TIDMDCP
RNS Number : 7938H
Diamondcorp Plc
02 December 2015
2 December 2015
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")
IDC loan reschedule approval
Proposed placing to raise up to GBP4 million
Operational outlook
DiamondCorp, the Southern African diamond mining, development
and exploration company, is pleased to announce that, further to
the announcement of 3 November 2015, it has received formal
approval from the Industrial Development Corporation of South
Africa ("IDC") for the rescheduling of the Group's existing loan
including, inter alia, the capitalisation of interest previously
due in 2016.
The Company is also pleased to announce the proposed placing of
new ordinary shares of 0.1 pence each in the Company (the "Placing
Shares") in order to raise gross proceeds of up to GBP4 million
(the "Placing"). The Placing is being conducted through a
bookbuilding process which will be launched immediately following
this announcement and will be made to new and existing eligible
institutional and other investors.
Highlights
-- Formal approval from IDC to reschedule the ZAR220 million
loan (the "Loan") held by the Company's South African operating
subsidiary, Lace Diamond Mine (Pty) Ltd ("LDM") (74 per cent. owned
by DiamondCorp), as follows:
o Ongoing capitalisation of interest previously payable in 2016
and no capital repayments until 1 February 2017
o Interest and capital repayments to now be payable on a
quarterly basis from 1 February 2017
o Loan interest rate will increase from 2 per cent. plus South
African prime per annum to 3.2 per cent. plus South African prime
per annum, commencing 31 January 2016
o Loan principal and capitalised interest will increase from
approximately ZAR258 million at the end of January 2016, to
approximately ZAR311 million by 1 February 2017 (equivalent to
c.GBP14.4 million at current exchange rates).
-- Proposed Placing of up to GBP4 million
o Net proceeds of the Placing, together with the proceeds from
diamond sales, to be used to fund production ramp-up from December
2015 through to becoming operationally cashflow positive from Q3
2016
o The target quantum of the Placing includes working capital
contingencies
o Certain of the Directors intend to participate in the
Placing
IDC Loan reschedule
The Company is pleased to announce that it has received formal
approval from the IDC for the rescheduling of the Group's existing
Loan, including the on-going capitalisation of interest and
deferment of capital payments previously due in 2016 (due to be
approximately ZAR82 million) and for interest and capital
repayments to now be payable on a quarterly basis from 1 February
2017 (previously payable on a six monthly basis).
The revised Loan from 31 January 2016 will incur an interest
rate of 3.2 per cent. plus South African prime per annum
(previously 2.0 per cent. plus South African prime per annum). The
South African prime rate is currently 9.75 per cent. per annum.
The aggregate value of the revised Loan principal and
capitalised interest will therefore amount to approximately ZAR311
million at 31 January 2017 (equivalent to approximately GBP14.4
million at current exchange rates). This compares with the previous
aggregate value of the Loan principal and capitalised interest of
ZAR258 million (equivalent to approximately GBP11.9 million at
current exchange rates and to approximately GBP19.3 million at the
prevailing exchange rate in September 2012 when the Loan was
committed). The loan will now be amortised in full by 1 November
2021, compared to 31 July 2020 as previously scheduled.
Background to and reasons for the Placing
As previously announced, in recent months underground tunnel
development at the 290m level of the Lace mine had been proceeding
slower than originally planned in fractured ground close to old
workings and in heavily diluted low-grade K6 kimberlite. Some zones
had also been found to contain kimberlite of a quite friable nature
and required additional support to ensure safety from potential
falls of ground. Whilst these ground conditions are a positive for
fragmentation and caving when mining commences, they increased the
time and cost involved during development.
Since then, ground conditions have steadily improved as the K6
kimberlite transitioned into higher grade, more competent K4
kimberlite in the central section of the pipe and for the months of
October and November, kimberlite development rates achieved
management's planned monthly call. In conjunction with its mining
consultants, the Company has revised the tunnel layout on the 310m
production level in order to reduce rock stresses without impacting
mining rates, and minimise the chances of incidents similar to that
at the 290m level occurring going forward.
