7 Jul 2016 09:59
7 July 2016
DiamondCorp plc
AIM share code: DCP & JSE share code: DMC
ISIN: GB00B183ZC46
(Incorporated in England and Wales)
(Registration number 05400982)
(SA company registration number 2007/031444/10)
("DiamondCorp", "the Company" or "the Group")
Placing and subscription to raise £1.5 million
and
Broker Option to raise up to an additional £0.5 million
DiamondCorp, the Southern African diamond mining, development and exploration company, announces a placing and subscription of 24,851,673 new ordinary shares of 0.1 pence each in the Company (the "Placing Shares") at a price of 6 pence per share (the "Placing Price"), in order to raise gross proceeds of approximately £1.5 million (the "Placing"). The Placing has been undertaken within the Company's existing share authorities, and has been supported by both new and existing shareholders. The net proceeds of the Placing will be used for working capital purposes.
In addition, the Company has granted an option to Panmure Gordon under the Placing Agreement (the "Broker Option" and, together with the Placing, the "Fundraise") in order to enable Panmure Gordon to meet any additional demand of up to a further £0.5 million through the issue of up to 3,716,666 new ordinary shares of 0.1 pence each in the Company (the "Broker Option Shares") at the Placing Price in order to facilitate existing and other investors, including non-institutional shareholders, to participate in the Fundraise. Panmure Gordon is under no obligation to exercise the Broker Option and the exercise of the Broker Option shall be at the discretion of Panmure Gordon (with the agreement of the Company).
Orders may be submitted to Panmure Gordon between the release of this announcement and 4.30 p.m. on 11 July 2016. For the avoidance of doubt, the Broker Option is only open to investors invited to participate by Panmure Gordon and is not open to the public.
Certain of the directors of the Company intend to participate in the Fundraise by way of the Broker Option.
Background to and reasons for the Placing
As previously reported, the Company's operational cashflow has been constrained following recent unplanned capital expenditure. The Company announced in April 2016 that it had experienced operational difficulties with its existing mining fleet whilst continuing the ramp up of commercial production from underground kimberlite mining at the Lace mine. The Company addressed these issues with the acquisition of eight vehicles, including four underground dump trucks, two underground loaders, and two single boom drill rigs, at a total cost of approximately $1 million. The acquired vehicles were all nearly-new, and ready for immediate service, with the exception of three of the dump trucks which required moderate refurbishment before entering service. Additionally, as previously announced in June 2016, the Company continued to incur high breakdown and repair costs on its existing mining fleet while the newly acquired trucks were being refurbished. The Company has therefore experienced constraints on its working capital in excess of its existing contingencies.
The Directors examined and pursued various options for raising additional capital without further recourse to shareholders. However, none of the options are available at reasonable cost or in a timely manner.
As a consequence, the net proceeds of the Placing will be used for working capital purposes as the Company continues its ramp up of commercial production. Any funds raised through the Broker Option will also be applied towards general working capital purposes and to increase contingencies.
Operationally, the 1,500 tonne underground ore silo and tipping arrangement has now been handed over by the contractor and the final two dump trucks undergoing refurbishment are operational. The project remains on track to deliver 30,000 tonnes per month of kimberlite from the Upper K4 Block to the conveyor belt from this month.
The Company has also commenced a review of its board and management, to deliver improved operational and financial control and will update shareholders in due course.
Details of the Placing and the Broker Option
Pursuant to the terms of the Placing Agreement, Panmure Gordon, as agent for and on behalf of the Company, has conditionally agreed to use its reasonable endeavours to procure subscribers for the Placing Shares at the Placing Price. A Placing commitment of £50,000 has been received from PrimaryBid, the crowdfunding platform for AIM companies. The Placing Shares also incorporate new ordinary shares to be settled by way of a direct subscription with the Company.
The Placing Shares will represent approximately 5.28 per cent. of the enlarged issued ordinary share capital following the admission of the Placing Shares.
The Placing is conditional, inter alia, on admission of the Placing Shares to trading on the AIM Market of the London Stock Exchange plc ("AIM"), becoming effective by no later than 8.00 a.m. on 12 July 2016 or such other date (being not later than 8.00 a.m. on 29 July 2016) as the Company and Panmure Gordon may agree. Application has been made for the Placing Shares to be admitted to trading on AIM and on the Alternative Exchange of the JSE Limited ("AltX"). Settlement for and admission of the Placing Shares on AIM is expected to take place on 12 July 2016. It is anticipated that admission to trading on AltX will take place on or around 15 July 2016.
The Company has also granted to Panmure Gordon the Broker Option to raise up to a further £0.5 million through the issue of up to 8,481,660 Broker Option Shares at the Placing Price in order to facilitate existing and other investors, including non-institutional shareholders, to participate in the Fundraising.
Orders may be submitted to Panmure Gordon between the release of this announcement and 4.30 p.m. on 11 July 2016. If exercised, the Broker Option shall require the Company to issue up to a further 8,481,660 Broker Option Shares in addition to the Placing Shares. The result of the Broker Option and the corresponding issuance of the Broker Option Shares, if any, is anticipated to be announced at or around 7.00 a.m. on 12 July 2016. Admission and settlement of the Broker Option Shares on AIM is anticipated to occur on or about 15 July 2016. It is anticipated that admission to trading on AltX will take place on or around 19 July 2016. The exercise of the Broker Option shall be at the discretion of Panmure Gordon (with the agreement of the Company) and Panmure Gordon is under no obligation to exercise the Broker Option.
The Broker Option Shares, if issued, will be issued on the same terms and conditions as the Placing Shares pursuant to the Placing.
The Company's enlarged issued ordinary share capital following the admission of the Placing Shares will be 470,257,920 ordinary shares (assuming no Broker Option Shares are issued). Were the maximum number of Broker Option Shares to be issued, the Company's enlarged issued ordinary share capital following the admission of the Placing Shares and the Broker Option Shares would be 478,739,580 ordinary shares. DiamondCorp does not hold any ordinary shares in treasury.
The Market Abuse Regulation ("MAR") became effective from 3 July 2016. Market soundings, as defined in MAR, were taken in respect of the Fundraise 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.
