultimately double the
potential electrolyser manufacturing capacity to a maximum of 2GW
per annum would send a strong signal that the Group is preparing
for the expected continued increase in demand for green
hydrogen.
The increase in manufacturing capacity will be realised in part
through a reduction in lead times, with the Group working towards
halving lead times from order to completed factory acceptance
testing. This reduction will be facilitated in a number of ways,
principally by increasing key stock items at Bessemer Park to
reduce procurement lead times, semi-automation of manufacturing
processes to reduce production lead times and product
standardisation to reduce engineering and production lead times.
Through this, the Group believes that a reduction in lead times
from 14 months today to less than 8 months as Bessemer Park's
manufacturing capacity is achievable.
The Directors intend to use the proceeds of the Fundraising to
support the acceleration of the Group's manufacturing capabilities
through an allocation of GBP37m of raised amounts to be applied as
follows:
-- GBP22m as working capital to support the potential
development of a new European gigafactory; and
-- GBP15m for the holding of stock in order to reduce manufacturing lead times.
Acceleration of the Group's activities - operations
The expected increase in manufacturing and orders has resulted
in the Group identifying a need to develop high quality after-sales
services in order to ensure the necessary capacity is available in
order to install and commission projects in step with order
intake.
The Group is therefore targeting the development and
implementation of world-class after sales support packages in order
to maximise the availability of the Group's systems and offer
improved reliability and efficiency though customer support
packages.
In order to facilitate these ambitions, the Group intends to
increase the volume of critical spares held in strategic locations
to reduce lead times for supported electrolyser systems and to
develop partnerships with maintenance and support organisations
where this can ensure local support in new geographies and
territories (and by extension increase the availability of deployed
systems). The development of tiered after sales support packages
will also support the growth of a recurring revenue stream in
supporting deployed equipment throughout its design life.
ITM Power will also increase its business development activities
in key areas of market growth in order to position the Group to
benefit from the increased opportunities in these markets.
The Directors intend to use the proceeds of the Fundraising to
support the acceleration of the Group's operations in this area
with an allocation of GBP32m of raised funds as follows:
-- GBP24m working capital;
-- GBP3m to conduct reliability, availability, maintainability analyses;
-- GBP3m towards the holding of critical spares and increasing
the after sales and commissioning teams; and
-- GBP2m to upgrade the existing control centre and towards the
use of additional support technologies.
Targeting 50% electrolyser cost reduction within 5 years
Progress in the key areas of product standardisation, reduction
of lead times and increase of manufacturing capacity and purchasing
power are key drivers of the Group's target of reducing the capital
cost of its electrolysers by 50% between 2020 and 2025 from EUR1000
per kilowatt today (at the megawatt scale) to less than EUR500 per
kilowatt by the mid-2020s. The Group is currently tracking ahead of
its cost reduction targets for some projects.
In order to realise these reductions, the Group will need to
leverage its increased manufacturing volume (through
semi-automation and improved procurement lead times) as well as
apply technology improvements (including standard and modular
systems). The Group's projections also anticipate an increased
average order size which is expected to the benefits of economies
of scale. The Group also benefits from the advantage of having full
product control over its electrolyser stacks, and the Group's
design work for new products is focussed not only on product
quality but also the manufacturability of the design.
ITM Motive
The Group has been an early pioneer for hydrogen refuelling
stations and, with Shell, delivered the first UK forecourt hydrogen
refuelling station.
During the past year, the Group has appointed a new managing
director for the refuelling assets of the Group. As a result of the
evaluation of the existing asset base, there is a refocusing of the
Group's refuelling strategy, which is focussed on larger scale
plant where there is greater medium-term potential for sustainable
and attractive financial returns. The Group believes it is well
positioned to deliver this strategy as a result of its experience
to date and support of its partners Shell, Linde, Toyota, Orsted
and a collaborative relationship with the UK government. The
Group's recent involvement with Scottish Power Renewables and BOC
(a Linde company) in the 10MW Green Hydrogen for Glasgow project is
expected to supply hydrogen to the commercial market within the
next two years .
Hydrogen refuelling has the potential to bring in long term
recurring income and the Group is targeting future multi-MW
refuelling hubs such as the Glasgow project with tied fleets, and
sites with the potential for multiple heavy vehicle applications
(such as buses, trucks and trains) in order to improve
profitability.
The Directors intend to use the proceeds of the Fundraising to
support the acceleration of the Group's refuelling operations in
this area with an allocation of GBP30m of raised funds to be
applied within the refuelling business to identify opportunities
and to develop new profitable refuelling sites. The Company also
expects to benefit further from grant funding which will have the
effect of providing further leverage on capital available for
deployment.
Details of the Fundraising
Structure
The Directors have given careful consideration as to the
structure of the proposed Fundraising and have concluded that the
Firm Placing, the Open Offer and the Share Subscription is the most
suitable option available to the Group and its shareholders at this
time.
It is intended that approximately 51,063,830 Firm Placing Shares
will be issued through the Firm Placing at 235 pence per New
Ordinary Share to raise gross proceeds of GBP120,000,000. Assuming
full take up of the Open Offer, up to 2,984,132 New Ordinary Shares
will be issued through the Open Offer at 235 pence per New Ordinary
Share to raise gross proceeds of approximately GBP7 million.
Principal terms of the Firm Placing
In accordance with the terms of the Firm Placing and Open Offer
Agreement, Investec has agreed to use reasonable endeavours to
procure placees for the Firm Placing Shares at the Firm Placing
Price.
The Firm Placing is not being underwritten.
The Firm Placing Shares are not subject to clawback and are not
part of the Open Offer.
Under the Firm Placing and Open Offer Agreement, the Group has
agreed to pay to Investec a fixed sum together with a commission
based on the aggregate value of certain of the Firm Placed Shares
placed at the Issue Price and the costs and expenses of the Firm
Placing together with any applicable VAT.
As part of the Firm Placing, the Company has agreed that it will
not issue or sell any Ordinary Shares for a period of 180 days
after Admission without the prior written consent of Investec
(subject to certain customary exceptions).
Investec's obligations under the Firm Placing and Open Offer
Agreement are conditional on, inter alia: the Company complying
with its material obligations under the Firm Placing and Open Offer
Agreement to the extent that they fall to be performed prior to
Admission; the warranties given by the Company in the Firm Placing
and Open Offer Agreement being true, accurate and not misleading at
all times from the date of the Firm Placing and Open Offer
Agreement and before Admission, by reference to the facts and
circumstances then subsisting; the General Meeting having taken
place and the Resolutions having been passed without amendment
(save for any such amendments as the Firm Placing Agent may agree);
and Admission occurring no later than 08.00 a.m. on 12 November
2020 (or such later time and/or date as may be agreed between the
Group and Investec, being no later than 8.00 a.m. on 20 November
2020).
Principal terms of the conditional Share Subscription
Pursuant to a subscription agreement dated on or about the date
of this announcement, Snam has agreed to subscribe for 12,765,957
New Ordinary Shares at a price of 235 pence per New Ordinary Share,
raising GBP30.0m. The Share Subscription is conditional on (amongst
other things):
(a) the Firm Placing and Open Offer Agreement having not lapsed
or been terminated in accordance with its terms and the Open Offer
Shares and the Firm Placing Shares (if any) having been admitted to
trading on AIM in accordance with the AIM Rules;
(b) the Group successfully raising, pursuant to the Fundraising,
GBP100,000,000 (before expenses); and
(c) Admission of the Subscription Shares.
The Subscription Agreement contains customary warranties given
by the Company in favour of Snam.
Pursuant to the Subscription Agreement:
(a) Snam will have the right, following completion of the Share
Subscription and for so long as it holds at least 6,382,978
Ordinary Shares (adjusted to allow for any future sub-division,
consolidation or other relevant reorganisation of the Group's
ordinary share capital which is effected after Admission) to
appoint and maintain a representative to the Group's existing
Technology Management Committee and a new strategic advisory
committee to be established by the Board; and
(b) Snam has agreed, other than in certain limited
circumstances, not (for a period of 12 months following completion
of the Share Subscription) to sell any of the Subscription Shares
or acquire shares which would increase Snam's shareholding to more
than 29.99% of the Group's issued ordinary share capital.
Conditionality
The Fundraising is conditional, among other things, upon the
following:
(a) the passing, without amendment, of the Resolutions at the General Meeting;
(b) Admission occurring by no later than 8.00 a.m. on 12
November 2020 (or such later time and/or date as may be agreed
between the Group and Investec, being no later than 8.00 a.m. on 20
November 2020);
(c) the Firm Placing and Open Offer Agreement and the
Subscription Agreement and the Commercial Partnership Agreement
becoming unconditional in all respects and not having been
terminated in accordance with their terms; and
(d) the Commercial Partnership Agreement with Snam not having been terminated
If the conditions set out above are not satisfied or waived
(where capable of waiver), the Firm Placing, the Share Subscription
and the Open Offer will lapse; and
(a) the Firm Placing Shares will not be issued and all monies
received from investors in respect of the Firm Placing Shares will
be returned to them (at the investors' risk and without interest)
as soon as possible thereafter; and
(b) any Basic Entitlements and Excess CREST Open Offer
Entitlements admitted to CREST will, after that time and date, be
disabled and application monies under the Open Offer will be
refunded to the applicants, by cheque (at the applicant's risk) in
the case of Qualifying Non-CREST Shareholders and by way of a CREST
payment in the case of Qualifying CREST Shareholders, without
interest, as soon as practicable thereafter.