Concurrently, the Company also experienced certain delays to the
installation and commissioning of the 400 tonne per hour conveyor
belt at the mine as a result of new regulations issued by the
Department of Mineral Resources with respect to the number of
anti-roll back idlers required in conveyor belt systems. Whilst the
conveyor belt was successfully commissioned within budget in
mid-November, the delays contributed to increased operational
expenses in tunnel development on the 290m and 310m levels.
Since mid-November, tunnelling on the 290m level has been
progressing in competent high-grade K4 kimberlite and at the
originally planned rate. In particular, blasting of the slot
between the 290m and 310m production level is on schedule for
commencement in December and is expected to provide the initial
ramp up in mining tonnages and diamond recoveries from the UK4
block.
The Directors, having consulted with the Company's geological
and mining consultants, now consider that most of the key
operational challenges experienced in the last few months have now
been overcome. However, the overall development and production
schedule has been delayed by approximately four months and at an
increased operational cost.
In particular, the delay to the commencement of the slot
resulting from making the 290m level safe, and slower than planned
development in highly diluted K6 kimberlite on the 310m level,
means that the Company has been behind schedule on diamonds
recovered from development. This delay combined with management's
preference for not selling sub-optimal diamond parcels (typically
those containing less than 10,000 carats) in a weak diamond market
has put pressure on LDM's, and therefore DiamondCorp's, immediate
cashflow particularly as debt repayments from IDC had been
scheduled to commence from January 2016. A formal request to
reschedule the interest payments from the IDC Loan was submitted in
November and has now been formally approved by the IDC as detailed
above.
Taken together, the slower than planned development rate at
higher cost in difficult ground, including the consequential impact
of fixed electricity and labour costs, combined with delay to
diamond sales, has used up cash contingencies originally envisaged
in July 2015. A reconciliation between the budgeted and actual
expenditures since this date is provided in Data Tables, Part 1 to
this announcement.
The Directors examined and pursued various options for raising
additional capital without further recourse to shareholders.
However, none of the options were available at reasonable cost or
in a timely manner. Concurrent with the formal IDC Loan
rescheduling, the Directors have resolved to raise additional
capital by way of the Placing in order to fund the Company through
to becoming operationally cashflow positive from Q3 2016 and with
working capital contingencies.
Use of proceeds
The net proceeds of the Placing will be used, together with the
proceeds from diamond sales, to fund production ramp-up through to
becoming operationally cashflow positive from Q3 2016, including
the following:
-- Development of the 475m level tunnel (c. GBP2.00 million)
-- Processing costs: (c. GBP0.65 million)
-- G&A costs for Lace Mine: (c. GBP0.65 million)
-- UK bond coupons: (c. GBP0.33 million)
-- Laurelton/Tiffany loan coupons: (c. GBP0.58 million)
-- General corporate costs: (c. GBP0.40 million)
The target quantum of the Placing includes working capital
contingencies.
Operational outlook
Conditional upon completion of the Placing, the Directors
anticipate a ramp up in K4 kimberlite tonnage (estimated to be more
competent and of higher grade than K6 kimberlite) to 30,000 tonnes
from July 2016, as detailed in Data Tables, Part 2.
The tonnage ramp-up will have a corresponding impact on the
volumes of carats recovered, cashflow and project cashflow. Based
on a 1.00mm bottom screen size, the Directors currently estimate
that for the year of 2018, the Lace Mine will mine and process
approximately 1 million tonnes of K4 and K6 kimberlite, recover
approximately 466,000 carats of diamonds and result in operational
cashflow after tax and interest of approximately ZAR362 million.
External debt repayments in the same year are estimated to be
ZAR81.5 million. A table of these metrics to 2041 (which are based
on 1.00 mm bottom screen sizes, certain grade and carat value
assumptions and incorporates the recent IDC Loan reschedule, but
does not assume the potential positive impact of a waste sorter or
DiamondCorp plc overheads) is provided in Data Tables, Part 3. The
Directors are however considering changing the bottom screen size
to 1.25 mm which would result in lower diamond recoveries and
reduced processing costs, but an increase in the price received per
carat. This decision will be taken following the completion of bulk
testing activities currently underway. The potential net impact on
cashflow from increasing the bottom screen size is estimated by the
Directors to be relatively neutral.
