THIS ANNOUNCEMENT AND THE
INFORMATION CONTAINED HEREIN ARE RESTRICTED AND ARE NOT FOR
PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN
WHOLE OR IN PART, IN OR INTO THE UNITED STATES OF AMERICA, CANADA,
AUSTRALIA, NEW ZEALAND, THE REPUBLIC OF SOUTH AFRICA OR JAPAN OR IN
OR INTO ANY OTHER JURISDICTION WHERE TO DO SO WOULD BREACH ANY
APPLICABLE LAW OR REGULATION.
THIS ANNOUNCEMENT IS FOR INFORMATION
PURPOSES ONLY AND DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR
SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY. THIS ANNOUNCEMENT
DOES NOT CONSTITUTE OR CONTAIN ANY INVITATION, SOLICITATION,
RECOMMENDATION, OFFER OR ADVICE TO ANY PERSON TO SUBSCRIBE FOR,
OTHERWISE ACQUIRE OR DISPOSE OF ANY SECURITIES OF OXFORD
BIODYNAMICS PLC IN ANY JURISDICTION WHERE TO DO SO WOULD BREACH ANY
APPLICABLE LAW OR REGULATION.
THIS ANNOUNCEMENT CONTAINS INSIDE
INFORMATION FOR THE PURPOSES OF ARTICLE 7 OF THE MARKET ABUSE
REGULATION (596/2014/EU) AS IT FORMS PART OF UK DOMESTIC LAW BY
VIRTUE OF THE EUROPEAN UNION (WITHDRAWAL) ACT 2018 AS AMENDED
("MAR"). UPON THE PUBLICATION OF THIS ANNOUNCEMENT, SUCH
INFORMATION WILL NO LONGER CONSTITUTE INSIDE
INFORMATION.
OXFORD BIODYNAMICS
PLC
Proposed Fundraising
comprising:
(i) Placing
(ii)
Subscriptions
(iii) Retail Offer via
PrimaryBid
(iv) Posting of Circular to
Shareholders
and
Notice of General
Meeting
Oxford, UK - 13 March 2024 - Oxford
BioDynamics PLC (AIM: OBD,
"OBD", the "Company" and, together with its
subsidiaries, the "Group"),
a biotechnology company developing precision medicine tests based
on the EpiSwitch® 3D genomics platform, announces a fundraising by
way of a placing (the "Placing") and direct
subscriptions (the "Subscriptions") to raise together gross
proceeds of not less than £9 million and an offer of new Ordinary
Shares of 1p each in the Company (the "PrimaryBid Shares") to retail investors
via the PrimaryBid platform to raise up to £1.25 million (the
"PrimaryBid Offer") (all
together the "Fundraising"), in each case at a price
of 9 pence per share (the "Issue
Price").
Further announcements will be made
shortly in connection with the PrimaryBid Offer. The Placing will
be effected through the issue of new Ordinary Shares (the
"Placing Shares") to new
and existing investors. The Placing Shares, the Subscription Shares
and the PrimaryBid Shares are all together the "New Ordinary Shares".
The Placing will be conducted
through an accelerated bookbuilding process (the "Bookbuild" or the "Bookbuilding Process"), which will be
launched immediately following this announcement. The timing of the
closing of the Bookbuild and allocations are at the absolute
discretion of the Joint Brokers, Shore Capital, Baden Hill and WG
Partners, and the Company. It is currently envisaged that the
result of the Bookbuild will be announced via the RNS tomorrow, 14
March 2024 at 7.00a.m.
The Fundraising is conditional upon,
amongst other things, the approval by the Shareholders of the
Resolutions to be proposed at the General Meeting. The Fundraising
has not been underwritten. The Resolutions must be passed by
Shareholders at the General Meeting in order for the Fundraising to
proceed.
If the conditions relating to the
issue of the Placing Shares are not satisfied or the Placing
Agreement is terminated in accordance with its terms, the Placing
Shares will not be issued and the Company will not receive the
associated placing monies. In this scenario, the PrimaryBid Offer
and the Subscriptions will similarly not proceed.
Key
features of the Fundraising
· The
Fundraising will provide working capital to support the ongoing
commercial development of the EpiSwitch® product line, through
continued investment in sales and marketing activities to grow
adoption of EpiSwitch® PSE and EpiSwitch® CiRT, operation of the
Company's clinical, research and reference laboratory facilities
worldwide and pursuit of partnering / out licensing opportunities
for deployable pipeline assets.
· The
Issue Price of 9 pence per New Ordinary Share represents a discount
of 21.1% to the closing mid-market price on 12 March 2024 of 11.40 pence per Existing Ordinary
Share.
· A
General Meeting of the Company's Shareholders will take place at
10.00 a.m. on 3 April 2024.
· A copy
of the Circular will shortly be available on the Company's
website.
Dr
Jon Burrows, CEO of Oxford BioDynamics PLC, said:
"We are pleased to announce the proposed fundraise and
thankful for the support shown to the Company by existing
shareholders and new investors alike. Building on the achievements
of last year, we are focused on growing both EpiSwitch PSE and
EpiSwitch CiRT, with new leaders for each product having bolstered
our US-based commercial team at the end of 2023. Alongside this
support for our two on-market tests, the fundraise will allow us to
pursue partnering or outlicensing opportunities for our two most
advanced pipeline assets, EpiSwitch NST for colorectal/bowel cancer
and EpiSwitch SCB for canine cancer."
Extracts from the
Circular
Background to and reasons for the Fundraising and Use of
Proceeds
Oxford BioDynamics' goal is to
advance personalised healthcare by developing and commercialising
precision medicine tests for life-changing diseases, based on its
3D genomics platform, EpiSwitch®.
The Company has two flagship
clinical diagnostic products on the market: the EpiSwitch® CiRT
(Checkpoint Inhibitor Response Test) for cancer, which was launched
in February 2022, and the EpiSwitch® PSE (Prostate Screening Test),
which was launched in September 2023. It also has a development
pipeline of tests for other indications, including EpiSwitch® NST
(No Stool Test) for colorectal/bowel cancer and EpiSwitch® SCB
(Specific for Canine Blood) for canine cancer.
EpiSwitch® CiRT is a validated,
first-of-its-kind precision medicine blood test that predicts a
cancer patient's likely response to Immune Checkpoint Inhibitors
("ICIs"), including
anti-PD-L1 and anti-PD-1 therapies. The test has demonstrated
best-in-class performance in the prediction of cancer patient
response to ICIs, with high sensitivity (93%), specificity (82%),
and accuracy (85%) across the most widely used ICIs from multiple
pharmaceutical companies, in 15 key oncological
indications.
EpiSwitch® CiRT is currently
available for clinical utilisation in the US under a unique Current
Procedural Terminology Proprietary Laboratory Analysis
("CPT-PLA") code and to
private physicians in the UK and elsewhere. Since launch, more than
800 CiRT tests have been ordered by a total of over 80
oncologists.
EpiSwitch® PSE is a validated rapid,
accurate, non-invasive blood test for prostate cancer. PSE detects
prostate cancer risk from blood with high accuracy, reducing the
number of men referred for an unnecessary biopsy and treatment. The
test measures five epigenetic biomarkers and combines these with a
patient's prostate-specific antigen ("PSA") score to accurately predict the
presence or absence of prostate cancer.
PSE has high overall accuracy of 94%
(sensitivity 86%, specificity 97%), representing a huge boost in
accuracy compared to a PSA test alone. Crucially, the positive
predictive value ("PPV") of
PSE is 93%, compared to just 25% for PSA. This low PPV is one of
the main impediments to using PSA as a population-wide screening
test. One in four of men with a raised PSA will be expected to go
on to be diagnosed with prostate cancer. PSE's PPV of 93%, means
that 93 of every 100 men who receive a "high probability" PSE
result will be expected to go on to receive a prostate cancer
diagnosis.
The Company launched PSE in the US
and UK ahead of schedule in September 2023, having successfully
completed the development and validation of the commercial test and
leased, staffed and commissioned a Clinical Laboratory Improvements
Amendments ("CLIA")-registered US clinical
laboratory in Frederick, MD, where the test is
performed.
A unique CPT-PLA code for PSE was
assigned in September 2023 and has been available for use by
Medicare, Medicaid and private payors in the US since 1 January
2024.
Oxford Biodynamics has a pipeline of
3D genomic tests and has recently initiated confidential
discussions with third parties regarding the two most advanced of
these assets, EpiSwitch® NST for colorectal/bowel cancer and
EpiSwitch® SCB for canine cancer. The Company expects to assess and
explore opportunities for monetising these and other programs from
its pipeline.
The Company will use the net
proceeds of the Fundraising as working capital to support the
continued commercial development of the EpiSwitch® product line.
Further details of the intended use of proceeds are set out below
under the heading 'Use of
proceeds'.
The Directors believe that the
Group's strategy, centred on the EpiSwitch CiRT and PSE blood
tests, will lead to the creation of material Shareholder value over
the longer term. The funds raised in the Fundraising are expected
to provide additional resources for the short-term pursuit of this
strategy.
In the Group's annual report and
accounts for the year ended 30 September 2023, published on 22
February 2024, the Board highlighted the possibility that
additional funding would be sought during the first half of the
2024 calendar year. If the Resolutions to approve the Placing were
not to be passed, then the Company would be required to seek
alternative funding arrangements in order to meet its short-term
working capital requirements.
Information on Oxford BioDynamics PLC
Oxford Biodynamics is a global
biotechnology company advancing personalised healthcare by
developing and commercialising precision medicine tests for
life-changing diseases. The Company is headquartered in Oxford, UK,
where it has its main research laboratory and product development
facility and is in the process of setting up a UK clinical
laboratory compliant with the requirements of ISO 15189:2012
(Medical Laboratories). In the US, the Company has a commercial
team and office based in Gaithersburg, MD and a CLIA-registered
clinical laboratory in Frederick, MD. It has a reference laboratory
in Penang, Malaysia. The Company's Ordinary Shares are admitted to
trading on AIM.
Founded in 2007 as a spin-out from
the University of Oxford, Oxford Biodynamics is an early pioneer of
3D genomics, with over 16 years' work invested into developing its
proprietary automated fast turn-around blood testing technology
platform, EpiSwitch®.
The Company's flagship products are
the EpiSwitch® CiRT (Checkpoint Inhibitor Response Test) and
EpiSwitch® PSE (Prostate Screening Test) blood tests. CiRT is a
predictive immune response profile for immuno-oncology (IO)
checkpoint inhibitor treatments, launched in February 2022. PSE is
a blood test that boosts the predictive accuracy of a PSA test from
55% to 94% when testing the presence or absence of prostate cancer,
launched in the US and UK in September 2023.
In March 2021, the Company launched
its first commercial prognostic test, EpiSwitch® CST (Covid
Severity Test) and the first commercially available microarray kit
for high-resolution 3D genome profiling and biomarker discovery,
EpiSwitch® Explorer Array Kit, which is available for purchase by
the life science research community.
Each of the Group's on-market
products and development pipeline assets is based on its
proprietary 3D genomic biomarker platform, EpiSwitch®, which can
build molecular diagnostic classifiers for the prediction of
response to therapy, patient prognosis, disease diagnosis and
subtyping, and residual disease monitoring in a wide range of
indications.
The Company has participated in more
than 40 partnerships with big pharma and leading institutions
including Pfizer, EMD Serono, Genentech, Roche, Biogen, Mayo
Clinic, Massachusetts General Hospital and Mitsubishi Tanabe
Pharma. The Group's pharma partnerships have demonstrated its
ability to reduce its technology to practice for clinical
applications.
In the US, the Company is a member
of four Foundation of the National Institutes of Health ("FNIH")
Biomarker Steering Committees, in oncology, immunology and
inflammation, neuroscience and metabolics. The Company has been
granted two prestigious awards by the Partnership for Accelerating
Cancer Therapies ("PACT"), a five-year public-private research
collaboration between the National Institutes of Health ("NIH"),
the US Food and Drug Administration ("FDA") and 12 leading pharma
companies, all managed by the FNIH.
The Company has created a valuable
technology portfolio, including biomarker arrays, a pipeline of
molecular diagnostic tests, bioinformatic tools for 3D genomics and
an expertly curated 3D genome knowledgebase comprising over 800
million data points from over 15,000 samples in more than 30 human
diseases.
The 3D configuration of the genome
plays a crucial role in gene regulation. By mapping this
architecture and identifying abnormal configurations, EpiSwitch®
can be used to diagnose patients or determine how individuals might
respond to a disease or treatment.
EpiSwitch® is the Company's
award-winning, proprietary platform that enables screening,
evaluation, validation and monitoring of 3D genomic biomarkers. The
technology is fully developed, protected by a broad intellectual
property portfolio comprising 19 patent families as well as
extensive proprietary know-how, and is reduced to
practice.
In addition to stratifying patients
with respect to anticipated clinical outcome, EpiSwitch® data offer
insights into systems biology and the physiological manifestation
of disease that are beyond the scope of other molecular modalities.