Contact details:
DiamondCorp plc
Paul Loudon, Chief Executive
Tel: +27 56 216 1300
Euan Worthington, Chairman
Tel: +44 7753 862 097
UK Broker, Sole Placing Agent & Nominated Adviser
Panmure Gordon (UK) Limited
Adam James / Atholl Tweedie
Tel: +44 20 7886 2500
Contacts for the Broker Option:
Tom Salvesen (Corporate Broking): +44 20 7886 2904
Jamie Campbell (Specialist Sales): +44 20 7886 2736
JSE Designated Adviser
Sasfin Capital (a division of Sasfin Bank Limited)Megan Young
Tel: +27 11 445 8068
SA Corporate Adviser
Qinisele Resources Proprietary Limited
Dennis Tucker / Andrew Brady
Tel: +27 11 883 6358
Important Information
This announcement contains (or may contain) certain forward-looking statements with respect to certain of the Company's plans and its current goals and expectations relating to its future financial condition and performance and which involve a number of risks and uncertainties. The Company cautions readers that no forward-looking statement is a guarantee of future performance and that actual results could differ materially from those contained in the forward-looking statements. These forward-looking statements can be identified by the fact that they do not relate only to historical or current facts. Forward-looking statements sometimes use words such as "aim", "anticipate", "target", "expect", "estimate", "intend", "plan", "goal", "believe", or other words of similar meaning. By their nature, forward-looking statements involve risk and uncertainty because they relate to future events and circumstances, including, but not limited to, economic and business conditions, the effects of continued volatility in credit markets, market-related risks such as changes in the price of commodities or changes in interest rates and foreign exchange rates, the policies and actions of governmental and regulatory authorities, changes in legislation, the further development of standards and interpretations under International Financial Reporting Standards ("IFRS") applicable to past, current and future periods, evolving practices with regard to the interpretation and application of standards under IFRS, the outcome of pending and future litigation or regulatory investigations, the success of future explorations, acquisitions and other strategic transactions and the impact of competition. A number of these factors are beyond the Company's control. As a result, the Company's actual future results may differ materially from the plans, goals, and expectations set forth in the Company's forward-looking statements. Any forward-looking statements made in this announcement by or on behalf of the Company speak only as of the date they are made. Except as required by the Financial Conduct Authority (the "FCA"), the London Stock Exchange or applicable law, the Company expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained in this announcement to reflect any changes in the Company's expectations with regard thereto or any changes in events, conditions or circumstances on which any such statement is based.
This announcement is for information purposes only and shall not constitute an offer to buy, sell, issue, or subscribe for, or the solicitation of an offer to buy, sell, issue, or subscribe for any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
This announcement does not contain an offer or constitute any part of an offer to the public within the meaning of Sections 85 and 102B of the Financial Services and Markets Act 2000, as amended ("FSMA") or otherwise. This announcement is not an "approved prospectus" within the meaning of Section 85(7) of FSMA and a copy of it has not been, and will not be, delivered to the FCA in accordance with the Prospectus Rules or delivered to any other authority which could be a competent authority for the purpose of the Prospectus Directive. Its contents have not been examined or approved by the London Stock Exchange plc, nor has it been approved by an "authorised person" for the purposes of Section 21 of FSMA.
This announcement has been issued by and is the sole responsibility of the Company. No representation or warranty, express or implied, is or will be made as to, or in relation to, and no responsibility or liability is or will be accepted by Panmure Gordon or by any of its respective affiliates or agents as to, or in relation to, the accuracy or completeness of this announcement or any other written or oral information made available to or publicly available to any interested party or its advisers, and any liability therefore is expressly disclaimed.
Panmure Gordon, which is authorised and regulated in the United Kingdom by the FCA, is acting as placing agent for the Company and for no-one else in connection with the Placing and the Broker Option, and Panmure Gordon will not be responsible to anyone other than the Company for providing the protections afforded to its customers or for providing advice to any other person in relation to the Placing, the Broker Option, or any other matter referred to herein.
The distribution of this announcement and the offering of the Placing Shares or the Broker Option Shares in certain jurisdictions may be restricted by law. No action has been taken by the Company or Panmure Gordon that would permit an offering of such shares or possession or distribution of this announcement or any other offering or publicity material relating to such shares in any jurisdiction where action for that purpose is required. Persons into whose possession this announcement comes are required to inform themselves about, and to observe such restrictions.
This announcement is not for distribution or dissemination, directly or indirectly, in or into the United States or any jurisdiction into which the same would be unlawful. No public offering of securities of the Company will be made in connection with the Placing or the Broker Option in the United Kingdom, the United States, the EEA, Switzerland or elsewhere.
This announcement is not intended to constitute an offer or solicitation to purchase or invest in the Placing Shares or the Broker Option Shares.
Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of this announcement should seek appropriate advice before taking any action.
The Placing Shares and the Broker Option Shares to which this announcement relates may be illiquid and / or subject to restrictions on their resale. Prospective purchasers of the Placing Shares and the Broker Option Shares should conduct their own due diligence on the Placing Shares and the Broker Option Shares. If you do not understand the contents of this announcement you should consult an authorised financial adviser.
The information in this announcement may not be forwarded or distributed to any other person and may not be reproduced in any manner whatsoever. Any forwarding, distribution, dissemination, reproduction, or disclosure of this information in whole or in part is unauthorised. Failure to comply with this directive may result in a violation of the United States Securities Act of 1933 (as amended) ("US Securities Act") or the applicable laws of other jurisdictions.
Neither the content of the Company's website nor any website accessible by hyperlinks on the Company's website is incorporated in, or forms part of, this announcement.
Appendix: Terms and Conditions of the Fundraise
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE FUNDRAISE.
THIS ANNOUNCEMENT, INCLUDING THIS APPENDIX (TOGETHER, THE "ANNOUNCEMENT") AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM THE UNITED STATES, CANADA, AUSTRALIA, JAPAN OR ANY JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL. PERSONS INTO WHOSE POSSESSION THIS ANNOUNCEMENT COMES ARE REQUIRED BY THE COMPANY AND PANMURE GORDON TO INFORM THEMSELVES ABOUT AND TO OBSERVE ANY SUCH RESTRICTIONS.
