TIDMXSG
RNS Number : 8674R
Xeros Technology Group plc
31 October 2019
For immediate release
THIS ANNOUNCEMENT, INCLUDING THE INFORMATION CONTAINED HEREIN,
IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION,
IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM THE
UNITED STATES, CANADA, JAPAN, AUSTRALIA, THE REPUBLIC OF SOUTH
AFRICA OR ANY OTHER JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A
VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF THAT JURISDICTION.
PLEASE SEE THE IMPORTANT NOTICES AT THE OF THIS ANNOUNCEMENT.
THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND SHALL NOT
CONSTITUTE AN OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN
OFFER TO BUY, SUBSCRIBE FOR OR OTHERWISE ACQUIRE ANY NEW ORDINARY
SHARES OF XEROS TECHNOLOGY GROUP PLC IN THE UNITED STATES, CANADA,
JAPAN, AUSTRALIA, THE REPUBLIC OF SOUTH AFRICA OR ANY OTHER
JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION
WOULD BE UNLAWFUL.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION AS DEFINED IN
ARTICLE 7 OF THE MARKET ABUSE REGULATION NO. 596/2014 ("MAR"). UPON
THE PUBLICATION OF THIS ANNOUNCEMENT, THIS INSIDE INFORMATION IS
NOW CONSIDERED TO BE IN THE PUBLIC DOMAIN.
Xeros Technology Group plc
("Xeros", the "Group" or the "Company")
Placing to raise GBP5.0 million
Open Offer to raise up to GBP2.0 million
and
Notice of General Meeting
Xeros Technology Group plc (AIM: XSG), the developer and
provider of patented water saving and filtration products with
multiple commercial applications, proposes to raise approximately
GBP5.0 million before fees and expenses by a placing of 505,000,000
new ordinary shares ("Ordinary Shares") with existing and new
institutional investors at an issue price of 1 pence per share (the
"Placing") (the "Issue Price"). In addition to the Placing,
qualifying shareholders will be given the opportunity to subscribe
for up to 199,932,635 new Ordinary Shares through an open offer to
raise up to GBP2 million before expenses (the "Open Offer")
(together the "Fundraising").
Highlights
-- The Fundraising will raise gross proceeds of up to GBP7.05 million at the Issue Price;
-- The net proceeds are intended to be used to fund the Group's
operations through to the end of 2020 and the Directors will seek
to raise further funds at the end of 2020, if not sooner. The
Directors believe the Group will be generating sufficient cashflows
to be break-even by the end of 2021.
-- The Fundraising is conditional upon the granting of
shareholder authorities to issue new Ordinary Shares and to
dis-apply pre-emption rights, such authorities are to be sought at
a general meeting of the Company's shareholders ("General
Meeting"), details of which are within this announcement;
-- As previously announced, the Company aims to achieve the
above plan by becoming a pure-play licensing business. The Company
believes this is achievable in three main areas: firstly, signing
and executing license agreements with acceptable levels of
royalties with selected partners in target markets/geographies;
secondly, exiting operational business once market and product
viability is proven; and lastly, reducing its cost and asset base
to that of a pure-play licensing company.
-- Admission of the 505,000,000 Ordinary Shares ("Placing
Shares") is expected to be on 20 November 2019, although this is
conditional on the passing of resolutions (the "Resolutions") to be
put to shareholders at the General Meeting.
-- Admission of up to 199,932,635 Ordinary Shares ("Open Offer
Shares") is expected to be on 20 November 2019, although the final
number of Open Offer Shares is conditional on the passing of
resolutions to be put to shareholders at the General Meeting.
-- General Meeting to be held at the offices of Squire Patton
Boggs (UK) LLP at 7 Devonshire Square, London, EC2M 4YH at 10.00
a.m. on 19 November 2019.
Commenting on the Placing, Mark Nichols, CEO of Xeros, said:
"Xeros' products help reduce the increasing pressures on the
world's supply of water. Testament to this are the development and
license agreements we have signed in India and China, the world's
two largest water users.
This funding, provided by both existing and new shareholders,
will enable us to complete our full migration to becoming a
high-margin royalty business delivering sustainability and cost
benefits to our licensees' customers.
Having completed much of the development and protection of our
products, we are now well-positioned to continue the
commercialisation of our intellectual property with major OEMs
across multiple large-scale markets."
Details of the Placing
finnCap Ltd ("finnCap") acted as nominated adviser, broker and
bookrunner in connection with the Placing. No part of the Placing
is underwritten.
The Placing of the Placing Shares is conditional upon admission
to trading on AIM becoming effective ("Admission") and the placing
agreement between the Company and finnCap (the "Placing Agreement")
not being terminated in accordance with its terms.
The Placing Shares, when issued, will represent approximately
196.5 per cent. of the Company's issued share capital prior to the
Placing. The Issue Price of 1 pence per new Ordinary Share
represents a discount of approximately 81 per cent. to the closing
mid-market price of 5.17 pence per Ordinary Share on 30 October
2019, being the last trading day immediately preceding the date of
this Announcement.
Details of the Open Offer
At the same time as the Placing, the Company also proposes to
raise up to a further GBP2 million before fees and expenses
(assuming full take up of the Open Offer) by way of the Open Offer.
The Open Offer will be made to all Qualifying Shareholders in order
to provide them with the opportunity to participate in the
Fundraising at the Issue Price. The Open Issue is being conducted
on the basis of 7 Open Offer Shares for every 9 Existing Ordinary
Shares held on the Record Date. Qualifying Shareholders subscribing
for their full Basic Entitlement under the Open Offer may also
apply for additional Open Offer Shares through the Excess
Application Facility.
Neither the Placing nor the Open Offer are being
underwritten.
The New Ordinary Shares, when issued, will be fully paid and
will rank pari passu in all respects with the existing Ordinary
Shares, including the right to receive all dividends and other
distributions declared, made or paid in respect of such New
Ordinary Shares after the date of their admission to trading on
AIM.
General Meeting and Shareholder Approval
For the New Ordinary Shares to be admitted to trading on AIM,
Shareholder approval is required:
a) by way of ordinary resolution to give the Directors authority
to allot the New Ordinary Shares; and
b) by way of a special resolution to dis-apply statutory pre-emption rights in respect thereof.
The authorities referred to above are in addition to the
Company's existing general shareholder authorities to allot
Ordinary Shares for cash on a non-pre-emptive basis.
In order to obtain the necessary shareholder approval, a General
Meeting of the Company is to be held at the offices of Squire
Patton Boggs (UK) LLP at 7 Devonshire Square, London, EC2M 4YH at
10.00 a.m. on 19 November 2019 at which the Resolutions will be
proposed. A Circular containing a notice of General Meeting will be
sent to shareholders on 1 November 2019. The shareholder Circular
and notice of General Meeting will be made available on the
Company's website at www.xerostech.com.