Details of the Placing
(MORE TO FOLLOW) Dow Jones Newswires
December 02, 2015 11:37 ET (16:37 GMT)
The Placing will be conducted in accordance with the terms and
conditions set out in Appendix I. The Placing will be effected by
way of an accelerated bookbuilding to be managed by Panmure Gordon
(UK) Limited ("Panmure Gordon"). The bookbuilding process will
commence with immediate effect. The timing of the closing of the
book, pricing and allocations is at the absolute discretion of
Panmure Gordon. The price at which the Placing Shares are to be
placed (the "Placing Price") and the number of Placing Shares will
be agreed by the Company with Panmure Gordon at the close of the
bookbuilding period. Details of the Placing Price and the number of
Placing Shares will be announced as soon as practicable after the
close of the bookbuilding process. The Placing Shares will, when
issued, be credited as fully paid and will rank equally 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 in respect of such shares
after the date of issue of the Placing Shares.
Certain of the Directors have indicated an intention to
participate in the Placing.
It is intended that the Placing will be conducted in two stages,
with up to 32,337,000 First Tranche Placing Shares being placed
using the Directors' existing authority to allot shares for cash on
a non-pre-emptive basis, as granted at the Company's AGM on 25 June
2015, and the Second Tranche Placing Shares being placed
conditionally upon, amongst other things, the passing of the
Resolutions at the General Meeting to be held on or around 23
December 2015. The Placing in respect of the First Tranche Placing
Shares is conditional only on Admission, with the Placing in
respect of the Second Tranche Placing Shares being conditional
upon, amongst other things, the passing of the relevant Resolutions
at the General Meeting, Admission becoming effective and the
placing agreement between the Company and Panmure Gordon not being
terminated prior to Admission. A Circular to Shareholders in
connection with the General Meeting is expected to be published on
7 December 2015, subject to approval from the JSE.
Application will be made for the First Tranche Placing Shares
and the Second Tranche Placing Shares to be admitted to trading on
the AIM Market of the London Stock Exchange plc ("AIM") and the
Alternative Exchange of the JSE Limited ("AltX"). Settlement for
and Admission of the First Tranche Placing Shares and the Second
Tranche Placing Shares is expected to take place on 9 December 2015
and 24 December 2015, respectively.
The Company reserves the right to settle certain applicable
investors' participation(s) by way of a direct subscription with
the Company, having consulted with Panmure Gordon.
This Announcement should be read in its entirety. In particular,
your attention is drawn to the "Important Information" section of
this Announcement, to the detailed terms and conditions of the
Placing and further information relating to the bookbuilding
process described in Appendix I. By choosing to participate in the
Placing and by making an oral and legally binding offer to acquire
Placing Shares, investors will be deemed to have read and
understood this Announcement in its entirety and to be making such
offer on the terms and subject to the conditions in it, and to be
providing the representations, warranties, acknowledgements and
undertakings contained in Appendix I.
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
Dominic Morley / Adam James
Tel: +44 20 7886 2500
Contacts for the Bookbuild:
Jamie Campbell (Specialist Sales): 020 7886 2736
Tom Salvesen (Corporate Broking): 020 7886 2904
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 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 or
any other matter referred to herein.
The distribution of this Announcement and the offering of the
Placing 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, including the Data Tables and the Appendix,
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 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.
Persons (including, without limitation, nominees and trustees)
who have a contractual or other legal obligation to forward a copy
of the Appendix or this Announcement should seek appropriate advice
before taking any action.
(MORE TO FOLLOW) Dow Jones Newswires
December 02, 2015 11:37 ET (16:37 GMT)
The Placing Shares to which this Announcement relates may be
illiquid and / or subject to restrictions on their resale.
Prospective purchasers of the Placing Shares should conduct their
own due diligence on the Placing Shares. If you do not understand
the contents of this Announcement or its Appendix 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.