Application for Admission
Application will be made to the London Stock Exchange for the
New Ordinary Shares to be admitted to trading on AIM. Admission is
expected to take place, and dealings on AIM are expected to
commence, at 8.00 a.m. on 12 November 2020 (or such later time
and/or date as may be agreed between the Group and Investec, being
no later than 8.00 a.m. on 20 November 2020). No temporary document
of title will be issued.
The New Ordinary Shares will, following Admission, rank pari
passu in all respects with the Existing Ordinary Shares and will
carry the right to receive all dividends and distributions
declared, made or paid on or in respect of the Ordinary Shares
after Admission.
Effect of the Firm Placing and the Open Offer
Upon completion of the Fundraising, the New Ordinary Shares will
represent approximately 13.99 per cent. of the Enlarged Share
Capital (assuming the Open Offer is subscribed in full).
Total voting rights
Following Admission, the Group will have a total of 544,269,768
Ordinary Shares in issue (assuming the Open Offer is subscribed in
full). With effect from Admission, this figure may (assuming the
Open Offer is subscribed in full) be used by Shareholders as the
denominator for the calculations by which they will determine if
they are required to notify their interest in, or a change to their
interest in the Group, under the Disclosure Guidance and
Transparency Rules of the Financial Conduct Authority.
Intentions of the Directors in relation to the Firm Placing
The following Directors intend to subscribe for in aggregate
174,038 Firm Placed Shares, as follows:
Name Number of Firm Placed Shares
Sir Roger Bone 21,276
-----------------------------
Dr Graham Cooley 106,382
-----------------------------
Dr Simon Bourne 10,638
-----------------------------
Dr Rachel Smith 6,382
-----------------------------
Andrew Allen 6,382
-----------------------------
Martin Green 15,319
-----------------------------
Katherine Roe 7,659
-----------------------------
Irrevocable voting commitments from certain Directors
Certain Directors have irrevocably undertaken to vote (and where
the Existing Ordinary Shares are registered in the name of any
other persons have irrevocably undertaken to use reasonable
endeavours to procure that those persons will vote) in favour of
the Resolutions at the General Meeting in respect of, in aggregate,
1,072,692 Existing Ordinary Shares, representing approximately 0.22
per cent. of the Existing Issued Share Capital.
Irrevocable voting commitments from certain shareholders
Certain shareholders of the Company (other than the Directors)
have irrevocably undertaken to vote (and where the Existing
Ordinary Shares are registered in the name of any other persons
have irrevocably undertaken to use reasonable endeavours to procure
that those persons will vote) in favour of the Resolutions at the
General Meeting in respect of, in aggregate, 168,228,017 Existing
Ordinary Shares, representing approximately 35.23 per cent. of the
Existing Issued Share Capital.
General Meeting and Circular to Shareholders
A General Meeting of the Group is planned to be held at 10.00
a.m. on 11 November 2020.
The health of its employees, shareholders and stakeholders is of
extreme importance to the Company. In view the COVID-19 pandemic
and provisions of The Corporate Insolvency and Governance Act 2020
and associated legislation, which have permitted greater
flexibility regarding the manner in which companies can hold
general meetings, the General Meeting will not be held at a
physical venue. However, in order to ensure that Shareholders are
able to follow the proceedings of the General Meeting, the Company
will provide access to an online audio and presentation link,
details of which will follow in the circular to be sent to
Shareholders in connection with the Fundraising on or around 24
October 2020. Please note that shareholders will not be able to
vote at the General Meeting via the online presentation link.
The Board will continue to monitor the COVID-19 situation as it
evolves (including the UK Government's measures in response to it)
and, if the situation or applicable restrictions change in advance
of the General Meeting such that the Board determines that it is
safe to make alternative arrangements for the General Meeting, it
will announce these via RNS and the Company's website:
https://www.itm-power.com/investors-news .
The General Meeting is being held for the purpose of considering
and, if thought fit, passing the Resolutions necessary for the
implementation of the Fundraising.
A summary and explanation of the Resolutions will be set out in
the Circular to be sent out shortly.
This announcement should be read in its entirety. In particular,
you should read and understand the information provided in the
"Important Notices" section of this announcement.
IMPORTANT NOTICES
No action has been taken by the Company, Investec, any of their
respective affiliates or any person acting on its or their behalf
that would permit an offer of the Firm Placing Shares or possession
or distribution of this announcement or any other offering or
publicity material relating to such placing shares in any
jurisdiction where action for that purpose is required. Persons
into whose possession this announcement comes are required by the
Company and Investec to inform themselves about, and to observe,
such restrictions.
No prospectus will be made available in connection with the
matters contained in this announcement and no such prospectus is
required (in accordance with the Prospectus Regulation) to be
published. Persons needing advice should consult a qualified
independent legal adviser, business adviser, financial adviser or
tax adviser for legal, financial, business or tax advice.
THIS ANNOUNCEMENT, INCLUDING THE APPIX AND THE INFORMATION
CONTAINED IN IT, IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE
OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR
INTO THE UNITED STATES OF AMERICA, ITS TERRITORIES AND POSSESSIONS,
ANY STATE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA
(COLLECTIVELY, THE "UNITED STATES"), AUSTRALIA, CANADA, THE
REPUBLIC OF SOUTH AFRICA OR JAPAN OR ANY OTHER JURISDICTION IN
WHICH SUCH PUBLICATION, RELEASE OR DISTRIBUTION WOULD BE UNLAWFUL.
FURTHER, THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND IS
NOT AN OFFER OF SECURITIES IN ANY JURISDICTION. THIS ANNOUNCEMENT
HAS NOT BEEN APPROVED BY THE LONDON STOCK EXCHANGE, NOR IS IT INTED
THAT IT WILL BE SO APPROVED.
This announcement or any part of it does not constitute or form
part of any offer to issue or sell, or the solicitation of an offer
to acquire, purchase or subscribe for, any securities in the United
States, Canada, Australia, the Republic of South Africa or Japan or
any other jurisdiction in which the same would be unlawful. No
public offering of the placing shares is being made in any such
jurisdiction.
The securities referred to herein have not been and will not be
registered under the United States Securities Act of 1933, as
amended (the "Securities Act"), or under the securities laws of any
state or other jurisdiction of the United States, and may not be
offered or sold directly or indirectly in or into the United States
absent registration under the Securities Act or pursuant to an
exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and in compliance
with the securities laws of any state or any other jurisdiction of
the United States. The Firm Placing Shares are being offered and
sold by the Company (a) outside the United States in offshore
transactions as defined in, and pursuant to, Regulation S under the
Securities Act ("Regulation S") or (b) in the in the United States
only to persons reasonably believed to be "qualified institutional
buyers" (as defined in Rule 144A of the Securities Act) ("QIBs") in
transactions not involving any "public offering" within the meaning
of Section 4(a)(2) of the Securities Act and/or pursuant to an
exemption from, or transaction not subject to, the registration
requirements of the Securities Act. It and the prospective
beneficial owner of the Firm Placing Shares is, and at the time the
Firm Placing Shares are subscribed for will be, (i) outside the
United States and subscribing for the placing shares in an
"offshore transaction" as defined in, and in accordance with,
Regulation S; or (ii) (a) a QIB and (b) subscribing for the Firm
Placing Shares pursuant to an exemption from, or in a transaction
not subject to, the registration requirements under the Securities
Act. No public offering of securities is being made in the United
States. No money, securities or other consideration from any person
inside the United States is being solicited and, if sent in
response to the information contained in this announcement, will
not be accepted.
No prospectus has been lodged with, or registered by, the
Australian Securities and Investments Commission or the Japanese
Ministry of Finance; the relevant clearances have not been, and
will not be, obtained for the South Africa Reserve Bank or any
other applicable body in the Republic of South Africa in relation
to the Firm Placing Shares and the Firm Placing Shares have not
been, nor will they be, registered under or offering in compliance
with the securities laws of any state, province or territory of
Australia, the Republic of South Africa or Japan. Accordingly, the
placing shares may not (unless an exemption under the relevant
securities laws is applicable) be offered, sold, resold or
delivered, directly or indirectly, in or into Australia, the
Republic of South Africa, or Japan or any other jurisdiction in
which such activities would be unlawful.
By participating in the Bookbuilding Process and the Firm
Placing, each person who is invited to and who chooses to
participate in the Firm Placing (each a "placee") by making an oral
or written and legally binding offer to acquire Firm Placing Shares
will be deemed to have read and understood this announcement in its
entirety, to be participating, making an offer and acquiring
placing shares on the terms and conditions contained in the
Appendix to this announcement and to be providing the
representations, warranties, indemnities, acknowledgements and
undertakings contained in the Appendix to this announcement.
A variety of factors may cause the Company's and its
subsidiaries' (the "group's") actual results to differ materially
from the forward--looking statements contained in this
announcement. Certain statements included or incorporated by
reference within this announcement may constitute "forward-looking
statements" in respect of the group's operations, performance,
prospects and/or financial condition. These forward--looking
statements may be identified by the use of forward--looking
terminology, including the terms "believes", "estimates", "plans",
"anticipates, "expects", "intends", "may", "will", or "could" or
words of similar substance or the negative thereof, or by
discussions of strategy, plans, objectives, goals, economic
performance, dividend policy, future events or intentions. By their
nature, forward-looking statements involve a number of risks,
uncertainties and assumptions because they relate to events and
depend on circumstances that may or may not occur in the future or
are beyond the group's control. Actual results or events may and
often do differ materially from those expressed or implied by those
statements. Any forward--looking statements reflect the Company's
current view with respect to future events and are subject to risks
relating to future events and other risks, uncertainties and
assumptions relating to the group's business, results of
operations, financial position, liquidity, prospects, growth and
strategies. Forward--looking statements speak only as of the date
they are made. The group's actual operating results and financial
condition and the development of the industry in which it operates
may differ materially from the impression created by the
forward--looking statements contained in this announcement.