The technology has performed well in academic medical research
settings and has been validated through its integration in
biomarker discovery and clinical development with big
pharma.
For more information on the
Group's EpiSwitch® platform, view the video "What is EpiSwitch® Technology?" at
http://obdx.co/what-is-episwitch.
Current Trading and Prospects
During the most recent financial
year (ended 30 September 2023), the Group focused on two main
objectives:
· continuing to grow orders of EpiSwitch® CiRT; and
· accelerating the development and launch of EpiSwitch® PSE,
including setting up its CLIA-registered US clinical
laboratory.
These main activities were pursued
alongside:
· work
with pharma customers in biomarker discovery and clinical
development; and
· research, both on internal proprietary projects and with
academic and other partners.
By the end of the 2023 calendar
year, the Company had established a baseline of orders of EpiSwitch
CiRT and generated actionable sales insights from over 750 tests
processed up to that date. The Company launched the 94% accurate
PSE test ahead of schedule in September 2023 following the
build-out of the Company's CLIA-registered laboratory in Frederick,
MD, in five months.
The Company continues to have an
active pipeline of products in development and the two most
advanced pipeline assets, the EpiSwitch NST and EpiSwitch SCB blood
tests for colorectal/bowel cancer and canine cancer respectively,
were ready for partnering or out-licensing by the end of 2023. In
addition, at the end of 2023, the Company bolstered its US-based
commercial team through the appointment of two experienced sales
leaders, Dr Steven Arrivo and Ryan Mathis, M.D., to lead its PSE
and CiRT product verticals respectively.
Going forward, the Company remains
focused on the continued commercialization of the EpiSwitch®
product line. In line with this the Company has identified several
key areas of focus for each product over the current financial
year.
· EpiSwitch® CiRT:
· continuing to drive adoption and increase orders of EpiSwitch
CiRT. Having identified a strong re-user base among doctors
ordering in 2023, the Company has re-established clinical advisory
boards with those doctors identified as re-users of the test. The
Company is also engaging with Chief Medical Officers and physician
administrators of US regional/national healthcare systems where
doctors are already using the test;
· having
identified cancer indications for which the test has been most
frequently used, the Company will focus on driving increased
utilisation in these indications; and
· continuing to analyse physician-generated utility data and
real world case studies in order to understand barriers to routine
volume ordering, establish support from key opinion leaders
("KOLs"), capture health
economics data related to the test and petition for its adoption
into the National Comprehensive Cancer Network ("NCCN") Guidelines and
Compendia;
· EpiSwitch® PSE:
· driving significant awareness and adoption of EpiSwitch PSE by
targeting large organisation accounts including concierge medicine
cash pay accounts;
· seeking national distribution partners to open a further sales
channel for test volume and utilisation of the Company's US
clinical laboratory capacity;
· supporting the test through a program of KOL presentations,
clinician breakout groups, ongoing smart marketing, developing the
health economics story for the test and applying for its inclusion
in the NCCN Guidelines and Compendia;
· bringing PSE online in the Company's UK clinical laboratory by
the end of March 2024;
· continuing recently initiated confidential discussions with
third parties regarding the Company's two most advanced pipeline
assets, EpiSwitch NST for colorectal/bowel cancer and EpiSwitch SCB
for canine cancer, and assessing and exploring opportunities for
monetising these and other programs from the Company's portfolio of
deployable 3D genomic tests; and
· working on internal and grant- and award-funded research and
development and on projects for commercial partners.
EpiSwitch® CiRT
EpiSwitch® CiRT is a
first-of-its-kind routine blood test that predicts a patient's
likely response to immune checkpoint inhibitor ("ICI") therapies, offering valuable
insight for oncologists, their patients and healthcare systems
alike.
ICIs work by releasing the brakes
holding the immune system back so that it is stimulated to attack a
patient's cancer cells. However, across all cancers, only
approximately 20% of patients see an objective response from ICI
treatment. A significant proportion will experience an adverse
reaction to the therapy, although some of these will go on to see a
clinical benefit if they continue after being treated for the
reaction. Doctors therefore face particular challenges when
deciding on whether and for how long to use ICIs in the treatment
pathways they develop for patients. Knowing the likelihood of
response can assist doctors in deciding on the appropriate course
of treatment, including for patients who show significant adverse
reactions but who should be treated for their reaction and
encouraged to continue with ICI therapies.
The ability to predict whether
patients are likely to respond to ICI therapy also offers
significant potential benefits to healthcare payors and systems.
Nine anti-PD-(L)1 ICIs are currently approved for use in the US,
for a wide variety of cancer indications. Treatment costs range
from approximately $100,000 to $1 million per patient, depending on
how many cycles of treatment a patient receives. Approximately $44
billion was spent on these drugs worldwide in 2023 and it is
estimated that c.$19 billion is spent annually on ineffective ICI
therapy in the US alone. Insurers and payors therefore want a
reliable test to justify approving therapy and to know when to stop
these expensive treatments.
The CiRT sales vertical at the
Company is led by VP of Business Development and Market Access,
Ryan Mathis MD, appointed in December 2023. Dr Mathis is a
physician who, along with clinical expertise, has an impressive
background in business development and running sales teams for
innovative healthcare products.
819 CiRT tests have been ordered by
80 oncologists (to 9 February 2024), since the test was launched in
February 2022. A unique CPT-PLA code, allowing reimbursement for
CiRT tests from US insurers, has been available from October 2022.
Building on early progress in a single territory following launch,
the Company expanded its sales and market access team and initiated
a series of peer group clinical advisory boards, at which doctors
who routinely order CiRT tests shared their experience of the test
with colleagues. The Company expects to continue with this
peer-to-peer approach to growing demand for CiRT through the
current financial year, as part of its comprehensive strategy for
the test. Clinical advisory boards have resumed in 2024, with
doctors who have used the test multiple times. In addition, Dr
Mathis is engaging with the Chief Medical Officers and physician
administrators of regional healthcare systems from which doctors
have ordered the test, to seek to drive system-wide adoption of the
test. The Company understands that the test is currently being
incorporated into the physician guidelines of two healthcare
systems and expects that it will be incorporated into the physician
guidelines of further healthcare systems during the coming
year.
To date, CiRT has been sold
primarily to innovator and early adopter oncologists, who are
specialists in providing expert care to cancer patients. The
Company has analysed progress and success in selling bottom-up into
this segment of oncologists, to understand how these doctors are
applying CiRT with respect to the algorithms they have been trained
to use to treat their patients and to understand (and address)
barriers to routine volume ordering of the test. Four cancer
indications (lung, liver, pancreatic and renal cancer) have been
identified as those showing the strongest evidence of the clinical
utility of the test. Dr Mathis and the team intend to use this
evidence to refine the Company's speaker programs and clinical
advisory boards to continue to take advantage of and grow
peer-to-peer sales.
Health Economics and Outcomes
Research ("HEOR") data is
critical for payors seeking to use their resources as effectively
and efficiently as possible and informs their decisions on coverage
and payment / reimbursement for the test and IO treatments. The
Company is using the clinical data from the real-world cases
gathered so far from oncologists to present CiRT's usage and
clinical utility. Building the HEOR case for CiRT with this
real-world evidence, the Company also plans to prepare data to
support an assertive campaign for CiRT to be added to the NCCN
Guidelines and Compendia, published resources from independent
professional organisations which are the recognised standard for
clinical direction and policy in cancer care and which drive
physician behaviour. Inclusion in the NCCN Guidelines is vital for
bringing the test into the orbit of as many oncologists as possible
and addressing the barriers to routine volume ordering of the test.
Dr Mathis will also implement a rigorous clinical sales training
program, along with a national conference
strategy.
In October 2023, the Company
announced an agreement with the UK's leading health insurer, Bupa
UK, to give Bupa patients who are being considered for or already
on ICI therapy access to EpiSwitch CiRT. This was the first direct
agreement with a private medical insurer for the reimbursement of
CiRT and the first agreement with a major customer outside of the
US. As well as agreeing to reimburse EpiSwitch CiRT, the
partnership represents the first time that Bupa will be actively
marketing a genomic test to their network of healthcare providers.
Bupa is advocating for CiRT's adoption by facilitating a series of
roadshows by the Company in some of the UK's largest private cancer
care clinics throughout the first half of 2024.
Gaining reimbursement from the UK's
leading health insurer was a milestone for the Company and the
Company is targeting similar agreements with other insurers and
healthcare networks, in all its markets, during 2024.
EpiSwitch® PSE Prostate Screening Test
EpiSwitch® PSE is a non-invasive
blood test that accurately detects prostate cancer risk, reducing
the number of men referred for an unnecessary and potentially
destructive biopsy. The PSE test measures five epigenetic
biomarkers and combines these with a patient's PSA
(prostate-specific antigen) score to accurately predict the
presence or absence of prostate cancer.
PSE has high overall accuracy of 94%
(sensitivity 86%, specificity 97%), representing a huge boost in
accuracy compared to a PSA test alone. The positive predictive
value ("PPV") of PSE is
93%, compared to just 25% for PSA (its low PPV is one of the main
impediments to using the PSA test in population-wide screening).
Only about a quarter of men with a raised PSA will be expected to
go on to be diagnosed with prostate cancer. PSE's PPV of 93% means
that the false positive rate of the test is only 7% compared to a
false positive rate of 75% for the PSA test, therefore sparing many
men from an unnecessary and potentially destructive
biopsy.
Data from the PROSTAGRAM NHS study,
published in Cancers, a
high-impact, peer-reviewed journal in February 2023, showed that
PSE demonstrated compelling results including overall accuracy of
94%. Following publication of the groundbreaking results, the
Company completed the development and validation of the commercial
test, launching it ahead of schedule in September 2023.
The Company also leased, staffed and
commissioned a CLIA-registered US clinical laboratory in Frederick,
MD, where the test is performed. An application for a unique
CPT-PLA code for PSE was submitted in early July 2023 and the code,
0433U, was assigned in September 2023 and has been available for
use by Medicare, Medicaid and private payors since 1 January 2024.
The Company is developing a UK clinical laboratory, compliant with
the requirements of ISO 15189: 2012 (Medical Laboratories), in its
existing Oxford HQ, with processing of PSE clinical samples
expected to begin there by the end of March 2024.
The PSE vertical is led by Dr Steve
Arrivo, who joined the Company in November 2023 as Senior Vice
President of Business and Corporate Development. Through the
remainder of 2024 and beyond, the Company's commercial team will
have a focus on large accounts, particularly including concierge
medicine cash-pay customers, as the quickest way both to increase
sales volumes and positively impact cash flow (the test has a price
of $950 and the team is seeking to increase orders to a level of
1,000 tests per month). In addition, the Company will seek national
distribution partners to make the test more readily accessible
across the whole of the US and utilise available capacity at the
Company's CLIA-registered lab.
Initial marketing for PSE has
primarily been focused on building awareness of the test, through
online content targeting general physicians and urologists and men
in specific groups such as age brackets or geographies and their
families. The team will focus on analysing and evolving this
direct-to-customer marketing approach in 2024.
Dr Arrivo will also lead initiatives
to craft and distil the HEOR story for PSE, drive awareness and
utilisation of the test with KOLs, attend and present at strategic
conferences, collaborate with advocacy groups and petition for
inclusion of PSE into the NCCN Guidelines.
More than 180 PSE tests had been
ordered to 9 February 2024.
Product pipeline
The Company is just over three years
into a process of commercialising over a decade of research and
development since its spin out from the University of Oxford. In
that time, the Company has developed both the world's largest 3D
genomics knowledgebase (containing hundreds of millions of
datapoints relating to over 30 diseases) and a deep pipeline of
deployable blood tests that could be applied to clinical testing in
diverse indications with large addressable markets.
Two of the programs in the Company's
pipeline are now ready to deploy. These tests are EpiSwitch® NST, a
screening blood test for colorectal/bowel cancer and EpiSwitch®
SCB, a multi-profile whole-genome cancer test for
dogs.
EpiSwitch® NST addresses a large
market opportunity for a blood test for colorectal cancer: there
are 100 million people over the age of 40 in the US who are
recommended to be screened regularly for this disease. EpiSwitch®
NST detects the presence of polyps in the colon (which can be
precursors to cancer) with an accuracy of 83%, almost double the
accuracy of the market-leading screening test in detecting large
precancerous polyps. In addition, the Company's test has 96%
sensitivity, 90% specificity and is 93% accurate in determining the
presence or absence of stage 1 or stage 2 cancer.
The Company expects that early
monetisation and commercialisation of each of these two programs is
more likely to occur with, and would benefit from, the involvement
of a partner organisation with significant presence in the relevant
market. To this end, confidential discussions with third parties
commenced in early 2024 to explore possible options for these two
most advanced pipeline assets. As well as expediting the launch and
availability of these high-performing tests, this approach could
potentially lead to significant non-dilutive funding for the
Company.
The Company's research and
development and product development teams continue to work on
internal, grant-funded and contractual projects in a wide range of
indications and therapy areas. As well as colorectal/bowel cancer,
and canine oncology (animal health), progress has recently been
made on projects in amyotrophic lateral sclerosis (ALS, or motor
neurone disease), rheumatoid arthritis, psoriasis/psoriatic
arthritis, immuno-oncology and non-alcoholic steatohepatitis
("NASH").