Expected Timetable of Principal Events
Open Offer
Record Date for Open Offer 30 October 2019
Announcement of Placing and Open Offer 31 October 2019
Posting of the Circular and the Forms of Proxy 1 November 2019
Ex-entitlement date for Open Offer 7:00 a.m. 1 November
2019
Open Offer entitlements credited to CREST accounts 8:00 a.m. 4 November
2019
Recommended latest time and date for depositing Open Offer 3:00 p.m. 11 November
entitlements into CREST 2019
Recommended latest time and date for requesting withdrawal 4:30 p.m. 11 November
of Open Offer entitlements from CREST 2019
Latest time and date for splitting Application forms (to 3:00 p.m. 14 November
satisfy bona fide market claims only) 2019
Latest time and date for receipt of completed application 11:00 a.m. 18 November
forms and payment in full under the Open Offer 2019
Announcement of results of the Open Offer 18 November 2019
Placing and General Meeting
Latest time and date for receipt of CREST proxy instructions 10:00 a.m. on 15
and registration of online votes from Shareholders for November 2019
General Meeting
Latest time and date for receipt of Forms of Proxy 10:00 a.m. on 17
November 2019
Trade Date in respect of the Placing 18 November 2019
General Meeting 10:00 a.m. on 19
November 2019
Settlement Date in respect of the Placing 20 November 2019
Admission of New Ordinary Shares and commencement of dealings 08:00 a.m. 20 November
on AIM 2019
Despatch of share certificates for Open Offer shares Week commencing
25 November 2019
On Admission of the Placing Shares and the Open Offer Shares
(assuming take up of all of the Open Offer Shares), the Company's
issued share capital will comprise 961,988,880 Ordinary Shares,
with no Ordinary Shares held in treasury. Following Admission a
further total voting rights announcement will be made confirming
the number of Ordinary Shares in issue.
Enquiries:
Xeros Technology Group plc Tel: 0114 321 6328
Mark Nichols, CEO
Paul Denney, CFO
www.xerostech.com
finnCap
Julian Blunt, Teddy Whiley (Corporate Finance)
Andrew Burdis, Sunila de Silva (ECM)
www.finncap.com +44 (0) 20 7220 0500
Instinctif Partners
Adrian Duffield, Chantal Woolcock & James
Gray +44 (0) 20 7457 2020
Notes for editors:
About Xeros Technology Group plc
Xeros Technology Group plc is a platform technology Group that
is transforming water intensive industrial and commercial
processes.
Xeros' patented XOrb(TM) technologies significantly reduce the
amount of water used in the washing or dyeing of soft substrates
such as garments and fabrics. It enables the remaining water to
become far more efficient and effective in either affixing or
removing molecules, the result being improvements in economic,
operational, product and sustainability outcomes. The Group is
applying its technology in the fields of cleaning, tanning and
textiles.
Xeros' XDrum(TM) technology is a patented, simple, low cost
machine drum design which enables XOrbs to be introduced into and
subsequently removed from process cycles in Xeros' chosen markets.
The design enables rotating drum machine Original Equipment
Manufacturers ("OEMs") in the fields of garment manufacture and
cleaning, the ability to make simple and low cost changes in their
production lines to incorporate the Company's XOrb technology.
The Group has signed multiple agreements to develop and license
its XDrum and XOrb products in major commercial and domestic
markets.
XFiltra(TM) is a patented in-machine filtration technology which
is designed to prevent harmful micro-plastics generated by washing
cycles from being released into the aquacycle. Plastics released
from synthetic clothing during washing cycles is one of the single
largest sources of primary micro-plastic pollution.
Forward-Looking Statements
This announcement contains forward-looking statements. These
statements relate to the Group's future prospects, developments and
business strategies. Forward-looking statements are identified by
their use of terms and phrases such as "potential", "estimate",
"expect", "may", "will" or the negative of such terms and phrases,
variations or comparable expressions, including references to
assumptions. The forward-looking statements in this announcement
are based on current expectations and are subject to risks and
uncertainties that could cause actual results to differ materially
from those expressed or implied by those statements. These
forward-looking statements speak only as at the date of this
announcement. No statement in this announcement is intended to
constitute a profit forecast or profit estimate for any period.
Neither the Directors nor the Company undertake any obligation to
update forward-looking statements other than as required by the AIM
Rules or by the rules of any other securities regulatory authority,
whether as a result of new information, future events or
otherwise.
Market Abuse Regulation
Market soundings, as defined in MAR, were taken in respect of
the Placing, with the result that certain persons became aware of
inside information, as permitted by MAR. That inside information is
set out in this announcement and has been disclosed as soon as
possible in accordance with paragraph 7 of article 17 of MAR.
Therefore, those persons that received inside information in a
market sounding are no longer in possession of inside information
relating to the Company and its securities.
APPIX 1
ADDITIONAL INFORMATION
ON
THE PROPOSED PLACING OF 505,000,000 NEW ORDINARY SHARES AT 1
PENCE EACH
THE PROPOSED OPEN OFFER OF UP TO 199,932,635 NEW ORDINARY SHARES
AT 1 PENCE EACH
AND
GENERAL MEETING
The Placing and Open Offer
Xeros intends to raise approximately GBP5.0 million before fees
and expenses by the Placing of 505,000,000 new Ordinary Shares with
existing and new institutional investors at an Issue Price of 1
pence per Placing Share.
Qualifying Shareholders will be given the opportunity to
subscribe for up to 199,932,635 new Ordinary Shares through an open
offer to raise up to GBP2 million before expenses in addition and
separate to the funds raised pursuant to the Placing on the basis
of 7 Open Offer Shares for every 9 Existing Ordinary Shares held on
the Record Date.
The New Ordinary Shares will rank pari passu in all respects
with the Existing Ordinary Shares. Application will be made to the
London Stock Exchange for the New Ordinary Shares to be admitted to
trading on AIM.
Board
The Board has undertaken to appoint further non-executive
directors to the Board within three months of Admission; new
appointments will likely reflect the interests of key shareholders
following Admission, whilst also satisfying the demands of good
governance regarding the importance of maintaining appropriate
levels of Board independence.
Related party transactions
The participation of IP2IPO Limited, Entrepreneurs Fund L.P. (or
an affiliated entity nominated by it) and the Participating
Directors in the Placing constitute related party transactions
under the AIM Rules, by virtue of IP2IPO Limited being classified
as a substantial shareholder in the Company, the Entrepreneurs Fund
L.P. (and its affiliates) being classified as a substantial
shareholder in the Company post the Fundraising and the
Participating Directors being directors of the Company.
