TIDMMYX TIDMTTM
RNS Number : 3537R
MyCelx Technologies Corporation
28 February 2019
THE INFORMATION CONTAINED WITHIN THIS ANNOUNCEMENT IS DEEMED BY
THE COMPANY TO CONSTITUTE INSIDE INFORMATION AS STIPULATED UNDER
THE MARKET ABUSE REGULATIONS (EU) NO. 596/2014. UPON THE
PUBLICATION OF THIS ANNOUNCEMENT (THE "ANNOUNCEMENT") VIA A
REGULATORY INFORMATION SERVICE ("RIS"), THIS INSIDE INFORMATION IS
NOW CONSIDERED TO BE IN THE PUBLIC DOMAIN.
THIS ANNOUNCEMENT IS NOT FOR DISTRIBUTION, DIRECTLY OR
INDIRECTLY, TO ANY US PERSONS OR IN OR INTO THE UNITED STATES,
CANADA, AUSTRALIA, JAPAN OR THE REPUBLIC OF SOUTH AFRICA.
MYCELX Technologies Corporation
("MYCELX" or the "Company")
Proposed $1.8 million Placing of up to 577,246 New Common Shares
and
Subscription of 26,387 New Common Shares
Highlights
-- Up to $1.8 million to be raised to support continued growth in the Company's core markets
-- Funding to enable the expansion of equipment in Saudi Arabia
MYCELX Technologies Corporation (AIM: MYX), the clean water
technology company providing patented solutions for the Oil and Gas
market and commercial industrial markets worldwide traded on London
Stock Exchange's AIM market, is pleased to announce a proposed
placing and subscription of up to $1.8 million (GBP1.4 million*)
(before expenses) through the issue of an aggregate of up to
603,633 new common shares of $0.025 each ("New Common Shares") to
new and existing investors at a price of 230 pence per New Common
Share (the "Issue Price"). The New Common Shares will rank pari
passu in all respects with the existing common shares of $0.025 in
issue ("Common Shares").
The Company expects to issue up to 577,246 New Common Shares
pursuant to a placing agreement entered into by the Company with
Cantor Fitzgerald Europe (the "Placing Agreement"), such shares to
be issued to investors in the United Kingdom at the Issue Price
(the "Placing"). Subscribers also intend to enter into conditional
subscription agreements (the "Subscription Agreements") with the
Company to subscribe for an aggregate of 26,387 New Common Shares
at the Issue Price (the "Subscription" and, together with the
Placing, the "Fundraising").
The Placing is being conducted in accordance with Regulation S
of the US Securities Act of 1933, as amended, for offerings outside
the United States by both U.S. and foreign issuers. As such, the
New Common Shares issued in the Placing will be subject to the
conditions listed under section 903(b)(3), or Category 3, of
Regulation S.
Pursuant to the Company's bylaws, the Fundraising does not
require shareholder approval and is therefore not subject to the
approval of shareholders at a general meeting of the Company.
The Fundraising is being undertaken in order to sustain the
recent momentum delivered by the Company and to remove the key
hurdles to faster growth in the Company's core markets. The net
proceeds of the Fundraising will be used to fund additional
equipment inventory in Saudi Arabia to meet the demand for rental
fleet solutions.
The Placing is not being underwritten. The Issue Price
represents a discount of approximately 6.1 per cent. to the
mid-market closing price of 245 pence on 27 February 2019.
The New Common Shares will represent approximately 3.1 per cent.
of the issued share capital of the Company as enlarged by the
Fundraising (the "Enlarged Share Capital").
Directors' intended participation
Tim Eggar, Connie Mixon and Andre Schnabl, each being directors
of the Company intend to enter into conditional Subscription
Agreements to subscribe for an aggregate of 26,387 New Common
Shares.
Application will be made to the London Stock Exchange for the
New Common Shares to be admitted to trading on AIM ("Admission").
The New Common Shares will rank pari passu in all respects with the
Common Shares, including the right to receive all dividends and
other distributions declared, made or paid in respect of the Common
Shares following Admission. It is expected that such Admission will
become effective, and that dealings on AIM will commence, at 7.00
a.m. on 13 March 2019.
Expected timetable
Announcement of the Fundraising 28 February 2019
Admission and commencement of 13 March 2019
dealings in the Enlarged Share
Capital expected to commence
on AIM
Each of the times and dates above is subject to change. Any such
change will be notified by an announcement on a Regulatory
Information Service.
Current Trading and Outlook
The Company made the following announcement on 13 February 2018
by way of a trading update in respect of the 2018 financial
year:
"MYCELX Technologies Corporation (AIM: MYX), the clean water
technology company providing patented solutions for the Oil and Gas
market and commercial industrial markets worldwide, is pleased to
announce record revenue, EBITDA and net profit in 2018, according
to its preliminary unaudited results.
The Company exceeded previous guidance by achieving $26.95m in
revenue, EBITDA of $5.59m and $3.07m in net profit thanks to an
increase in activity in the final month of the year. The financial
information presented has been extracted from the unaudited results
and could be subject to possible change following the completion of
the Company's year-end audit process. MYCELX's final fully audited
results are expected to be released in May 2019. These results
confirm 2018 as the most successful in the Company's history and
are significantly ahead of MYCELX's original revenue guidance of
$21.5 million to $22.5 million for 2018. Subject to current market
conditions continuing, the Company expects its ongoing momentum
will raise 2019 revenue higher than the record levels achieved in
2018".
Commenting on the market update, Connie Mixon, CEO said:
"I am very pleased with the considerable commercial progress
MYCELX made during 2018, resulting in almost doubling the Company's
revenues over 2017. Underpinning these results is the strong
performance of the Company in Saudi Arabia where the team have
generated momentum from repeated successful deployments of our
rental fleet to meet customers' urgent requirements. We are looking
forward to our focussed business development efforts continuing to
convert a pipeline of opportunities into further purchase orders in
2019."
The Company remains encouraged by the interaction it continues
to have with potential new and existing customers.
Background to and reasons for the Fundraising and intended Use
of Proceeds
As indicated in the trading update announcements in October
2018, November 2018 and February 2019, the Company has experienced
stronger than expected demand for its short-term water treatment
services and Rapid Response system in Saudi Arabia. As a
consequence of the increased demand, utilisation rates of the
rental fleet in Saudi Arabia have breached 75 per cent during the
last four months. The Saudi market presents significant
opportunities for growth in rental revenues, not least in the
relationship with SABIC, which consists of 19 affiliates and 22
associate companies, five of which represent repeat customers for
MYCELX. To capitalise on the increased demand and to enable future
expansion, MYCELX aims to use the proceeds of the Fundraising to
expand equipment inventory.
The Placing will be conducted by way of an accelerated
bookbuilding process (the "Bookbuild") which will be launched
immediately following this announcement in accordance with the
terms and conditions set out in Appendix II. The New Common Shares
are not being made available to the public. Details of the number
of New Common Shares and the approximate gross proceeds of the
Placing will be announced as soon as practicable after the closing
of the Bookbuild. The Placing will not be underwritten.