EpiSwitch® Explorer Array Kit
The Company's EpiSwitch® Explorer
Array Kits ("EAKs") enable
members of the life science research community to generate valuable
insights using the Group's 3D genomics technology. The EAK allows
interrogation of just under 1 million of the most critical
interactions between 3D anchor sites (the Company's proprietary
'EpiSwitch loci') on the human genome, offering powerful new
information to researchers.
The kits contain EpiSwitch whole
genome microarray slides custom-made by Agilent Technologies
(NYSE:A) as well as the Company's proprietary reagents for sample
preparation. Purchasers also have access to first tier analysis
software developed in-house by the Company's team. Alternatively,
the Company's scientists can analyse researchers' samples of
interest using the EAK as a paid-for service.
EAKs have been purchased and used by
scientists from several prestigious academic research institutions.
Sales are expected to grow as use of EpiSwitch® is written into
increasing numbers of academic proposals.
Award and grant income
In May 2023, the Company was granted
a second PACT award. The prestigious award comes from PACT, a
five-year public-private research collaboration totalling $220
million between the NIH, the FDA and 12 leading pharma companies,
all managed by the FNIH. The award is worth $963,000 over one year
and is helping fund the reduction to practice of an EpiSwitch
prognostic blood test for cancer patients with Hyper-Progressive
Disease ("HPD"). HPD is
critical condition observed in a subset of cancer patients, who
react adversely to treatment with ICIs such as Keytruda,
Pembrolizumab, Nivolumab, etc. In HPD patients, ICI treatment
triggers an unwanted opposite effect - accelerated tumour growth,
with reduced survival. The work enabled by the PACT award will help
to complete the development of the Hyper-ICI Response Test
("HiRT"), a blood test to
identify patients at risk of HPD prior to ICI therapy. With broad
adoption of ICI treatments in cancer patients, the lack of
prognostic biomarkers for HPD (which has average prevalence of
13%), has become an urgent issue for practicing clinicians, drug
developers, payors and regulators.
The Company is one of 27
participants in the EU-funded HIPPOCRATES (Health initiatives in
psoriasis and psoriatic arthritis consortium European states)
consortium. The consortium was awarded a total of €21 million over
five years in July 2021 to promote early identification and
improved outcomes in psoriatic arthritis ("PsA"). The Company has completed and
reported to partners the first screening stage in the development
of EpiSwitch biomarkers to successfully meet the objectives of the
consortium.
The
Fundraising
The Company is proposing to
raise gross proceeds of not less than £9
million by way of the Placing and the
Subscriptions. In addition, an offer of up to 13,888,888 new Ordinary Shares will be
made to retail investors via the PrimaryBid platform the
("PrimaryBid Shares") to
raise up to £1.25 million.
Participation of Directors and Substantial
Shareholders
Certain Directors and PDMRs of the
Company intend to participate in the Fundraising, in aggregate, for
a total of approximately £133,300. In addition, Vulpes Investment
Management (which is controlled by Non-Executive Director Stephen
Diggle), has indicated an intention to participate in the
Fundraising. As 'related parties' of the Company, such
participations are expected to constitute 'related party'
transactions under Rule 13 of the AIM Rules. Further information
will be set out as required in future announcements.
General
Placing and VCT/EIS Placing
The General Placing (which is not being
underwritten) is conditional, amongst other things, upon: (a) the
Resolutions set out in the Notice of General Meeting being approved
by Shareholders; (b) the VCT/EIS Placing Shares being
unconditionally allotted and issued to Placees and the VCT/EIS
Admission having taken place; (c) the Company having complied with
its obligations under the Placing Agreement to the extent the same
fall to be performed prior to General Admission; and (d) General
Admission in respect of the General Placing Shares becoming
effective on or before 8.00 a.m. on 8 April 2024, or such later
date as the Company and the Joint Brokers may agree (being no later
than 8.00 a.m. on 30 April 2024). The Placing Shares are not
subject to clawback.
The VCT/EIS Placing is conditional, amongst
other things, upon: (a) the passing of the Resolutions at the
General Meeting; and (b) the VCT/EIS Admission occurring on or
before 5 April 2024 (or such later date as the Joint Brokers and
the Company may agree, not being later than 30 April
2024).
Shareholders
should note that it is possible that VCT/EIS Admission occurs but
General Admission does not occur. General Admission is conditional
on VCT/EIS Admission having occurred. If VCT/EIS Admission and
General Admission do not occur then the Company will not receive
the relevant net proceeds in respect of VCT/EIS Admission and
General Admission and the Company may not be able to finance the
activities referred to in this announcement.
The Company has been advised that the VCT/EIS
Placing Shares will rank as a qualifying holding for the purposes
of investment by VCTs. However, no assurance has been obtained from
HMRC or any other person that a subscription for VCT/EIS Placing
Shares is a 'qualifying holding' for the purpose of investment by
VCTs.
The Company has been advised that the VCT/EIS
Placing Shares will constitute 'eligible shares' and that the
Company will be regarded as a 'qualifying company' for the purposes
of the EIS rules. However, no assurance has been obtained from HMRC
or any other person that a subscription for VCT/EIS Placing Shares
will meet the requirements for EIS Relief.
None of the Directors nor the Company give any
representation, warranty or undertaking that any VCT investment in
the Company is a qualifying holding, or that a subscription for
VCT/EIS Placing Shares will meet the requirements for EIS Relief,
or that VCT or EIS qualifying status or eligibility will not be
withdrawn, nor do they warrant or undertake that the Company will
conduct its activities in a way that qualifies for or preserves its
status or the status of any investment in Ordinary Shares.
Investors considering taking advantage of any of the reliefs
available to VCTs or EIS Relief should seek their own professional
advice in order that they may fully understand how the rules apply
in their individual circumstances and what they are required to do
in order to claim any reliefs (if available). The rules governing
VCT and EIS reliefs are complex. Any prospective investors who are
considering investing in VCT/EIS Placing Shares in order to obtain
VCT or EIS reliefs are recommended to take independent tax advice
from a professional tax adviser.
Subject to, inter alia, the passing of the
Resolutions, application will be made for the VCT/EIS Placing
Shares, the General Placing Shares, the Subscription Shares and the
PrimaryBid Shares to be admitted to trading on AIM. VCT/EIS
Admission is expected to occur and dealings are expected to
commence in the VCT/EIS Placing Shares on AIM at 8.00 a.m. 5 April
2024. General Admission is expected to occur and dealings are
expected to commence on AIM in the General Placing Shares, the
Subscription Shares and the PrimaryBid Shares at 8.00 a.m. on 8
April 2024. Shareholders and potential investors should be aware of
the possibility that VCT/EIS Admission may occur but General
Admission may not occur.
The PrimaryBid
Offer
The Directors value the Company's private
investor base and believe that it is appropriate to provide private
and other investors with an opportunity to participate in the
Fundraising alongside institutional investors. The Company
therefore intends to open this opportunity to individual investors
through PrimaryBid.com and further announcements will be made
shortly in connection with the PrimaryBid Offer. For the avoidance
of doubt, the PrimaryBid Offer is not part of the Placing and is
the sole responsibility of the Company.
The PrimaryBid Shares, when issued, will be
fully paid and will rank pari
passu in all respects with each other and with the existing
Ordinary Shares, including, without limitation, as regards the
right to receive all dividends and other distributions declared,
made or paid after the date of issue.
The PrimaryBid Offer remains
conditional on the Placing being or becoming wholly unconditional,
including the passing of the Resolutions and General Admission. The
Company is relying on an available exemption against the need to
publish a prospectus approved by the FCA (acting in its capacity as
the UK Listing Authority) in respect of the PrimaryBid Offer.
Further details on the PrimaryBid Offer will be announced shortly
following this announcement.
Subscriptions
The Subscribers intend to subscribe
for the Subscription Shares at the Issue Price. The Subscriptions
are conditional, among other things, upon (a) the Resolutions as
set out in the Notice of General Meeting being approved by
Shareholders and (b) General Admission becoming effective by no
later than 8.00 a.m. on 8 April 2024 (or such later date as the
Subscribers and the Company may agree, not being later than
30 April 2024). The Subscriptions are not being underwritten and
the Subscription Shares are not subject to clawback.
Settlement and dealings
Applications will be made to the
London Stock Exchange for the VCT/EIS Placing Shares and for the
New Ordinary Shares (other than the VCT/EIS Placing Shares) to be
admitted to trading on AIM. It is expected that VCT/EIS Admission
will become effective and dealings in the VCT/EIS Placing Shares
will commence on AIM at 8.00 a.m. on 5 April 2024 and that General
Admission will become effective and dealings in the General Placing
Shares, the Subscription Shares and the PrimaryBid Shares will
commence on AIM at 8.00 a.m. on 8 April 2024, subject to the
passing of the Resolutions at the General Meeting. The Placing
Shares being issued pursuant to the Placing, the Subscription
Shares being issued pursuant to the Subscriptions and the
PrimaryBid Shares being issued pursuant to the PrimaryBid Offer
will, on the relevant Admission, rank pari passu in all respects
with the Existing Ordinary Shares, including the right to receive
all dividends and other distributions declared, made or paid after
the date of the relevant Admission.
Working Capital
The Directors are of the opinion,
having made due and careful enquiry, that, taking into account the
net proceeds of the Placing and the Subscriptions and the revenue
and other operating income that the Company expects to generate
over the period, the working capital available to the Company is
sufficient for its requirements for 12 months from the date of this
announcement.
Use of proceeds
The Company will use the net
proceeds of the Fundraising as working capital to support its
ongoing commercial development including:
•
investment in marketing, business development and
sales & market access activity to continue to grow orders and
adoption of the Company's two on-market laboratory developed tests,
EpiSwitch PSE and EpiSwitch CiRT;
•
operation of the Company's clinical, research and
reference laboratory facilities worldwide; and
•
pursuit of partnering / out-licensing
opportunities for its two readily deployable pipeline assets,
EpiSwitch NST and EpiSwitch SCB.
Posting of Shareholder Circular and Notice of General
Meeting
The Fundraising is conditional upon, amongst
other things, the approval by the Shareholders of the Resolutions
to be proposed at the General Meeting. The Resolutions must be
passed by Shareholders at the General Meeting in order for the
Fundraising to proceed.
A circular to Shareholders
("Circular") will be posted
on 14 March 2024
convening a general meeting of the Company to be held at 3140 Rowan
Place, Oxford Business Park South, Oxford, OX4 2WB on 3
April 2024 and will be available to
download on the Company's website at
www.oxfordbiodynamics.com/investors.
Should Shareholders wish to ask any
questions in relation to the Resolutions, they are encouraged to
contact the Company prior to the General Meeting by email to the
Company Secretary at investorrelations@oxfordbiodynamics.com
with the subject line 'GM Question'.
Related Party Transactions
As disclosed on his appointment in
December 2020, Non-Executive Chairman of the Company, Matthew
Wakefield, is a partner and shareholder in Baden Hill, which has
previously raised capital for the Company and is acting as joint
broker in connection with the Placing. As Non-Executive Chairman of
the Company, Matthew Wakefield is a 'related party' as defined in
the AIM Rules. Accordingly, the transaction between the Company and
Baden Hill is a 'related party' transaction (the "Baden Hill Transaction") pursuant to
Rule 13 of the AIM Rules. It is anticipated that Baden Hill will
receive commission of between 2.5% and 4% of funds raised by Baden
Hill in the Placing (excluding any funds raised from directors,
persons discharging managerial responsibilities ("PDMRs") or staff of the Group, or
entities controlled by them or the Vulpes Life Sciences Fund or
Vulpes Testudo Fund (as managed by Vulpes Investment Management))
.
The Directors of the Company
independent of the Baden Hill Transaction (being Dr Alexandre
Akoulitchev, Dr Jon Burrows, Stephen Diggle, Dr David Holbrook and
Paul Stockdale), having consulted with the Company's nominated
adviser, SCC, consider the terms of the Baden Hill Transaction to
be fair and reasonable insofar as the Company's Shareholders are
concerned.
Recommendation
The
Directors consider the Fundraising to be in the best interests of
the Company and its Shareholders as a whole and, accordingly,
unanimously recommend Shareholders to vote in favour of the
Resolutions to be proposed at the General Meeting as those
Directors who hold Ordinary Shares will do in respect of their
beneficial holdings amounting, in aggregate, to
36,089,383 Ordinary Shares as at 13
March 2024 (being the last practicable date prior to the date of
this announcement), representing 17.8%
of the Company's issued share capital prior to the issue of the New
Ordinary Shares.
The
Fundraising is conditional, amongst other things, upon the passing
of the Resolutions at the General Meeting. Shareholders should be
aware that, if the Resolutions are not passed at the General
Meeting, then the Fundraising will not proceed.