Data Tables
Part 1: Budget vs actual use of funds in H2 2015
Budget Actual % Comment
Cash on hand GBP4,973,000 GBP4,973,000
July 2015
Tunnel development (GBP1,533,000) (GBP3,088,000) 201% Slow advance and
additional support
Conveyor belt (GBP450,000) (GBP448,000) 100% On budget but
delayed by new
SA regs
Capital items (GBP496,000) (GBP496,000) 100%
Bond coupon
payments (GBP76,000) (GBP76,000) 100%
G&A (GBP250,000) (GBP216,000) 86% Continued reduction
in overheads
(GBP2,805,000) (GBP4,324,000)
Contingency GBP2,168,000 GBP649,000
Diamond sales GBP2,159,600 GBP0 Sub-optimal parcel
(<10,000 cts)
Cash on hand GBP4,327,600 GBP649,000
Metres of development 590 272 46%
Cost/m GBP GBP2,598 GBP11,365 437%
Tonnes processed
(YTD) 36,842 14,672 40%
Carats recovered
(YTD) 10,684 2,378 22%
Heavy waste dilution
in K6 on southern
side of pipe.
Grade (cpt) Mix of K4 and
(YTD ave) 0.29 0.16 56% K6 was planned
As at 30 September 2015, the Company had net debt of GBP19.6
million (unaudited) and cash and cash equivalents of GBP1.7 million
(unaudited).
Part 2: Estimated K4 kimberlite tonnage ramp-up
Month K4 kimberlite
(tonnes)
November
2015 1,750
December
2015 3,281
January
2016 3,281
February
2016 2,734
March 2016 7,094
April 2016 15,500
May 2016 15,500
June 2016 18,500
July 2016 30,000
August 2016 30,000
September
2016 30,000
October
2016 30,000
November
2016 30,000
December
2016 30,000
Part 3: Lace Mine Cashflow Model
Management unaudited estimates (flat real)
Key assumptions: USD/ZAR 13.7; $150/ct kimberlite diamond price,
1.00 mm bottom screen size, South African Prime rate of 9.75 per
cent.
(Estimates incorporate the recent IDC Loan reschedule but do not
assume the potential positive impact of the installation of a waste
sorter)
Fiscal Carats Project External
Year ('000) cashflow debt repayments
after tax (ZARm)
and interest
(ZARm)
2015 7,420 - -
2016 138,000 74,427,335 10,229,475
2017 242,236 87,631,387 79,888,166
2018 465,851 362,798,213 81,525,836
2019 499,582 331,025,713 83,315,947
2020 495,000 425,741,795 85,265,046
2021 506,400 567,229,960 72,376,815
2022 456,000 504,078,478 -
2023 421,816 379,727,425 -
2024 422,400 325,784,091 -
2025 456,000 487,149,071 -
2026 454,565 519,276,343 -
2027 506,400 571,193,134 -
2028 503,040 566,718,823 -
2029 499,680 562,244,513 -
2030 496,320 557,770,202 -
2031 492,960 553,295,892 -
2032 489,600 548,821,582 -
2033 540,000 536,992,851 -
2034 523,200 460,013,403 -
2035 516,480 567,686,659 -
2036 502,516 577,501,110 -
2037 509,760 575,667,444 -
2038 506,400 571,193,134 -
2039 503,040 566,718,823 -
2040 499,680 562,244,513 -
2041 499,680 564,237,492 -
Appendix I: Terms and Conditions of the Placing
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE
PLACING.
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.
Persons (including individuals, funds or otherwise) who have
chosen to participate in the Placing, by making an oral or written
offer to subscribe for Placing 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 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 that are allocated to it for the purposes of its
business;
2. in the case of any Placing 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 acquired by it in the
Placing have not been acquired on behalf of, nor have they been
acquired with a view to their offer or resale to, persons in any
Member State of the 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 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 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 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 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 for its own account or is
acquiring the Placing 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
(MORE TO FOLLOW) Dow Jones Newswires
December 02, 2015 11:37 ET (16:37 GMT)
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
at the placing price that is to be determined as set out below with
certain institutional and other investors.
The Placing is conditional upon the Placing Agreement becoming
unconditional in all respects.
The Placing Shares will, when issued, rank pari passu in all
respects with the existing issued Ordinary Shares, including the
right to receive dividends and other distributions declared, made
or paid following Admission.
Applications for admission to trading
Applications will be made to the London Stock Exchange for
admission of both the First Tranche Placing Shares ("First
Admission") and the Second Tranche Placing Shares ('Second
Admission") to trading on AIM and on the alternative exchange of
the JSE. It is expected that First Admission will become effective
and that dealings in the First Tranche Placing Shares will commence
on AIM at 8.00 a.m. on 9 December 2015 and that Second Admission
will become effective and that dealings in the Second Tranche
Placing Shares will commence on AIM at 8.00 a.m. on 24 December
2015.