Therefore:
a. the Participating Directors (being independent of IP2IPO
Limited and Entrepreneurs Fund L.P.) consider, having consulted
with finnCap (as the Company's nominated adviser) that the terms of
the related party transactions in relation to the participation of
IP2IPO Limited and Entrepreneurs Fund L.P. (or an affiliated entity
nominated by it) are fair and reasonable insofar as the Company's
Shareholders are concerned; and
b. the Independent Director considers, having consulted with
finnCap (as the Company's nominated adviser) that the terms of the
related party transactions in relation to the participation of the
Participating Directors are fair and reasonable insofar as the
Company's Shareholders are concerned.
Current trading
Since the interim results trading has continued in line with the
Director's expectations with the focus for the rest of 2019 and
beyond firmly upon:
-- successful implementation of joint development and licence
agreements for the Group's products over the next 18 to 24 months,
with the expectation that the Company will reach EBITDA cash
break-even by the end of 2021;
-- development and signature of additional licence agreements to
provide wide geographic commercialisation of the Group's products;
and
-- management of the Group's cash position by completing the
migration to a pure-play licensing business model by the end of
2019 thereby significantly reducing the Group's monthly cash burn
run rate. Group cash reserves at the end of September 2019 stood at
GBP2.4m.
Following its exit of direct operations, the Company expects to
have a staffing level to execute its licensing activities of
approximately 60 personnel at the end of 2019. This compares to 148
at the end of December 2018 and 107 at the end of August 2019. The
Company foresees further reductions in its cost base as licensees
move to become self-sufficient in the engineering and commercial
activities necessary to commercialise Xeros' products.
Directors' Participation
Certain Directors are participating in the Placing, amounting to
an aggregate subscription for 15,000,000 new Ordinary Shares or
approximately 3 per cent. of the Placing. Following the Placing,
the Participating Directors will beneficially own, in aggregate,
2.1 per cent. of the Enlarged Issued Share Capital, as follows:
Director Number of Number of Total number Percentage
Existing Ordinary Placing Shares of Ordinary Shares of Enlarged
Shares held being acquired held following Issued Share
the Placing Capital(1)
Mark Nichols 500,000 5,000,000 5,500,000 0.72
David Armfield Nil 5,000,000 5,000,000 0.66
Paul Denney 500,000 5,000,000 5,500,000 0.72
(1) Excluding Open Offer Shares
APPIX 2
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT NOTICE
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(5) 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 IS FOR
INFORMATION PURPOSES ONLY AND DOES NOT ITSELF CONSTITUTE AN OFFER
FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY. THIS
ANNOUNCEMENT AND THIS APPIX HAS BEEN ISSUED BY AND IS THE SOLE
RESPONSIBILITY OF THE COMPANY.
THIS ANNOUNCEMENT, INCLUDING THIS APPIX, IS NOT AN OFFER FOR
SALE OR SUBSCRIPTION IN ANY JURISDICTION IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL UNDER THE SECURITIES LAWS OF
ANY SUCH JURISDICTION. THE SECURITIES MENTIONED HEREIN HAVE NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE US 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 THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN COMPLIANCE WITH THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION OF THE UNITED STATES. THERE WILL BE NO
PUBLIC OFFER OF THE SECURITIES MENTIONED HEREIN IN THE UNITED
STATES.
THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN, NOR WILL BE,
APPROVED OR DISAPPROVED BY THE US SECURITIES AND EXCHANGE
COMMISSION, 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 PLACING OR THE
ACCURACY OR ADEQUACY OF THIS ANNOUNCEMENT. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENCE IN THE UNITED STATES.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL,
REGULATORY, TAX, BUSINESS, FINANCIAL AND RELATED ASPECTS OF AN
ACQUISITION OF PLACING SHARES.
No statement in this announcement is intended to be a profit
forecast and no statement in this announcement should be
interpreted to mean that the earnings per share of the Company for
the current or future financial years would necessarily match or
exceed the historical published earnings per share of the
Company.
The price of Ordinary Shares and the income from them may go
down as well as up and investors may not get back the full amount
invested on disposal of the Placing Shares.
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.
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING
1. Details of the Placing
finnCap Limited ("finnCap") has entered into an agreement with
the Company (the "Placing Agreement") under which, subject to the
terms and conditions set out in that agreement, finnCap has agreed,
as agent for and on behalf of the Company, to use its reasonable
endeavours to procure placees (the "Placees") for the Placing
Shares at a price of 1p per Placing Share (the "Issue Price"),
where 505,000,000 Ordinary Shares (the "Placing Shares") shall be
allocated and issued to new and existing shareholders of the
Company in accordance with such allocation determined by agreement
between the Company and finnCap pursuant to the bookbuilding
process (the "Bookbuild"), described in this announcement and set
out in the Placing Agreement. The placing of the Placing Shares
(the "Placing") is not underwritten by finnCap.
1.1. In addition to the Placing, the Company proposes to make
the Open Offer to Qualifying Shareholders on the terms and subject
to the conditions set out in the Circular and (in the case of
Qualifying Shareholders who do not hold their Ordinary Shares in
CREST) the Application. The Placing is not conditional upon the
Open Offer and the Placing Shares are not part of the Open Offer,
although it should be noted that both the Placing and the Open
Offer are conditional on the passing of the Resolutions, as more
specifically set out at 1.2 below.
1.2. The Placing Shares will be issued conditional on, amongst
other things, the approval by Shareholders of the Resolutions which
will (i) grant authority to the Directors to allot the Placing
Shares and (ii) dis-apply pre-emption rights in respect of the
Placing Shares.
1.3. The Placing Shares will, when issued, be credited as fully
paid and will rank pari passu in all respects with the Existing
Ordinary Shares of the Company including the right to receive all
dividends and other distributions declared, made or paid on or in
respect of such Ordinary Shares after the date of issue of the
relevant Placing Shares.
1.4. As a term of the Placing, the Company has agreed that it
will not issue or sell any Ordinary Shares (other than the Placing
Shares and the Open Offer Shares) for a period ending three months
after Admission, without finnCap's prior consent. Such agreement
does not however prevent the Company from granting or satisfying
exercises of options granted pursuant to existing share schemes of
the Company.
2. Application for admission to trading
Application will be made to the London Stock Exchange for the
Admission of the Placing Shares to trading on AIM. It is expected
that Admission will become effective and that dealings in the
Placing Shares will commence on or around 20 November 2019.
3. Bookbuild
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 Placing Shares.
finnCap shall be entitled to effect the Placing by such alternative
method to the Bookbuild as may be agreed between the Company and
finnCap.