-Ends-
For
more information:
Oxford BioDynamics
PLC Jon Burrows, CEO
Paul Stockdale, CFO
|
Tel: +44
(0)1865 518910
|
Shore Capital - Nominated
Adviser and Joint Broker Advisory: Stephane Auton / Iain Sexton
Broking: Fiona Conroy
|
Tel: +44
(0)20 7408 4090
|
Baden Hill (a trading name
for Northland Capital Partners Limited) -
Joint Broker
Alex
Schlich
|
Tel: +44
(0)20 3951 8907
|
WG Partners
- Joint Broker
David
Wilson / Claes Spang / Sathesh Nadarajah /
Erland Sternby
|
Tel: +44
(0)20 3705 9330
|
Instinctif
Partners - Financial PR Melanie
Toyne-Sewell / Jack Kincade
|
Tel: +44
(0)20 7457 2020
OxfordBioDynamics@instinctif.com
|
EXPECTED TIMETABLE OF PRINCIPAL
EVENTS
Publication of the
Circular
|
14 March 2024
|
Latest time and date for receipt of
Forms of Proxy
|
10.00 a.m. on 28 March 2024
|
General Meeting
|
10.00 a.m.
on 3 April 2024
|
Announcement of results of General
Meeting
|
3 April 2024
|
VCT/EIS Admission and commencement
of dealings in the VCT/EIS Placing Shares on AIM
|
8.00 a.m. on 5 April 2024
|
Crediting of the VCT/EIS Placing
Shares in uncertificated form to CREST accounts
|
5 April
2024
|
General Admission and commencement
of dealings in the General Placing Shares, the Subscription Shares
and the PrimaryBid Shares on AIM
|
8.00 a.m.
on 8 April 2024
|
Crediting of the General Placing
Shares, the Subscription Shares and the PrimaryBid Shares in
uncertificated form to CREST accounts
|
8 April
2024
|
Dispatch of share certificates in
respect of the New Ordinary Shares
(if applicable)
|
within 10
business days of General Admission
|
Notes:
1.
All references to times
in this announcement are to London time.
2.
The dates and times set
out in the above timetable and in the rest of this announcement are
indicative only and may be subject to change. If any such dates and
times should change, the revised times and/or dates will be
notified by announcement via RNS.
3.
All events in the above
timetable scheduled to take place after the General Meeting are
conditional on the approval by the Shareholders of the
Resolutions.
DEFINITIONS
The following definitions apply throughout this
announcement (unless the context otherwise requires):
"Act"
the Companies Act 2006 (as amended from time to
time);
"Admission"
VCT/EIS Admission in the context of the VCT/EIS Placing
Shares and General Admission in the context of the General Placing
Shares, the Subscription Shares and the PrimaryBid
Shares;
"AIM"
AIM, the market of that name operated by the
London Stock Exchange;
"AIM
Rules"
the 'AIM Rules for Companies' published by the
London Stock Exchange (as amended from time to time);
"Baden
Hill"
Northland Capital Partners Limited, trading as
Baden Hill, the Company's joint broker;
"Chief Executive
Officer" or "CEO"
Dr Jon Burrows;
"Company"
Oxford BioDynamics PLC, a company incorporated and
registered in England and Wales with registered number 06227084;
"CLIA"
Clinical Laboratory Improvements
Amendments;
"CPT-PLA"
Current Procedural Terminology Proprietary
Laboratory Analysis;
"CREST"
the relevant system (as defined in the CREST
Regulations) in respect of which Euroclear is the operator (as defined in those regulations) which
facilitates the transfer of title to shares in uncertificated
form;
"CREST Manual"
the CREST reference manual as published by
Euroclear;
"CREST
Member"
a person who has been admitted to Euroclear as a
system- member (as defined in the CREST Regulations);
"CREST
Regulations"
the Uncertificated Securities Regulations 2001
(S.I. 2001 No. 3755) (as
amended from time to time);
"CREST sponsor"
a CREST participant admitted to CREST as a CREST
sponsor;
"CREST sponsored member"
a CREST Member admitted to CREST as a sponsored
member;
"Directors" or "Board"
the directors of the Company, or any duly authorised committee
thereof;
"EIS"
the Enterprise Investment Scheme under part 5 of
the Income Tax Act 2007 (as amended);
"EIS Relief"
the relief claimed by any holder of the VCT/EIS
Placing Shares under Part 5 of the ITA 2007 or exemption or relief
available under sections 150A, 150C and Schedule 5B Taxation of
Chargeable Gains Act 1992;
"Enlarged Share Capital"
the issued share capital of the Company following
General Admission (including the New Ordinary Shares and assuming
full take-up under the PrimaryBid Offer);
"Euroclear"
Euroclear UK & International Limited, the
operator of CREST;
"Existing Ordinary Shares"
202,303,415 ordinary shares of £0.01 (1 penny)
each in the capital of the Company in issue at the date of this
announcement;
"FCA"
the UK Financial Conduct Authority;
"Form of
Proxy"
the form of proxy which will accompany the
Circular for use by Shareholders in connection with the General
Meeting;
"FSMA"
the Financial Services and Markets Act 2000 (as
amended from time to time);
"Fundraising"
the Placing, the Subscriptions and the PrimaryBid
Offer;
"General Admission"
admission of the General Placing Shares, the Subscription
Shares and the PrimaryBid Shares to trading on AIM becoming
effective in accordance with Rule 6 of the AIM
Rules;
"General Meeting"
the general meeting of the Company to be held
at 10.00 a.m. on 3 April 2024;
"General Placing"
the conditional placing of the General Placing Shares to
Placees;
"General Placing
Shares"
New Ordinary Shares (other than VCT/EIS Placing Shares) to be
issued, conditional on General Admission, under the General
Placing;
"Group"
the Company and its subsidiaries (as defined in
the Act) as at the date of this
announcement;
"Issue Price"
9 pence per New Ordinary Share;
"Joint
Brokers"
SCS, Baden Hill and WG Partners;
"London Stock Exchange"
London Stock Exchange plc;
"MAR"
the Market Abuse Regulation (596/2014/EU) as it
forms part of UK domestic law by virtue of the European Union
(Withdrawal) Act 2018, as amended;
"New Ordinary
Shares"
together, the Placing Shares, the PrimaryBid
Shares and the Subscription Shares;
"Notice of General
Meeting"
the notice convening the General Meeting which
will be set out at
the end of the Circular;
"Ordinary Shares"
the Company's ordinary shares of £0.01 (1 penny)
each;
"Placee"
any person who has agreed to subscribe for Placing
Shares pursuant to the Placing;
"Placing"
the VCT/EIS Placing and the General
Placing;
"Placing Agreement"
the agreement dated 13 March 2024 between SCC (1)
SCS (2) Baden Hill (3) WG Partners (4) and the Company (5) relating
to the Placing, further details of which are set out in this
announcement;
"Placing
Shares"
New Ordinary Shares which are to be issued under
the Placing;
"PrimaryBid Offer"
the offer of New Ordinary Shares made to investors
through the PrimaryBid platform;
"PrimaryBid Shares"
the New Ordinary Shares which are to be issued pursuant to the
PrimaryBid Offer at the Issue Price;
"Prospectus Regulation"
Regulation (EU) № 2017/1129 as it forms part of domestic law by
virtue of the European Union (Withdrawal) Act 2018;
"Prospectus
Rules"
the rules made for the purposes of Part VI of the
FSMA in relation to offers of securities to the public and
admission of securities to trading on a regulated
market;
"Registrar"
Neville Registrars Limited;
"Resolutions"
the resolutions set out in the Notice of General
Meeting;
"RNS"
a regulatory information service operated by the
London Stock Exchange as defined in the AIM Rules;
"SCC"
Shore Capital and Corporate Limited, the Company's
nominated adviser for the purposes of the AIM Rules;
"SCS"
Shore Capital Stockbrokers Limited, the Company's
joint broker;
"Securities Act"
the United States Securities Act of 1933, as
amended;
"Shareholders"
holders of the Ordinary Shares of the Company from
time to time;
"Shore Capital"
SCC and/or SCS as the case may be;
"Subscribers"
those persons who intend to subscribe for
Subscription Shares pursuant to the Subscriptions;
"Subscriptions"
the subscriptions for the Subscription Shares by
the Subscribers;
"Subscription
Shares"
the New Ordinary Shares proposed to be issued to
Subscribers pursuant to the Subscriptions;
"UK"
the United Kingdom of Great Britain and Northern
Ireland;
"uncertificated
form"
Ordinary Shares recorded on the share register as
being held in uncertificated form in CREST and title to which, by
virtue of the CREST Regulations, may be transferred within the
CREST settlement system;
"US" or "USA"
the United States of America, each State thereof (including the
District of Columbia), its territories, possessions and all areas
subject to its jurisdiction;
"VCT"
a venture capital trust under part 6 of the Income Tax Act
2007;
"VCT/EIS
Admission"
admission of the VCT/EIS Placing Shares to trading on AIM becoming
effective in accordance with Rule 6 of the AIM Rules;
"VCT/EIS
Placing"
the conditional placing of the VCT/EIS Placing Shares to
Placees;
"VCT/EIS Placing
Shares"
New Ordinary Shares to be issued, conditional on VCT/EIS Admission,
under the VCT/EIS Placing;
"Vulpes Investment
Management"
Vulpes Investment Management Pte. Ltd; and
"WG
Partners"
WG Partners LLP, the Company's joint broker.
APPENDIX
TERMS AND CONDITIONS OF THE
PLACING
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES ONLY.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING.
THIS ANNOUNCEMENT DOES NOT ITSELF CONSTITUTE AN OFFER FOR THE SALE
OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) (THE
"ANNOUNCEMENT") IS RESTRICTED AND IS NOT FOR PUBLICATION,
RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN
PART, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN,
THE REPUBLIC OF IRELAND THE
REPUBLIC OF SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH SUCH
PUBLICATION, RELEASE OR DISTRIBUTION WOULD BE
UNLAWFUL.
The
price of shares and any income expected from them may go down as
well as up and investors may not get back the full amount invested
upon disposal of the shares. Past performance is no guide to future
performance and persons needing advice should consult an
independent financial adviser.
Capitalised terms not otherwise
defined in this Appendix are as defined in the section headed
'Definitions' in this Announcement of which this Appendix forms a
part.
These Terms and Conditions do not
constitute an offer or invitation to acquire, underwrite or dispose
of, or any solicitation of any offer or invitation to acquire,
underwrite or dispose of, any Placing Shares or other securities of
the Company to any person in any jurisdiction to whom it is
unlawful to make such offer, invitation or solicitation in such
jurisdiction. Persons who seek to participate in the Placing
("Placees") must inform
themselves about and observe any such restrictions and must be
persons who are able to lawfully receive this Announcement in their
jurisdiction. In particular, these Terms and Conditions do not
constitute an offer or invitation (or a solicitation of any offer
or invitation) to acquire, underwrite or dispose of or otherwise
deal in any Placing Shares or other securities of the Company in
the United States of America, its territories and possessions
("United
States"), Canada, Australia, Japan,
Republic of Ireland or the Republic of South Africa or in any other
jurisdiction in which any such offer, invitation or solicitation is
or would be unlawful ("Restricted
Jurisdiction").
The Placing Shares have not been,
and will not be, registered under the United States Securities Act
of 1933, as amended (the "Securities Act") or under the
securities laws or with any securities regulatory authority of any
state or other jurisdiction of the United States and may not be
offered, sold, taken up, renounced, delivered or transferred,
directly or indirectly, in the United States or to or by a person
resident in or for the account of any person in the United States
absent registration under the Securities Act or pursuant to an
available exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and in compliance
with any applicable securities laws of any state or other
jurisdiction of the United States.
No public offering of the Placing
Shares is being made in the United Kingdom or elsewhere. Members of
the public are not eligible to take part in the placing and no
public offering of Placing Shares is being or will be made. This
Announcement and the terms and conditions set out and referred to
in it are directed only at persons selected by the Joint Brokers
who are (a) if in the United Kingdom, persons who (i) have
professional experience in matters relating to investments falling
within article 19(1) of The Financial Services and Markets Act
(Financial Promotion) Order 2005, as amended ("FPO") and who fall within the
definition of 'investment professionals' in article 19(5) of the
FPO or fall within the definition of 'high net worth companies,
unincorporated associations etc.' in article 49(2)(a) to (d) of the
FPO and (ii) are 'qualified investors' ("UK
Qualified Investors") being persons
within the meaning of article 2(e) of Regulation (EU) 2017/1129 (as
amended) as it forms part of UK domestic law by virtue of,
the European Union (Withdrawal) Act 2018 (as amended) (the
"UK Prospectus
Regulation"); (b) if in a member
state of the European Economic Area ("EEA"), persons who are
'qualified investors' ("EEA Qualified
Investors") being persons falling
within the meaning of article 2(e) of Regulation (EU) 2017/1129 (as
amended) (the "EU Prospectus
Regulation"); or (c) persons to whom
it may otherwise lawfully be communicated (all such persons
referred to in (a), (b) and (c) together being referred to
as "Relevant
Persons").