THIS ANNOUNCEMENT DOES NOT ITSELF CONSTITUTE AN OFFER OR INVITATION TO UNDERWRITE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF A SUBSCRIPTION FOR THE PLACING SHARES AND/OR BROKER OPTION SHARES.
Persons (including individuals, funds or otherwise) who have chosen to participate in the Fundraise, by making an oral or written offer to subscribe for the Placing Shares and/or the Broker Option Shares will be deemed to have read and understood the Announcement, including this Appendix, in its entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, acknowledgements, and undertakings contained in this Appendix.
In this Appendix, unless the context otherwise requires, "Placee" means a person (including individuals, funds or others) by whom or on whose behalf a commitment to subscribe for Placing Shares and/or the Broker Option Shares has been given. In particular, each such Placee represents, warrants and acknowledges that:
1. it will acquire, hold, manage or dispose of any Placing Shares and Broker Option Shares that are allocated to it for the purposes of its business;
2. in the case of any Placing Shares and Broker Option Shares acquired by it as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, (i) the Placing Shares and/or Broker Option Shares acquired by it in the Fundraise have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons in any Member State of the European Economic Area which has implemented the Prospectus Directive other than Qualified Investors or in circumstances in which the prior consent of Panmure Gordon has been given to the offer or resale; or (ii) where Placing Shares and/or Broker Option Shares have been acquired by it on behalf of persons in any member state of the EEA other than Qualified Investors, the offer of those Placing Shares and/or Broker Option Shares to it is not treated under the Prospectus Directive as having been made to such persons;
3. (a) (i) it is not in the United States and (ii) it is not acting for the account or benefit of a person in the United States, unless in the case of this clause (ii), it is acting with full investment discretion for such person or, if such person is a corporation or partnership, the person agreeing to purchase the Placing Shares and/or Broker Option Shares is an employee of such person authorised to make such purchase; (b) it is a dealer or other professional fiduciary in the United States acting on a discretionary basis for a non-US person (other than an estate or trust) in reliance on Regulation S; (c) it is otherwise acquiring the Placing Shares and/or Broker Option Shares in an "offshore transaction" meeting the requirements of Regulation S under the US Securities Act of 1933, as amended (the 'Securities Act"); or (d) it is a "qualified institutional buyer" (a "QIB") (as defined in Rule 144A under the Securities Act) and it has duly executed an investor letter in a form provided to it and delivered the same to Panmure Gordon or its affiliates;
4. it is acquiring the Placing Shares and/or Broker Option Shares for its own account or is acquiring the Placing Shares and/or Broker Option Shares for an account with respect to which it exercises sole investment discretion and has the authority to make and does make the representations, warranties, indemnities, acknowledgements and agreements contained in this Announcement; and
5. it understands (or, if acting for the account of another person, such person understands) the resale and transfer restrictions set out in this Appendix.
The Company and Panmure Gordon will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
Details of the Placing
Panmure Gordon has entered into an agreement with Diamondcorp (the "Placing Agreement") under which, subject to the conditions set out in that agreement, Panmure Gordon has agreed to use its reasonable endeavours to procure subscribers for the Placing Shares and the Broker Option Shares (if any) at the Placing Price.
The Fundraise is conditional upon the Placing Agreement becoming unconditional in all respects.
The Placing Shares and the Broker Option Shares (if any) will, when issued, rank pari passu in all respects with the existing issued ordinary shares of 0.1 pence each in the capital of the Company (the "Ordinary Shares"), including the right to receive dividends and other distributions declared, made or paid following their respective Admission.
Applications for admission to trading
Applications will be made to the London Stock Exchange for admission of the Placing Shares and the Broker Option Shares (if any) ("Admission") to trading on AIM and on the Alternative Exchange of the JSE Limited ("AltX"). It is expected that Admission of the Placing Shares will become effective and that dealings in the Placing Shares will commence on AIM at 8.00 a.m. on 12 July 2016 and on AltX on or about 15 July 2016. It is expected that Admission of the Broker Option Shares (if any) will become effective and that dealings in the Broker Option Shares will commence on AIM at 8.00 a.m. on or around 15 July 2016 and on AltX on or around 19 July 2016.
Participation in, and principal terms of, the Fundraise
Panmure Gordon is arranging the Fundraise as agent for and on behalf of the Company. Participation in the Fundraise will only be available to Placees who may lawfully be, and are, invited to participate by Panmure Gordon.
The Placing Price is fixed at 6.0 pence and is payable to Panmure Gordon by all Placees.
Panmure Gordon will determine in its absolute discretion the extent of each Placee's participation in the Fundraise, which will not necessarily be the same for each Placee and this will be confirmed orally by Panmure Gordon as agent of the Company ("Confirmation"). No element of the Fundraise will be underwritten. Confirmation will constitute an irrevocable legally binding commitment upon that person (who will at that point become a Placee) to subscribe for the number of Placing Shares and/or Broker Option Shares allocated to it at the Placing Price on the terms and conditions set out in this Appendix (a copy of the terms and conditions having been provided to the Placee prior to or at the same time as such oral confirmation) and in accordance with the Company's articles of association. For the avoidance of doubt, the Confirmation constitutes each Placee's irrevocable legally binding agreement, subject to the Placing Agreement not having been terminated, to pay the aggregate settlement amount for the Placing Shares and/or Broker Option Shares to be subscribed for by that Placee regardless of the total number of Placing Shares (if any) or Broker Option Shares (if any) subscribed for by any other investor(s).
Each Placee will be required to pay to Panmure Gordon, on the Company's behalf, the Placing Price for each Placing Share and/or Broker Option Share agreed to be acquired by it under the Fundraise in accordance with the terms set out herein. Each Placee's obligation to acquire and pay for Placing Shares and/or Broker Option Shares under the Fundraise will be owed to Panmure Gordon and the Company. Each Placee has an immediate, separate, irrevocable and binding obligation, owed to Panmure Gordon, to pay to it (or as it may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares and/or Broker Option Shares for which such Placee has agreed to subscribe. Each Placee will be deemed to have read and understood the Appendix in its entirety, to the participating in the Fundraise upon the terms and conditions contained in the Appendix, and to be providing the representations, warranties, agreements, acknowledgements and undertakings, in each case as contained in the Appendix. To the fullest extent permitted by law and applicable Financial Conduct Authority ("FCA") rules (the "FCA Rules"), (i) neither Panmure Gordon, (ii) nor any of its directors, officers, employees or consultants, nor (iii) to the extent not contained within (i) or (ii), any person connected with Panmure Gordon as defined in the FCA Rules ((i), (ii) and (iii) being together "affiliates" and individually an "affiliate"), shall have any liability to Placees or to any person other than the Company in respect of the Fundraise.