4. Participation in, and principal terms of, the Placing
4.1. finnCap is acting as nominated adviser and sole broker of
the Company in respect of the Placing.
4.2. Participation in the Placing will only be available to
persons who may lawfully be, and are, invited to participate by
finnCap.
4.3. finnCap and its affiliates and partners are entitled to
enter bids in the Bookbuild as principal.
4.4. The Bookbuild has been carried out on the basis of the
Issue Price of 1p per Placing Share payable by all Placees whose
bids are successful in accordance with this Appendix and the
settlement instructions contained in the Placee's contract note.
The number of the Placing Shares to be allocated and issued to each
Placee will be determined by agreement between the Company and
finnCap following the Bookbuild.
4.5. The Bookbuild has now closed. finnCap may, in agreement
with the Company, accept bids that are received after the Bookbuild
has closed. The Company reserves the right (upon the agreement of
finnCap) to reduce or seek to increase the amount to be raised
pursuant to the Placing.
4.6. Each prospective Placee's allocation will be determined by
agreement between the Company and finnCap, and will be confirmed
orally by finnCap, as agent of the Company. That oral confirmation
will constitute an irrevocable legally binding commitment upon that
person (who will at that point become a Placee) in favour of
finnCap and the Company to subscribe for the number of Placing
Shares allocated to it at the Issue Price on the terms and
conditions set out in this Appendix and in accordance with the
Company's articles of association.
4.7. Each Placee will also have an immediate, separate,
irrevocable and binding obligation, owed to finnCap as agent of the
Company, to pay in cleared funds, an amount equal to the product of
the Issue Price and the number of Placing Shares that such Placee
has agreed to subscribe for and the Company has agreed to allot and
issue to that Placee, in accordance with this Appendix and the
settlement instructions contained in the Placee's contract
note.
4.8. finnCap may choose to accept bids, either in whole or in
part, and may scale down any bids for this purpose on such basis as
it determines. finnCap may also, notwithstanding paragraphs 4.6 and
4.7 above, subject to prior agreement with the Company: (i)
allocate Placing Shares after the time of any initial allocation to
any person submitting a bid after that time and (ii) allocate
Placing Shares after the Bookbuild has closed to any person
submitting a bid after that time.
4.9. A bid in the Bookbuild will be made on the terms and
subject to the conditions in this Appendix and will be legally
binding on the Placee on behalf of which it is made and, except
with finnCap's written consent, will not be capable of variation or
revocation after the time at which it is submitted. However,
finnCap reserves the right (on agreement between the Company and
finnCap) to amend the terms and conditions in this Appendix with
respect to individual Placees, provided that no such amendment is
made to the Issue Price.
4.10. Irrespective of the time at which a Placee's allocation
pursuant to the Placing is confirmed, settlement for all Placing
Shares to be subscribed for pursuant to the Placing will be
required to be made at the same time, on the basis explained below
under "Registration and Settlement".
4.11. All obligations under the Bookbuild and the Placing will
be subject to fulfilment or waiver (as applicable) 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 "Termination of the Placing Agreement".
4.12. By participating in the Bookbuild, each Placee will agree
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.
4.13. To the fullest extent permissible by law, neither finnCap
nor any of its affiliates, agents, advisers, directors, officers,
partners or employees shall have any responsibility or liability
(whether in contract, tort or otherwise) to Placees (or to any
other person whether acting on behalf of a Placee or otherwise). In
particular, neither finnCap nor any of its respective affiliates,
agents, advisers, directors, officers, partners or employees shall
have any responsibility or liability (whether in contract, tort or
otherwise and including to the fullest extent permissible by law,
any fiduciary duties) in respect of their conduct of the Bookbuild
or of such alternative method of effecting the Placing as finnCap
may determine.
4.14. Placees will have no rights against finnCap, the Company
nor any of their respective directors, partners or employees under
the Placing Agreement pursuant to the Contracts (Rights of Third
Parties) Act 1999 (as amended).
5. Conditions of the Placing
5.1. The Placing is conditional upon the Placing Agreement
becoming unconditional with respect to the Placing and not having
been terminated in accordance with its terms prior to Admission.
The obligations of finnCap under the Placing Agreement in respect
of the Placing are conditional on, amongst other things:
5.1.1. the despatch by first class post of the Circular and (as
applicable) the General Meeting proxy card to each person to whom
notice of the General Meeting is required to be given on the date
of the Placing Agreement;
5.1.2. the passing of the Resolutions (without amendment) on the
date of the General Meeting;
5.1.3. the Company having fully complied with its obligations
under the Placing Agreement to the extent that such obligations are
required to be performed before Admission;
5.1.4. neither the admission of any existing Ordinary Shares to
trading on AIM, nor the admission of existing Ordinary Shares as a
Participating CREST Security to CREST, being suspended or cancelled
or withdrawn prior to Admission;
5.1.5. finnCap's obligations under the Placing Agreement not
having been terminated pursuant to clause 10 of the Placing
Agreement;
5.1.6. the delivery by the Company to finnCap of a signed
certificate as set out in Schedule 2 of the Placing Agreement
(Warranty certificate), and a payment direction letter in respect
of the Placing proceeds as set out in Schedule 3 of the Placing
Agreement (Payment direction letter), with effect immediately
before Admission; and
5.1.7. Admission taking place by 8.00 a.m. (London time) on 20 November 2019.
5.2. Any Placing Condition at Clause 5.1 (other than those at
clauses 5.1.2 (Resolutions), 5.1.6 (Termination) and 5.1.7
(Admission)) may be waived, in whole or in part, and the time for
satisfaction of the Placing Condition may be extended by finnCap
(without any obligation to make any such waiver or extension) by
express written notice to the Company. Any such extension or waiver
will not affect Placees' commitments as set out in this
announcement.
5.3. If:
5.3.1. any of the conditions contained in the Placing Agreement
(including those listed at clause 5.1 above) (the "Placing
Conditions") are not fulfilled or waived by finnCap, by the time or
date where specified; or
5.3.2. the Placing Agreement is terminated in the circumstances
specified at clause 6 below prior to Admission,
the Placing will not proceed and the Placee's rights and
obligations hereunder in relation to the Placing Shares shall cease
and terminate at such time and each Placee agrees that no claim can
be made by the Placee in respect thereof.
5.4. None of finnCap, the Company nor any other person shall
have any liability (whether in contract, tort or otherwise) 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 the date for
the satisfaction of the Placing Conditions nor for any decision
they may make as to the satisfaction of any condition or in respect
of the Placing generally, and by participating in the Placing each
Placee agrees that any such decision is within the absolute
discretion of finnCap.