No action has been taken by the
Company, the Joint Brokers, or any of their respective directors,
officers, partners, agents, employees or affiliates that would
permit an offer of the Placing Shares or possession or distribution
of this Announcement or any other publicity material relating to
such Placing Shares in any jurisdiction where action for that
purpose is required. Persons receiving this Announcement are
required to inform themselves about and to observe any restrictions
contained in this Announcement.
This Announcement does not itself
constitute an offer for sale or subscription of any securities in
the Company. This Announcement and the terms and conditions set out
herein must not be acted on or relied on by persons who are not
Relevant Persons. Any investment or investment activity to which
this Announcement relates is available only to Relevant Persons and
will be engaged in only with Relevant Persons. Distribution of this
Announcement in certain jurisdictions may be restricted or
prohibited by law. Persons distributing this announcement must
satisfy themselves that it is lawful to do so.
These Terms and Conditions apply to
Placees, each of whom confirms his or its agreement, whether by
telephone or otherwise, with the Joint Brokers to subscribe and pay
for Placing Shares in the Placing, and hereby agrees with each of
the Joint Brokers and the Company to be legally and irrevocably
bound by these Terms and Conditions which will be the Terms and
Conditions on which the Placing Shares will be acquired in the
Placing and each such Placee is deemed to have read and understood
this Announcement in its entirety (including this Appendix) and to
be providing the representations, warranties, undertakings,
agreements and acknowledgements contained in this
Appendix.
These Terms and Conditions must not
be acted on or relied on by persons who are not Relevant Persons.
Any investment or investment activity to which the Terms and
Conditions set out herein relates is available only to Relevant
Persons and will be engaged in only with Relevant Persons. A Placee
may not assign, transfer, or in any manner, deal with its rights or
obligations under the agreement arising from the acceptance of the
Placing, without the prior written agreement of the Joint Brokers
or in accordance with all relevant requirements.
All times and dates in this Appendix
are references to times and dates in London (United
Kingdom).
Any indication in this Announcement
of the price at which the Company's shares have been bought or sold
in the past cannot be relied upon as a guide to future performance.
Persons needing advice should consult an independent financial
adviser. No statement in this Announcement is intended to be a
profit forecast and no statement in this Announcement should be
interpreted to mean that earnings per share of the Company for the
current or future financial years would necessarily match or exceed
the historical published earnings per share of the
Company.
Shore Capital and Corporate Limited,
which is authorised and regulated by the FCA in the United Kingdom,
acts as nominated adviser to the Company for the purposes of the
AIM Rules. Shore Capital Stockbrokers Limited is a member of the
London Stock Exchange and is authorised and regulated by the FCA in
the United Kingdom. Shore Capital and Corporate Limited and Shore
Capital Stockbrokers Limited are acting exclusively for the Company
and for no one else in connection with the Placing and will not be
responsible to anyone other than the Company for providing the
protections afforded to clients of Shore Capital or for providing
advice in relation to the Placing, or any other matters referred to
in this Announcement.
Save for the responsibilities and
liabilities, if any, of Shore Capital under FSMA or the regulatory
regime established thereunder or in respect of fraudulent
misrepresentation, 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 or on behalf
of Shore Capital or by its affiliates, agents, directors, officers
and employees 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 therefor is
expressly disclaimed.
Northland Capital Partners Limited,
trading as Baden Hill ("Baden
Hill"), which is a member of the
London Stock Exchange and is authorised and regulated by the FCA in
the United Kingdom, is acting exclusively for the Company and for
no one else in connection with the Placing and will not be
responsible to anyone other than the Company for providing the
protections afforded to clients of Baden Hill or for providing
advice in relation to the Placing, or any other matters referred to
in this Announcement.
Save for the responsibilities and
liabilities, if any, of Baden Hill under FSMA or the regulatory
regime established thereunder or in respect of fraudulent
misrepresentation, 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 or on behalf
of Baden Hill or by its affiliates, agents, directors, officers and
employees 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 therefor is expressly
disclaimed.
WG Partners LLP ("WG
Partners"), which is a member of the
London Stock Exchange and is authorised and regulated by the FCA in
the United Kingdom, is acting exclusively for the Company and for
no one else in connection with the Placing and will not be
responsible to anyone other than the Company for providing the
protections afforded to clients of WG Partners or for providing
advice in relation to the Placing, or any other matters referred to
in this Announcement.
Save for the responsibilities and
liabilities, if any, of WG Partners under FSMA or the regulatory
regime established thereunder or in respect of fraudulent
misrepresentation, 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 or on behalf
of WG Partners or by its affiliates, agents, directors, officers
and employees 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 therefor is
expressly disclaimed.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL,
REGULATORY, TAX, BUSINESS AND RELATED ASPECTS OF AN ACQUISITION OF
PLACING SHARES.
Persons who are invited to and who
choose to participate in the Placing, by making an oral or written
offer to acquire Placing Shares, including any individuals, funds
or others on whose behalf a commitment to acquire Placing Shares is
given, will be deemed to have read and understood this Announcement
in its entirety and to be making such offer on these Terms and
Conditions, and to be providing the representations, warranties,
acknowledgements and undertakings, contained in this Appendix. In
particular, each such Placee represents, warrants and acknowledges
that:-
i.
it is a Relevant Person (as defined above) and
undertakes that it will acquire, hold, manage or dispose of any
Placing Shares that are allocated to it for the purposes of its
business;
ii. it is acquiring the Placing Shares for its own account or for
an account with respect to which it exercises sole investment
discretion;
iii. if
it is in the United Kingdom and/or if it is a financial
intermediary, as that term is used in Article 5(1) of the UK
Prospectus Regulation, any Placing Shares acquired by it in the
Placing will not be acquired or subscribed for on a
non-discretionary basis on behalf of, nor will they be acquired or
subscribed for with a view to their offer or resale to persons in
the United Kingdom other than to UK Qualified Investors or in
circumstances which may give rise to an offer of securities to the
public other than an offer or resale in the United Kingdom to UK
Qualified Investors, or in circumstances in which the prior consent
of the Joint Brokers has been given to each such proposed offer or
resale; and
iv. if
it is in a member state of the EEA and/or if it is a financial
intermediary, as that term is used in Article 5(1) of the EU
Prospectus Regulation, any Placing Shares acquired or subscribed
for by it in the Placing will not be acquired on a
non-discretionary basis on behalf of, nor will they be acquired or
subscribed for with a view to their offer or resale to persons in
any member state of the EEA other than to EEA Qualified Investors
or in circumstances which may give rise to an offer of securities
to the public other than an offer or resale in a member state of
the EEA to EEA Qualified Investors, or in circumstances in which
the prior consent of the Joint Brokers has been given to each such
proposed offer or resale.
None of the Joint Brokers makes any
representation to any Placees regarding an investment in the
Placing Shares.
In this Appendix, unless the context
otherwise requires, "Placee" means a Relevant Person
(including individuals, funds or others) by whom or on whose behalf
a commitment to take up Placing Shares has been given and who has
been invited to participate in the Placing by the Joint Brokers (or
any of them).
All obligations of the Joint Brokers
under the Placing will be subject to fulfilment of the conditions
referred to in this Announcement, including (without limitation)
those referred to below under 'Conditions of the
Placing'.
Information to Distributors
Solely for the purposes of the
product governance requirements of Chapter 3 of the FCA Handbook
Product Intervention and Product Governance Sourcebook (the
"UK Product Governance
Requirements"), and disclaiming all
and any liability, whether arising in tort, contract or otherwise,
which any 'manufacturer' (for the purposes of the UK Product
Governance Requirements) may otherwise have with respect thereto,
the Placing Shares have been subject to a product approval process,
which has determined that the Placing Shares are: (i) compatible
with an end target market of 'retail investors' and investors who
meet the criteria of 'professional clients' and 'eligible
counterparties', each as defined in the FCA Conduct of Business
Sourcebook; and (ii) eligible for distribution through all
permitted distribution channels (the "UK
Target Market Assessment").
Solely for the purposes of the
product governance requirements contained within: (a) EU Directive
2014/65/EU on markets in financial instruments, as amended
("MiFID
II"); (b) Articles 9 and 10 of
Commission Delegated Directive (EU) 2017/593 supplementing MiFID
II; and (c) local implementing measures (together, the
"MiFID II Product Governance
Requirements") and/or any equivalent
requirements elsewhere to the extent determined to be applicable,
and disclaiming all and any liability, whether arising in tort,
contract or otherwise, which any 'manufacturer' (for the purposes
of the MiFID II Product Governance Requirements) may otherwise have
with respect thereto, the Placing Shares have been subject to a
product approval process, which has determined that the Placing
Shares are: (i) compatible with an end target market of 'retail
investors' and investors who meet the criteria of 'professional
clients' and 'eligible counterparties', each as defined in MiFID
II; and (ii) eligible for distribution through all distribution
channels as are permitted by MiFID II (the "EU
Target Market Assessment" and,
together with the UK Target Market Assessment, the
"Target Market
Assessments").
Notwithstanding the Target Market
Assessments, distributors should note that: the price of the
Placing Shares may decline and investors could lose all or part of
their investment; the Placing Shares offer no guaranteed income and
no capital protection; and an investment in the Placing Shares is
compatible only with investors who do not need a guaranteed income
or capital protection, who (either alone or in conjunction with an
appropriate financial or other adviser) are capable of evaluating
the merits and risks of such an investment and who have sufficient
resources to be able to bear any losses that may result
therefrom. The Target Market Assessments are without
prejudice to the requirements of any contractual, legal or
regulatory selling restrictions in relation to the Placing.
Furthermore, it is noted that, notwithstanding the Target Market
Assessments, the Joint Brokers will only procure investors who meet
the criteria of 'professional clients' or 'eligible
counterparties'.
For the avoidance of doubt, the
Target Market Assessments do not constitute: (a) an assessment of
suitability or appropriateness for the purposes of Chapters 9A or
10A, respectively of the FCA Handbook Conduct of Business
Sourcebook (for the purposes of the UK Target Market Assessment) or
MiFID II (for the purposes of the EU Target Market Assessment); or
(b) a recommendation to any investor or group of investors to
invest in, or purchase, or take any other action whatsoever with
respect to the Placing Shares.
Each distributor is responsible for
undertaking its own target market assessment in respect of the
Placing Shares and determining appropriate distribution
channels.
Timetable for the Placing
Various dates referred to in this
Announcement are stated on the basis of the expected timetable for
the Placing. It is possible that some of these dates may be
changed. To facilitate the application for VCT relief in respect of
the VCT/EIS Placing Shares, such shares will be allotted on 4 April
2024 conditional upon Admission of such shares becoming effective
on 5 April 2024 ("VCT/EIS
Admission"). The General Placing
Shares will be allotted on 4 April 2024, conditional upon Admission
of such shares becoming effective on 8 April 2024
("General
Admission").
Terms of the Placing
The Joint Brokers have, prior to the
notification of this Announcement to the RNS, entered into the
Placing Agreement with the Company under which the Joint Brokers
have undertaken, on the terms and subject to the conditions set out
therein, to use their respective reasonable endeavours in each case
as agent of the Company, to procure Placees for the Placing Shares.
This Appendix gives details of the terms and conditions of, and the
mechanics for participation in, the Placing.
Each Placee's commitment to
subscribe for Placing Shares under the Placing and to participate
in the Bookbuild (as defined below) will be agreed (by email,
orally or otherwise) with the Joint Brokers and such agreement will
constitute a binding irrevocable commitment by a Placee, subject to
the Terms and Conditions set out in this Appendix, to subscribe for
and pay for Placing Shares ("Placing Participation") at the Issue Price of 9
pence per Placing Share ("Placing Price"). Such commitment is not capable
of variation, termination or rescission by the Placee in any
circumstances except fraud. Upon making this oral offer, each
Placee has an immediate, separate, irrevocable and binding
obligation owed to the Joint Brokers, in each case as agent for the
Company, to pay the relevant Joint Broker (or as it may direct) in
cleared funds an amount equal to the product of the Placing Price
and the total number of Placing Shares such Placee has agreed to
subscribe for in the Placing. All such obligations are entered into
by the Placee with the Joint Brokers, in each case acting in its
capacity as agent of the Company, and are therefore directly
enforceable by the Company.
Each Placee's allocation of Placing
Shares has been agreed between the Joint Brokers and the Company
and will be confirmed by email or orally to each Placee by the
relevant Joint Broker (as agent for the Company). A contract note
confirming this allocation, the aggregate amount owed by such
Placee to the relevant Joint Brokers and settlement instructions
("Contract
Note") will be despatched shortly.
The oral confirmation to such Placee by the relevant Joint Broker
(as agent for the Company) constitutes an irrevocable legally
binding commitment upon that person (who will at that point become
a Placee) in favour of the Joint Brokers and the Company 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
and in accordance with the Company's articles of association. All
obligations under the Placing will be subject to 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 'Right to terminate the Placing Agreement'. By participating
in 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 be capable of rescission or
termination by the Placee.
Each of the Joint Brokers and its
respective affiliates are entitled to enter bids as principal in
the Placing.