Irrespective of the time at which a Placee's participation in the Fundraise is confirmed, settlement for all Placing Shares and Broker Option Shares (if any) to be acquired pursuant to the Fundraise will be required to be made at the same time, on the basis explained below under "Registration and Settlement".
Completion of the Fundraise will be subject to the fulfilment of the conditions referred to below under "Conditions of the Fundraise" and to the Fundraise not being terminated on the basis referred to below under "Termination of the Placing Agreement". In the event that the Placing Agreement does not become unconditional in any respect or is terminated, the Placing and/or the Broker Option (save to the extent already completed) will not proceed and all funds delivered by the Placee to Panmure Gordon in respect of the Placee's participation will be returned to the Placee at the Placee's risk without interest, (save where Placing Shares and/or Broker Option Shares have been validly issued to Placees).
By participating in the Fundraise, each Placee agrees that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not otherwise be capable of rescission or termination by the Placee.
By participating in the Fundraise, each Placee is deemed to have read and understood this Announcement, including the Appendix, in its entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, acknowledgements, and undertakings contained in the Appendix.
To the fullest extent permissible by law, neither the Company, Panmure Gordon nor any of their affiliates shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither Panmure Gordon nor any of its affiliates shall have any liability (including to the extent permissible by law, any fiduciary duties) in respect of Panmure Gordon's conduct of the Fundraise.
Conditions of the Fundraise
The obligations of Panmure Gordon under the Placing Agreement in respect of the Placing Shares are conditional on, amongst other things:
(a) the Company having complied with its obligations under the Placing Agreement (to the extent that such obligations fall to be performed prior to Admission of the Placing Shares); and
(b) Admission of the Placing Shares on AIM having occurred not later than 8.00 a.m. on 12 July 2016 or such later date as the Company and Panmure Gordon may agree, but in any event not later than 8.00 a.m. on 29 July 2016.
The obligations of Panmure Gordon under the Placing Agreement in respect of the Broker Option Shares are subject to it having decided to exercise the Broker Option and are conditional on, amongst other things:
(a) the Company having complied with its obligations under the Placing Agreement (to the extent that such obligations fall to be performed prior to Admission of the Broker Option Shares);
(b) Admission of the Placing Shares on AIM having become effective; and
(c) Admission of the Broker Option Shares on AIM having occurred not later than 8.00 a.m. on or around 15 July 2016 or such later date as the Company and Panmure Gordon may agree, but in any event not later than 8.00 a.m. on 29 July 2016.
If (i) any of the conditions contained in the Placing Agreement in relation to the Placing Shares are not fulfilled or waived by Panmure Gordon by the respective time or date where specified, (ii) any of such conditions becomes incapable of being fulfilled or (iii) the Placing Agreement is terminated in the circumstances specified below, 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.
If (i) any of the conditions contained in the Placing Agreement in relation to the Broker Option Shares are not fulfilled or waived by Panmure Gordon by the respective time or date where specified, (ii) any of such conditions becomes incapable of being fulfilled or (iii) the Placing Agreement is terminated in the circumstances specified below, the placing of the Broker Option Shares will not proceed and the Placee's rights and obligations hereunder in relation to the Broker Option Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by the Placee in respect thereof. For the avoidance of doubt, in the event that the Placing Agreement is terminated in respect of the Broker Option Shares after Admission of the Placing Shares has taken place, the allotment and issue of the Placing Shares will be unaffected.
Panmure Gordon, at its discretion and upon such terms as it thinks fit, may waive compliance by the Company with the whole or any part of any 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.
Neither Panmure Gordon, the Company nor any other person shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision they may make as to whether or not to waive or to extend the time and/or the date for the satisfaction of any condition to the Fundraise nor for any decision they may make as to the satisfaction of any condition or in respect of the Fundraise generally, and by participating in the Fundraise each Placee agrees that any such decision is within the absolute discretion of Panmure Gordon.
Termination of the Placing Agreement
Panmure Gordon is entitled (but after, where practicable, having consulted with the Company) at any time before Admission of the Placing Shares or Admission of the Broker Option Shares (as the case maybe), to terminate the Placing Agreement in relation to its obligations in respect of those shares (save to the extent already performed) by giving notice to the Company if, amongst other things:
(a) the Company fails, in any material respect, to comply with any of its obligations under the Placing Agreement; or
(b) any of the warranties given by the Company in the Placing Agreement was untrue, inaccurate or misleading in any material respect when made or has ceased to be true and accurate in a material respect or has become misleading in a material respect by reference to the facts and circumstances then subsisting; or
(c) an event of force majeure occurs or there is a material adverse change in the financial position and/or prospects of the Company or any member of the Group.
Upon such termination, the parties to the Placing Agreement shall be released and discharged (except for any liability arising before or in relation to such termination and save to the extent already performed) from their respective obligations under or pursuant to the Placing Agreement subject to certain exceptions.
By participating in the Fundraise, Placees agree that the exercise by Panmure Gordon of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of Panmure Gordon and that it need not make any reference to Placees and that it shall have no liability to Placees whatsoever in connection with any such exercise or failure so to exercise.
No prospectus
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 Fundraise and Placees' commitments will be made solely on the basis of the information contained in this Announcement (including the Appendix) released by the Company today.
Each Placee, by accepting a participation in the Fundraise, agrees that the content of this Announcement (including the 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, Panmure Gordon or any other person and neither Panmure Gordon nor 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 Fundraise. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
Registration and settlement
Settlement of transactions in the Placing Shares and the Broker Option Shares following relevant Admission will take place within the system administered by Euroclear UK & Ireland Limited ("CREST"), subject to certain exceptions. The Company reserves the right to require settlement for and delivery of the Placing Shares (or a portion thereof), or of the Broker Option Shares (if any) (or a portion thereof), to Placees in certificated form if, in the opinion of Panmure Gordon, 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.