The Placing is conditional upon the Placing Agreement becoming
unconditional and not having been terminated in accordance with its
terms and on Admission of the New Common Shares occurring at or
before 8:00 a.m. (London time) on 13 March 2019 (or such later time
and/or date, not being later than 8:00 a.m. (London time) on 27
March 2019, as the Company and Cantor Fitzgerald Europe may
otherwise agree.
It is intended that Admission of the New Common Shares to
trading on AIM will occur on 13 March 2019.
Upon Admission, the New Common Shares issued in the Placing will
trade in the Company's new restricted line of Common Stock under
the symbol MYXR, and the New Common Shares, as represented by
depositary interests ("Depository Interests"), will be held in the
CREST system and will be segregated into a separate trading system
within CREST identified with the marker "REG S" and ISIN
USU624551151. The Company also maintains an unrestricted line of
Common Shares trading under the existing symbol MYX with ISIN
US62847T2024.
*Exchange rate of GBP:USD 1.3181
For further information, please contact:
MYCELX Technologies Corporation
Connie Mixon, Chief Executive Officer +1 770 534 3118
Kim Slayton, Chief Financial Officer
Cantor Fitzgerald Europe (NOMAD,
Broker and Bookrunner)
David Porter
Richard Salmond +44 207 894 7000
Celicourt Communications
Mark Antelme +44 20 7520 9266
Jimmy Lea
About MYCELX
MYCELX is a revolutionary oil-free water technology company
solving the world's toughest oil removal problems in the oil and
gas industry. The systems are based upon scientific breakthrough
for a completely different approach to permanent oil removal. The
Company created the patented MYCELX polymer using innovative
molecular cohesion for removing oil from water far beyond what
conventional systems have ever achieved. MYCELX systems remove oil
to critically low levels in a much smaller physical footprint than
conventional systems. Learn more about the Company by visiting
https://www.MYCELX.com/.
IMPORTANT NOTICES
THIS ANNOUNCEMENT (INCLUDING ITS APPICES) (TOGETHER, THIS
"ANNOUNCEMENT") AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED
AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY, TO US PERSONS (AS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) ("US PERSONS") OR IN, INTO
OR FROM THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, THE REPUBLIC
OF SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH SUCH RELEASE,
PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING AND/OR THE SUBSCRIPTION.
THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND IS
DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN
ECONOMIC AREA WHO ARE QUALIFIED INVESTORS WITHIN THE MEANING OF
ARTICLE 2(1)(E) OF THE PROSPECTUS DIRECTIVE ("QUALIFIED
INVESTORS"); AND (B) IN THE UNITED KINGDOM, PERSONS WHO (I) HAVE
PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS AND FALL
WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000
(FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER"); OR (II) ARE PERSONS
FALLING WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES,
UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER; OR (III) ARE
PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH
PERSONS REFERRED TO IN (A) AND (B), TOGETHER BEING REFERRED TO AS
"RELEVANT PERSONS"). THIS ANNOUNCEMENT MUST NOT BE ACTED ON OR
RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS
DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS
LAWFUL TO DO SO. 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. THIS ANNOUNCEMENT DOES NOT ITSELF CONSTITUTE AN
OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE
COMPANY.
THE NEW COMMON SHARES HAVE NOT BEEN, AND ARE NOT EXPECTED TO BE,
REGISTERED UNDER THE APPLICABLE SECURITIES LAWS OF JAPAN, ANY
PROVINCE OF CANADA, AUSTRALIA, THE REPUBLIC OF SOUTH AFRICA OR IN
ANY OTHER JURISDICTION WHERE THIS WOULD CONSTITUTE A BREACH OF
APPLICABLE SECURITIES LEGISLATION. ACCORDINGLY, SUBJECT TO CERTAIN
EXCEPTIONS, THE NEW COMMON SHARES MAY NOT, DIRECTLY OR INDIRECTLY,
BE OFFERED OR SOLD WITHIN JAPAN, ANY PROVINCE OF CANADA, AUSTRALIA,
THE REPUBLIC OF SOUTH AFRICA OR A NATIONAL, CITIZEN OR RESIDENT OF
JAPAN, ANY PROVINCE OF CANADA, AUSTRALIA OR REPUBLIC OF SOUTH
AFRICA.
FURTHERMORE, THE NEW COMMON SHARES MAY NOT BE OFFERED OR SOLD IN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF US
PERSONS 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. THE NEW COMMON
SHARES ARE BEING OFFERED AND SOLD ONLY OUTSIDE THE UNITED STATES TO
NON-US PERSONS IN "OFFSHORE TRANSACTIONS" (AS DEFINED IN REGULATION
S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH AND IN RELIANCE ON
THE SAFE HARBOUR FROM REGISTRATION PROVIDED BY SECTION 903(B)(3),
OR CATEGORY 3, OF REGULATION S UNDER THE SECURITIES ACT.
This Announcement does not constitute a prospectus or offering
memorandum or an offer in respect of any securities and is not
intended to provide the basis for any decision in respect of the
Company or other evaluation of any securities of the Company or any
other entity and should not be considered as a recommendation that
any investor should subscribe for or purchase any such
securities.
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, Japan, any province of Canada, Australia, the Republic of
South Africa or any other jurisdiction in which the same would be
unlawful. No public offering of the New Common Shares is being made
in any such jurisdiction.
The distribution of this Announcement and/or the Placing and/or
offer of the Placing Common Shares in certain jurisdictions may be
restricted by law. No action has been taken by the Company, Cantor
Fitzgerald Europe or any of their respective affiliates, agents,
directors, officers or employees that would permit an offer of the
New Common Shares or possession or distribution of this
Announcement or any other offering or publicity material relating
to such New Common Shares in any jurisdiction where action for that
purpose is required. Persons into whose possession this
Announcement comes are required by the Company and Cantor
Fitzgerald Europe to inform themselves about and to observe any
such restrictions.
The New Common Shares have not been approved or disapproved by
the US Securities and Exchange Commission, any State securities
commission or other regulatory authority in the United States, nor
have any of the foregoing authorities passed upon or endorsed the
merits of the Placing or the accuracy or adequacy of this
Announcement. Any representation to the contrary is unlawful.
Cantor Fitzgerald Europe ("Cantor") is authorised and regulated
by the Financial Conduct Authority (the "FCA") in the United
Kingdom and is acting exclusively for MYCELX Technologies
Corporation (the "Company") and no one else in connection with the
proposed Placing. Cantor will not be responsible to anyone
(including any subscribers for such Common Shares) (the "Placees"
and each, a "Placee") other than the Company for providing the
protections afforded to its clients or for providing advice in
relation to the Placing or any other matters referred to herein
(together, these "Terms and Conditions").
Information for distributors
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 New Common Shares the subject of the Placing have been subject
to a product approval process, which has determined that the New
Common 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 New Common Shares may decline
and investors could lose all or part of their investment; the New
Common Shares offer no guaranteed income and no capital protection;
and an investment in New Common 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 Placing. Furthermore, it is noted that, notwithstanding the
Target Market Assessment, Cantor 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 New Common Shares.
Each distributor is responsible for undertaking its own target
market assessment in respect of the New Common Shares and
determining appropriate distribution channels.
Forward-looking statements
This announcement contains statements about MYCELX Technologies
Corporation that are or may be deemed to be "forward-looking
statements".