Irrespective of the time at which a
Placee's allocation pursuant to the Placing is confirmed,
settlement for all Placing Shares to be subscribed for pursuant to
the Placing will be required to be made at the same time, on the
basis explained below under 'Registration and
Settlement'.
The Company confirms that the
Placing Shares will when issued, subject to the constitution of the
Company, rank pari passu
in all respects and form one class with the existing Ordinary
Shares of the Company in issue on Admission, including the right to
receive dividends or other distributions after the date of issue of
the Placing Shares, if any. The Placing Shares are or will be
issued free of any encumbrance, lien or other security
interest.
Applications for Admission
Applications will be made to the
London Stock Exchange for VCT/EIS Admission in respect of the
VCT/EIS Placing Shares and General Admission in respect of the
General Placing Shares, in each case to trading on the AIM, the
market of that name operated by the London Stock Exchange
("AIM"). Subject to the resolutions being passed at the general
meeting of shareholders, the details of which are set out in the
Circular, it is anticipated that VCT/EIS Admission in respect of
the VCT/EIS Placing Shares to trading on AIM will become effective
at 8.00am on 5 April 2024 and dealings in the VCT/EIS Placing
Shares will commence at that time. Settlement of the General
Placing Shares and General Admission is anticipated to become
effective at 8.00am on 8 April 2024 and dealings in the General
Placing Shares to commence at that time and date for normal account
settlement.
Bookbuild
The Placing will be conducted
through an accelerated bookbuilding process (the "Bookbuild" or the "Bookbuilding Process"), which will be
launched immediately following this Announcement. The timing of the
closing of the Bookbuild and allocations are at the absolute
discretion of the Joint Brokers and the Company. It is currently
envisaged that the result of the Bookbuilding Process will be
announced via the RNS tomorrow, 14 March 2024 at 7.00 a.m.
EIS
and VCT
The VCT/EIS Placing Shares to be
issued pursuant to the VCT Placing are intended to rank as
'eligible shares' for the purposes of EIS and VCT investors and a
'qualifying holding' for the purposes of an investment by VCTs,
each pursuant to the relevant respective sections of the Income Tax
Act 2007 ("ITA
2007"). The
Company has not applied for, nor has it received, an advanced
assurance from HM Revenue & Customs ("HMRC")
in respect of EIS qualification, but the Company has obtained a
written opinion from specialist tax advisers confirming that the
Company would, subject to the relevant limits on such issuances, be
able to issue the VCT/EIS Placing Shares as 'eligible shares' under
the relevant sections of the ITA 2007. Neither the Company nor the
Directors give any warranties or undertakings that EIS Reliefs or
VCT reliefs will be granted in respect of the VCT/EIS Placing
Shares and neither the Company nor the Directors give any
warranties or undertakings that EIS Reliefs or VCT reliefs, if
granted, will not be withdrawn at a later date. If the Company
carries on activities beyond those disclosed to HMRC, then
shareholders may cease to qualify for the tax benefits. Placees
must take their own advice and rely on it.
The rules governing VCT and EIS
reliefs are complex. Any prospective investors who are
considering investing in VCT/EIS Placing Shares in order to obtain VCT
or EIS reliefs are recommended to take independent tax advice from
a professional tax adviser.
Scaling back
The Joint Brokers (after consulting
with the Company) reserve the right to scale back the number of
Placing Shares to be subscribed by any Placee or the number of
Placing Shares to be subscribed for by all Placees in aggregate.
The Joint Brokers also reserve the right not to offer allocations
of Placing Shares to any person and not to accept offers to
subscribe for Placing Shares or to accept such offers in part
rather than in whole. The Joint Brokers shall be entitled to
effect the Placing by such alternative method to the Bookbuild as
they shall in their sole discretion lawfully determine in the
exercise of their appointment and the powers, authority and
discretion conferred on them as the Joint Brokers.
To the fullest extent permissible by
law, none of the Joint Brokers nor any holding company of any of
them, nor any subsidiary, branch or affiliate of any of the Joint
Brokers (each an "Affiliate") nor any person
acting on behalf of any of the foregoing shall have any liability
to Placees (or to any other person whether acting on behalf of a
Placee or otherwise). In particular, none of the Joint Brokers, nor
any of their respective Affiliates nor any person acting on behalf
of any such person shall have any liability to Placees in respect
of its conduct of the Placing.
Placing Agreement
Pursuant to the Placing Agreement,
the Joint Brokers have agreed on behalf of and in each case as
agent of the Company to use their respective reasonable endeavours
to procure persons to subscribe for the Placing Shares at the
Placing Price, subject to these Terms and Conditions. The Placing
will not be underwritten.
Conditions of the Placing
The Placing is conditional upon the
Placing Agreement becoming unconditional and not having been
terminated in accordance with its terms.
The obligations of the Joint Brokers
under the Placing Agreement (which are several, and not joint or
joint and several) in respect of the VCT/EIS Placing Shares are conditional, inter
alia, on:-
·
the publication of the Circular on the Company's
website and its despatch by the Company by first class post to
shareholders of the Company (save as set out in the Placing
Agreement) on 14 March 2024
(or as soon as possible thereafter but no later
than 15 March 2024);
·
the passing of the Resolutions set out in the
notice of general meeting set out at the end of the
Circular, without
amendment;
·
the Company allotting, subject only to VCT/EIS
Admission, the VCT/EIS Placing
Shares in accordance with the Placing
Agreement;
·
the Company having complied with its obligations
under the Placing Agreement; and
·
VCT/EIS Admission taking place not later than
8.00am on 5 April 2024 or such later time or date as the Company
and the Joint Brokers may otherwise agree (but not being later than
8.00am on the Long Stop Date).
The obligations of the Joint Brokers
under the Placing Agreement (which are several, and not joint or
joint and several) in respect of the General Placing Shares are
conditional, inter alia, on:-
·
the VCT/EIS Placing
Shares being unconditionally allotted and issued
to the relevant Placees on VCT/EIS Admission and VCT/EIS Admission
having occurred;
·
the Company allotting, subject only to General
Admission, the General Placing Shares in accordance with the
Placing Agreement;
·
the Company having complied with its obligations
under the Placing Agreement; and
·
General Admission taking place not later than
8.00am on 8 April 2024 or such later time or date as the Company
and the Joint Brokers may otherwise agree (but not being later than
8.00am on the Long Stop Date).
The Placing Agreement contains,
inter alia, certain warranties and indemnities from the Company for
the benefit of the Joint Brokers.
If any of the conditions contained
in the Placing Agreement ("Conditions") are not fulfilled
(or, where appropriate, waived in whole or part by the Joint
Brokers) by the times and dates stated (or such later dates as the
Joint Brokers and the Company may agree, being not later than 30
April 2024) the Placing Agreement shall cease and determine and no
party to the Placing Agreement will have any claim against any
other party for costs, damages, charges, compensation or otherwise
except that, amongst other things, the Joint Brokers shall return
to prospective Placees, in accordance with the Terms and
Conditions, any monies received from them.
The Joint Brokers may, in their
absolute discretion and upon such terms as they think fit, waive or
extend the time for fulfilment of all or any part of any of the
Conditions which are capable of waiver or extension by them, but
provided that the latest time for fulfilment of any Condition shall
not be later than 8.00 a.m. on 30 April 2024. Any such waiver or
extension will not affect Placees' commitments as set out in this
Announcement.
Right to terminate the Placing Agreement
Any of the Joint Brokers may, in its
absolute discretion, terminate the Placing Agreement, inter alia,
if:-
(i)
the sum of the aggregate number of Placing Shares set out in the
notice given by the Joint Brokers to the Company
of, inter alia, the numbers of the Placing Shares
resulting from the Bookbuild multiplied by
the Placing Price, together with the sum of
the aggregate final confirmed number of Subscription Shares
multiplied by the Issue Price, is less than
£9 million in aggregate (and the Joint Brokers and the Company do
not agree such lesser sum);
(ii)
the Company is in breach of any of its material obligations under
the Placing Agreement or cannot comply with any such material
obligation;
(iii)
any of the Warranties is, or as repeated immediately prior to and
on VCT/EIS Admission and General Admission (by reference to the
facts, circumstances and knowledge, opinions, intentions and
expectations of the Company) would cause it to be untrue or
inaccurate or misleading in any material respect; or
(iv)
there occurs or arises prior to VCT/EIS Admission and General
Admission any significant change or new material matter which would
require to be notified to shareholders of the Company or potential
Placees (except to the extent that a supplementary announcement or
a supplementary Circular is published by the Company);
or
(v)
the Company fails to accept the reasonable advice of Shore Capital,
Baden Hill and/or WG Partners on a material matter concerning
action to be taken in respect of or in relation to the Placing,
VCT/EIS Admission, General Admission or any other material matter
contained in this Announcement or the Circular; or
(vi)
the Company is in material breach of the Act, the AIM Rules for
Companies, MAR, the Disclosure Guidance and Transparency Rules
("DTRs"),
the FSMA or any other laws or regulations to which the Company or
any Group Company and/or the Directors are subject from time to
time and, to the extent it can be remedied, such breach has not
been remedied within five (5) Business Days;
(vii)
any of the Joint Brokers (acting reasonably, in good faith and at
its sole discretion) is not satisfied that it can proceed with the
Placing, VCT/EIS Admission or General Admission without defaulting
on its responsibilities under the FSMA, MAR or any other material
regulatory requirement; or
(viii)
any event of 'Force Majeure' (as defined in the Placing Agreement)
occurs prior to VCT/EIS Admission or General Admission which
prevents any party not seeking to terminate from performing its
obligations under this Agreement; or
(ix)
at any time prior to VCT/EIS Admission or General Admission, any of
the Joint Brokers becomes aware of any substantial change in any
national or international political, military, diplomatic,
economic, financial or market conditions (including disruption to
trading on any relevant stock exchange) or currency exchange rates
or exchange controls or any statutory or regulatory matter which,
in the opinion of such Joint Broker (acting reasonably, in good
faith and after such consultation with the Company and the other
Joint Brokers as shall be practicable in the circumstances), would
have or be likely to have a material and adverse effect on the
Placing, the PrimaryBid Offer or dealings in the New Ordinary
Shares in the secondary market or is of such magnitude to render
the Placing or the creation of a market in the New Ordinary Shares
temporarily or permanently impracticable or inadvisable;
(x)
it shall come to the notice of any of the Joint Brokers that any
statement contained in this Announcement or the Circular (or any
amendment or supplement thereto) is or has become untrue,
inaccurate or misleading in any material respect, or matters have
arisen which would, if this Announcement and/or the Circular were
issued at that time, constitute a material omission therefrom
(except to the extent that a supplementary announcement or a
supplementary Circular is published by the Company); or
(xi)
Shore Capital believes (in its sole and absolute discretion and
acting in good faith) that termination is necessary in order to
preserve its reputation (without liability or continuing
obligations on the part of Shore Capital to the
Company);
save that if any of the Joint
Brokers gives notice to terminate the Placing Agreement (the
"Terminating Joint
Broker"),
whichever of the Joint Brokers are not the Terminating Joint Broker
(each a "Continuing Joint
Broker") may elect by notice in writing to the Company to
continue with the Placing Agreement (subject, if the Terminating
Joint Broker is SCS, to (a) alternative settlement procedures,
including a CREST account, to those stated in the Placing Agreement
being agreed by the Continuing Joint Brokers in adequate time for
the purpose and (b) the prior written consent of SCC to the Placing
continuing) and where such election is made, the Placing Agreement
shall continue between the Continuing Joint Brokers and the Company
and the termination shall only apply to the Terminating Joint
Broker (subject to the extent specified in such circumstances in
the Placing Agreement). For the avoidance of any doubt, no consents
or approvals in respect of the Placing shall be required of the
Terminating Joint Broker following any such termination.
Following VCT/EIS Admission, the
Placing Agreement is not capable of termination to the extent that
it relates to the Placing of VCT/EIS Placing Shares. Following General
Admission, the Placing Agreement is not capable of termination to
the extent it relates to the Placing of any of the General Placing
Shares. For the avoidance of doubt, VCT/EIS Admission is not
conditional on General Admission taking place.
The exercise by any of the Joint
Brokers of a right of termination (or any right of waiver
exercisable by the Joint Brokers (acting together) contained in the
Placing Agreement or the exercise of any discretion under the Terms
and Conditions set out herein is within the absolute discretion of
the Joint Brokers and none of the Joint Brokers will have any
liability to Placees whatsoever in connection with any decision to
exercise or not exercise any such rights.
By accepting the Placing Shares
referred to in the Announcement to which this Appendix is annexed,
each Placee agrees that, without having any liability to such
Placee, the Joint Brokers may exercise the right: (i) to extend the
time for fulfilment of any of the conditions in the Placing
Agreement (provided that Placees' commitments are not extended
beyond the Long Stop Date); (ii) to, in their absolute discretion,
waive, in whole or in part, fulfilment of certain of the conditions
(but not including Admission); or (iii) to terminate the Placing
Agreement, in each case without consulting Placees (or any of
them).