6. Termination of the Placing Agreement
6.1. finnCap may at any time prior to Admission terminate the
Placing Agreement (by giving notice in writing to the Company if,
in finnCap's reasonable opinion, amongst other things:
6.1.1. the Company is in breach of any of its obligations under
the Placing Agreement, or is likely to be so in breach, or cannot
comply with any such obligation, or is unlikely to able to do so;
or
6.1.2. any Warranty is or if repeated at any time up to
Admission (by reference to the facts and circumstances then
existing) would be untrue, inaccurate or misleading; or
6.1.3. there has been an adverse development or other adverse
occurrence relating to any Director or any Group Member (whether or
not occurring or arising before or after the date of the Placing
Agreement) of which finnCap was unaware when entering into the
Placing Agreement,
(in any case by itself or together with any other such
occurrence) to an extent which finnCap reasonably regards as
material; or
6.2. on or after the date of the Placing Agreement there
happens, develops or comes into effect:
6.2.1. a general moratorium on commercial banking activities in
London or New York declared by the relevant authorities or a
material disruption in commercial banking or securities settlement
or clearance services in the United Kingdom, any other member state
of the EEA or the United States; or
6.2.2. the declaration, outbreak or escalation of war or other
hostilities, or the occurrence of any acts of terrorism, involving
the United Kingdom or the United States or the declaration by or
for the government of the United Kingdom or the United States of a
national emergency; or
6.2.3. any calamity, disaster, natural event or other occurrence
of any kind which (by itself or together with any other such
occurrence) in finnCap's reasonable opinion is likely to materially
and adversely affect or prejudice the market's perception of the
Company or the financial position or trading position or prospects
of the Group taken as a whole; or
6.2.4. a change, or any development likely to involve a
prospective change (in each case whether or not foreseeable at the
date of the Placing Agreement) in or affecting the condition
(financial or other), business prospects, earnings, business
affairs or results of the Group, whether or not arising in the
ordinary course of business which, in any such case, in finnCap's
reasonable opinion is materially adverse; or
6.2.5. any crisis of international or national effect or any
change in any currency exchange rates or controls or in any
financial, political, economic or market conditions (including
disruption to trading on any stock exchange, multilateral trading
facility or over-the-counter market) or in market sentiment or any
other calamity or crisis which, in any such case, in finnCap's
reasonable opinion is materially adverse; or
6.2.6. the suspension or limitation of trading generally on the
London Stock Exchange, the American Stock Exchange, the New York
Stock Exchange, the NASDAQ National Market or any other market
operated within the United Kingdom that is a "prescribed market"
for the purpose of section 118 of FSMA or the fixing of any minimum
or maximum prices or price ranges for any such trading; or
6.2.7. a change or development involving a prospective change in
taxation affecting any Group Member, the Placing or the holding or
ownership or transfer of any Ordinary Shares which, in any such
case, in finnCap's reasonable opinion is materially adverse; or
6.2.8. the imposing of exchange controls by the United Kingdom,
any other member state of the EEA, the United States or China,
finnCap may terminate its rights under the Placing Agreement
with immediate effect.
6.3. In addition, finnCap's obligations under the Placing
Agreement may be terminated prior to Admission by written agreement
between the Company and finnCap.
6.4. Upon such termination of the Placing Agreement, the parties
to the Placing Agreement 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 Placing Agreement subject to certain exceptions. For the
avoidance of doubt, the Placing cannot be terminated after
Admission has occurred to the extent it relates to the Placing
Shares.
6.5. The rights and obligations of the Placees shall terminate
only in the circumstances described in these terms and conditions
and in the Placing Agreement and will not be subject to termination
by the Placee or any prospective Placee at any time or in any
circumstances. By participating in the Placing, Placees agree that
the exercise by finnCap of any right of termination or other
discretion under the Placing Agreement shall be within the absolute
discretion of finnCap and that it need not make any reference to,
or consult with, Placees and that it shall have no responsibility
or liability to Placees whatsoever in connection with any such
exercise and neither the Company nor finnCap nor any of their
respective directors, officers, employees, agents or affiliates
shall have any liability to Placees whatsoever in connection with
any such exercise or failure to exercise or otherwise.
7. No prospectus
7.1. The Placing Shares are being offered to a limited number of
specifically invited persons only and will not be offered in such a
way as to require a prospectus in the UK. No offering document,
prospectus or admission document has been or will be submitted to
be approved by the FCA or submitted to the London Stock Exchange in
relation to the Placing and Placees' commitments will be made
solely on the basis of their own assessment of the Company, the
Placing Shares and the Placing based on the Company's publicly
available information taken together with the information contained
in this announcement (including this Appendix), and subject to the
further terms set forth in the contract note to be provided to
individual prospective Placees.
7.2. Each Placee, by accepting a participation in the Placing,
agrees that the content of this announcement (including this
Appendix) 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, finnCap or any other person and none of
finnCap or the Company 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 or limit the liability of any person for fraudulent
misrepresentation by that person.
8. Registration and Settlement
8.1. Settlement of transactions in the Placing Shares following
Admission will take place within the system administered by CREST,
subject to certain exceptions. finnCap and the Company reserve the
right to require settlement for and delivery of the Placing Shares
(or a portion thereof) to Placees in certificated form if, in their
opinion, delivery or settlement is not possible or practicable
within the CREST system or would not be consistent with the
regulatory requirements in the Placee's jurisdiction.
8.2. Each Placee to be allocated Placing Shares in the Placing
will be sent a contract note stating the number of Placing Shares
allocated to it at the Issue Price and settlement instructions. The
number of Placing Shares allocated to each Placee will be allocated
in a manner determined by agreement between the Company and
finnCap, and Placees will be notified of their relevant allocation
in the contract note.
8.3. 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 that it
has in place with finnCap.
8.4. The Company will deliver the Placing Shares to a CREST
account operated by finnCap as agent for the Company and finnCap
will enter its delivery (DEL) instruction into the CREST system.
The input to CREST by a Placee of a matching or acceptance
instruction will then allow delivery of the relevant Placing Shares
to that Placee against payment.
8.5. It is expected that settlement of the Placing Shares will
take place on 20 November 2019 on a delivery versus payment
basis.
8.6. Interest is chargeable daily on payments not received from
Placees on the due date in accordance with the arrangements set out
above at the rate of two percentage points above LIBOR as
determined by finnCap.
8.7. Each Placee is deemed to agree that, if it does not comply
with these obligations, finnCap may sell any or all of the Placing
Shares allocated to that Placee on such Placee's behalf and retain
from the proceeds, for finnCap's account and benefit, an amount
equal to the aggregate amount owed by the Placee plus any interest
due. The relevant Placee will, however, remain liable for any
shortfall below the aggregate amount owed by it and may be required
to bear any stamp duty or stamp duty reserve tax (together with any
interest or penalties thereon) or other similar taxes imposed in
any jurisdiction which may arise upon the sale of such Placing
Shares on such Placee's behalf. By communicating an intention to
subscribe for Placing Shares, each Placee confers on finnCap all
such authorities and powers necessary to carry out any such sale
and agrees to ratify and confirm all actions which finnCap lawfully
takes in pursuance of such sale.