All statements, other than statements of historical facts,
included in this announcement may be forward-looking statements.
Without limitation, any statements preceded or followed by, or that
include, the words "targets", "plans", "believes", "expects",
"aims", "intends", "will", "may", "should", "anticipates",
"estimates", "projects", "would", "could", "continue" or words or
terms of similar substance or the negative thereof, are
forward-looking statements. Forward-looking statements include,
without limitation, statements relating to the following: (i)
future capital expenditures, expenses, revenues, earnings,
synergies, economic performance, indebtedness, financial condition,
dividend policy, losses and future prospects and (ii) business and
management strategies and the expansion and growth of the
operations of MYCELX Technologies Corporation.
These forward-looking statements are not guarantees of future
performance. These forward-looking statements involve known and
unknown risks, uncertainties and other factors which may cause the
actual results, performance or achievements of any such person, or
industry results, to be materially different from any results,
performance or achievements expressed or implied by such
forward-looking statements. These forward-looking statements are
based on numerous assumptions regarding the present and future
business strategies of such persons and the environment in which
each will operate in the future. Investors should not place undue
reliance on such forward-looking statements and, save as is
required by law or regulation (including to meet the requirements
of the AIM Rules, the Prospectus Rules and/or the FSMA), MYCELX
Technologies Corporation does not undertake any obligation to
update publicly or revise any forward-looking statements (including
to reflect any change in expectations with regard thereto or any
change in events, conditions or circumstances on which any such
statement is based). All subsequent oral or written forward-looking
statements attributed to MYCELX Technologies Corporation or any
persons acting on their behalf are expressly qualified in their
entirety by the cautionary statement above. All forward-looking
statements contained in this announcement are based on information
available to the Directors of MYCELX Technologies Corporation at
the date of this announcement, unless some other time is specified
in relation to them, and the posting or receipt of this
announcement shall not give rise to any implication that there has
been no change in the facts set forth herein since such date.
APPIX I
FURTHER DETAILS OF THE FUNDRAISING
Details of the Placing and Subscription
The Company has today announced that it is conditionally
raising, in aggregate, up to $1.8 million (before expenses) by way
of a Placing of up to 577,246 New Common Shares and a Subscription
for 26,387 New Common Shares with certain new and existing
investors representing 3.1 per cent. of the Company's issued share
capital as enlarged by the New Common Shares ("Enlarged Share
Capital"), at an Issue Price of 230 pence per New Common Share.
The Issue Price represents a discount of approximately 6.1 per
cent. to the closing price of 245 pence on 27 February 2019, being
the last business day prior to the publication of the announcement
of the Fundraising. The Board unanimously agrees that the level of
discount and method of issue are appropriate to secure the
investment necessary in order to provide funds for the growth and
development of the Company.
The Placing is being conducted in accordance with Regulation S
of the US Securities Act of 1933, as amended, for offerings outside
the United States by both U.S. and foreign issuers. As such, the
New Common Shares issued in the Placing will be subject to the
conditions listed under section 903(b)(3), or Category 3, of
Regulation S.
The Placing and Subscription are conditional on, inter alia:
-- the conditions in the Placing Agreement being satisfied or
(if applicable) waived and the Placing Agreement not having been
terminated in accordance with its terms prior to Admission; and
-- Admission becoming effective by no later than 08.00 a.m. on
13 March 2019 (or such time and / or date, being no later than 27
March 2019, as the Company and Cantor Fitzgerald Europe may
agree).
Accordingly, if any of these conditions are not satisfied or, if
applicable, waived, the Placing and Subscription will not
proceed.
In connection with the Subscription, the subscribers intend to
enter into subscription agreements (the "Subscription Agreements")
with the Company, which will be conditional, inter alia, on
Admission, to subscribe for an aggregate of 26,387 New Common
Shares at the Issue Price.
The Placing Agreement
On 27 February 2019, the Company and Cantor Fitzgerald Europe
entered into the Placing Agreement, pursuant to which the Company
has appointed Cantor Fitzgerald Europe as the Company's agent to
use its reasonable endeavours to procure placees. The Placing is
not being underwritten by Cantor Fitzgerald Europe or by anyone
else. The Company has agreed to pay Cantor Fitzgerald Europe
certain commissions and fees together with reimbursement of certain
costs and expenses in connection with its appointment.
The Placing is conditional upon the Placing Agreement becoming
unconditional and not having been terminated in accordance with its
terms. Cantor's obligations under the Placing Agreement in relation
to Admission are conditional on certain conditions, including inter
alia:
a) the Company having complied with certain specified
obligations under the Placing Agreement (to the extent such
obligations fall to be performed prior to Admission) including the
Company allotting, conditional on Admission, the New Common Shares
subject to the by-laws of the Company;
b) the delivery to Cantor of certain documentary conditions precedent; and
c) Admission of the New Common Shares occurring at or before
8:00 a.m. (London time) on 13 March 2019 (or such later time and/or
date, not being later than 8:00 a.m. (London time) on 27 March
2019, as the Company and Cantor may otherwise agree);
The Placing Agreement contains customary warranties given by the
Company concerning the accuracy of information given in this
announcement and any presentation to participants in the Placing in
respect of the Fundraising as well as other matters relating to the
Company and its business. The Placing Agreement is terminable by
Cantor Fitzgerald Europe in certain circumstances, including force
majeure or in the event of a material adverse change to the
business of the Company. If this right is exercised or if the
conditionality in the Placing Agreement is not satisfied, the
Placing will not proceed.
The New Common Shares will be allotted and credited as fully
paid and will be identical in all respects with the Common Shares
although the New Common Shares issued in the Placing will be
subject to the conditions listed under section 903(b)(3), or
Category 3, of Regulation S.
Bookbuild
The Placing will be conducted by way of the Bookbuild which will
be launched immediately following this Announcement in accordance
with the terms and conditions set out in Appendix II. The New
Common Shares are not being made available to the public. Details
of the number of New Common Shares and approximate gross proceeds
of the Placing will be announced as soon as practicable after the
closing of the Bookbuild. The Placing is not being underwritten by
Cantor Fitzgerald Europe.
Admission
Application will be made to the London Stock Exchange for the
New Common Shares to be admitted to trading on AIM. It is expected
that Admission in respect of the New Common Shares will occur and
dealings will commence in such shares of New Common Shares on 13
March 2019 at 8.00 a.m. (or such later date as Cantor Fitzgerald
Europe and the Company may agree, being not later than 8.00 a.m. on
27 March 2019).
As noted below in "Dealing and Settlement", upon Admission, the
New Common Shares issued in the Placing will trade in the Company's
new restricted line of Common Shares under the symbol MYXR, and the
New Common Shares (as represented by Depository Interests) will be
held in the CREST system and will be segregated into a separate
trading system within CREST identified with the marker "REG S" and
ISIN USU624551151.
US Securities Law Restrictions
The New Common Shares have not been, and will not be, registered
under the Securities Act or under any securities laws of any state
or other jurisdiction of the United States. The New Common Shares
issued in the Placing will be offered or sold only to non-US
Persons in "offshore transactions" as defined in and pursuant to
Regulation S or otherwise in transactions that are exempt from, or
not subject to, the registration requirements of the Securities
Act.