If any of the conditions in the
Placing Agreement are not satisfied (or, where relevant, waived),
the Placing Agreement is terminated or the Placing Agreement does
not otherwise become unconditional in all respects, the Placing
will not proceed and all funds delivered by Placees to the Joint
Brokers pursuant to the Placing and this Appendix will be returned
to Placees at their risk (without interest), and Placees' rights
and obligations under the Placing shall cease and determine at such
time and no claim shall be made by Placees in respect
thereof.
Registration and Settlement
Irrespective of the time at which
the Placee's allocation(s) pursuant to the Placing is/are
confirmed, settlement for all Placing Shares to be acquired
pursuant to the Placing will be required to be made on the basis
explained below.
Settlement of transactions in the
Placing Shares following Admission will take place on a delivery
versus payment basis in accordance with the instructions set out in
the trade confirmation within the CREST system ("CREST") (subject to certain
exceptions). The Joint Brokers reserve the right to require
settlement for, and delivery of, the Placing Shares (or a portion
thereof) to Placees by such other means that it may deem necessary
if delivery or settlement is not possible or practicable within
CREST within the timetable set out in the Announcement or would not
be consistent with the regulatory requirements in the jurisdiction
of any Placee.
Subject to the resolutions being
passed at the general meeting of shareholders of the Company, the
details of which are set out in the Circular, it is expected that
settlement for the VCT/EIS Placing Shares will take place at 8.00
a.m. on 5 April 2024 and settlement for the General Placing Shares
will take place at 8.00 a.m. on 8 April 2024 unless otherwise
notified by the Joint Brokers.
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 2 percentage
points above the base rate of Barclays Bank Plc as determined by
the Joint Brokers, with interest compounded on a daily
basis.
Each Placee is deemed to agree that,
if it does not comply with these obligations, the Joint Brokers may
sell any or all of the Placing Shares allocated to that Placee on
such Placee's behalf and retain from the proceeds, for its account
and benefit (as agent for the Company), 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 or securities transfer tax
(together with any interest or penalties) which may arise in any
jurisdiction upon the sale of such Placing Shares on such Placee's
behalf. By communicating a bid for Placing Shares, each Placee
confers on each of the Joint Brokers all such authorities and
powers necessary or desirable to carry out any such sale and agrees
to ratify and confirm all actions which the Joint Brokers lawfully
takes in pursuance of such sale.
If Placing Shares are to be
delivered to a custodian or settlement agent, Placees should ensure
that the Contract Note is copied and delivered immediately to the
relevant person within that organisation.
The Company confirms that, insofar
as Placing Shares are registered in a Placee's name or that of its
nominee or in the name of any person for whom a Placee is
contracting as agent or that of a nominee for such person, such
Placing Shares should, subject as provided below, be so registered
free from any liability to UK stamp duty or stamp duty reserve tax
or securities transfer tax.
Placees will not be entitled to
receive any fee or commission in connection with the
Placing.
Further Terms, Confirmations and Warranties
By participating in the Placing,
each Placee (and any person acting on such Placee's behalf)
irrevocably makes the following confirmations, acknowledgements,
representations, warranties and/or undertakings (as the case may
be) to each of the Joint Brokers (in their respective capacities as
Joint Brokers and as agents of the Company) and the Company and
their respective directors, agents and advisers, in each case as a
fundamental term of its offer to acquire and subscribe for Placing
Shares:
1 each
Placee confirms, represents and warrants that it has read and
understood the Announcement (including this Appendix) in its
entirety and acknowledges that its Placing Participation will be
governed by the terms, conditions, representations, warranties,
acknowledgements, agreements and undertakings in this
Appendix;
2 each
Placee acknowledges and agrees that its Placing Participation on
the Terms and Conditions set out in this Appendix is legally
binding, irrevocable and is not capable of termination or
rescission by such Placee in any circumstances and that it has the
funds available to pay the Placing Price in respect of the Placing
Shares for which it has given a commitment under the
Placing;
3 each
Placee confirms, represents and warrants that it has not relied on,
received or requested nor does it have any need to receive, any
prospectus, offering memorandum, listing particulars or any other
document (other than the Announcement), any information given or
any representations, warranties, agreements or undertakings
(express or implied), written or oral, or statements made at any
time by the Company or any of the Joint Brokers or by any
subsidiary, holding company, branch or associate of the Company or
any of the Joint Brokers or any of their respective officers,
directors, agents, employees or advisers, or any other person in
connection with the Placing, the Company and its subsidiaries or
the Placing Shares and that in making its application under the
Placing it is relying solely on the information contained in the
Announcement and this Appendix and it will not be relying on any
agreements by the Company and its subsidiaries or any of the Joint
Brokers, or any director, employee or agent of the Company or of
any of the Joint Brokers other than as expressly set out in this
Appendix, for which none of the Joint Brokers nor any of their
respective directors and/or employees and/or person(s) acting on
their behalf shall to the maximum extent permitted under law have
any liability except in the case of fraud;
4 each
Placee acknowledges that the content of this Announcement and any
information publicly announced to a Regulatory Information Service
by or on behalf of the Company on or prior to the date of this
Announcement is exclusively the responsibility of the Company and
that none of the Joint Brokers, any of its Affiliates, directors,
officers, employees or agents, or any person acting on behalf of
any of them has or shall have any responsibility or liability for
any information, representation or statement contained in this
Announcement or any information previously or subsequently
published by or on behalf of the Company 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, any information previously published by or on behalf
of the Company 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, any information publicly announced to a Regulatory
Information Service by or on behalf of the Company on or prior to
the date of this Announcement, 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 investigations, representations,
warranties or statements made by any of the Joint Brokers or the
Company, or any of their respective affiliates or any person acting
on behalf of any of them (including in any research report prepared
by any of them) and none of the foregoing persons will be liable
for any Placee's decision to accept an invitation to participate in
the Placing based on any such 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 and that none of the Joint Brokers nor
any of their respective Affiliates have made any representations to
it, express or implied, with respect to the Company, the Placing
and the Placing Shares or the truth, accuracy, completeness or
adequacy of any publicly available information about the Company or
any other information that has otherwise been made available to
Placees concerning the Company, whether at the date of publication,
the date of this Announcement or otherwise, and each of them
expressly disclaims any liability in respect thereof. Nothing in
this paragraph or otherwise in this Announcement excludes the
liability of any person for fraudulent misrepresentation made by
that person;
5 each
Placee confirms, represents and warrants that it is sufficiently
knowledgeable to understand and be aware of the risks associated
with, and other characteristics of, the Placing Shares and, among
others, of the fact that it may not be able to resell the Placing
Shares except in accordance with certain limited exemptions under
applicable securities legislation and regulatory
instruments;
6 each
Placee confirms, represents and warrants, if a company or
partnership, that it is a valid and subsisting company or
partnership and has all the necessary capacity and authority to
execute its obligations in connection with the Placing
Participation and confirms, represents and warrants that any person
who confirms to any of the Joint Brokers on behalf of a Placee an
agreement to subscribe for Placing Shares is duly authorised to
provide such confirmation to such Joint Broker;
7 each
Placee agrees that the entry into the Placing Agreement or the
exercise by the Joint Brokers of any right of termination or any
right of waiver exercisable by the Joint Brokers contained in the
Placing Agreement or the exercise of any discretion is within the
absolute discretion of the Joint Brokers, and none of the Joint
Brokers will have any liability to any Placee whatsoever in
connection with any decision to exercise or not exercise any such
rights. Each Placee acknowledges that if: (i) any of the
conditions in the Placing Agreement are not satisfied (or, where
relevant, waived); (ii) the Placing Agreement is terminated; or
(iii) the Placing Agreement does not otherwise become unconditional
in all respects; the Placing will lapse and such Placee's rights
and obligations in relation to the Placing shall cease and
determine at such time and no claim shall be made by any Placee in
respect thereof;
8 each
Placee acknowledges and agrees that none of the Joint Brokers acts
for, and that it does not expect any of the Joint Brokers to have
any duties or responsibilities towards, such Placee, including,
without limitation, for providing protections afforded to customers
or clients of any of the Joint Brokers under the FCA's Conduct of
Business Sourcebook or advising such Placee with regard to its
Placing Participation and that such Placee is not, and will not be,
a customer or client of any of the Joint Brokers as defined by the
FCA's Conduct of Business Sourcebook in connection with the
Placing. Likewise, none of the Joint Brokers will treat any
payment by such Placee pursuant to its Placing Participation as
client money and governed by the FCA's Client Assets
Sourcebook;
9 each
Placee undertakes and agrees that it will be responsible for any
stamp duty or stamp duty reserve tax or securities transfer tax in
relation to the Placing Shares comprised in its Placing
Participation and that none of the Joint Brokers nor the Company
will be responsible for any liability to stamp duty or stamp duty
reserve tax or securities transfer tax in relation to the Placing
Shares comprised in such Placee's Placing Participation;
10 each Placee
acknowledges and agrees that the Placing Participation confirmed in
writing by email or orally by each Placee to any of the Joint
Brokers (in each case as agent for the Company) and further
confirmed by the Contract Note is a legally binding contract
between it and such Joint Broker and the Company subject to any
scaling back, as described above, in the Joint Brokers' absolute
discretion and the Terms and Conditions of such Placee's Placing
Participation will be governed by, and construed in accordance
with, the laws of England and Wales, to the exclusive jurisdiction
of whose courts such Placee irrevocably agrees to
submit;
11 each Placee
agrees that it will ensure delivery and payment is completed in
accordance with the settlement instructions set out in the Contract
Note and acknowledges and agrees that time shall be of the essence
as regards such Placee's obligations pursuant to its Placing
Participation;
12 each Placee
acknowledges and agrees that it is the responsibility of such
Placee (if it is outside of the United Kingdom) to satisfy itself
that, in doing so, such Placee complies with the laws and
regulations of any relevant territory in connection with its
Placing Participation and that it obtains any requisite
governmental or other consents and observes any other applicable
formalities;
13 each Placee
acknowledges and agrees that the Announcement does not constitute
an offer to sell, or the solicitation of an offer to subscribe for
or buy, Placing Shares in any jurisdiction in which such an offer
or solicitation is unlawful. Accordingly, such Placee
acknowledges and agrees that the Placing Shares may not, subject to
certain limited exceptions, be offered or sold, directly or
indirectly, in or into the United States, any province of Canada or
Australia, Japan, Republic of Ireland or the Republic of South
Africa or offered or sold to, or for the account or benefit of, a
national, citizen or resident of the United States, any province of
Canada or Australia, Japan, Republic of Ireland or the Republic of
South Africa, in each case subject to limited exemptions, or any
other jurisdiction where to do so would constitute a violation of
the relevant laws of such jurisdiction;
14 each Placee
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, Japan, Republic of Ireland
ese, Australian or South African securities legislation and
therefore the Placing Shares may not be offered, sold, transferred
or delivered directly or indirectly into the United States, Canada,
Japan, Republic of Ireland, Australia or the Republic of South
Africa or their respective territories and possessions, subject to
limited exemptions, and in the case of the United States, pursuant
to an exemption from, or in a transaction not subject to the
registration requirements of the Securities Act and in compliance
with United States securities laws;
15 each Placee
confirms, represents and 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 its Placing Participation and complied with all requisite
formalities and paid any issue, transfer or other taxes due in
connection with its offer commitment in any territory and that it
has not taken any action or omitted to take any action which will
or may result in any of the Joint Brokers, 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 or such Placee's Placing
Participation;
16 each Placee
confirms, represents and warrants if it is receiving the Placing in
circumstances under which the laws or regulations of a jurisdiction
other than the United Kingdom would apply, that it is a person to
whom the Placing Shares may be lawfully offered under that other
jurisdiction's laws and regulations;
17 each Placee
confirms, represents and warrants if it is a resident in any EEA
state, it is (i) an EEA Qualified Investor; and (ii) a
'professional client' or an 'eligible counterparty' within the
meaning of Article 4(1)(11) and Article 24(2), (3) and (4),
respectively, of Directive 2004/39/EC as implemented into national
law of the relevant EEA state;
18 each Placee
confirms, represents and warrants if it is outside the United
Kingdom, neither this Announcement nor any other offering,
marketing or other material in connection with the Placing
constitutes an invitation, offer or promotion to, or arrangement
with, it or any person whom it is procuring to subscribe for
Placing Shares pursuant to the Placing unless, in the relevant
territory, such offer, invitation or other course of conduct could
lawfully be made to it or such person and such documents or
materials could lawfully be provided to it or such person and
Placing Shares could lawfully be distributed to and subscribed and
held by it or such person without compliance with any unfulfilled
approval, registration or other regulatory or legal
requirements;
19 each Placee
confirms, represents and warrants if it is a resident in the UK:
(i) it is a UK Qualified Investor and (ii) it is a person of a kind
described in Article 19 and/or Article 49 of the FPO and it
understands that the information contained in this Appendix is only