Participation in, and principal terms of, the Placing
Panmure Gordon is arranging the Placing as agent for and on
behalf of the Company. Participation in the Placing will only be
available to Placees who may lawfully be, and are, invited to
participate by Panmure Gordon.
The Placing Price and the number of Placing Shares to be issued
will be agreed between Panmure Gordon and the Company following
completion of a bookbuilding exercise by Panmure Gordon (the
"Bookbuild"). The Placing Price and number of Placing Shares will
be announced on a Regulatory Information Service following the
completion of the Bookbuild.
Panmure Gordon will determine in its absolute discretion the
extent of each Placee's participation in the Placing, 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 Placing 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 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 to be
subscribed for by that Placee regardless of the total number of
Placing Shares (if any) subscribed for by any other
investor(s).
Panmure Gordon reserves the right to scale back the number of
Placing Shares to be subscribed by any Placee in the event of an
oversubscription under the Placing. Panmure Gordon also reserves
the right not to accept offers for Placing Shares or to accept such
offers in part rather than in whole.
Each Placee will be required to pay to Panmure Gordon, on the
Company's behalf, the Placing Price for each Placing Share agreed
to be acquired by it under the Placing in accordance with the terms
set out herein. Each Placee's obligation to acquire and pay for
Placing Shares under the Placing 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 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 Placing 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 Placing.
Irrespective of the time at which a Placee's participation in
the Placing is confirmed, settlement for all Placing Shares to be
acquired pursuant to the Placing will be required to be made at the
same time, on the basis explained below under "Registration and
Settlement".
Completion of the Placing will be subject to the fulfilment 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". In the event
that the Placing Agreement does not become unconditional in any
respect or is terminated, the Placing (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 have been validly issued to Placees).
By participating in the Placing, 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 Placing, 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 Bookbuild or of such alternative method of
effecting the Placing as Panmure Gordon and the Company may
agree.
Conditions of the Placing
The obligations of Panmure Gordon under the Placing Agreement in
respect of the First Tranche 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 First Admission); and
(b) First Admission having occurred not later than 8.00 a.m. 9
December 2015 or such later date as the Company and Panmure Gordon
may agree, but in any event not later than 8.00 a.m. on 18 December
2015.
The obligations of Panmure Gordon under the Placing Agreement in
respect of the Second Tranche 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 Second Admission);
(b) First Admission having become effective;
(c) the passing of the Resolutions at the General Meeting of the
Company being held on or about 23 December 2015; and
(d) Second Admission having occurred not later than 8.00 a.m. on
24 December 2015 or such later date as the Company and Panmure
Gordon may agree, but in any event not later than 8.00 a.m. on 31
December 2015.
If (i) any of the conditions contained in the Placing Agreement
in relation to the First Tranche 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 First
Tranche 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 Second Tranche 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 of the Second Tranche
Placing Shares will not proceed and the Placee's rights and
obligations hereunder in relation to the Second Tranche 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.
For the avoidance of doubt, in the event that the Placing Agreement
is terminated in respect of the Second Tranche Placing Shares after
First Admission has taken place, the allotment and issue of the
First Tranche 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.
(MORE TO FOLLOW) Dow Jones Newswires
December 02, 2015 11:37 ET (16:37 GMT)
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 Placing 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 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, to
terminate the Placing Agreement in relation to its obligations in
respect of the Placing 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 Placing, 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 Placing 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 Placing, 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 Placing. Nothing in this paragraph shall
exclude the liability of any person for fraudulent
misrepresentation.
Registration and settlement
Settlement of transactions in the Placing Shares following
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) 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 Placing 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 under the Placing 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 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.
Following the close of the Bookbuild, each Placee allocated
Placing Shares in the Placing will be sent trade confirmations in
accordance with the standing arrangements in place with Panmure
Gordon, stating the number of First Tranche Placing Shares and
Second Tranche Placing 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 3 December
2015 and settlement date of 9 December 2015 for the First Tranche
Placing Shares and a settlement date of 24 December 2015 for the
Second Tranche Placing Shares.