8.8. If Placing Shares are to be delivered to a custodian or
settlement agent, Placees should ensure that the trade confirmation
or contract note is copied and delivered immediately to the
relevant person within that organisation. Insofar as Placing Shares
are registered in a Placee's name or that of its nominee or in the
name of any person for whom a Placee is contracting as agent or
that of a nominee of 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. Placees will not be
entitled to receive any fee or commission in connection with the
Placing.
8.9. Each Placee acknowledges and agrees that the Company is
responsible for the allotment of the Placing Shares to the Placees
and finnCap shall have no liability to the Placees for the failure
of the Company to fulfil those obligations.
9. Representations and warranties
9.1. By participating in the Placing, each Placee (and any
person acting on such Placee's behalf) irrevocably acknowledges,
confirms, undertakes, represents, warrants and agrees (as the case
may be) with finnCap as agent of the Company, as a fundamental term
of their application for relevant Placing Shares), the
following:
9.1.1. it has read and understood this announcement (including
this Appendix) in its entirety and that its subscription of Placing
Shares is subject to and based upon all the terms, conditions,
representations, warranties, acknowledgements, agreements and
undertakings and other information contained herein;
9.1.2. the Placing does not constitutes a recommendation or
financial product advice and finnCap has not had regard to its
particular objectives, financial situation or needs;
9.1.3. unless paragraph 9.1.4 below applies, 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 in accepting this invitation to participate in the
Placing;
9.1.4. 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;
9.1.5. its participation in the Placing would not give rise to
an offer being required to be made by it or any person with whom it
is acting in concert pursuant to Rule 9 of the Takeover Code;
9.1.6. it has the power and authority to carry on the activities
in which it is engaged, to subscribe for and/or acquire the Placing
Shares and to execute and deliver all documents necessary for such
acquisition and/or subscription;
9.1.7. that no offering document listing particulars, prospectus
or admission document has been or will be prepared in connection
with the Placing and it has not received and will not receive a
prospectus, admission document or other offering document in
connection with the Bookbuild, the Placing or the Placing
Shares;
9.1.8. that the Existing Ordinary Shares in the capital of the
Company are admitted to trading on AIM and that the Company is
therefore required to publish certain business and financial
information in accordance with the rules and practices of AIM which
includes a description of the nature of the Company's business and
its most recent balance sheet and profit and loss account and that
it is able to obtain or access such information and such
information or comparable information concerning any other publicly
traded company, in each case without undue difficulty;
9.1.9. that neither finnCap nor the Company nor any of their
respective affiliates, agents, directors, officers, advisers,
partners or employees nor any person acting on behalf of any of
them has provided, and none of them will provide it, with any
material regarding the Placing Shares or the Company or any other
person other than this announcement nor has it requested finnCap,
the Company, any of their respective affiliates, agents, directors,
officers, partners, advisers or employees nor any person acting on
behalf of any of them to provide it with any such information;
9.1.10. unless otherwise specifically agreed with finnCap, that
neither it nor the beneficial owner of the Placing Shares is, or at
the time the Placing Shares are acquired, neither it nor the
beneficial owner of the Placing Shares will be, a resident of, or
otherwise located in, the United States, Australia, Canada, Japan
or the Republic of South Africa, and it further acknowledges that
the Placing Shares have not been and will not be registered under
the securities legislation of the United States, Australia, Canada,
Japan or the Republic of South Africa and subject to certain
exceptions, may not be offered, sold transferred delivered or
distributed, directly or indirectly, in or into those
jurisdictions;
9.1.11. that: (i) it is outside the United States and is not
acquiring the Placing Shares for the account of any person who is
located in the United States; (ii) it is acquiring the Placing
Shares in an "offshore transaction" (within the meaning of
Regulation S ("Regulation S") under the US Securities Act of 1933,
as amended (the "Securities Act")); (iii) it is not acquiring any
of the Placing Shares as a result of any form of "directed selling
efforts" as defined in Rule 902(c) under Regulation S; (iv) it is
not acquiring the Placing Shares with a view to the offer, sale,
resale, transfer, delivery or distribution directly or indirectly,
of any such Placing Shares into the United States; and (v) it is
not within Australia, Canada, Japan, the Republic of South Africa
or any other jurisdiction in which it is unlawful to make or accept
an offer to acquire the Placing Shares, and it is not acquiring the
Placing Shares with a view to the offer, sale, resale, transfer,
delivery or distribution directly or indirectly, of any such
Placing Shares into any of the jurisdictions referred to above;
that the content of this announcement is exclusively the
responsibility of the Company and that neither finnCap nor any
person acting on its behalf has or shall have any liability for any
information, representation or statement contained in this
announcement or any information previously or subsequently
published by or on behalf of the Company, including, without
limitation, any information required to be published by the Company
pursuant to applicable laws (the "Exchange Information") and will
not be liable for its decision to participate in the Placing based
on any information, representation or statement contained in this
announcement or otherwise. It further represents, warrants and
agrees that the only information on which it is entitled to rely
and on which it has relied in committing itself to subscribe for
the Placing Shares is contained in this announcement and any
information previously published by the Company by notification to
a RIS, such information being all that it deems necessary to make
an investment decision in respect of the Placing Shares and that it
has neither received nor relied on any other information given or
representations, warranties or statements made by finnCap or the
Company and neither finnCap nor the Company will be liable for its
decision to accept an invitation to participate in the Placing
based on any other information, representation, warranty or
statement. It further acknowledges and agrees that it has relied on
its own investigation of the business, financial or other position
of the Company in deciding to participate in the Placing. None of
finnCap, the Company or any of their respective affiliates, agents,
directors, officers, partners, advisers or employees has made any
representations to it express or implied, with respect to the
Company, the Placing and the Placing Shares or the accuracy,
completeness or adequacy of the Exchange Information, and each of
them expressly disclaims any liability in respect thereof. Nothing
in this paragraph or otherwise in this announcement excludes the
liability of any person for fraudulent misrepresentation made by
that person;
9.1.12. neither it, nor the person specified by it for
registration as holder of Placing Shares is, or is acting as
nominee or agent for, and the Placing Shares will not be allotted
to, a person who is or may be liable to stamp duty or stamp duty
reserve tax under any of sections 67, 70, 93 and 96 of the Finance
Act of 1986 (depositary receipts and clearance services);
9.1.13. that it has complied with its obligations under the
Criminal Justice Act 1993, 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,
the Money Laundering Regulations 2007 and the Money Laundering
Sourcebook of the FCA (the "Money Laundering 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 Money Laundering
Regulations;
9.1.14. that it is acting as principal only in respect of the
Placing or, if it is acting for any other person (i) it is duly