Important factors that could cause these differences include, but
are not limited to, the ongoing national and international impact
of the Covid-19 pandemic, general economic and business conditions,
industry trends, foreign currency rate fluctuations, competition,
changes in government and other regulation, including in relation
to the environment, health and safety and taxation, labour
relations and work stoppages, changes in political and economic
stability and changes in business strategy or development plans and
other risks.
Accordingly, no assurance can be given that any particular
expectation will be met and reliance shall not be placed on any
forward-looking statement. Additionally, forward-looking statements
regarding past trends or activities shall not be taken as a
representation that such trends or activities will continue in the
future. The information contained in this announcement is subject
to change without notice and no responsibility or obligation is
accepted to update or revise any forward-looking statement
resulting from new information, future events or otherwise.
In particular, no statement in this announcement is intended to
be a profit forecast and no statement of a financial metric
(including estimates of EBITDA, profit before tax, free cash flow
or net debt) should be interpreted to mean that any financial
metric for the current or future financial years would necessarily
match or exceed the historical published position of the group. The
estimates set out in this announcement have been prepared based on
numerous assumptions and forecasts, including those set out in this
announcement, some of which are outside of the Company's influence
and/or control, and is therefore inherently uncertain and there can
be no guarantee or assurance that it will be correct. The estimates
have not been audited, reviewed, verified or subject to any
procedures by our auditors. You should not place undue reliance on
them and there can be no guarantee or assurance that they will be
correct. Investec is authorised by the Prudential Regulatory
Authority and regulated in the United Kingdom by the Prudential
Regulation Authority and the FCA.
Investec is acting exclusively for the Company and no one else
in connection with the Firm Placing, the content of this
announcement and other matters described in this announcement.
Investec will not regard any other person as its respective client
in relation to the placing, the content of this announcement and
other matters described in this announcement and will not be
responsible to anyone (including any placees) other than the
Company for providing the protections afforded to its clients or
for providing advice to any other person in relation to the
placing, the content of this announcement or any other matters
referred to in this announcement.
This announcement has been issued by and is the sole
responsibility of the Company. 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
Investec, any of its affiliates or any person acting on its or
their behalf 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.
This announcement does not constitute a recommendation
concerning any investor's investment decision with respect to the
Firm Placing. The price of Ordinary Shares and any income expected
from them may go down as well as up and investors may not get back
the full amount invested upon disposal of the Ordinary Shares. Past
performance is no guide to future performance. The contents of this
announcement are not to be construed as legal, business, financial
or tax advice. Each investor or prospective investor should consult
his, her or its own legal adviser, business adviser, financial
adviser or tax adviser for legal, financial, business or tax
advice.
Any indication in this announcement of the price at which
Ordinary Shares have been bought or sold in the past cannot be
relied upon as a guide to future performance. No statement in this
announcement is intended as a profit forecast or estimate for any
period and no statement in this announcement should be interpreted
to mean that earnings, earnings per share or income, cash flow from
operations or free cash flow for the Company, as appropriate, for
the current or future years would necessarily match or exceed the
historical published earnings, earnings per share or income, cash
flow from operations or free cash flow for the Company.
In connection with the Firm Placing, Investec, its affiliates
and any person acting on its or their behalf may take up a portion
of Ordinary Shares in the Firm Placing as a principal position and
in that capacity may retain, purchase or sell for its own account
such shares and other securities of the Company or related
investments and may offer or sell such shares, securities or other
investments otherwise than in connection with the Firm Placing.
Accordingly, references in this announcement to Firm Placing Shares
being issued, offered or placed should be read as including any
issue, offering or placement of such shares in the Company to
Investec, any of its affiliates or any person acting on its or
their behalf as, acting in such capacity. In addition, Investec,
any of its affiliates or any person acting on its or their behalf
may enter into financing arrangements (including swaps, warrants or
contracts for difference) with investors in connection with which
Investec, any of its affiliates or any person acting on its or
their behalf may from time to time acquire, hold or dispose of such
securities of the Company, including the placing shares. Neither
Investec, any of its affiliates nor any person acting on its or
their behalf intends to disclose the extent of any such investment
or transactions otherwise than in accordance with any legal or
regulatory obligation to do so.
The Firm Placing Shares to be issued or sold pursuant to the
Firm Placing will not be admitted to trading on any stock exchange
other than the London Stock Exchange.
Neither the content of the Company's website (or any other
website) nor the content of any website accessible from hyperlinks
on the Company's website (or any other website) is incorporated
into or forms part of this announcement.
This announcement has been prepared for the purposes of
complying with applicable law and regulation in the United Kingdom
and the information disclosed may not be the same as that which
would have been disclosed if this announcement had been prepared in
accordance with the laws and regulations of any jurisdiction
outside the United Kingdom.
Solely for the purposes of the product governance requirements
contained within: (a) EU Directive 2014/65/EU on markets in
financial instruments, as amended ("MiFID II"); (B) Articles 9 and
10 of Commission Delegated Directive (EU) 2017/593 supplementing
MiFID II; and (c) local implementing measures (together, the "MiFID
II Product Governance Requirements"), and disclaiming all and any
liability, whether arising in tort, contract or otherwise, which
any 'manufacturer' (for the purposes of the MiFID II Product
Governance Requirements) may otherwise have with respect thereto,
the placing shares have been subject to a product approval process,
which has determined that such placing shares are: (i) compatible
with an end target market of retail investors and investors who
meet the criteria of professional clients and eligible
counterparties, each as defined in MiFID II; and (ii) eligible for
distribution through all distribution channels as are permitted by
MiFID II (the "target market assessment"). Notwithstanding the
target market assessment, distributors should note that: the price
of the Firm Placing Shares may decline and investors could lose all
or part of their investment; the Firm Placing Shares offer no
guaranteed income and no capital protection; and an investment in
the Firm Placing Shares is compatible only with investors who do
not need a guaranteed income or capital protection, who (either
alone or in conjunction with an appropriate financial or other
adviser) are capable of evaluating the merits and risks of such an
investment and who have sufficient resources to be able to bear any
losses that may result therefrom. The target market assessment is
without prejudice to the requirements of any contractual, legal or
regulatory selling restrictions in relation to the Firm Placing.
Furthermore, it is noted that, notwithstanding the target market
assessment, Investec will only procure investors who meet the
criteria of professional clients and eligible counterparties.
For the avoidance of doubt, the target market assessment does
not constitute: (a) an assessment of suitability or appropriateness
for the purposes of MiFID II; or (b) a recommendation to any
investor or group of investors to invest in, or purchase or take
any other action whatsoever with respect to the Firm Placing
Shares. Each distributor is responsible for undertaking its own
target market assessment in respect of the placing shares and
determining appropriate distribution channels.
APPIX
TERMS AND CONDITIONS OF THE FIRM PLACING
IMPORTANT INFORMATION FOR INVITED PLACEES ONLY
THIS ANNOUNCEMENT AND THE INFORMATION IN IT IS RESTRICTED AND IS
NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR
INDIRECTLY, IN WHOLE OR IN PART, IN, OR INTO, OR FROM THE UNITED
STATES, AUSTRALIA, CANADA, JAPAN, NEW ZEALAND OR THE REPUBLIC OF
SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH SUCH PUBLICATION,
RELEASE OR DISTRIBUTION WOULD BE UNLAWFUL.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE FIRM
PLACING. THIS APPIX AND THE TERMS AND CONDITIONS SET OUT HEREIN ARE
FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT: (A) IN A
MEMBER STATE OF THE EUROPEAN ECONOMIC AREA ("EEA") AND THE UNITED
KINGDOM, PERSONS WHO ARE, UNLESS OTHERWISE AGREED BY THE FIRM
PLACING AGENT, "QUALIFIED INVESTORS" AS DEFINED IN ARTICLE 2(E) OF
THE EU PROSPECTUS REGULATION (WHICH MEANS REGULATION (EU) 2017/1129
AS AMED AND/OR SUPPLEMENTED FROM TIME TO TIME AND INCLUDES ANY
RELEVANT IMPLEMENTING MEASURE IN ANY MEMBER STATE AND THE UNITED
KINGDOM) (THE "PROSPECTUS REGULATION"); AND (B) IN THE UNITED
KINGDOM, QUALIFIED INVESTORS WHO ARE: (I) "INVESTMENT
PROFESSIONALS" WITHIN THE MEANING OF 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 (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS
"RELEVANT PERSONS"). THIS APPIX 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 APPIX AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATE IS
AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH
RELEVANT PERSONS. PERSONS INTO WHOSE POSSESSION THIS ANNOUNCEMENT
(INCLUDING THE APPIX) COMES ARE REQUIRED BY THE COMPANY AND THE
FIRM PLACING AGENT TO INFORM THEMSELVES ABOUT AND TO OBSERVE ANY
SUCH RESTRICTIONS.
THIS ANNOUNCEMENT IS NOT AN OFFER FOR SALE OF, OR A SOLICITATION
TO PURCHASE OR SUBSCRIBE FOR, SECURITIES IN ANY JURISDICTION IN
WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL UNDER THE
SECURITIES LAWS OF ANY JURISDICTION. THIS ANNOUNCEMENT DOES NOT
ITSELF CONSTITUTE AN OFFER FOR SALE OF, OR A SOLICITATION TO
PURCHASE OR SUBSCRIBE FOR, ANY SECURITIES IN THE COMPANY.