The Company will deliver the Placing Shares 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 to that Placee against payment. The Placing Shares will be
held as nominee for the relevant Placee.
It is expected that settlement will take place on 9 December
2015 for the First Tranche Placing Shares and 24 December 2015 for
the Second Tranche Placing 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 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 on such Placee's behalf.
If Placing 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 are registered in a
Placee's name or that of its nominee or in the name of any person
for whom a Placee is contracting as agent or that of a nominee for
such person, such Placing Shares should, subject as provided below,
be so registered free from any liability to UK stamp duty or stamp
duty reserve tax. Placees will not be entitled to receive any fee
or commission in connection with the Placing.
Representations and warranties
By participating in the Placing, 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, 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 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 Placing and represents and warrants that it has not
received a prospectus, admission document or other offering
document in connection with the Placing or the Placing Shares;
4. acknowledges that its participation in the Placing 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;
(MORE TO FOLLOW) Dow Jones Newswires
December 02, 2015 11:37 ET (16:37 GMT)
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 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 Placing based on any
information, representation or statement contained in this
Announcement or otherwise. Each Placee further represents, warrants
and agrees that the only information on which it is entitled to
rely and on which such Placee has relied in committing itself to
subscribe for the Placing 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 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
Placing 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
Placing;
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 Placing;
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 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
subscribed for 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 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 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 to persons in the
European Economic Area prior to Second 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 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 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 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 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 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 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
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, 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 Placing;
21. acknowledges and agrees that its purchase of Placing Shares
does not trigger, in the jurisdiction in which it is resident or
located: (i) any obligation to prepare or file a prospectus or
similar document or any other report with respect to such purchase;
(ii) any disclosure or reporting obligation of the Company; or
(iii) any registration or other obligation on the part of the
Company;
22. undertakes 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 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 Placing and that participation in the Placing is on the
basis that it is not and will not be a client of Panmure Gordon for
the purposes of the Placing 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
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;
(MORE TO FOLLOW) Dow Jones Newswires
December 02, 2015 11:37 ET (16:37 GMT)
24. undertakes 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 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 Placing and it agrees to
indemnify the Company and Panmure Gordon in respect of the same on
the basis that the Placing 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, Placing 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 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 Placing;
28. represents and warrants that it will acquire any Placing
Shares subscribed for by it for its account or for one or more
accounts as to each of which it exercises sole investment Placing
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 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 Placing 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 Placing. 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 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 is, or is acting as nominee or agent for, and that 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 1986 (depositary
receipts and clearance services). If there are any such
arrangements, or the settlement relates to any other dealing in the
Placing 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 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,
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. 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 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;
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 (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 Placing and Panmure Gordon has not made any representation
to it, express or implied, with respect to the merits of the
Placing, the subscription for the Placing 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. It acknowledges and agrees that no information has been
prepared by Panmure Gordon for the purposes of this Placing;
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 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 Placing
and the Placing Shares, as well as the opportunity to ask
questions) concerning the Company, the Placing and the Placing
Shares that it believes is necessary or appropriate in order to
make an investment decision in respect of the Company and the
Placing Shares, (iii) it is aware and understands that an
investment in the Placing 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, and (iv) it is
able to bear the economic risk of an investment in the Placing
Shares, is able to sustain a complete loss of the investment in the
Placing Shares and has no need for liquidity with respect to its
investment in the Placing Shares;
36. understands 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 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.
(MORE TO FOLLOW) Dow Jones Newswires
December 02, 2015 11:37 ET (16:37 GMT)
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 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. 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 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 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, outside the United States for the purposes of Regulation S;
and
c. it did not purchase or otherwise acquire the Placing 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 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 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;
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 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 or interests therein immediately to
the Company;
d. it is purchasing the Placing 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 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;
f. it agrees that the Placing 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 to any person other than in compliance with the following
restrictions which apply to all its Placing Shares and which shall
be affixed in the form of a legend to any certificates of Placing
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, 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 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 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 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 from it of the transfer restrictions stated herein and that
if in the future such purchaser of Placing Shares decides to offer,
resell, pledge, or otherwise transfer such Placing 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 or the agreement by them to subscribe
for any Placing Shares.
(MORE TO FOLLOW) Dow Jones Newswires
December 02, 2015 11:37 ET (16:37 GMT)
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