The New Common Shares offered to non-US Persons in the Placing
will be subject to the conditions listed under Section 903(b)(3),
or Category 3, of Regulation S. Under Category 3, Offering
Restrictions (as defined under Regulation S) must be in place in
connection with the Placing and additional restrictions are imposed
on resales of the New Common Shares. The New Common Shares will be
"restricted securities" as defined in Rule 144. Purchasers of the
New Common Shares may not offer, sell, pledge or otherwise transfer
New Common Shares, directly or indirectly, in or into the United
States or to, or for the account or benefit of, any US Person,
except pursuant to a transaction meeting the requirements of Rules
901 to 905 (including the Preliminary Notes) of Regulation S,
pursuant to an effective registration statement under the
Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act. All New Common Shares sold to
non-US persons in "offshore transactions" will be subject to these
restrictions until the expiration of the Distribution Compliance
Period. Hedging transactions in the New Common Shares may not be
conducted, directly or indirectly, unless in compliance with the
Securities Act.
Dealing and Settlement
The New Common Shares will be allotted and issued fully paid and
will, on issue, be identical in all respects to the Company's
existing Common Shares, free from all liens, charges and
encumbrances of any kind. Application will be made to the London
Stock Exchange for the New Common Shares to be admitted to trading
on AIM, which is expected to occur on or around 13 March 2019.
Upon Admission, the New Common Shares issued in the Placing will
trade in the Company's new restricted line of Common Shares under
the symbol MYXR, and the New Common Shares, as represented by
Depository Interests, will be held in the CREST system and will be
segregated into a separate trading system within CREST identified
with the marker "REG S" and ISIN USU624551151. The Company also
maintains an unrestricted line of Common Shares trading under the
existing symbol MYX with ISIN US62847T2024.
The New Common Shares held in CREST and the Common Shares of any
affiliates held in certificated form will bear a legend
(electronically in the case of the former) stating, inter alia,
that the New Common Shares may not be offered or sold or otherwise
transferred in the absence of registration under the Securities
Act, unless the transaction is exempt from, or not subject, to the
registration requirements of the Securities Act and that resales or
reoffers of the New Common Shares made offshore in reliance on
Regulation S may not be offered or sold to, or for the account or
benefit of, US Persons during the Distribution Compliance
Period.
Upon expiration of the Distribution Compliance Period, the
Company intends to transfer the New Common Shares held by
non-affiliates (including those holders who are affiliates only by
virtue of their position as an officer or director of the Company)
to the unrestricted line of Common Stock (MYX).
APPIX II
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES
ONLY.
THIS ANNOUNCEMENT, INCLUDING THIS APPIX AND THE INFORMATION
CONTAINED HEREIN (TOGETHER THE "ANNOUNCEMENT") IS RESTRICTED AND IS
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART,
DIRECTLY OR INDIRECTLY, IN OR INTO OR FROM THE UNITED STATES,
AUSTRALIA, CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA OR ANY OTHER
JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION
WOULD BE UNLAWFUL. THIS ANNOUNCEMENT HAS NOT BEEN APPROVED BY THE
LONDON STOCK EXCHANGE, NOR IS IT INTED THAT IT WILL BE SO
APPROVED.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT IN
THIS APPIX ARE DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF
THE EUROPEAN ECONOMIC AREA ("EEA") WHO ARE QUALIFIED INVESTORS
WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE EU PROSPECTUS
DIRECTIVE (WHICH MEANS DIRECTIVE 2003/71/EC, AS AMED FROM TIME TO
TIME, AND INCLUDES ANY RELEVANT IMPLEMENTING DIRECTIVE MEASURE IN
ANY MEMBER STATE) (THE "PROSPECTUS DIRECTIVE") ("QUALIFIED
INVESTORS"); AND (B) IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO
ARE PERSONS WHO (I) HAVE PROFESSIONAL EXPERIENCE IN MATTERS
RELATING TO INVESTMENTS FALLING WITHIN ARTICLE 19(1) OF THE
FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER
2005 (THE "ORDER"); (II) ARE PERSONS FALLING WITHIN ARTICLE
49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED
ASSOCIATIONS, ETC") OF THE ORDER; OR (III) ARE PERSONS TO WHOM IT
MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER
BEING REFERRED TO AS "RELEVANT PERSONS"). THIS ANNOUNCEMENT AND THE
TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED
ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING
THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO
SO. 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.
THIS APPIX DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR
SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
THIS ANNOUNCEMENT IS NOT AN OFFER OF SECURITIES FOR SALE INTO
THE UNITED STATES. THE NEW COMMON SHARES (OR DEPOSITARY INTERESTS
REPRESENTING THEM) HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE UNITED STATES SECURITIES ACT 1933, AS AMED (THE "SECURITIES
ACT") OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR
JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD OR
TRANSFERRED, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES ABSENT
REGISTRATION UNDER THE SECURITIES ACT OR AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN COMPLIANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES.
SUBJECT TO CERTAIN EXCEPTIONS AND AT THE SOLE DISCRETION OF THE
COMPANY, THE NEW COMMON SHARES ARE BEING OFFERED AND SOLD ONLY
OUTSIDE THE UNITED STATES IN "OFFSHORE TRANSACTIONS" WITHIN THE
MEANING OF, AND IN ACCORDANCE WITH, REGULATION S UNDER THE
SECURITIES ACT AND OTHERWISE IN ACCORDANCE WITH APPLICABLE LAWS. NO
PUBLIC OFFERING OF THE NEW COMMON SHARES IS BEING MADE IN THE
UNITED STATES, THE UNITED KINGDOM OR ELSEWHERE.
EACH PLACEE SHOULD CONSULT WITH ITS ADVISERS AS TO LEGAL, TAX,
BUSINESS AND RELATED ASPECTS OF AN INVESTMENT IN NEW COMMON SHARES.
THE DISTRIBUTION OF THIS ANNOUNCEMENT, ANY PART OF IT OR ANY
INFORMATION CONTAINED IN IT MAY BE RESTRICTED BY LAW IN CERTAIN
JURISDICTIONS, AND ANY PERSON INTO WHOSE POSSESSION THIS
ANNOUNCEMENT, ANY PART OF IT OR ANY INFORMATION CONTAINED IN IT
COMES SHOULD INFORM THEMSELVES ABOUT, AND OBSERVE, SUCH
RESTRICTIONS.
Persons who are invited to and who choose to participate in the
Placing by making an oral or written offer to acquire New Common
Shares, including any individuals, funds or others on whose behalf
a commitment to acquire New Common Shares is given (the "Placees"),
will be deemed: (i) to have read and understood this Announcement,
including this Appendix, in its entirety; and (ii) to be
participating and making an offer for New Common Shares on the
terms and conditions and to be providing the representations,
warranties, acknowledgements and undertakings, contained in this
Appendix.