authorised to do so and has full power to make the acknowledgments,
representations and agreements herein on behalf of each such
person; and (ii) it is and will remain liable to the Company and
finnCap for the performance of all its obligations as a Placee in
respect of the Placing (regardless of the fact that it is acting
for another person);
9.1.15. if it is a financial intermediary, as that term is used
in Article 3(2) of the EU Prospectus Directive (which shall mean
Directive 2003/71/EC and amendments thereto, including the 2010 PD
Amending Directive to the extent implemented in the relevant member
state), that the Placing Shares subscribed 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 other than qualified investors
or in circumstances in which the prior consent of finnCap has been
given to the proposed offer or resale;
9.1.16. that it has not offered or sold and will not offer or
sell any Placing Shares to the public in any member state of the
EEA except in circumstances falling within Article 3(2) of the
Prospectus Directive which do not result in any requirement for the
publication of a prospectus pursuant to Article 3 of that
Directive;
9.1.17. 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 FSMA) relating to the Placing
Shares in circumstances in which section 21(1) of FSMA does not
require approval of the communication by an authorised person;
9.1.18. that it has complied with and will comply with all
applicable provisions of FSMA with respect to anything done by it
in relation to the Placing Shares in, from or otherwise involving,
the United Kingdom;
9.1.19. if in a member state of the EEA, unless otherwise
specifically agreed with FinnCap in writing, that it is a qualified
investor within the meaning of Article 2(l)(e) of the Prospectus
Directive;
9.1.20. 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 Financial Services and Markets Act 2000
(Financial Promotion) Order 2005 (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;
9.1.21. that no action has been or will be taken by either the
Company or finnCap or any person acting on behalf of the Company or
finnCap, which would or is intended to permit a public offer of the
Placing Shares in any country or jurisdiction where any such action
for that purpose is required;
9.1.22. that it and any person acting on its behalf is entitled
to acquire the Placing Shares under the laws of all relevant
jurisdictions which apply to it and that it has fully observed such
laws and obtained all such governmental and other guarantees,
permits authorisations, approvals and consents which may be
required thereunder and complied with all necessary formalities and
that it has not taken any action or omitted to take any action
which will or may result in finnCap, the Company or any of their
respective directors officers, partners, agents, employees or
advisers acting in breach of the legal or regulatory requirements
of any jurisdiction in connection with the Placing;
9.1.23. that it has all necessary capacity and has obtained all
necessary consents and authorities to enable it to commit to its
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
announcement) and will honour such obligations;
9.1.24. that it and any person acting on its behalf will make
payment for the Placing Shares allocated to it in accordance with
this announcement on the due time and date set out herein, failing
which the relevant Placing Shares may be placed with other
subscribers or sold as finnCap may in its absolute discretion
determine and without liability to it, but it will remain liable
for any amount by which the net proceeds of such sale falls short
of the product of the Issue Price and the number of Placing Shares
allocated to it and may be required to bear and indemnify finnCap
and its affiliates, directors, partners, officers, advisers and
employees on an after-tax basis against any stamp duty, stamp duty
reserve tax or other similar taxes (together with any interest or
penalties due pursuant to the terms set out or referred to in this
Announcement) which may arise upon the sale of its Placing Shares
on its behalf;
9.1.25. that its allocation (if any) of Placing Shares will
represent a maximum number of Placing Shares to which it will be
entitled, and required, to subscribe for, and that finnCap (having
agreed with the Company) may call upon it to subscribe for a lower
number of Placing Shares (if any) but in no event in aggregate more
than the aforementioned maximum;
9.1.26. that the person whom it specifies for registration as
holder of the Placing Shares will be (i) itself or (ii) its
nominee, as the case may be. Neither finnCap 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. It and any person acting on its behalf
agrees to indemnify the Company and finnCap in respect of the same
on the basis that the Placing Shares will be allotted to the CREST
stock account of finnCap who will hold them as nominee on its
behalf until settlement in accordance with standing settlement
instructions;
9.1.27. that neither finnCap nor any of its affiliates, agents,
directors, officers, partners advisers or employees, nor any person
acting on their behalf 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 participation in
the Placing is on the basis that it is not and will not be a client
of finnCap and that finnCap has no duties or responsibilities 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;
9.1.28. that in making any decision to subscribe for the Placing
Shares, it has knowledge and experience in financial, business and
international investment matters as is required to evaluate the
merits and risks of subscribing for or purchasing the Placing
Shares. It further confirms that it 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
participating in, and is able to sustain a complete loss in
connection with, the Placing. It further confirms that it relied on
its own examination and due diligence of the Company and its
associates taken as a whole, and the terms of the Placing,
including the merits and risks involved, and not upon any view
expressed or information provided by or on behalf of finnCap;
9.1.29. that in connection with the Placing, finnCap and any of
its affiliates acting as an investor for their own account may take
up Placing Shares in the Company and in that capacity may retain,
purchase or sell for its own account such Placing Shares in the
Company and any securities of the Company or related investments
and may offer or sell such securities or other investments
otherwise than in connection with the Placing. finnCap does not
intend to disclose the extent of any such investment or
transactions otherwise than in accordance with any legal or
regulatory obligation to do so;
9.1.30. that these terms and conditions and any agreements
entered into by it pursuant to these terms and conditions and any
non-contractual obligations arising out of or in connection with
such agreements shall be governed by and construed in accordance
with the laws of England and Wales and it submits, on its own
behalf 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 Placing Shares (together with any interest
chargeable thereon) may be taken by the Company or finnCap in any
jurisdiction in which it is incorporated or in which any of its
securities have a quotation on a recognised stock exchange;
9.1.31. that the Company, finnCap and its affiliates, agents,
directors, officers, partners advisers or employees and others will
rely upon the truth and accuracy of the representations, warranties
and acknowledgements set forth herein and which are given to
finnCap on their own behalf and on behalf of the Company and are
irrevocable and it irrevocably authorises the Company and finnCap
to produce this announcement, pursuant to or 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;
9.1.32. none of the Company or finnCap owes any fiduciary or
other duties to any Placee in respect of any acknowledgements,
confirmations, undertakings, representations, warranties or
indemnities in the Placing Agreement;
9.1.33. its commitment to take up Placing 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 finnCap's conduct of the
Placing; and
9.1.34. that it will indemnify and hold the Company, finnCap and
their respective affiliates, agents, directors, officers, partners,
advisers or 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 in this announcement and further agrees that the
provisions of this announcement shall survive after completion of
the Placing.