THIS ANNOUNCEMENT IS NOT FOR PUBLICATION OR DISTRIBUTION,
DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES OF AMERICA.
THIS ANNOUNCEMENT IS NOT AN OFFER OF SECURITIES FOR SALE IN THE
UNITED STATES. THE SECURITIES REFERRED TO HEREIN HAVE NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMED (THE " SECURITIES ACT"), OR UNDER ANY SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION OF THE UNITED STATES, AND MAY NOT BE
OFFERED, SOLD, RESOLD, TRANSFERRED OR DELIVERED, DIRECTLY OR
INDIRECTLY, IN OR INTO, THE UNITED STATES, EXCEPT PURSUANT TO AN
APPLICABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE
WITH THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE
UNITED STATES. THE SECURITIES REFERRED TO HEREIN MAY ONLY BE PLACED
IN THE UNITED STATES PURSUANT TO SECTION 4(A)(2) OF THE SECURITIES
ACT, RULE 506 OF REGULATION D UNDER THE SECURITIES ACT AND/OR RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), WITH CERTAIN LIMITED
EXCEPTIONS, ONLY TO INSTITUTIONS THAT ARE "QUALIFIED INSTITUTIONAL
BUYERS" AS DEFINED IN RULE 144A ("QIBs"). NO PUBLIC OFFERING OF
SECURITIES IS BEING MADE IN THE UNITED STATES, THE UNITED KINGDOM
OR ELSEWHERE.
THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN AND WILL NOT BE
APPROVED, DISAPPROVED OR RECOMMED BY THE U.S. SECURITIES AND
EXCHANGE COMMISSION (THE "SEC"), ANY STATE SECURITIES COMMISSION OR
ANY OTHER REGULATORY AUTHORITY IN THE UNITED STATES, NOR HAVE ANY
OF THE FOREGOING AUTHORITIES PASSED UPON ORORSED THE MERITS OF THE
FIRM PLACING, THE OFFERING OF FIRM PLACING SHARES OR THE ACCURACY
OR ADEQUACY OF THIS ANNOUNCEMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENCE IN THE UNITED STATES.
NEITHER THE COMPANY NOR THE FIRM PLACING AGENT MAKES ANY
REPRESENTATION TO PERSONS WHO ARE INVITED TO AND WHO CHOOSE TO
PARTICIPATE IN THE FIRM PLACING REGARDING AN INVESTMENT IN THE
SECURITIES REFERRED TO IN THIS ANNOUNCEMENT UNDER THE LAWS
APPLICABLE TO SUCH PLACEES. EACH PLACEE SHOULD CONSULT ITS OWN
ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF AN
INVESTMENT IN FIRM PLACING SHARES. THE PRICE OF THE FIRM PLACING
SHARES AND THE INCOME FROM THEM (IF ANY) MAY GO DOWN AS WELL AS UP
AND INVESTORS MAY NOT GET BACK THE FULL AMOUNT INVESTED ON DISPOSAL
OF THE FIRM PLACING SHARES.
THE CONTENTS OF THIS ANNOUNCEMENT HAVE NOT BEEN REVIEWED BY ANY
REGULATORY AUTHORITY IN THE UNITED KINGDOM OR ELSEWHERE. YOU ARE
ADVISED TO EXERCISE CAUTION IN RELATION TO THE FIRM PLACING. IF YOU
ARE IN ANY DOUBT ABOUT ANY OF THE CONTENTS OF THIS ANNOUNCEMENT,
YOU SHOULD OBTAIN INDEPENT PROFESSIONAL ADVICE.
By participating in the Firm Placing, Placees will be deemed to
have read and understood this Announcement in its entirety and to
be participating in the Firm Placing on the terms and conditions,
and to be providing the representations, warranties,
acknowledgements and undertakings, contained in this Announcement.
In particular, each Placee represents, warrants, acknowledges and
agrees that:
1. it is a Relevant Person (as defined above) and undertakes
that it will acquire, hold, manage or dispose of any Firm Placing
Shares that are allocated to it for the purposes of its business;
and
2. it is and, at the time the Firm Placing Shares are acquired,
will be either (i) outside the United States and acquiring the Firm
Placing Shares in an "offshore transaction" in accordance with Rule
903 or Rule 904 of Regulation S under the Securities Act
("Regulation S") or (ii) a QIB, which is acquiring the Firm Placing
Shares for its own account or for a discretionary account or
accounts, each of which is a QIB and each of which is acquiring
beneficial interests in the Firm Placing Shares for its own
account; if acquiring the Firm Placing Shares for the account of
one or more other persons, it has full power and authority to make
the representations, warranties, agreements and acknowledgements
herein on behalf of each such person.
The Company and Investec (the "Placing Agent") will rely upon
the truth and accuracy of the foregoing representations,
warranties, acknowledgements and agreements. Each Placee hereby
agrees with the Firm Placing Agent and the Company to be bound by
these terms and conditions as being the terms and conditions upon
which Firm Placing Shares will be issued. A Placee shall, without
limitation, become so bound if the Firm Placing Agent confirms to
such Placee its allocation of Firm Placing Shares.
Upon being notified of its allocation of Firm Placing Shares, a
Placee shall be contractually committed to subscribe for the number
of Firm Placing Shares allocated to it at the Firm Placing Price
and, to the fullest extent permitted by law, will be deemed to have
agreed not to exercise any rights to rescind or terminate or
otherwise withdraw from such commitment.
Details of the Firm Placing and Open Offer Agreement and the
Firm Placing Shares
The Company and the Firm Placing Agent have entered into a
Placing Agreement, under which the Firm Placing Agent has
undertaken, on the terms and subject to the conditions set out
therein, to use its reasonable endeavours to procure subscribers
for the Firm Placing Shares.
The Firm Placing Agent shall be under no obligation to itself
subscribe as principal for: (i) any Firm Placing Shares for which
it is unable to procure Placees; or (ii) any Firm Placing Shares to
the extent that any Placee procured by the Firm Placing Agent fails
to subscribe for any or all of the Firm Placing Shares which have
been allocated to it in the Firm Placing.
The Firm Placing Shares will, when issued, be subject to the
articles of association of the Company, will be credited as fully
paid and will rank pari passu in all respects with the existing
Shares, including the right to receive all dividends and other
distributions (if any) declared, made or paid on or in respect of
Shares after the date of issue of the Firm Placing Shares.
The Firm Placing Shares will trade on AIM under ITM POWER PLC,
symbol ITM, with ISIN GB00B0130H42.
Lock-up
As part of the Firm Placing, the Company has agreed that it will
not issue or sell any Shares for a period of 180 days after
Admission without the prior written consent of the Firm Placing
Agent. This agreement is subject to certain customary
exceptions.
Application for admission to trading of the Firm Placing
Shares
Application will be made to the London Stock Exchange for the
Firm Placing Shares to be admitted to trading on AIM. It is
expected that Admission will take place on or before 08.00 a.m. on
12 November 2020 and that dealings in the Firm Placing Shares will
commence at the same time.
Placing and Bookbuild
The Firm Placing Agent will today commence an accelerated
bookbuilding process to determine demand for participation in the
Firm Placing by Placees. This Announcement gives details of the
terms and conditions of, and the mechanics of participation in, the
Firm Placing. No commissions will be paid to Placees or by Placees
in respect of any Firm Placing Shares.
The Firm Placing Agent and the Company shall be entitled to
effect the Firm Placing by such alternative method to the Bookbuild
as they may agree between them.
Principal terms of the Bookbuild and Placing
1. The Firm Placing Agent is arranging the Firm Placing as sole
broker and sole bookrunner and agent of the Company.
2. Participation in the Firm Placing is only available to
persons who are lawfully able to, and have been invited to,
participate by the Firm Placing Agent. The Firm Placing Agent and
its affiliates and/or their agents are entitled, acting for their
own account, to participate in the Firm Placing as principal.
3. The number of Placing Shares to be issued will be agreed
between the Firm Placing Agent and the Company following completion
of the Bookbuild. The results of the Bookbuild will be released via
a Regulatory Information Service ("RIS") following the completion
of the Bookbuild.
4. The Bookbuild is expected to close no later than 7.00 a.m. on
23 October 2020 but may be closed earlier or later at the
discretion of the Firm Placing Agent. The Firm Placing Agent may,
in agreement with the Company, accept bids received after the
Bookbuild has closed.
5. To bid in the Bookbuild, Placees should communicate their bid
by telephone or in writing to their usual sales contact at the Firm
Placing Agent. Each bid should state the number of Placing Shares
which the prospective Placee wishes to subscribe for at the Firm
Placing Price.
6. A bid in the Bookbuild will be made on the terms and subject
to the conditions in this Announcement and will be legally binding
on the Placee on behalf of which it is made and, except with the
consent of the Firm Placing Agent, will not be capable of variation
or revocation after the time at which it is submitted. Each Placee
will have an immediate, separate, irrevocable and binding
obligation, owed to the Firm Placing Agent (as agent of the
Company), to pay to the Firm Placing Agent (or as the Firm Placing
Agent may direct) in cleared funds an amount equal to the product
of the Firm Placing Price and the number of Placing Shares such
Placee has agreed to subscribe for and the Company has agreed to
allot and issue to that Placee.
7. The Firm Placing Agent may choose to accept bids, either in
whole or in part, on the basis of allocations determined in
consultation with the Company and reserves the right (i) to scale
back the number of Placing Shares to be subscribed for by any
Placee in the event of the Firm Placing being oversubscribed; (ii)
not to accept offers for Placing Shares or to accept such offers in
part rather than in full; (iii) to allocate Placing Shares after
the time of any initial allocation to any person submitting a bid
after that time and/or (iv) to allocate Placing Shares after the
Bookbuild has closed to any person submitting a bid after that
time. The Company reserves the right to reduce the amount to be
raised pursuant to the Firm Placing, in agreement with the Firm
Placing Agent.