In particular each such Placee represents, warrants and
acknowledges that:
a) it is a Relevant Person and undertakes that it will acquire,
hold, manage or dispose of any New Common Shares that are allocated
to it for the purposes of its business; and
b) if it is a financial intermediary, as that term is used in
Article 3(2) of the Prospectus Directive, any New Common Shares
acquired by it in the Placing will not be acquired on a
non-discretionary basis on behalf of, nor will they be acquired
with a view to their offer or resale to, persons in circumstances
which may give rise to an offer of securities to the public other
than an offer or resale to Qualified Investors in a member state of
the EEA which has implemented the Prospectus Directive, or in
circumstances in which the prior consent of Cantor has been given
to each such proposed offer or resale.
Details of the Placing Agreement, the New Common Shares and the
Bookbuild
Cantor Fitzgerald Europe ("Cantor)" is acting as broker in
connection with the Placing and has entered into the Placing
Agreement with the Company under which it has agreed to use its
reasonable endeavours to procure Placees to take up the New Common
Shares, on the terms and subject to the conditions set out
therein.
Cantor will today commence the bookbuilding process to determine
demand for participation in the Placing by Placees. This Appendix
gives details of the terms and conditions of, and the mechanics of
participation in, the Placing. No commissions will be paid to
Placees or by Placees in respect of any New Common Shares.
Cantor shall be entitled to effect the Placing by such
alternative method to the Bookbuild as it may, in its absolute
discretion following consultation with the Company, determine.
The New Common Shares will, as from the date when they are
issued, be fully paid up, rank in full for all dividends and other
distributions declared, made or paid on the Common Shares after
Admission respectively and otherwise rank pari passu in all
respects with, and be identical to, the existing Common Shares then
in issue.
Application for listing and admission to trading
Application will be made to the London Stock Exchange for the
New Common Shares to be admitted to trading on AIM ("Admission").
It is expected that Admission will become effective and that
dealings in the New Common Shares, will commence at 8.00 a.m. on 13
March 2019.
Participation in, and principal terms of, the Placing
1. Cantor is arranging the Placing as agent of the Company.
2. Participation will only be available to persons who may
lawfully be, and are, invited to participate by Cantor. Cantor is
entitled to enter bids as principal in the Bookbuild.
3. The Issue Price and the final number of New Common Shares
will be agreed between Cantor and the Company following completion
of the Bookbuild. The Issue Price and the final number of New
Common Shares will be announced on a Regulatory Information Service
following the completion of the Bookbuild.
4. To bid in the Bookbuild, prospective Placees should
communicate their bid by telephone or in writing to their usual
sales contact at Cantor. Each bid should state the number of New
Common Shares which the prospective Placee wishes to acquire at the
Issue Price ultimately established by the Company and Cantor or at
prices up to a price limit specified in its bid. Bids may be scaled
down on the basis referred to in paragraph 7 below.
5. The Bookbuild is expected to close no later than 4.30 p.m.
(London time) on 28 February 2019, but may be closed earlier or
later, at the discretion of Cantor. Cantor may, in agreement with
the Company, accept bids that are received after the Bookbuild has
closed.
6. Each Placee's allocation will be confirmed to Placees orally
by Cantor following the close of the Bookbuild, and a trade
confirmation or contract note will be dispatched as soon as
possible thereafter. Cantor's oral confirmation to such Placee will
constitute an irrevocable legally binding commitment upon such
person (who will at that point become a Placee) in favour of Cantor
and the Company, pursuant to which such Placee agrees to acquire
the number of New Common Shares allocated to it and to pay or
procure payment of the relevant Issue Price on the terms and
conditions set out in this Appendix and in accordance with the
Company's corporate documents.
7. Subject to paragraphs 3 and 4 above, Cantor will, in
effecting the Placing, agree with the Company the identity of the
Placees and the basis of allocation of the New Common Shares.
8. A bid in the Bookbuild will be made on the terms and subject
to the conditions in this Appendix and will be legally binding on
the Placee on behalf of which it is made and except with Cantor's
consent will not be capable of variation or revocation after the
time at which it is submitted. Each Placee will also have an
immediate, separate, irrevocable and binding obligation, owed to
Cantor, to pay or procure to it (or as it may direct) in cleared
funds an amount equal to the product of the Issue Price and the
number of New Common Shares that such Placee has agreed to acquire.
Each Placee's obligations will be owed to Cantor and the
Company.
9. Except as required by law or regulation, no press release or
other announcement will be made by Cantor 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.
10. Irrespective of the time at which a Placee's allocation
pursuant to the Placing is confirmed, settlement for all New Common
Shares to be acquired pursuant to the Placing will be required to
be made at the same time, on the basis explained below under
"Registration and Settlement".
11. All obligations under the Bookbuild and Placing will be
subject to fulfilment or (where applicable) waiver of the
conditions referred to below under "Conditions of the Placing" and
to the Placing not being terminated on the basis referred to below
under "Right to terminate under the Placing Agreement".
12. By participating in the Bookbuild, each Placee agrees that
its rights and obligations in respect of the Placing will terminate
only in the circumstances described below and will not be capable
of rescission or termination by the Placee after confirmation (oral
or otherwise) by Cantor.
13. To the fullest extent permissible by law, neither Cantor,
the Company nor any of their respective affiliates or persons
acting on behalf of any of them shall have any responsibility or
liability to Placees (or to any other person whether acting on
behalf of a Placee or otherwise). In particular, neither Cantor,
nor the Company, nor any of their respective affiliates or persons
acting on behalf of any of them shall have any responsibility or
liability (including to the extent permissible by law, any
fiduciary duties) in respect of Cantor's conduct of the Bookbuild
or of such alternative method of effecting the Placing as Cantor
and the Company may agree. Nothing in this paragraph or otherwise
this Placing excludes liability of any person for fraud or
fraudulent misrepresentation made by that person.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming
unconditional and not having been terminated in accordance with its
terms. Cantor's obligations under the Placing Agreement in relation
to Admission are conditional on certain conditions, including inter
alia:
a) the Company having complied with certain specified
obligations under the Placing Agreement (to the extent such
obligations fall to be performed prior to Admission) including the
Company allotting, conditional on Admission, the New Common Shares
subject to the by-laws of the Company;
b) the delivery to Cantor of certain customary documentary conditions precedent; and
c) Admission of the New Common Shares occurring at or before
8:00 a.m. (London time) on 13 March 2019 (or such later time and/or
date, not being later than 8:00 a.m. (London time) on 27 March
2019, as the Company and Cantor may otherwise agree);
If: (i) any of the conditions contained in the Placing Agreement
in relation to Admission, including those described above, are not
fulfilled or (where applicable) waived or extended in writing by
Cantor by the relevant time or date specified (or such later time
or date as the Company and Cantor may agree); or (ii) prior to
Admission the Placing Agreement is terminated in accordance with
its terms including, inter alia, in the circumstances specified
below, the Placing will lapse and the Placees' rights and
obligations hereunder in relation to the New Common Shares shall
cease and terminate at such time and each Placee agrees that no
claim can be made by it in respect thereof.
Cantor may, at its discretion, extend the time for satisfaction
of, or waive compliance by the Company with, the whole or any part
of certain of the Company's obligations in relation to the
conditions in the Placing Agreement. Any such extension or waiver
will not affect Placees' commitments as set out in this
Announcement.