9.2. By participating in the Placing, each Placee (and any
person acting on the Placee's behalf) subscribing for Placing
Shares acknowledges that the Placing Shares have not been and will
not be registered under the Securities Act or with any securities
regulatory authority of any state or other jurisdiction of the
United States and are being offered and sold solely outside the
United States in "offshore transactions" pursuant to and in
reliance on Regulation S, in a transaction not involving a public
offering of securities in the United States.
9.3. Please also note that the agreement to allot and issue
Placing Shares to Placees (or the persons for whom Placees are
contracting as agent) free of stamp duty and stamp duty reserve tax
in the UK relates only to their allotment and issue to Placees, or
such persons as they nominate as their agents, direct from the
Company for the Placing Shares in question. The Company and finnCap
are not liable to bear any transfer taxes that arise on a sale of
Placing 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. Furthermore, each
Placee agrees to indemnify on an after-tax basis and hold finnCap
and the Company and their respective affiliates harmless from any
and all interest, fines or penalties in relation to stamp duty,
stamp duty reserve tax and all other similar duties or taxes to the
extent that such interest, fines or penalties arise from the
unreasonable default or delay of that Placee or its agent.
9.4. Each Placee and any person acting on behalf of each Placee
acknowledges and agrees that finnCap or any of its respective
affiliates may, at their absolute discretion, agree to become a
Placee in respect of some or all of the Placing Shares.
9.5. When a Placee or person acting on behalf of the Placee is
dealing with finnCap, any money held in an account with finnCap 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 FSMA. The Placee
acknowledges that the money will not be subject to the protections
conferred by the client money rules; as a consequence, this money
will not be segregated from finnCap's money in accordance with the
client money rules and will be used by finnCap in the course of its
own business; and the Placee will rank only as a general creditor
of finnCap.
9.6. All times and dates in this announcement may be subject to
amendment. finnCap shall notify the Placees and any person acting
on behalf of the Placees of any changes.
9.7. The rights and remedies of finnCap and the Company under
these terms and conditions are in addition to any rights and
remedies which would otherwise be available to each of them and the
exercise or partial exercise of one will not prevent the exercise
of others.
9.8. Past performance is no guide to future performance and
persons needing advice should consult an independent financial
adviser.
APPENDIX 3
DEFINITIONS
The following definitions apply throughout this announcement,
unless the context requires otherwise:
Admission means the admission of the New Ordinary Shares to
trading on AIM and such admission becoming effective in accordance
with the AIM Rules.
AIM means the AIM market of the London Stock Exchange.
AIM Rules means the AIM rules for companies published by the
London Stock Exchange.
Application means the application to be made by or on behalf of
the Company to the London Stock Exchange for Admission.
Bookbuild means the process by which finnCap has determined the
Issue Price.
Circular means the circular, to be published by the Company on 1
November 2019 in relation to the Placing and Open Offer which will
include notice of convening the General Meeting at which the
Resolution will be proposed.
Company or Xeros means Xeros Technology Group plc, a company
incorporated in England and Wales with registered number 8684474,
with its registered office at Unit 2, Evolution, Advanced
Manufacturing Park, Whittle Way, Catcliffe, Rotherham, South
Yorkshire S60 SBL.
CREST means a relevant system (as defined in the CREST
Regulations) in respect of which Euroclear is the Operator (as
defined in the CREST Regulations).
CREST Regulations means the Uncertificated Securities
Regulations 2001 (SI 2001 No. 3755) (as amended).
Directors means the board of directors of the Company.
EBITDA means earnings before interest, taxation, depreciation
and amortisation.
EEA means The European Economic Area.
EU means the European Union.
Euroclear means Euroclear UK & Ireland Limited.
Existing Ordinary Shares means the 257,056,245 Ordinary Shares
in issue at the date of this document, all of which are admitted to
trading on AIM and being the entire issued ordinary share capital
of the Company.
FCA means Financial Conduct Authority.
finnCap means finnCap Ltd, Nominated Advisor, Broker and
Bookrunner.
FSMA means Financial Services and Markets Act 2000.
Fundraising means the Placing and Open Offer together.
General Meeting means the general meeting of the Company to be
convened by the Circular.
Independent Director means David Baynes.
Issue Price means 1 pence per New Ordinary Share.
London Stock Exchange means London Stock Exchange plc.
MAR means the EU Market Abuse Regulation (2014/596/EU).
New Ordinary Shares means the Placing Shares and the Open Offer
Shares.
Open Offer means the offer by the Company to Qualifying
Shareholders, constituting an invitation to apply for the Open
Offer Shares, on and subject to the terms and conditions set out in
the Circular (and in the case of Qualifying Shareholders who do not
hold their Ordinary Shares in CREST, the Application).
Open Offer Shares means the new Ordinary Shares to be offered to
Qualifying Shareholders under the Open Offer.
Ordinary Shares means ordinary shares of 0.15 pence each in the
capital of the Company.
Participating Directors means David Armfield, Mark Nichols and
Paul Denney
Placing means the proposed placing by finnCap as agent for the
Company, of the Placing Shares at the Issue Price on a
non-pre-emptive basis, on the terms and conditions set out in the
Placing Agreement.
Placee means the institutional investors participating in the
proposed Placing.
Placing Agreement means the agreement to be entered into between
the Company and finnCap in connection with the Placing.
Placing Conditions means as defined in Appendix 2.
Placing Shares means 505,000,000 Ordinary Shares which may,
pursuant to the Placing, be allotted and issued fully paid up at
the Issue Price and admitted to trading on AIM.
Prospectus Directive means directive 2003/71/EC on the
requirements for a prospectus to be published when securities are
offered to the public or admitted to trading.
Qualifying Shareholder means shareholders set out in the
register of members of the Company on the Record Date (as defined
in the Circular).
Relevant Persons means as defined in Appendix 2.
Resolutions means the resolutions relating to the Placing and
the Open Offer in the approved terms set out in the notice
convening the General Meeting contained in the Circular.
RNS means the regulatory information service approved by the
London Stock Exchange for the distribution of AIM
announcements.
Securities Act means the US Securities Act of 1933, as
amended.
Shareholders means holders of Ordinary Shares.
Takeover Code means the City Code on Takeovers and Mergers.
United Kingdom or UK means United Kingdom.
United States or US means United States of America, its
territories and possessions, any state of the United States of
America and the District of Columbia.
All references in this announcement to "GBP", "pence" or "p" are
to the lawful currency of the United Kingdom. All references to
"USS" or "$" are to the lawful currency of the United States.
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
IOELLFSEISLLVIA
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