8. Each Placee's allocation of Placing Shares will be confirmed
to Placees orally, or in writing (which may include email), by the
Firm Placing Agent following the close of the Bookbuild and a trade
confirmation or contract note has been or will be dispatched
thereafter. The Firm Placing Agent's oral or written confirmation
will give rise to an irrevocable, legally binding commitment by
that person (who at that point becomes a Placee), in favour of the
Firm Placing Agent and the Company, under which it agrees to
acquire by subscription the number of Placing Shares allocated to
it at the Firm Placing Price and otherwise on the terms and subject
to the conditions set out in this Announcement and in accordance
with the Company's articles of association. The terms and
conditions of this Announcement will be deemed to be incorporated
in that trade confirmation, contract note or such other (oral or
written) confirmation and will be legally binding on the Placee on
behalf of which it is made. All obligations under the Bookbuild and
Placing will be subject to fulfilment of the conditions referred to
below under "Conditions of the Firm Placing" and to the Firm
Placing not being terminated on the basis referred to below under
"Right to terminate under the Firm Placing and Open Offer
Agreement". By participating in the Bookbuild, each Placee will
agree that its rights and obligations in respect of the Firm
Placing will terminate only in the circumstances described below
and will not be capable of rescission or termination by the
Placee.
9. Irrespective of the time at which a Placee's allocation
pursuant to the Firm Placing is confirmed, settlement for all
Placing Shares to be subscribed for pursuant to the Firm Placing
will be required to be made at the same time, on the basis
explained below under "Registration and Settlement".
10. Except as required by law or regulation, no press release or
other announcement will be made by the Firm Placing Agent or the
Company using the name of any Placee (or its agent), in its
capacity as Placee (or agent), other than with such Placee's prior
written consent.
11. Placees that are QIBs and in the United States will be
required to execute an Investor Letter in customary form and scope
prior to Admission. Placees who are resident in Canada will be
required to provide a certificate attesting to the fact that they
are "accredited investors" and "permitted clients" under applicable
Canadian securities laws.
12. To the fullest extent permissible by law and the applicable
rules of the FCA, neither the Firm Placing Agent nor the Company
nor any of their affiliates shall have any liability to the Placees
(or to any other person whether acting on behalf of a Placee or
otherwise whether or not a recipient of these terms and conditions)
in respect of the Firm Placing. Each Placee acknowledges and agrees
that the Company is responsible for the allotment of the Firm
Placing Shares to the Placees and the Firm Placing Agent and its
affiliates shall have no liability to the Placees for the failure
of the Company to fulfil those obligations. In particular, neither
the Firm Placing Agent nor the Company nor any of their respective
affiliates shall have any liability (including to the extent
permissible by law, any fiduciary duties) in respect of the Firm
Placing Agent's conduct of the Firm Placing.
Conditions of the Firm Placing
The Firm Placing Agent's obligations under the Firm Placing and
Open Offer Agreement are conditional on, inter alia:
1. the Company complying with its material obligations under the
Firm Placing and Open Offer Agreement to the extent that they fall
to be performed prior to Admission;
2. the Firm Placing Results Announcement having been released to
a RIS by no later than 8.00 a.m. on 23 October 2020;
3. the warranties given by the Company in the Firm Placing and
Open Offer Agreement being true, accurate and not misleading at all
times from the date of the Firm Placing and Open Offer Agreement
and before Admission, by reference to the facts and circumstances
then subsisting;
4. the General Meeting having taken place and the Resolutions
having been passed without amendment (save for any such amendments
as the Firm Placing Agent may agree); and
5. Admission occurring no later than 08.00 a.m. on 12 November
2020.
If: (i) any of the conditions contained in the Firm Placing and
Open Offer Agreement, including those described above, is not
fulfilled or (where applicable) waived by the Firm Placing Agent by
the respective time and date (if any) specified (or such later time
and/or date (if any) as the Firm Placing Agent and the Company may
agree in writing, but in any event no later than 8.00 a.m. on 20
November 2020 (the "Long Stop Date"); (ii) any of such conditions
becomes incapable of being fulfilled (subject to the Firm Placing
Agent not exercising its rights to waive or extent the time for
fulfilment of the relevant condition); or (iii) the Firm Placing
and Open Offer Agreement is terminated in the circumstances
specified below, the Firm Placing will not proceed and the Placees'
rights and obligations as set out in this Announcement in relation
to the Firm Placing Shares shall cease and terminate at such time
and each Placee agrees that no claim can be made by or on behalf of
the Placee (or any person on whose behalf the Placee is acting) in
respect thereof.
The Firm Placing Agent may, at its absolute discretion and
subject to any conditions it considers appropriate, waive the
satisfaction of any condition (other than the occurrence of
Admission) by giving notice to the Company. The Firm Placing Agent
may also, in its absolute discretion, extend the period for
compliance by the Company with the whole or any part of any of the
Company's obligations in relation to the conditions in the Firm
Placing and Open Offer Agreement save that the period for
satisfaction of the condition relating to Admission shall not be
extended beyond the Long Stop Date. Any such extension or waiver
will not affect Placees' commitments as set out in this
Announcement.
Neither the Firm Placing Agent, nor the Company nor any of their
respective affiliates shall have any liability to any Placee (or to
any other person whether acting on behalf of a Placee or otherwise)
in respect of any decision they may make as to whether or not to
waive or to extend the time and/or date for the satisfaction of any
condition to the Firm Placing nor for any decision they may make as
to the satisfaction of any condition or in respect of the Firm
Placing generally and by participating in the Firm Placing each
Placee agrees that any such decision is within the absolute
discretion of the Firm Placing Agent. Placees will have no rights
against the Firm Placing Agent, the Company or any of their
respective partners, members, directors or employees under the Firm
Placing and Open Offer Agreement pursuant to the Contracts (Rights
of Third Parties) Act 1999 (as amended) or otherwise.
Right to terminate the Firm Placing and Open Offer Agreement
The Firm Placing Agent is entitled in its absolute discretion to
terminate the Firm Placing and Open Offer Agreement with immediate
effect in certain circumstances, including, inter alia, if at any
time before Admission:
1. the Firm Placing Agent becomes aware that any warranty in the
Firm Placing and Open Offer Agreement was, when given, untrue,
inaccurate or misleading; or
2. in the opinion of the Firm Placing Agent, a Material Adverse
Change has occurred (as such term is defined in the Firm Placing
and Open Offer Agreement).
In addition, if at any time before Admission there occurs any
change, or development involving a prospective change, in national
or international, military, diplomatic, monetary, economic,
political, financial, industrial or market conditions or exchange
rates or exchange controls, or any incident of terrorism or
outbreak or escalation of hostilities or any declaration by the UK
or the US of a national emergency or war or any other calamity or
crisis or any material deterioration in, or material escalation in
the response to, the Covid-19 pandemic, which, in the opinion of
Placing Agent, acting in good faith, would or would be likely to
prejudice materially the Company or the Firm Placing, or make the
success of the Firm Placing doubtful or makes it impracticable or
inadvisable to proceed with the Firm Placing, or render the
creation of a market in the ordinary share capital of the Company
temporarily or permanently impracticable, then the Firm Placing
Agent may, in its absolute discretion, after consultation with the
Company to the extent practicable, by notice in writing to the
Company (or by orally communicating the same to the Company),
terminate the Firm Placing and Open Offer Agreement with immediate
effect.
If the Firm Placing and Open Offer Agreement is terminated prior
to Admission then the Firm Placing will not occur and the Company
and the Firm Placing Agent shall be released and discharged (except
for any liability arising before or in relation to such
termination) from their respective obligations under or pursuant to
the Firm Placing and Open Offer Agreement, subject to certain
exceptions.
The rights and obligations of the Placees will not be subject to
termination by the Placees or any prospective Placees at any time
or in any circumstances. By participating in the Firm Placing,
Placees agree that the exercise by the Firm Placing Agent of any
right of termination or other discretion under the Firm Placing and
Open Offer Agreement shall be within the absolute discretion of the
Firm Placing Agent and that the Firm Placing Agent need not make
any reference to Placees in this regard and that neither the Firm
Placing Agent nor any of its affiliates shall have any liability to
Placees whatsoever in connection with any such exercise or failure
so to exercise.
No Admission Document or Prospectus
The Firm Placing Shares are being offered to a limited number of
specifically invited persons only and have not been nor will be
offered in such a way as to require the publication of an admission
document or prospectus in the United Kingdom or any equivalent
document in any other jurisdiction. No offering document, admission
document or prospectus has been or will be submitted to be approved
by the FCA or the London Stock Exchange in relation to the Firm
Placing, and Placees' commitments will be made solely on the basis
of the information contained in this Announcement, the announcement
of the results of the Firm Placing through a RIS and the business
and financial information that the Company is required to publish
in accordance with the AIM Rules (the "Exchange Information") or
has published via an RIS ("Publicly Available Information") (save
that in the case of Exchange Information and Publicly Available
Information, a Placee's right to rely on that information is
limited to the right that such Placee would have as a matter of law
in the absence of this paragraph). Each Placee, by accepting a
participation in the Firm Placing, agrees that the content of this
Announcement is exclusively the responsibility of the Company and
confirms that it has neither received nor relied on any other
information (other than the Exchange Information and/or Publicly
Available Information), representation, warranty or statement made
by or on behalf of the Company or the Firm Placing Agent or any
other person and neither the Firm Placing Agent, nor the Company
nor any other person will be liable for any Placee's decision to
participate in the Firm Placing based on any other information,
representation, warranty or statement which the Placees may have
obtained or received and, if given or made, such information,
representation, warranty or statement must not be relied upon as
having been authorised by the Firm Placing Agent, the Company or
any of their respective officers, directors, partners, employees or
agents. Each Placee acknowledges and agrees that it has relied on
its own investigation of the business, financial or other position
of the Company in accepting a participation in the Firm Placing.