Participation in the Fundraise is only available to persons who are invited to participate in it by Panmure Gordon.
A Placee's commitment to acquire a fixed number of Placing Shares and/or Broker Option Shares under the Fundraise will be agreed orally with Panmure Gordon and a contract note will be despatched as soon as possible thereafter. Such agreement will constitute a legally binding commitment on such Placee's part to acquire that number of Placing Shares and/or Broker Option Shares at the Placing Price on the terms and conditions set out or referred to in the Appendix and subject to the Company's Articles of Association.
Each Placee allocated Placing Shares and/or Broker Option Shares in the Fundraise will be sent trade confirmations in accordance with the standing arrangements in place with Panmure Gordon, stating the number of Placing Shares and/or Broker Option Shares allocated to it at the Placing Price, the aggregate amount owed by such Placee to Panmure Gordon 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 that it has in place with Panmure Gordon. Settlement should be through Panmure Gordon against CREST ID: 83801. For the avoidance of doubt, Placing allocations will be booked with a trade date of 7 July 2016 and settlement date on AIM of 12 July 2016 for the Placing Shares and Broker Option allocations (if any) will be booked with a trade date of 12 July 2016 and settlement date on AIM of 15 July 2016 for the Broker Option Shares.
The Company will deliver the Placing Shares and the Broker Option Shares (if any) to the CREST accounts operated by Panmure Gordon as agent for the Company and Panmure Gordon 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 relevant Placing Shares and/or Broker Option Shares to that Placee against payment. The Placing Shares and the Broker Option Shares (if any) will be held as nominee for the relevant Placee.
It is expected that settlement on AIM will take place on 12 July 2016 for the Placing Shares and 15 July 2016 for the Broker Option Shares, on a delivery versus payment basis.
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 four per cent. per annum above the base lending rate of the Bank of England, as determined by Panmure Gordon.
Each Placee is deemed to agree that, if it does not comply with these obligations, the Company may sell any or all of the Placing Shares and Broker Option Shares (if any) allocated to that Placee on such Placee's behalf and retain from the proceeds, for the Company'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) which may arise upon the sale of such Placing Shares and/or Broker Option Shares on such Placee's behalf.
If Placing Shares and/or Broker Option 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 Placing Shares and/or Broker Option Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such Placing Shares and/or Broker Option 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 Fundraise.
Representations and warranties
By participating in the Fundraise, each Placee (and any person acting on such Placee's behalf) acknowledges, undertakes, represents, warrants and agrees (as the case may be) with Panmure Gordon and the Company, in each case as a fundamental term of their application for Placing Shares and/or Broker Option Shares, the following:
That it:
1. represents and warrants that it has read this Announcement, including the Appendix, in its entirety and that its acquisition of Placing Shares and/or Broker Option 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 it has received this Announcement solely for its use and has not redistributed or duplicated it;
3. acknowledges and agrees that no offering document, prospectus or admission document has been or will be prepared in connection with the Fundraise and represents and warrants that it has not received a prospectus, admission document or other offering document in connection with the Fundraise or the Placing Shares or the Broker Option Shares;
4. acknowledges that its participation in the Fundraise shall also be subject to the provisions of the Placing Agreement and the memorandum and articles of association of the Company in force both before and immediately after Admission;
5. acknowledges that the ordinary shares in the capital of the Company are admitted to trading on AIM and on the Alternative Exchange of the JSE, and the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of AIM and the JSE (collectively, the "Exchange Information"), which includes a description of the nature of the Company's business and the Company's most recent balance sheet and profit and loss account and that it is able to obtain or access such Exchange Information without undue difficulty and is able to obtain access to such information or comparable information concerning any other publicly traded company without undue difficulty;
6. acknowledges that neither Panmure Gordon nor the Company nor any of their respective affiliates or any person acting on behalf of any of them has provided, and will not provide, it with any material regarding the Placing Shares or Broker Option Shares or the Company other than this Announcement; nor has it requested any of Panmure Gordon, the Company, any of their respective affiliates or any person acting on behalf of any of them to provide it with any such information;
7. acknowledges that the content of this Announcement is exclusively the responsibility of the Company and that neither Panmure Gordon 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 published by or on behalf of the Company and will not be liable for any Placee's decision to participate in the Fundraise 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 subscribe for the Placing Shares and/or Broker Option 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 it deems necessary to make an investment decision in respect of the Placing Shares and/or Broker Option Shares and that it has neither received nor relied on any other information given or representations, warranties or statements made by Panmure Gordon or the Company or their respective affiliates and neither Panmure Gordon nor the Company nor their respective affiliates will be liable for any Placee's decision to accept an invitation to participate in the Fundraise based on any other information, representation, warranty or statement. Each Placee 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 Fundraise;
8. represents and warrants that it has neither received nor relied on any inside information (as defined in section 118C of the Financial Services and Markets Act 2000, as amended ("FSMA")) concerning the Company in accepting this invitation to participate in the Fundraise;
9. acknowledges that neither Panmure Gordon nor any person acting on its behalf nor any of their respective affiliates has or shall have any liability for any publicly available or filed information, or any representation relating to the Company, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
10. represents and warrants that it has complied with its obligations under the Criminal Justice Act 1993, section 118 of FSMA, Market Abuse Regulation and in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2000 (as amended), the Terrorism Act 2006 and the Money Laundering Regulations 2007 (the "Regulations") and any related or similar rules, regulations or guidelines, issued, administered or enforced by any government agency having jurisdiction in respect thereof 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;
11. if a financial intermediary, as that term is used in Article 3(2) of EU Directive 2003/71/EC, as amended (the "Prospectus Directive") (including any relevant implementing measure in any member state), represents and warrants that the Placing Shares and/or Broker Option Shares subscribed for by it in the Fundraise 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 European Economic Area which has implemented the Prospectus Directive other than to qualified investors, or in circumstances in which the prior consent of Panmure Gordon has been given to the proposed offer or resale;
12. represents and warrants that it has not offered or sold and will not offer or sell any Placing Shares or Broker Option 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 FSMA;
13. represents and warrants that it has not offered or sold and will not offer or sell any Placing Shares or Broker Option Shares to persons in the European Economic Area prior to relevant Admission except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted in and which will not result in an offer to the public in any member state of the European Economic Area within the meaning of the Prospectus Directive;
14. represents and warrants 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 and/or Broker Option Shares in circumstances in which section 21(1) of FSMA does not require approval of the communication by an authorised person;
15. represents and warrants that it has complied and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the Placing Shares and/or Broker Option Shares in, from or otherwise involving, the United Kingdom;
16. represents and warrants that it is a person falling within Article 19(5) and/or Article 49(2)(a) to (d) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended, or is a person to whom this Announcement may otherwise be lawfully communicated;
17. acknowledges that any offer of Placing Shares and/or Broker Option Shares may only be directed at 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 and represents and agrees that it is such a qualified investor;
18. represents and warrants that it and any person acting on its behalf is entitled to subscribe for Placing Shares and/or Broker Option Shares under the laws of all relevant jurisdictions which apply to it and that it has all necessary capacity and has obtained all necessary consents and authorities 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 Announcement) and will honour such obligations, and that its subscription of the Placing Shares and/or the Broker Option Shares will be in compliance with applicable laws and regulations in the jurisdiction of its residence, the residence of the Company, or otherwise.