directed at any of the following: (A) persons falling within
Article 19 of the FPO having professional experience in matters
relating to investments; (B) persons falling within Article 49 of
the FPO (including companies and unincorporated associations of
high net worth and trusts of high value); (C) persons falling
within Article 43(2) of the FPO or (D) persons to whom it would
otherwise be lawful to distribute it; and that, accordingly, any
investment or investment activity to which this Appendix relates is
available to it as such a person or will be engaged in only with it
as such a person;
20 each Placee
confirms, represents and warrants that it does not have a
registered address in and is not a citizen, resident or national
of, any jurisdiction in which it is unlawful to make or accept an
offer of the Placing Shares and it is not acting on a
non-discretionary basis for any such person;
21 each Placee
confirms, represents and warrants that its subscription for Placing
Shares does not trigger, in the jurisdiction in which such Placee
is resident or located: (i) any obligation to prepare or file a
prospectus or similar document or any other report with respect to
such subscription; (ii) any disclosure or reporting obligation of
the Company; or (iii) any registration or other obligation on the
part of any of the Joint Brokers or the Company;
22 that it and any
person acting on its behalf is entitled to acquire the Placing
Shares under the laws of all relevant jurisdictions which apply to
it and that it has fully observed such laws and obtained all such
governmental and other guarantees, permits, authorisations,
approvals and consents which may be required thereunder and
complied with all necessary formalities and that it has not taken
any action or omitted to take any action which will or may result
in any of the Joint Brokers, the Company or any of their respective
affiliates acting in breach of the legal or regulatory requirements
of any jurisdiction in connection with the Placing;
23 each Placee
confirms, represents and warrants that if it indicates to a Joint
Broker that it wishes to subscribe for VCT/EIS Placing Shares and
is investing with a view to obtaining VCT relief in relation to
such subscription that (i) it is a VCT, subscribing for such
VCT/EIS Placing Shares pursuant to the Placing using VCT funds and
(ii) the date on which it raised funds was on or after 6 April
2012;
24 each Placee
confirms, represents and warrants that if it indicates to a Joint
Broker that it wishes to subscribe for VCT/EIS Placing Shares and
is investing with a view to obtaining EIS Relief in relation to
such subscription that the beneficial owner of such shares will be
a 'qualifying investor' within the meaning of section 162 Income
Tax Act 2007;
25 each Placee
confirms, represents and warrants it is acting as principal and for
no other person and that its Placing Participation will not give
any other person a contractual right to require the issue or sale
by the Company of any Placing Shares;
26 each Placee
confirms, represents and warrants that in accepting its Placing
Participation it is not applying for registration as, or as a
nominee or agent for, a person who is or may be a person mentioned
in sections 67 to 72 inclusive and sections 93 to 97 inclusive of
the UK Finance Act 1986;
27 each Placee
confirms, represents and warrants that, to the extent applicable to
it, it is aware of its obligations in connection with MAR, UK
Criminal Justice Act 1993, Terrorism Act 2006, Anti-Terrorism Crime
and Security Act 2001, Money Laundering Regulations, the Proceeds
of Crime Act 2002 and the Financial Services and Markets Act 2000
(each as amended), it has identified its clients in accordance with
the Money Laundering, Terrorist Financing and Transfer of Funds
(Information on the Payer) Regulations 2017 and it has complied
fully with its obligations pursuant to those
Regulations;
28 each Placee
acknowledges and agrees that all times and dates in the
Announcement and the Terms and Conditions set out in this Appendix
may be subject to amendment and that the Joint Brokers will notify
it of any such amendments;
29 where it is
acquiring the Placing Shares for one or more managed accounts, it
represents, warrants and undertakes that it is authorised in
writing by each managed account to acquire the Placing Shares for
each managed account and it has full power to make the
acknowledgements, representations and agreements herein on behalf
of each such account;
30 that if it is a
pension fund or investment company, it represents, warrants and
undertakes that its acquisition of Placing Shares is in full
compliance with applicable laws and regulations;
31 each Placee
acknowledges and agrees that no term of the agreement confirmed by
the Contract Note shall be enforceable under the Contracts (Rights
of Third Parties) Act 1999 by any person other than the Company or
the Joint Brokers or any affiliate of the Joint Brokers or any
Indemnified Persons (as hereinafter defined);
32 each Placee
acknowledges that any of its monies held or received by any of the
Joint Brokers will not be subject to the protections conferred by
the Client Money Rules of the Financial Conduct Authority
("FCA");
33 each Placee
confirms and agrees that, in connection with any permitted
transfer, the Company or the Joint Brokers will have the right to
obtain, as a condition to such transfer, a legal opinion of
counsel, in form and by counsel satisfactory to the Company or the
Joint Brokers, that no Securities Act registration is or will be
required along with appropriate certifications by the transferee as
to the 'Accredited Investor' status and/or other appropriate
matters;
34 each Placee
confirms, represents and warrants that it has not distributed,
forwarded, transferred or otherwise transmitted the Announcement or
any other presentation or offering materials concerning the Placing
Shares within the United States, nor will it do any of the
foregoing. Such Placee further confirms that it understands
that the information in the Announcement, including financial
information, may be materially different from any disclosure that
would be provided in a United States offering;
35 each Placee
confirms, represents and warrants that if it has received any
confidential price sensitive information about the Company in
advance of the Placing, it has received such information within the
market soundings regime provided for in article 11 of MAR and
associated delegated regulations and has not: (a) dealt in the
securities of the Company; (b) encouraged or required another
person to deal in the securities of the Company; or (c) disclosed
such information to any person, prior to the information being made
publicly available;
36 each Placee
confirms, represents and warrants that, in making its investment
decision with respect to the Placing Shares:
36.1 it has
not relied on the Company or any of its respective affiliates or on
any document published by any of them (other than the
Announcement);
36.2 it has
the ability to bear the economic risk of its investment in the
Placing Shares and has no need for liquidity with respect to its
investment in the Placing Shares;
36.3 it has
such knowledge and experience in financial and business matters
that it is capable of evaluating the merits, risks and suitability
of investing in the Placing Shares, and is able to sustain a
complete loss of any investment in the Placing Shares;
36.4 it has
investigated independently and made its own assessment and
satisfied itself concerning the relevant tax, legal, currency and
other economic considerations relevant to its investment in the
Placing Shares, including any federal, state and local tax
consequences, affecting it in connection with its subscription for
and any subsequent disposal of the Placing Shares;
36.5 if it
is a 'financial intermediary' in the United Kingdom, as that term
is used in Article 5(1) of the UK Prospectus Regulation, the
Placing Shares purchased by it in the Placing will not be acquired
on a non-discretionary basis on behalf of, nor will they be
acquired with a view to their offer or resale to, persons in the
United Kingdom other than to UK Qualified Investors, or in
circumstances in which the prior consent of the Joint Brokers has
been given to the offer or resale;
36.6 if it
is a 'financial intermediary' in a member state of the EEA, as that
term is used in Article 5(1) of the EU Prospectus Regulation, the
Placing Shares purchased by it in the Placing will not be acquired
on a non-discretionary basis on behalf of, nor will they be
acquired with a view to their offer or resale to, persons in a
member state of the EEA other than to EEA Qualified Investors, or
in circumstances in which the prior consent of the Joint Brokers
has been given to the offer or resale; and
36.7 it has
not offered or sold and will not offer or sell any Placing Shares
to the public in the United Kingdom or any member state of the EEA
except in circumstances falling within Article 5(1) of the UK
Prospectus Regulation or the EU Prospectus Regulation which do not
result in any requirement for the publication of a prospectus
pursuant to the UK Prospectus Regulation or the EU Prospectus
Regulation;
37 each Placee
acknowledges and agrees that none of the Joint Brokers, nor any of
their respective Affiliates or any person acting on behalf of any
of them, is making any recommendations to it, or advising it
regarding the suitability or merits of any transactions it may
enter into in connection with the Placing and that it is not
entitled to the protections afforded to clients of any of the Joint
Brokers in connection with the Placing and that none of the Joint
Brokers nor any of their respective Affiliates nor any of their
respective officers, directors, employees or advisers shall be
liable for any losses (including, without limitation, loss of
profit, loss of business or opportunity and special interest or
consequential losses), damages or costs of the Placee save as a
result of fraud or for death or personal injury;
38 each Placee
acknowledges and agrees the Placing does not constitute a
recommendation or financial product advice and none of the Joint
Brokers has had regard to its particular objectives, financial
situation and needs;
39 each Placee
acknowledges that the Company, the Joint Brokers, CREST, the
Registrar, any transfer agent, any distributors or dealers and
their respective affiliates and others will rely on the truth and
accuracy of the foregoing warranties, acknowledgements,
representations, undertakings and agreements, and agrees to notify
the Company and the Joint Brokers promptly in writing if any of its
warranties, acknowledgements, representations, undertakings or
agreements set out above cease to be accurate and complete and to
indemnify and hold harmless on an after-tax basis the Company, the
Joint Brokers and any of their respective officers, directors,
agents, employees or advisers ("Indemnified Persons") from and against any and all
loss, damage, liability or expense, including reasonable costs and
attorneys' fees and disbursements, which an Indemnified Person may
incur by reason of, or in connection with, any representation or
warranty made by such Placee as set out above not having been true
when made, any misrepresentation made or any failure by such Placee
to fulfil any of its undertakings or agreements set out above or
any other document such Placee provides to the Company or the Joint
Brokers. Such Placee irrevocably authorises each of the Company and
each of the Joint Brokers to produce a copy hereof to any
interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered
hereby;
40 acknowledges that
it irrevocably appoints any member or officer of any of the Joint
Brokers as its agent for the purposes of executing and delivering
to the Company and/or the Registrar any documents on its behalf
necessary to enable it to be registered as the holder of any of the
Placing Shares agreed to be taken up by it under the Placing; each
Placee acknowledges that the rights and remedies of each of the
Joint Brokers and the Company under these Terms and Conditions are
in addition to any rights and remedies which would otherwise be
available to each of them and the exercise or partial exercise of
one right or remedy will not prevent the exercise of the other
rights and/or remedies;
41 each Placee
acknowledges and agrees that its commitment to subscribe for
Placing Shares on the terms set out herein and in the trade
confirmation will continue notwithstanding any amendment that may
in future be made to the Terms and Conditions of the Placing and
that Placees will have no right to be consulted or require that
their consent be obtained with respect to the Company's or the
Joint Brokers' conduct of the Placing;
42 each Placee
acknowledges and agrees that in connection with the Placing, the
Joint Brokers and any of their respective Affiliates acting as an
investor for its own account may take up shares in the Company and
in that capacity may retain, purchase or sell for its own account
such shares in the Company and any securities of the Company or
related investments and may offer or sell such securities or other
investments otherwise than in connection with the Placing.
Accordingly, references in this Announcement to shares being
issued, offered or placed should be read as including any issue,
offering or placement of such shares in the Company to the Joint
Brokers and any of their respective Affiliates acting in such
capacity. In addition, any of the Joint Brokers may enter into
financing arrangements and swaps with investors in connection with
which such Joint Broker may from time to time acquire, hold or
dispose of such securities of the Company, including the Placing
Shares. None of the Joint Brokers nor any of their respective
Affiliates intends to disclose the extent of any such investment or
transactions otherwise than in accordance with any legal or
regulatory obligation to do so;
43 each Placee
acknowledges and agrees that none of the Company, the Directors or
any of the Company's advisers give any warranty or undertaking that
the VCT/EIS Placing Shares will be eligible for EIS Relief or be regarded as a
'qualifying holding' for VCT relief purposes or that any such
reliefs (if available) will not be withdrawn at a later
date;
44 each Placee
authorises and instructs each of the Joint Brokers, the Company and
their respective agents to receive and hold any personal data and
information of or belonging to the Placee which is received in
relation to the Placing, and it consents to the lawful use by each
of the Joint Brokers, the Company and their respective agents of
such data and information for the purposes of the Placing;
and
45 each Placee
undertakes that it (and any person acting on its behalf) will make
payment for the Placing Shares allocated to it in accordance with
the Announcement and these Terms and Conditions on the due time and
date set out herein, failing which the relevant Placing Shares may
be placed with other subscribers or sold as the Joint Brokers may
in their sole discretion determine and without liability to such
Placee and such Placee will remain liable for any shortfall below
the net proceeds of such sale and the placing proceeds of such
Placing Shares and may be required to bear the liability for any
stamp duty or stamp duty reserve tax (together with any interest or
penalties due pursuant to or referred to in these Terms and
Conditions) which may arise upon the placing or sale of such
Placee's Placing Shares on its behalf.
The foregoing acknowledgements,
agreements, undertakings, representations, warranties and
confirmations are given for the benefit of the Company and the
Joint Brokers (for their own benefit and, where relevant, the
benefit of their respective officers and affiliates and any person
acting on their behalf) and are irrevocable. Each Placee, and any
person acting on behalf of a Placee, acknowledges that the neither
the Company nor the Joint Brokers owes any fiduciary or other
duties to any Placee in respect of any representations, warranties,
undertakings or indemnities in the Placing Agreement.
Responsibility
The Terms and Conditions set out in
this Appendix and the Announcement of which it forms part have been
issued by the Company and are the sole responsibility of the
Company.