Neither the Company nor the Firm Placing Agent are making any
undertaking, representation or warranty to any Placee regarding the
legality of an investment in the Firm Placing Shares by such Placee
under any legal, investment or similar laws or regulations. Each
Placee should not consider any information in this Announcement to
be legal, tax or business advice. Each Placee should consult its
own solicitor, tax adviser and financial adviser for independent
legal, tax and financial advice regarding an investment in the Firm
Placing Shares. Nothing in this paragraph shall exclude the
liability of any person for fraudulent misrepresentation.
Registration and Settlement
Settlement of transactions in the Firm Placing Shares will,
unless otherwise agreed, take place on a delivery versus payment
basis within CREST. Each Placee will be deemed to agree that it
will do all things necessary to ensure that delivery and payment is
completed as directed by the Firm Placing Agent in accordance with
the standing CREST settlement instructions which they have in place
with the Firm Placing Agent.
Settlement of transactions in the Firm Placing Shares (ISIN:
GB00B0130H42) following Admission will take place within the CREST
system provided that, subject to certain exceptions, the Firm
Placing Agent reserves the right to require settlement for, and
delivery of, the Firm Placing Shares (or a portion thereof) to
Placees by such other means as 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 of the Firm Placing Shares will
be on 12 November 2020 unless otherwise notified by the Firm
Placing Agent. Admission is expected to occur by 12 November 2020
or otherwise at such later time as may be agreed between the
Company and the Firm Placing Agent, not being later than the Long
Stop Date.
Each Placee is deemed to agree that, if it does not comply with
these obligations, the Firm Placing Agent may sell any or all of
the Firm Placing Shares allocated to that Placee on such Placee's
behalf and retain from the proceeds, for the Firm Placing Agent's
account and benefit (as agent for the Company), an amount equal to
the aggregate amount owed by the Placee plus any interest due
(chargeable daily on payments not received from Placees on the date
due). The relevant Placee will, however, remain liable and shall
indemnify the Firm Placing Agent on demand 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 the
Firm Placing Agent such authorities and powers necessary to carry
out any such sale and agrees to ratify and confirm all actions
which the Firm Placing Agent lawfully takes in pursuance of such
sale. Legal and/or beneficial title in and to any Placing Shares
shall not pass to the relevant Placee until it has fully complied
with its obligations hereunder.
If Placing Shares are to be delivered to a custodian or
settlement agent, Placees must ensure that any form of confirmation
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. Neither the Firm Placing Agent nor the
Company will be liable in any circumstances for the payment of
stamp duty, stamp duty reserve tax or securities transfer tax in
connection with any of the Firm Placing Shares. Placees will not be
entitled to receive any fee or commission in connection with the
Firm Placing.
Representations, Warranties and Further Terms
By participating in the Firm Placing, each Placee (and any
person acting on such Placee's behalf) will be deemed to make the
following representations, warranties, acknowledgements, agreements
and undertakings (as the case may be) to the Firm Placing Agent
(for itself and on behalf of the Company), that:
1. it has read and understood this Announcement in its entirety
and that its subscription for Placing Shares is subject to and
based upon all the terms, conditions, representations, warranties,
indemnities, acknowledgements, agreements and undertakings and
other information contained in this Announcement and undertakes not
to redistribute or duplicate this Announcement;
2. it is relying solely on this Announcement and not on any
other information given, or representation, warranty or statement
made at any time, by any person concerning the Company, the Firm
Placing Shares or the Firm Placing. It agrees that neither the
Company nor the Firm Placing Agent, nor any of their respective
officers, agents, employees or affiliates will have any liability
for any other information, warranty or representation. It
irrevocably and unconditionally waives any rights it may have in
respect of any other information, warranty or representation;
3. the shares in the capital of the Company are admitted to
trading on AIM, and the Company is therefore required to publish
the Exchange Information, which includes a description of the
nature of the Company's business and the Company's most recent
balance sheet and profit and loss account, and that it is able to
obtain access to such information or comparable information
concerning any other publicly traded company without undue
difficulty;
4. its obligations are irrevocable and legally binding and shall
not be capable of rescission or termination by it in any
circumstances;
5. the exercise by the Firm Placing Agent of any right or
discretion under the Firm Placing and Open Offer Agreement shall be
within the absolute discretion of the Firm Placing Agent and the
Firm Placing Agent need not have any reference to it and shall have
no liability to it whatsoever in connection with any decision to
exercise or not to exercise any such right and each Placee agrees
that it has no rights against the Firm Placing Agent or the
Company, or any of their respective officers, directors, partners
or employees, under the Firm Placing and Open Offer Agreement
pursuant to the Contracts (Rights of Third Parties Act) 1999;
6. these terms and conditions represent the whole and only
agreement between it, the Firm Placing Agent and the Company in
relation to its participation in the Firm Placing and supersedes
any previous agreement between any of such parties in relation to
such participation. Accordingly, each Placee, in accepting its
participation in the Firm Placing, is not relying on any
information, representation or warranty in relation to the Company
or any of its subsidiaries or any of the Firm Placing Shares other
than as contained in this Announcement, the Exchange Information
and the Publicly Available Information (save that in the case of
Exchange Information and Publicly Available Information, a Placee's
right to rely on that information is limited to the right that such
Placee would have as a matter of law in the absence of this
paragraph), such information being all that it deems necessary to
make an investment decision in respect of the Firm Placing Shares.
Each Placee agrees that neither the Company, nor the Firm Placing
Agent nor any of their respective officers, directors, partners or
employees will have any liability for any such other information,
representation or warranty, express or implied;
7. it acknowledges that no person is authorised in connection
with the Firm Placing to give any information or warranty or make
any representation other than as contained in this document and, if
given or made, any information, warranty or representation must not
be relied upon as having been authorised by the Firm Placing Agent
or the Company;
8. in the case of any Placing Shares acquired by it as a
financial intermediary, as that term is used in Article 5(1) of the
Prospectus Regulation: (i) the Firm Placing Shares acquired by it
in the Firm Placing have not been acquired on behalf of, nor have
they been acquired with a view to their offer or resale to, persons
in any Member State of the EEA which has implemented the Prospectus
Regulation and the United Kingdom other than Qualified Investors or
in circumstances in which the prior consent of the Firm Placing
Agent has been given to the offer or resale; or (ii) where Placing
Shares have been acquired by it on behalf of persons in any member
state of the EEA or the United Kingdom other than Qualified
Investors, the offer of those Placing Shares to it is not treated
under the Prospectus Regulation as having been made to such
persons;
9. neither it nor, as the case may be, its clients expect the
Firm Placing Agent to have any duties or responsibilities to such
persons similar or comparable to the duties of "best execution" and
"suitability" imposed by the FCA's Conduct of Business Source Book,
and that the Firm Placing Agent is not acting for it or its
clients, and that the Firm Placing Agent will not be responsible
for providing the protections afforded to customers of the Firm
Placing Agent or for providing advice in respect of the
transactions described in this Announcement;
10. it has made its own assessment of the Firm Placing Shares
and has relied on its own investigation of the business, financial
or other position of the Company in accepting a participation in
the Firm Placing and neither the Firm Placing Agent nor the Company
nor any of their respective affiliates, agents, directors,
officers, partners or employees or any person acting on behalf of
any of them has provided, and will not provide, it with any
material regarding the Firm Placing Shares or the Company or any
other person other than the information in this Announcement or the
Publicly Available Information; nor has it requested the Firm
Placing Agent, the Company or any of their respective affiliates,
agents, directors, officers, partners or employees or any person
acting on behalf of any of them to provide it with any such
information;
11. the only information on which it is entitled to rely on and
on which it has relied in committing to subscribe for the Firm
Placing Shares is contained in this Announcement, the Exchange
Information and the Publicly Available Information (save that in
the case of Exchange Information and Publicly Available
Information, a Placee's right to rely on that information is
limited to the right that such Placee would have as a matter of law
in the absence of this paragraph), such information being all that
it deems necessary to make an investment decision in respect of the
Firm Placing Shares and it has made its own assessment of the
Company, the Firm Placing Shares and the terms of the Firm Placing
based on this Announcement, the Exchange Information and the
Publicly Available Information;
12. neither the Firm Placing Agent nor the Company nor any of
their respective affiliates, agents, directors, officers, partners
or employees has made any representation or warranty to it, express
or implied, with respect to the Company, the Firm Placing or the
Firm Placing Shares or the accuracy, completeness or adequacy of
this Announcement, the Exchange Information or the Publicly
Available Information;
13. that it is and, at the time the Firm Placing Shares are
acquired, will be either: (i) outside the United States and is
acquiring the Firm Placing Shares in an "offshore transaction" in
accordance with Rule 903 or Rule 904 of Regulation S; or (ii) a
QIB, which is acquiring the Firm Placing Shares for its own account
or for a discretionary account or accounts, each of which is a QIB
acquiring beneficial interests in the Firm Placing Shares for its
own account; if acquiring the Firm Placing Shares for the account
of one or more other persons, it has sole investment discretion
with respect to each such account and full power and authority to
make the representations, warranties, agreements and
acknowledgements herein on behalf of each such account;
14. it and the person(s), if any, for whose account or benefit
it is subscribing for the Firm Placing Shares is not subscribing
for and/or purchasing Placing Shares as a result of any form of
general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D or "directed selling efforts" as
defined in Regulation S;
15. unless specifically agreed with the Firm Placing Agent, it
is not and was not acting on a non-discretionary basis for the
account or benefit of a person located within the United States at
the time the undertaking to subscribe for and/or purchase Placing
Shares was given and it is not acquiring Placing Shares with a view
to the offer, sale, resale, transfer, delivery or distribution,
directly or indirectly, of any Placing Shares into the United
States and it will not reoffer, resell, pledge or otherwise
transfer the Firm Placing Shares except pursuant to an exemption
from the registration requirements of the Securities Act and
otherwise in accordance with any applicable securities laws of any
state or jurisdiction of the United States;
16. the Firm Placing Shares are being subscribed for investment
purposes, and not with a view to offer, resell or distribute,
directly or indirectly, within the meaning of the U.S. federal
securities laws;
17. it is not an "affiliate" (as defined in Rule 501(b) under
the Securities Act) of the Company, and is not acting on behalf of
an affiliate of the Company;
18. it understands that no representation has been made as to
the availability of any exemption under the Securities Act for the
reoffer, resale, pledge or transfer of the Firm Placing Shares;
19. it understands that the Firm Placing Shares offered and sold
in the United States are "restricted securities" within the meaning
of Rule 144(a)(3) under the Securities Act and further agrees that
so long as the Firm Placing Shares are restricted securities, it
will segregate such Placing Shares from any other shares in the
Company that it holds that are not restricted securities, will not
deposit the Firm Placing Shares into any depositary receipt
facility maintained by any depositary bank in respect of the
Company's ordinary shares and will notify any subsequent transferee
of such Placing Shares of the applicable transfer restrictions;
20. that either: (a) it is not and for so long as it holds the
Firm Placing Shares (or any interests therein) will not be a
"benefit plan investor" as defined in Section 3(42) of the U.S.
Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or a governmental, church or non-U.S. plan which is
subject to any federal, state, local or non-U.S. law that is
substantially similar to Section 406 of ERISA or Section 4975 of
the U.S. Internal Revenue Code of 1986, as amended (the "Code") (a
"Similar Law"); or (b) its acquisition, holding and disposition of
the Firm Placing Shares will not result in a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code,
or, in the case of such a governmental, church or non-U.S. plan, a
violation of any Similar Law
21. it is not a national or resident of Australia, Canada,
Japan, New Zealand or the Republic of South Africa or any other
state or jurisdiction in which it is unlawful to make or accept an
offer to acquire the Firm Placing Shares (a "Restricted Territory")
or a corporation, partnership or other entity organised under the
laws of any Restricted Territory and that it will not offer, sell,
renounce, transfer or deliver, directly or indirectly, any of the
Firm Placing Shares in any Restricted Territory or to or for the
benefit of any person resident in any Restricted Territory and each
Placee acknowledges that the relevant exemptions are not being
obtained from the Securities Commission of any province of Canada,
that no document has been or will be lodged with, filed with or
registered by the Australian Securities and Investments Commission
or Japanese Ministry of Finance or any other regulatory or other
authority of a Restricted Territory and that the Firm Placing
Shares have not been and will not be registered under the
securities legislation of any Restricted Territory and are not
being offered for sale and may not be, directly or indirectly,
offered, sold, transferred or delivered in or into a Restricted
Territory;
22. if it is outside the United Kingdom, neither this document
nor any other offering, marketing or other material in connection
with the Firm Placing constitutes an invitation, offer or promotion
to, or arrangement with, it or any person whom it is procuring to
subscribe for Placing Shares pursuant to the Firm Placing unless,
in the relevant territory, such offer, invitation or other course
of conduct could lawfully be made to it or such person and such
documents or materials could lawfully be provided to it or such
person and Placing Shares could lawfully be distributed to and
subscribed and held by it or such person without compliance with
any unfulfilled approval, registration or other regulatory or legal
requirements;
23. it does not have a registered address in, and is not a
citizen, resident or national of, any jurisdiction in which it is
unlawful to make or accept an offer of the Firm Placing Shares and
it is not acting on a non-discretionary basis for any such
person;
24. it has not, directly or indirectly, distributed, forwarded,
transferred or otherwise transmitted, and will not, directly or
indirectly, distribute, forward, transfer or otherwise transmit,
any presentation or offering materials concerning the Firm Placing
or the Firm Placing Shares to any persons within the United
States;
25. it (and any person acting on its behalf) will make payment
for the Firm Placing Shares allocated to it in accordance with the
terms and conditions of this Announcement on the due time and date
set out in this Announcement, failing which the relevant Placing
Shares may be placed with other subscribers or sold as the Firm
Placing Agent may in its discretion determine and without liability
to such Placee;
26. that its allocation (if any) of Placing Shares will
represent a maximum number of Placing Shares which it will be
entitled, and required, to subscribe for, and that the Firm Placing
Agent or the Company may call upon it to subscribe for a lower
number of Placing Shares (if any);
27. that its commitment to subscribe for Placing Shares on the
terms set out in this Announcement and in the trade confirmation,
contract note or other confirmation (as the case may be) will
continue notwithstanding any amendment that may in future be made
to the terms of the Firm Placing and that Placees will have no
right to be consulted or require that their consent be obtained
with respect to the Firm Placing;
28. it is entitled to subscribe for and/or purchase Placing
Shares under the laws and regulations of all relevant jurisdictions
which apply to it and that it has fully observed such laws and
regulations and obtained all governmental and other consents which
may be required thereunder or otherwise and complied with all
necessary formalities and that it has not taken any action which
will or may result in the Company or the Firm Placing Agent or any
of their respective directors, partners, officers, employees or
agents acting in breach of any regulatory or legal requirements of
any territory in connection with the Firm Placing or its
acceptance;
29. it has obtained all necessary consents and authorities to
enable it to give its commitment to subscribe for and/or purchase
the Firm Placing Shares and to perform its subscription and/or
purchase obligations;
30. where it is acquiring Placing Shares for one or more managed
accounts, it is authorised in writing by each managed account: (a)
to acquire the Firm Placing Shares for each managed account; (b) to
make on its behalf the representations, warranties,
acknowledgements, undertakings and agreements in this Appendix and
this Announcement of which it forms part; and (c) to receive on its
behalf any investment letter relating to the Firm Placing in the
form provided to it by the Firm Placing Agent, provided that where
the Placee is acting in its capacity as a discretionary investment
manager on behalf of its underlying clients (who include
individuals and/or retail clients), then it is the discretionary
investment manager that is to be regarded as the Placee for the
purpose of this Announcement and not the underlying client and, for
the avoidance of doubt, the representations and warranties given
are to be taken as made on behalf of the Placee itself and not
their underlying client;
31. it is either: (a) a person of a kind described in paragraph
5 of Article 19 (persons having professional experience in matters
relating to investments and who are investment professionals) of
the Order; or (b) a person of a kind described in paragraph 2 (a)
to (d) of Article 49 (high net worth companies, unincorporated
associations, partnerships or trusts or their respective directors,
partners, officers or employees) of the Order; or (c) a person to
whom it is otherwise lawful for this Announcement to be
communicated and in the case of (a) and (b) undertakes that it will
acquire, hold, manage or dispose of any Placing Shares that are
allocated to it for the purposes of its business;
32. unless otherwise agreed by the Firm Placing Agent, it is a
"qualified investor" (as defined in section 86(7) of FSMA);
33. unless otherwise agreed by the Firm Placing Agent, it is a
"professional client" or an "eligible counterparty" within the
meaning of Chapter 3 of the FCA's Conduct of Business Sourcebook
and it is purchasing Placing Shares for investment only and not
with a view to resale or distribution;
34. 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 Firm Placing Shares in
circumstances in which section 21(1) of FSMA does not require
approval of the communication by an authorised person;
35. any money held in an account with the Firm Placing Agent (or
its nominees) on its behalf and/or any person acting on its behalf
will not be treated as client money within the meaning of the
relevant rules and regulations of the FCA. Each Placee further
acknowledges that the money will not be subject to the protections
conferred by the FCA's client money rules. As a consequence, this
money will not be segregated from the Firm Placing Agent's (or its
nominee's) money in accordance with such client money rules and
will be used by the Firm Placing Agent in the course of its own
business and each Placee will rank only as a general creditor of
the Firm Placing Agent;
36. it will (or will procure that its nominee will) if
applicable, make notification to the Company of the interest in its
Shares in accordance with the Disclosure Guidance and Transparency
Rules published by the FCA;
37. it is not, and it is not acting on behalf of, a person
falling within subsections (6), (7) or (8) of sections 67 or 70
respectively or subsections (2) and (3) of section 93 or subsection
(1) of section 96 of the Finance Act 1986;
38. it will not deal or cause or permit any other person to deal
in all or any of the Firm Placing Shares which it is subscribing
for and/or purchasing under the Firm Placing unless and until
Admission of the relevant Placing Shares becomes effective;
39. it appoints irrevocably any officer, employee or
representative of the Firm Placing Agent as its agent for the
purpose of executing and delivering to the Company and/or its
registrars any document on its behalf necessary to enable it to be
registered as the holder of any of the Firm Placing Shares agreed
to be taken up by it under the Firm Placing;
40. as far as it is aware it is not acting in concert (within
the meaning given in The City Code on Takeovers and Mergers) with
any other person in relation to the Company;
41. this Announcement does not constitute a securities
recommendation or financial product advice and that neither the
Firm Placing Agent nor the Company has considered its particular
objectives, financial situation and needs;
42. it has sufficient knowledge, sophistication and experience
in financial, business and investment matters as is required to
evaluate the merits and risks of subscribing for or purchasing the
Firm Placing Shares and is aware that it may be required to bear,
and is able to bear, the economic risk of, and is able to sustain,
a complete loss in connection with the Firm Placing;
43. it will indemnify and hold the Company, the Firm Placing
Agent and each of their and their respective affiliates' agents,
directors, officers and employees, 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 given by the Placee in this Announcement and further
agrees that the Company and the Firm Placing Agent will rely on the
truth and accuracy of the confirmations, warranties,
acknowledgements and undertakings in this Announcement and, if any
of the foregoing is or becomes no longer true or accurate, the
Placee shall promptly notify the Firm Placing Agent and the
Company. All confirmations, warranties, acknowledgements,
agreements and undertakings given by the Placee, pursuant to this