19. acknowledges and agrees that the Placing Shares and the Broker Option Shares have not been and will not be registered under the Securities Act or with any securities regulatory authority of any state or jurisdiction of the United States, or the relevant Canadian, Japanese, Australian or Irish securities legislation and therefore the Placing Shares and the Broker Option Shares may not be offered, sold, transferred or delivered directly or indirectly into the United States, Canada, Japan, Australia or the Republic of Ireland or their respective territories and possessions, except subject to limited exemptions;
20. warrants that it has complied with all relevant laws of all relevant territories, obtained all requisite governmental or other consents which may be required in connection with the Placing Shares and Broker Option Shares, complied with all requisite formalities and that it has not taken any action or omitted to take any action which will or may result in Panmure Gordon, the Company or any of their respective directors, officers, agents, employees or advisers acting in breach of the legal or regulatory requirements of any territory in connection with the Fundraise;
21. acknowledges and agrees that its purchase of Placing Shares and/or Broker Option Shares does not trigger, in the jurisdiction in which it is resident or located: (i) any obligation to prepare or file a prospectus or similar document or any other report with respect to such purchase; (ii) any disclosure or reporting obligation of the Company; or (iii) any registration or other obligation on the part of the Company;
22. undertakes that it (and any person acting on its behalf) will make payment for the Placing Shares and/or Broker Option Shares allocated to it in accordance with this Announcement on the due time and date set out herein, failing which the relevant Placing Shares and/or Broker Option Shares may be placed with other subscribers or sold as Panmure Gordon may in its discretion determine and without liability to such Placee;
23. acknowledges that neither Panmure Gordon nor any of its affiliates, nor any person acting on behalf of any of them, is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Fundraise and that participation in the Fundraise is on the basis that it is not and will not be a client of Panmure Gordon for the purposes of the Fundraise and that neither Panmure Gordon has no duties or responsibilities to it for providing the protections afforded to its clients or for providing advice in relation to the Fundraise 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;
24. undertakes that the person whom it specifies for registration as holder of the Placing Shares and/or Broker Option Shares will be (i) itself or (ii) its nominee, as the case may be. Neither Panmure Gordon nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax resulting from a failure to observe this requirement. Each Placee and any person acting on behalf of such Placee agrees to participate in the Fundraise and it agrees to indemnify the Company and Panmure Gordon in respect of the same on the basis that the Placing Shares and/or Broker Option Shares will be allotted to the CREST stock account of Panmure Gordon who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions;
25. acknowledges 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 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, Fundraise 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 and/or Broker Option Shares (together with any interest chargeable thereon) may be taken by the Company or Panmure Gordon 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;
26. acknowledges that Panmure Gordon and its affiliates will rely upon the truth and accuracy of the representations, warranties and acknowledgements set forth herein and which are irrevocable and it irrevocably authorises Panmure Gordon 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;
27. agrees to indemnify on an after tax basis and hold the Company and Panmure Gordon and their respective affiliates harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in the Appendix and further agrees that the provisions of the Appendix shall survive after completion of the Fundraise;
28. represents and warrants that it will acquire any Placing Shares and/or Broker Option Shares subscribed for by it for its account or for one or more accounts as to each of which it exercises sole investment discretion and it has full power to make the acknowledgements, representations and agreements herein on behalf of each such account;
29. acknowledges that its commitment to subscribe for Placing Shares and/or Broker Option Shares on the terms set out herein and in the relevant contract notes will continue notwithstanding any amendment that may in future be made to the terms of the Fundraise and that Placees will have no right to be consulted or require that their consent be obtained with respect to the Company's conduct of the Fundraise. The foregoing representations, warranties and confirmations are given for the benefit of the Company and Panmure Gordon. The agreement to settle a Placee's subscription (and/or the subscription of a person for whom such Placee is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to the subscription by it and/or such person direct from the Company for the Placing Shares and/or Broker Option Shares in question. Such agreement assumes, and is based on a warranty from each Placee, that neither it, nor the person specified by it for registration as holder, of Placing Shares and/or Broker Option Shares is, or is acting as nominee or agent for, and that the Placing Shares and/or Broker Option Shares will not be allotted to, a person who is or may be liable to stamp duty or stamp duty reserve tax under any of sections 67, 70, 93 and 96 of the Finance Act 1986 (depositary receipts and clearance services). If there are any such arrangements, or the settlement relates to any other dealing in the Placing Shares and/or Broker Option Shares, stamp duty or stamp duty reserve tax may be payable. In that event the Placee agrees that it shall be responsible for such stamp duty or stamp duty reserve tax, and neither of the Company, nor Panmure Gordon shall be responsible for such stamp duty or stamp duty reserve tax. If this is the case, each Placee should seek its own advice and notify Panmure Gordon accordingly;
30. understands that no action has been or will be taken by any of the Company, Panmure Gordon or any person acting on behalf of the Company or Panmure Gordon that would, or is intended to, permit a public offer of the Placing Shares and/or Broker Option Shares in any country or jurisdiction where any such action for that purpose is required;
31. in making any decision to subscribe for the Placing Shares and/or Broker Option Shares, confirms that it has knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of subscribing for the Placing Shares and/or Broker Option 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, and is able to sustain a complete loss in connection with the Fundraise. 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 Fundraise, including the merits and risks involved;