Cantor shall not have any liability to any Placee (or to any
other person whether acting on behalf of a Placee or otherwise) in
respect of any decision it may make as to whether or not to waive
or to extend the time and/or date for the satisfaction of any
condition to the Placing nor for any decision it may make as to the
satisfaction of any condition or in respect of the Placing
generally and by participating in the Placing each Placee agrees
that any such decision is within the absolute discretion of
Cantor.
Right to terminate under the Placing Agreement
Cantor is entitled, at any time before Admission to terminate
the Placing Agreement in accordance with its terms in certain
limited circumstances including, inter alia:
a) the Company fails, in any material respect, to comply with
any of its obligations under the Placing Agreement; or
b) it comes to the notice of Cantor that any statement contained
in the certain Placing documents was untrue, incorrect or
misleading at the date of the Placing documents in any respect
which Cantor considers to be material in the context of the Placing
and/or Admission; or
c) it comes to the notice of either of Cantor that any of the
warranties given by the Company was not at any time from the date
of the Placing Agreement up to Admission true and accurate in any
respect which Cantor considers to be material in the context of the
Placing and/or Admission by reference to the facts subsisting at
the time.
By participating in the Placing, Placees agree that the exercise
by Cantor of any right of termination or other discretion under the
Placing Agreement shall be within the absolute discretion of Cantor
and that it need not make any reference to, or consult with,
Placees and that it shall have no liability to Placees whatsoever
in connection with any such exercise.
No Prospectus
No offering document or prospectus has been or will be submitted
to be approved by the FCA or submitted to the London Stock Exchange
in relation to the Placing.
Placees' commitments will be made solely on the basis of the
information contained in this Announcement (including this
Appendix) released by the Company today and subject to the further
terms set forth in the contract note to be provided to individual
Placees. Each Placee, by accepting a participation in the Placing,
agrees that the content of this Announcement (including this
Appendix) and all other publicly available information previously
published by the Company by notification to a Regulatory
Information Service is exclusively the responsibility of the
Company and confirms that it has neither received nor relied on any
other information, representation, warranty or statement made by or
on behalf of the Company, Cantor or any other person and neither of
the Company or Cantor nor any other person will be liable for any
Placee's decision to participate in the Placing based on any other
information, representation, warranty or statement which the
Placees may have obtained or received. 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 Placing. Nothing in this paragraph shall
exclude the liability of any person for fraud or fraudulent
misrepresentation by that person.
Registration and Settlement
Settlement of transactions in the New Common Shares (ISIN:
USU624551151) following Admission will take place within the system
administered by Euroclear UK & Ireland Limited ("CREST").
Subject to certain exceptions, Cantor and the Company reserve the
right to require settlement for, and delivery of, the New Common
Shares (or any part thereof) to Placees by such other means that
they deem necessary if delivery or settlement is not possible or
practicable within the CREST system within the timetable set out in
this Announcement or would not be consistent with the regulatory
requirements in the Placee's jurisdiction.
Each Placee allocated New Common Shares in the Placing will be
sent a trade confirmation in accordance with the standing
arrangements in place with Cantor stating the number of New Common
Shares allocated to it at the Issue Price, the aggregate amount
owed by such Placee to Cantor and settlement instructions. Each
Placee agrees that it will do all things necessary to ensure that
delivery and payment is completed in accordance with the standing
CREST or certificated settlement instructions in respect of the New
Common Shares that it has in place with Cantor.
It is expected that settlement for the New Common Shares will be
on 13 March 2019 in accordance with the instructions set out in the
trade confirmation.
Each Placee is deemed to agree that, if it does not comply with
these obligations, Cantor may sell any or all of the New Common
Shares allocated to that Placee on such Placee's behalf and retain
from the proceeds, for Cantor's account and benefit, an amount
equal to the aggregate amount owed by the Placee. The relevant
Placee will, however, remain liable for any shortfall below the
aggregate amount owed by it and may be required to bear any stamp
duty or stamp duty reserve tax (together with any penalties) or
other similar taxes imposed in any jurisdiction which may arise
upon the sale of such New Common Shares on such Placee's
behalf.
If New Common Shares are to be delivered to a custodian or
settlement agent, Placees should ensure that the trade confirmation
is copied and delivered immediately to the relevant person within
that organisation.
Insofar as New Common 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 New Common Shares should, subject as provided below,
be so registered free from any liability to UK stamp duty or stamp
duty reserve tax.
Representations, Warranties and Further Terms
By participating in the Placing each Placee (and any person
acting on such Placee's behalf) irrevocably:
1. represents and warrants that it has read and understood the
Announcement, including this Appendix, in its entirety and that its
acquisition of New Common Shares is subject to and based upon all
the terms, conditions, representations, warranties,
acknowledgements, agreements and undertakings and other information
contained herein and undertakes not to redistribute or duplicate
this Announcement;
2. acknowledges that no offering document or prospectus has been
or will be prepared in connection with the Placing and represents
and warrants that it has not received and will not receive a
prospectus or other offering document in connection with the
Placing or the New Common Shares;
3. acknowledges that the Placing does not constitute a
recommendation or financial product advice and neither Cantor has
had regard to its particular objectives, financial situation or
needs;
4. acknowledges that neither Cantor nor the Company, nor any of
their respective affiliates, agents, directors, officers or
employees has provided, nor will provide, it with any material
regarding the New Common Shares or the Company other than this
Announcement; nor has it requested Cantor, the Company, any of
their respective affiliates or any person acting on behalf of any
of them to provide it with any such information;
5. acknowledges that the Common Shares are listed on AIM and
that the Company is therefore required to publish certain business
and financial information in accordance with the rules and
practices under the AIM Rules, which includes a description of the
Company's business and the Company's financial information,
including balance sheets and income statements, and that it is able
to obtain or access to such information, or comparable information
concerning other publicly traded companies, in each case without
undue difficulty;
6. acknowledges that the content of this Announcement is
exclusively the responsibility of the Company and neither Cantor,
nor their respective affiliates or any person acting on behalf of
any of them, has or shall have any liability for any information,
representation or statement contained in, or omission from, this
Announcement or any information previously published by or on
behalf of the Company, pursuant to applicable laws, and will not be
liable for any Placee's decision to participate in the Placing
based on any information, representation or statement contained in
this Announcement or otherwise. Each Placee further represents,
warrants and agrees that the only information on which it is
entitled to rely and on which such Placee has relied in committing
itself to acquire New Common Shares is contained in this
Announcement and any information previously published by the
Company by notification to a Regulatory Information Service, such
information being all that such Placee deems necessary or
appropriate and sufficient to make an investment decision in
respect of the New Common Shares and that it has neither received
nor relied on any other information given, or representations,
warranties or statements made, by Cantor or the Company nor any of
their respective affiliates, agents, directors, officers or
employees and none of Cantor or the Company or any such affiliate,
agent, director, officer or employee will be liable for any
Placee's decision to accept an invitation to participate in the
Placing based on any other information, representation, warranty or
statement, provided that nothing in this paragraph excludes the