Announcement are given to the Firm Placing Agent for itself and on
behalf of the Company and will survive completion of the Firm
Placing and Admission;
44. time shall be of the essence as regards obligations pursuant
to this Announcement;
45. it is responsible for obtaining any legal, financial, tax
and other advice that it deems necessary for the execution,
delivery and performance of its obligations in accepting the terms
and conditions of the Firm Placing, and that it is not relying on
the Company or the Firm Placing Agent to provide any legal,
financial, tax or other advice to it;
46. all dates and times in this Announcement may be subject to
amendment and that the Firm Placing Agent shall notify it of any
such amendments;
47. (i) it has complied with its obligations under the Criminal
Justice Act 1993, Part VIII of FSMA and MAR; (ii) in connection
with money laundering and terrorist financing, it has complied with
its obligations under the Proceeds of Crime Act 2002 (as amended),
the Terrorism Act 2000 (as amended),the Terrorism Act 2006 and the
Money Laundering, Terrorist Financing and Transfer of Funds
(Information on the Payer) Regulations 2017; and (iii) it is not a
person: (a) with whom transactions are prohibited under the
applicable law or any economic sanction programmes administered by,
or regulations promulgated by, the Office of Foreign Assets Control
of the US Department of the Treasury; (b) named on the Consolidated
List of Financial Sanctions Targets maintained by HM Treasury of
the United Kingdom; or (c) subject to financial sanctions imposed
pursuant to a regulation of the European Union or a regulation
adopted by the United Nations (together, 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 and has
obtained all governmental and other consents (if any) which may be
required for the purpose of, or as a consequence of, such purchase,
and it will provide promptly to the Firm Placing Agent such
evidence, if any, as to the identity or location or legal status of
any person which the Firm Placing Agent may request from it in
connection with the Firm Placing (for the purpose of complying with
such Regulations or ascertaining the nationality of any person or
the jurisdiction(s) to which any person is subject or otherwise) in
the form and manner requested by the Firm Placing Agent on the
basis that any failure by it to do so may result in the number of
Placing Shares that are to be subscribed for and/or purchased by it
or at its direction pursuant to the Firm Placing being reduced to
such number, or to nil, as the Firm Placing Agent may decide in its
absolute discretion;
48. that it will not make any offer to the public of those
Placing Shares to be subscribed for and/or purchased by it for the
purposes of the Prospectus Regulation Rules made by the FCA
pursuant to Prospectus Regulation Rules Instrument 2019 (FCA
2019/80);
49. that it will not distribute any document relating to the
Firm Placing Shares and it will be acquiring the Firm Placing
Shares for its own account as principal or for a discretionary
account or accounts (with respect to which it has the authority to
make the statements set out in this Announcement) for investment
purposes only and it does not have any contract, understanding or
arrangement with any person to sell, pledge, transfer or grant a
participation therein to such person or any third person with
respect of any Placing Shares; save that if it is a private client
stockbroker or fund manager it confirms that in purchasing the Firm
Placing Shares it is acting under the terms of one or more
discretionary mandates granted to it by private clients and it is
not acting on an execution only basis or under specific
instructions to purchase the Firm Placing Shares for the account of
any third party;
50. that it acknowledges that these terms and conditions and any
agreements entered into by it pursuant to these terms and
conditions shall be governed by and construed in accordance with
the laws of England and Wales and it submits (on behalf of itself
and on behalf of any person on whose behalf it is acting) to the
exclusive jurisdiction of the English courts as regards any claim,
dispute or matter arising out of any such contract, except that
enforcement proceedings in respect of the obligation to make
payment for the Firm Placing Shares (together with any interest
chargeable thereon) may be taken by the Company or the Firm Placing
Agent in any jurisdiction in which the relevant Placee is
incorporated or in which its assets are located or any of its
securities have a quotation on a recognised stock exchange;
51. any documents sent to Placees will be sent at the Placee's
risk and may be sent by post to a Placee at any address notified by
it to the Firm Placing Agent;
52. the Firm Placing Agent owes no fiduciary or other duties to
any Placee in respect of any representations, warranties,
undertakings, acknowledgements, agreements or indemnities in the
Firm Placing and Open Offer Agreement;
53. the Firm Placing Agent and the Company are entitled to
exercise any of their rights under the Firm Placing and Open Offer
Agreement or any other right in their absolute discretion without
any liability whatsoever to the Placees;
54. any of the Placee's clients, whether or not identified to
the Firm Placing Agent, will remain its sole responsibility and
will not become clients of the Firm Placing Agent for the purposes
of the rules of the FCA or for the purposes of any other statutory
or regulatory provision;
55. the Firm Placing Agent or any of its affiliates may, at
their absolute discretion, agree to become a Placee in respect of
some or all of the Firm Placing Shares;
56. it acknowledges and agrees that its purchase of Placing
Shares does not trigger, in the jurisdiction in which it is
resident or located: (i) any obligation to prepare or file a
prospectus or similar document or any other report with respect to
such purchase; (ii) any disclosure or reporting obligation of the
Company; or (iii) any registration or other obligation on the part
of the Company.
57. no prospectus, admission document or other offering document
has been or will be prepared in connection with the Firm Placing
and it has not received and will not receive a prospectus,
admission document or other offering document in connection with
the Firm Placing or the Firm Placing Shares;
58. it understands that no action has been or will be taken by
any of the Company, the Firm Placing Agent or any person acting on
behalf of the Company or the Firm Placing Agent that would, or is
intended to, permit a public offer of the Firm Placing Shares in
any country or jurisdiction where any such action for the purpose;
and
59. if it has received any inside information (as defined in
MAR) about the Company in advance of the publication of this
Announcement, it has not: (i) dealt in the securities of the
Company; (ii) encouraged, required, recommended or induced another
person to deal in the securities of the Company; or (iii) disclosed
such information to any person, prior to such information being
made publicly available.
The Company, the Firm Placing Agent and their respective
affiliates will rely upon the truth and accuracy of each of the
foregoing representations, warranties, acknowledgements and
undertakings which are given to the Firm Placing Agent for itself
and on behalf of the Company and are irrevocable.
The rights and remedies of the Firm Placing Agent and the
Company under the terms and conditions in this Announcement 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 will not prevent the exercise of others.
The provisions of this Announcement may be waived, varied or
modified as regards specific Placees or on a general basis by the
Firm Placing Agent.
The agreement to settle a Placee's subscription and/or purchase
(and/or the subscription of a person for whom such Placee is
contracting as agent) free of stamp duty and stamp duty reserve tax
depends on the settlement relating only to a subscription by it
and/or such person direct from the Company for the Firm Placing
Shares in question. Such agreement assumes that the Firm Placing
Shares are not being subscribed for in connection with arrangements
to issue depositary receipts or to transfer the Firm Placing Shares
into a clearance service. If there are any such arrangements, or
the settlement relates to any other subsequent dealing in the Firm
Placing Shares, stamp duty or stamp duty reserve tax may be
payable, for which neither the Company nor the Firm Placing Agent
will be responsible, and the Placee to whom (or on behalf of whom,
or in respect of the person for whom it is participating in the
Firm Placing as an agent or nominee) the allocation, allotment,
issue or delivery of Placing Shares has given rise to such UK stamp
duty or stamp duty reserve tax undertakes to pay such UK stamp duty
or stamp duty reserve tax forthwith and to indemnify on an
after-tax basis and to hold harmless the Company and the Firm
Placing Agent in the event that any of the Company and/or the Firm
Placing Agent have incurred any such liability to UK stamp duty or
stamp duty reserve tax. If this is the case, each Placee should
seek its own advice and notify the Firm Placing Agent
accordingly.
In addition, Placees should note that they will be liable for
any stamp duty and all other stamp, issue, securities, transfer,
registration, documentary or other duties or taxes (including any
interest, fines or penalties relating thereto) payable outside the
UK by them or any other person on the subscription or purchase by
them of any Placing Shares or the agreement by them to subscribe
for or purchase any Placing Shares.
Each Placee not acquiring the Firm Placing Shares in an
"offshore transaction" pursuant to Regulation S (each a "U.S.
Placee") shall make specific representations, warranties,
agreements and acknowledgements in the Investor Letter. Each U.S.
Placee acknowledges that it will not be permitted to purchase,
subscribe for or otherwise take up Placing Shares unless it has
signed and returned such representation letter in accordance with
the terms thereof.
This Announcement has been issued by, and is the sole
responsibility, of the Company. No representation or warranty,
expressed or implied, is or will be made as to, or in relation to,
and no responsibility or liability is or will be accepted by the
Firm Placing Agent or by any of its affiliates or agents 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.
-ends-
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END
MSCQLLFLBBLXFBD
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