32. represents and warrants that it has (a) made its own assessment and satisfied itself concerning legal, regulatory, tax, business and financial considerations in connection herewith to the extent it deems necessary; (b) had access to review publicly available information concerning the Company that it considers necessary or appropriate and sufficient in making an investment decision; (c) reviewed such information as it believes is necessary or appropriate in connection with its subscription of the Placing Shares and/or Broker Option Shares; and (d) made its investment decision based upon its own judgment, due diligence and analysis and not upon any view expressed or information provided by or on behalf of Panmure Gordon;
33. understands and agrees that it may not rely on any investigation that Panmure Gordon or any person acting on its behalf may or may not have conducted with respect to the Company, or the Fundraise and Panmure Gordon has not made any representation to it, express or implied, with respect to the merits of the Fundraise, the subscription for the Placing Shares and/or Broker Option Shares, or as to the condition, financial or otherwise, of the Company, or as to any other matter relating thereto, and nothing herein shall be construed as a recommendation to it to subscribe for the Placing Shares and/or Broker Option Shares. It acknowledges and agrees that no information has been prepared by Panmure Gordon for the purposes of this Fundraise;
34. accordingly it acknowledges and agrees that it will not hold Panmure Gordon or any of its affiliates or any person acting on its behalf responsible or liable for any misstatements in or omission from any publicly available information relating to the Company or information made available (whether in written or oral form) in presentations or as part of roadshow discussions with investors relating to the Company (the "Information") and that neither Panmure Gordon nor any person acting on behalf of Panmure Gordon makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of such Information or accepts any responsibility for any of such Information; and
35. if the Placing Shares or the Broker Option Shares were offered to it in the United States, represents and warrants that in making its investment decision, (i) it has consulted its own independent advisers or otherwise has satisfied itself concerning, without limitation, the effects of United States federal, state and local income tax laws and foreign tax laws generally and the US Employee Retirement Income Security Act of 1974, the US Investment Company Act of 1940 and the Securities Act, (ii) it has received all information (including the business, financial condition, prospects, creditworthiness, status and affairs of the Company, the Fundraise, the Placing Shares and Broker Option Shares, as well as the opportunity to ask questions) concerning the Company, the Fundraise, the Placing Shares and the Broker Option Shares that it believes is necessary or appropriate in order to make an investment decision in respect of the Company, the Placing Shares and the Broker Option Shares, (iii) it is aware and understands that an investment in the Placing Shares and the Broker Option Shares involves a considerable degree of risk and no US federal or state or non-US agency has made any finding or determination as to the fairness for investment or any recommendation or endorsement of the Placing Shares or Broker Option Shares, and (iv) it is able to bear the economic risk of an investment in the Placing Shares and/or Broker Option Shares, is able to sustain a complete loss of the investment in the Placing Shares and/or Broker Option Shares and has no need for liquidity with respect to its investment in the Placing Shares and/or Broker Option Shares;
36. understands that the Placing Shares and the Broker Option Shares have not been and will not be registered under the Securities Act or with any securities regulatory authority of any state or other jurisdiction of the United States, and accordingly, may not be offered or sold or otherwise transferred in the United States except pursuant to a registration statement under the Securities Act or an exemption from the registration requirements of the Securities Act and, in connection with any such transfer, the Company shall be provided, as a condition to transfer, with a legal opinion of counsel, in form and by counsel reasonably satisfactory to the Company, that no such Securities Act registration is or will be required and with appropriate certifications by the transferee as to appropriate matters.
37. it is not a Plan (which term includes (a) employee benefit plans that are subject to Section 406 of the US Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the "Code"), (b) plans, individual retirement accounts and other arrangements that are subject to provisions under applicable US federal, state, local or other laws or regulations that are substantially similar to Section 406 of the ERISA or Section 4975 of the Code ('Similar Laws") and (c) entities the underlying assets of which are considered to include "plan assets" of such plans, accounts and arrangements) and are not purchasing the Placing Shares and the Broker Option Shares on behalf of, or with the "plan assets" of, any Plan.
38. it understands and agrees that there may be material tax consequences to it of an acquisition or disposition of any of the Placing Shares and the Broker Option Shares. Neither the Company nor Panmure Gordon gives any opinion or makes any representation with respect to the tax consequences to the Placee under United States, state, local or foreign tax law of the Placee's acquisition or disposition of such securities. In particular, no determination has been made whether the Company will be a "passive foreign investment company" ("PFIC") within the meaning of Section 1291 of the United States Internal Revenue Code;
39. if Placees are purchasing the Placing Shares and the Broker Option Shares outside the United States, each Placee (and any person acting on such Placee's behalf) agrees, represents and warrants as follows:
a. it is aware that the Placing Shares and the Broker Option Shares are being offered outside the United States in reliance on Regulation S promulgated under the Securities Act;
b. it is, at the time of the offer and acceptance of the Placing Shares and the Broker Option Shares, outside the United States for the purposes of Regulation S; and
c. it did not purchase or otherwise acquire the Placing Shares and the Broker Option Shares based on or due to directed selling efforts (as defined in Rule 902 under the Securities Act), including based on an advertisement in a publication with a general circulation in the United States, nor has it seen or been aware of any activity that, to its knowledge, constitutes directed selling efforts in the United States.