liability of any person for fraud or fraudulent misrepresentation
made by that person;
7. acknowledges and agrees that it may not rely, and has not
relied, on any investigation that either Cantor, any of their
affiliates or any person acting on their behalf, may have conducted
with respect to the New Common Shares or the Company, and none of
such persons has made any representation, express or implied, with
respect to the Company, the New Common Shares or the accuracy,
completeness or adequacy of the information from the London Stock
Exchange or any other information; each Placee further acknowledges
that it has conducted its own investigation of the Company and the
New Common Shares and has received all information it believes
necessary or appropriate in connection with its investment in the
New Common Shares;
8. acknowledges that it has made its own assessment and has
satisfied itself concerning the relevant tax, legal, currency and
other economic considerations relevant to its investment in the New
Common Shares;
9. acknowledges that none of Cantor, their respective affiliates
or any person acting on behalf of any of them has or shall have any
liability for any information made publicly available by or in
relation to the Company or any representation, warranty or
statement relating to the Company or the Group contained therein or
otherwise, provided that nothing in this paragraph excludes the
liability of any person for fraud or fraudulent misrepresentation
made by that person;
10. represents and warrants that (i) the New Common Shares have
not been, and will not be, registered under the Securities Act;
(ii) it is and, at the time the New Common Shares are acquired,
will be either (a) outside the United States and acquiring the New
Common Shares in an "offshore transaction" in accordance with Rule
903 or Rule 904 of Regulation S; or (b) a QIB, which is acquiring
the New Common Shares for its own account or for the account of one
or more QIBs, each of which is acquiring beneficial interests in
the New Common Shares for its own account; (iii) if acquiring the
New Common Shares for the account of one or more other persons, it
has full power and authority to make the representations,
warranties, agreements, undertakings and acknowledgements herein on
behalf of each such person; (iv) it is not acquiring the New Common
Shares as a result of any "directed selling efforts" as defined in
Regulation S or as a result of any "general solicitation" or
"general advertising" within the meaning of Rule 502(c) of
Regulation D of the Securities Act; and (v) it will not publish,
distribute or transmit this Announcement or any other document or
information related to the Placing, by any means or media, directly
or indirectly, in whole or in part, in or into the United
States;
11. acknowledges that in making any decision to acquire New
Common Shares it (i) has such knowledge and experience in financial
and business matters to be capable of evaluating the merits and
risks of subscribing for or purchasing the New Common Shares, (ii)
will not look to either Cantor for all or part of any loss it may
suffer as a result of any such subscription or purchase, (iii) is
experienced in investing in securities of this nature in this
sector and is aware that it may be required to bear, and is able to
bear, the economic risk of an investment in the New Common Shares,
(iv) is able to sustain a complete loss of an investment in the New
Common Shares and (v) has no need for liquidity with respect to its
investment in the New Common Shares;
12. undertakes, unless otherwise specifically agreed with
Cantor, that it is not and at the time the New Common Shares are
acquired, neither it nor the beneficial owner of the New Common
Shares will be, a resident of Australia, Canada, Japan or South
Africa and further acknowledges that the New Common Shares have not
been and will not be registered under the securities legislation of
Australia, Canada, Japan or South Africa and, subject to certain
exceptions, may not be offered, sold, transferred, delivered or
distributed, directly or indirectly, in or into any of those
jurisdictions;
13. acknowledges that the New Common Shares have not been and
will not be registered, and that a prospectus will not be cleared
in respect of any of the New Common Shares, under the securities
laws or legislation of the United States or any state or
jurisdiction thereof, Australia, Canada, Japan, or South Africa
and, subject to certain exceptions, may not be offered, sold, or
delivered or transferred, directly or indirectly, in or into those
jurisdictions;
14. represents and warrants that the issue to it, or the person
specified by it for registration as holder, of New Common Shares
will not give rise to a liability under any of sections 67, 70, 93
or 96 of the Finance Act 1986 (depositary receipts and clearance
services) and that the New Common Shares are not being acquired in
connection with arrangements to issue depositary receipts or to
issue or transfer New Common Shares into a clearance service;
15. represents and warrants that it has complied with its
obligations under the Criminal Justice Act 1993, the Market Abuse
Regulation (EU) No. 596/2014 ("MAR") and in connection with money
laundering and terrorist financing under the Proceeds of Crime Act
2002 (as amended), the Terrorism Act 2000, the Terrorism Act 2006
and the Money Laundering Regulations 2007 and any related or
similar rules, regulations or guidelines, issued, administered or
enforced by any government agency having jurisdiction in respect
thereof (the "Regulations") and the Money Laundering Sourcebook of
the FCA 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;
16. where a Placee is acting as agent for discretionary managed
clients, Cantor and the Company acknowledge that:
(a) the Placee is acting at all times as agent for and on behalf
of certain discretionary managed clients of whom it has
discretionary management authority (the "Funds");
(b) the Placee shall have no liability as principal to acquire
and pay for the New Common Shares allocated to it as agent for and
on behalf of the Funds or in respect of each Fund's obligations
under the Placing who will hold the New Common Shares through a
custodian; and
(c) all representations, warranties and undertakings are given
by the Placee as agent and not as principal;
17. represents and warrants that it is acting as principal only
in respect of the Placing or, if it is acting for any other person
it is duly authorised to do so and has full power to make the
acknowledgments, warranties, representations, undertakings, and
agreements herein on behalf of each such person;
18. if a financial intermediary, as that term is used in Article
3(2) of the EU Prospectus Directive, represents, warrants and
undertakes that the New Common Shares purchased by it in the
Placing will not be acquired on a non-discretionary basis on behalf
of, nor will they be acquired with a view to their offer or resale
to, persons in a Member State of the EEA which has implemented the
Prospectus Directive other than Qualified Investors, or in
circumstances in which the prior consent of Cantor has been given
to the offer or resale;
19. represents, warrants and undertakes that it has not offered
or sold and will not offer or sell any New Common Shares to persons
in the United Kingdom, except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
business or otherwise in circumstances which have not resulted and
which will not result in an offer to the public in the United
Kingdom within the meaning of section 85(1) of the Financial
Services & Markets Act 2000 ("FSMA");
20. represents, warrants and undertakes that it has not offered
or sold and will not, prior to Admission, offer or sell any New
Common Shares to persons in the EEA except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes
of their business or otherwise in circumstances which have not
resulted in and which will not result in an offer to the public
(within the meaning of the Prospectus Directive) in any member
state of the EEA;
21. represents, warrants and undertakes that 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 the
FSMA) relating to the New Common Shares in circumstances in which
section 21(1) of the FSMA does not require approval of the
communication by an authorised person;
22. represents, warrants and undertakes that it has complied and
will comply with all applicable provisions of the FSMA with respect
to anything done by it in relation to the New Common Shares in,
from or otherwise involving the United Kingdom;
23. represents and warrants, if in a member state of an Economic
Area, unless otherwise specifically agreed with Cantor in writing,
that it is a "Qualified Investor";
24. represents and warrants, if in the United Kingdom, that it
is a person (i) having professional experience in matters relating
to investments who falls within the definition of "investment
professionals" in Article 19(5) of the Order or (ii) who falls
within Article 49(2) (a) to (d) ("High Net Worth Companies,
Unincorporated Associations, etc") of the Order, or (iii) to whom
this Announcement may otherwise lawfully be communicated;
25. acknowledges and agrees that no action has been or will be
taken by either the Company or Cantor or any person acting on
behalf of the Company or Cantor that would, or is intended to,
permit a public offer of the New Common Shares in any country or
jurisdiction where any such action for that purpose is
required;
26. represents and warrants that it and any person acting on its
behalf is entitled to acquire the New Common Shares under the laws
of all relevant jurisdictions and that it has fully observed such
laws and obtained all such governmental and other guarantees,
permits, authorisations, approvals and consents which may be
required thereunder and complied with all necessary formalities to
enable it to commit to this participation in the Placing and to
perform its obligations in relation thereto (including, without
limitation, in the case of any person on whose behalf it is acting,
all necessary consents and authorities to agree to the terms set
out or referred to in this Appendix) and will honour such
obligations and that, to the best of its knowledge and belief it
has not taken any action or omitted to take any action which will
or may result in Cantor, the Company or any of their respective
directors, officers, agents, employees or advisers acting in breach
of the legal or regulatory requirements of any jurisdiction in
connection with the Placing;
27. undertakes that it (and any person acting on its behalf)
will make or procure payment in respect of the New Common Shares
allocated to it in accordance with this Appendix on the due time
and date set out herein, failing which the relevant New Common
Shares may be placed with other acquirers or sold as Cantor may in
its sole discretion determine and without liability to such Placee,
who will remain liable for any amount by which the net proceeds of
such sale fall short of the product of the relevant Issue Price and
the number of New Common Shares allocated to it and may be required
to bear any stamp duty, stamp duty reserve tax or other similar
taxes (together with any penalties) which may arise upon such
placing or sale of such Placee's New Common Shares;
28. acknowledges that neither Cantor, nor any of its affiliates,
agents, directors, officers or employees is making any
recommendations to it or advising it regarding the suitability of
any transactions it may enter into in connection with the Placing
and that its participation in the Placing is on the basis that it
is not and will not be a client of Cantor in connection with its
participation in the Placing and that Cantor has no duty nor
responsibility to it for providing the protections afforded to its
clients or customers or for providing advice in relation to the
Placing nor in respect of any representations, warranties,
undertakings or indemnities contained in the Placing Agreement nor
for the exercise or performance of any of its rights and
obligations thereunder including any rights to waive or vary any
conditions or exercise any termination right;
29. undertakes that the person whom it specifies for
registration as holder of the New Common Shares will be (i) itself
or (ii) its nominee, as the case may be. Neither Cantor nor the
Company will be responsible for any liability to stamp duty or
stamp duty reserve tax or other similar taxes resulting from a
failure to observe this requirement;
30. acknowledges that these terms and conditions and any
agreements entered into by it pursuant to the terms and conditions
set out in this Appendix, and all non-contractual or other
obligations arising out of or in connection with them, 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 (including any dispute regarding
the existence, validity or termination of such contract or relating
to any non-contractual or other obligation arising out of or in
connection with such contract), except that enforcement proceedings
in respect of the obligation to make or procure payment for the New
Common Shares may be taken by either the Company or either Cantor
in any jurisdiction in which the relevant Placee is incorporated or
in which any of its securities have a quotation on a recognised
stock exchange;
31. except as set out in clause 32 below, represents and
warrants that it has neither received nor relied on any 'inside
information' (for the purposes of MAR and section 56 of the
Criminal Justice Act 1993) concerning the Company prior to or in
connection with accepting the invitation to participate in the
Placing and is not purchasing New Common Shares on the basis of
material non-public information;
32. if it has received any 'inside information' (for the
purposes of MAR and section 56 of the Criminal Justice Act 1993) in
relation to the Company and its securities, it confirms that it has
received such information within the market soundings regime
provided for in article 11 of MAR and associated delegated
regulations and it has not: (i) dealt (or attempted to deal) in the
securities of the Company; (ii) encouraged, recommended or induced
another person to deal in the securities of the Company; or (iii)
unlawfully disclosed inside information to any person, prior to the
information being made publicly available;
33. if it is a pension fund or investment company, its purchase
of New Common Shares is in full compliance with applicable laws and
regulations;
34. agrees that the Company and Cantor and their respective
affiliates and others will rely upon the truth and accuracy of the
foregoing representations, warranties, acknowledgements,
agreements, and undertakings which are given to Cantor on their own
behalf and on behalf of the Company and are irrevocable and it
irrevocably authorises the Company and Cantor to produce this
Announcement, pursuant to, in connection with, or as may be
required by any applicable law or regulation, administrative or
legal proceeding or official inquiry with respect to the matters
set forth herein;
35. neither of the Company nor Cantor owes any fiduciary or
other duties to any Placee in respect of any acknowledgments,
confirmations, undertakings, representations, warranties or
indemnities in the Placing Agreement; and
36. its commitment to take up New Common Shares on the terms set
out in this Announcement (including this Appendix) will continue
notwithstanding any amendment that may or in the future be made to
the terms and conditions of the Placing and that Placees will have
no right to be consulted or require that their consent be obtained
with respect to the Company or Cantor's conduct of the Placing.
The foregoing representations, warranties, agreements,
undertakings, acknowledgements and confirmations are given for the
benefit of the Company and Cantor and are irrevocable. Each Placee,
and any person acting on behalf of the Placee, acknowledges that
neither the Company nor Cantor owes any fiduciary or other duties
to any Placee in respect of any representations, warranties,
undertakings or indemnities in the Placing Agreement.
The agreement to allot and issue New Common Shares to Placees
(and/or to persons for whom such Placee is contracting as agent)
free of stamp duty and stamp duty reserve tax relates only to their
allotment and issue to Placees, or such persons as they nominate as
their agents, direct from the Company for the New Common Shares in
question. Such agreement also assumes that the New Common Shares
are not being acquired in connection with arrangements to issue
depositary receipts or to issue or transfer the New Common Shares
into a clearance service.
The Company and Cantor are not liable to bear any transfer taxes
that arise on a sale of New Common Shares subsequent to their
acquisition by Placees or for transfer taxes arising otherwise than
under the laws of the United Kingdom. Each Placee should,
therefore, take its own advice as to whether any such transfer tax
liability arises and notify Cantor 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 acquisition by them of any
New Common Shares or the agreement by them to acquire any New
Common Shares.
Each Placee and any person acting on behalf of the Placee
acknowledges and agrees that any Cantor or any of its affiliates
may, at its absolute discretion, agree to become a Placee in
respect of some or all of the New Common Shares.
When a Placee or person acting on behalf of the Placee is
dealing with Cantor, any money held in an account with Cantor on
behalf of the Placee and/or any person acting on behalf of the
Placee will not be treated as client money within the meaning of
the rules and regulations of the FCA made under the FSMA. The
Placee acknowledges that the money will not be subject to the
protections conferred by the client money rules.
All times and dates in this Announcement may be subject to
amendment. Cantor shall notify the Placees and any person acting on
behalf of the Placees of any changes.
This information is provided by RNS, the news service of the
London Stock Exchange. RNS is approved by the Financial Conduct
Authority to act as a Primary Information Provider in the United
Kingdom. Terms and conditions relating to the use and distribution
of this information may apply. For further information, please
contact rns@lseg.com or visit www.rns.com.
END
STRPGUBCPUPBPGM
(END) Dow Jones Newswires
February 28, 2019 02:02 ET (07:02 GMT)
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