40. for Placees that are located in the United States, each such Placee (and any person acting on such Placee's behalf) agrees, represents and warrants as follows:
a. it is "qualified institutional buyer" (a "QIB"), as defined in Rule 144A under the Securities Act, and (i) if acquiring the Placing Shares and the Broker Option Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a QIB, the Placee has full investment discretion with respect to each account, and has full power and authority to make the acknowledgements, representations and agreements contained herein on behalf of each owner of such account; and (ii) is acquiring the Placing Shares and the Broker Option Shares for its own account, or for the account of a QIB for which it has full investment discretion, in each case for investment purposes and not with a view to, or for offer or sale in connection with, any distribution (within the meaning of the United States securities laws) of such Placing Shares and the Broker Option Shares;
b. it agrees that the Company may require a certification from it in support of any transfer, in form and substance satisfactory to the Company, and agrees that the Company, the registrar, CREST or any transfer agent may reasonably require additional evidence or documentation supporting compliance with applicable securities laws, and prior to any sale or transfer, the Company may require the delivery of such certifications, notifications, agreements and warranties and legal opinions of duly qualified counsel as it may reasonably require to confirm that the proposed sale or other transfer complies with the foregoing restrictions;
c. it acknowledges that the Company reserves the right to make inquiries of any holder of the Placing Shares and the Broker Option Shares or interests therein at any time as to such person's status under US securities laws, and to require any such person that has not satisfied the Company that such person is holding appropriately under US securities laws to transfer such Placing Shares and Broker Option Shares or interests therein immediately to the Company;
d. it is purchasing the Placing Shares and the Broker Option Shares for its own account or for one or more investment accounts for which it is acting as a fiduciary or agent, in each case for investment only, and not with a view to or for sale or other transfer in connection with any distribution of the Placing Shares and the Broker Option Shares in any manner that would violate the Securities Act or otherwise cause the Company's assets to become subject to ERISA;
e. it understands and acknowledges that neither the Company nor any of its respective affiliates, makes any representation as to the availability of any exemption under the Securities Act for the reoffer, resale, pledge or transfer of the Placing Shares and the Broker Option Shares;
f. it agrees that the Placing Shares and the Broker Option Shares are "restricted securities" for US securities law purposes which may not be deposited into any unrestricted depositary facility established or maintained by a deposited bank. As such, it agrees not to offer or sell the Placing Shares and the Broker Option Shares to any person other than in compliance with the following restrictions which apply to all its Placing Shares and/or Broker Option Shares and which shall be affixed in the form of a legend to any certificates of Placing Shares and/or Broker Option Shares:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE (OR ITS PREDECESSOR) HAVE NOT BEEN REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS AMENDED (THE 'SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION IN THE UNITED STATES, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED, HEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT (AND IS NOT ACTING IN A PREARRANGED TRANSACTION RESULTING IN THE RESALE OF THESE SECURITIES INTO THE UNITED STATES); (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT; (C) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; OR (D) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT, IN THE CASES OF CLAUSES (A), (B) AND (C), TO THE RIGHT OF THE ISSUER TO OBTAIN, IF THE ISSUER SO REQUESTS, AN OPINION, IN FORM AND SUBSTANCE AND FROM COUNSEL SATISFACTORY TO THE ISSUER AT THE EXPENSE OF THE HOLDER OF THIS CERTIFICATE, WHICH PROVIDES THAT SUCH OFFER, SALE, PLEDGE, HEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION.
EXCEPT AS OTHERWISE DETERMINED BY THE ISSUER, THE SECURITIES REPRESENTED BY THIS CERTIFICATE (OR ITS PREDECESSOR) MAY NOT BE DEMATERIALISED INTO CREST OR ANY OTHER PAPERLESS SYSTEM UNLESS THE PARTY REQUESTING SUCH DEMATERIALISATION FIRST OBTAINS A LETTER FROM THE TRANSFERREE STATING THAT SUCH TRANSFERREE IS NOT ACTING IN A PREARRANGED TRANSACTION RESULTING IN THE RESALE OF THESE SECURITIES INTO THE UNITED STATES OR MAKES SUCH OTHER REPRESENTATIONS REQUESTED BY THE ISSUER."
The Placee agrees, on its own behalf and on behalf of any accounts for which the Placee is acting, that if the Placee should offer, resell, pledge or otherwise transfer any Placing Shares and/or Broker Option Shares, it will do so only (i) in an offshore transaction meeting the requirements of Rule 903 or 904 of Regulation S under the Securities Act (and not in a prearranged transaction resulting in the resale of such Placing Shares and/or Broker Option Shares into the US), (ii) in a transaction meeting the requirements of Rule 144 under the Securities Act, (iii) in accordance with another exemption from the registration requirements of the Securities Act, or (iv) pursuant to an effective registration statement under the Securities Act, provided that the Placee notify the Company of such proposed transaction and that the Placee intends to make such sale in accordance with the terms of this paragraph, and that, such offer, resale, pledge or transfer must, and will, be made in accordance with any applicable securities laws of any US state or other jurisdiction of the US. The Placee understands and acknowledges that any offer, resale, pledge or transfer made other than in compliance with the restrictions contained in this paragraph may not be recognised by the Company;
g. the Placing Shares and/or Broker Option Shares shall only be eligible for settlement through CREST if approved by the Company and if requested by the Company, the purchaser provides a signed letter addressed to the Company, containing certain representations regarding compliance with United States securities laws;
h. it has not purchased the Placing Shares and/or Broker Option Shares as a result of "general solicitation" or "general advertising" (within the meaning of Rule 502(c) under the Securities Act), including advertisements, articles, research reports, notices or other communications published in any newspaper, magazine, on a website or in or on any similar media, or broadcast over radio or television, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising; and
i. it will inform each purchaser who purchases the Placing Shares and/or Broker Option Shares from it of the transfer restrictions stated herein and that if in the future such purchaser of Placing Shares and/or Broker Option Shares decides to offer, resell, pledge, or otherwise transfer such Placing Shares and/or Broker Option Shares, any offer, resale or transfer must be made in compliance with the Securities Act.
The foregoing representations, warranties and confirmations are given for the benefit of the Company and Panmure Gordon.
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 United Kingdom by them or any other person on the subscription by them of any Placing Shares and/or Broker Option Shares or the agreement by them to subscribe for any Placing Shares and/or Broker Option Shares.
Each Placee and any person acting on behalf of each Placee acknowledges and agrees that either Panmure Gordon or any of its affiliates may, at their absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares and/or Broker Option Shares.
All times and dates in this Announcement may be subject to amendment. Panmure Gordon shall notify the Placees and any person acting on behalf of the Placees of any changes.
The past performance of the Company and its securities is not, and should not be relied on as, a guide to the future performance of the Company and its securities. Persons needing advice should consult an independent financial adviser.