TIDM88E
RNS Number : 5859O
88 Energy Limited
10 February 2021
THIS ANNOUNCEMENT, INCLUDING THE APPIX AND THE INFORMATION
CONTAINED HEREIN, IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION
OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN,
INTO OR FROM THE UNITED STATES, CANADA, JAPAN, THE REPUBLIC OF
SOUTH AFRICA OR ANY OTHER JURISDICTION WHERE TO DO SO WOULD
CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF THAT
JURISDICTION. PLEASE SEE THE IMPORTANT NOTICES AT THE OF THIS
ANNOUNCEMENT.
THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND SHALL NOT
CONSTITUTE AN OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN
OFFER TO BUY, SUBSCRIBE FOR OR OTHERWISE ACQUIRE ANY NEW ORDINARY
SHARES OF 88 ENERGY LIMITED IN THE UNITED STATES, CANADA, JAPAN,
THE REPUBLIC OF SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH
SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL
THIS ANNOUNCEMENT IS NOT FOR PUBLICATION OR DISTRIBUTION,
DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES OF AMERICA.
THIS ANNOUNCEMENT IS NOT AN OFFER OF SECURITIES FOR SALE INTO THE
UNITED STATES. THE SECURITIES REFERRED TO HEREIN HAVE NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMED, AND MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES, EXCEPT
PURSUANT TO AN APPLICABLE EXEMPTION FROM REGISTRATION. NO PUBLIC
OFFERING OF SECURITIES IS BEING MADE IN THE UNITED STATES.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION AS DEFINED IN
ARTICLE 7 OF THE UK VERSION OF THE MARKET ABUSE REGULATION NO.
596/2014 ("MAR") WHICH IS PART OF ENGLISH LAW BY VIRTUE OF THE
EUROPEAN UNION (WITHDRAWAL) ACT 2018, AS AMED. UPON THE PUBLICATION
OF THIS ANNOUNCEMENT, THIS INSIDE INFORMATION IS NOW CONSIDERED TO
BE IN THE PUBLIC DOMAIN.
88 Energy Limited
Proposed placing to raise up to A$12 million
88 Energy Limited ("88 Energy" or the "Company") (ASX, AIM: 88E)
today announces that it proposes to raise up to A$12 million
(before expenses) pursuant to a placing (the "Placing") of new
ordinary shares of no par value in the Company (the "Placing
Shares") at a price per Placing Share of A$0.008 (equivalent to
0.45 pence) (the "Placing Price"). The Placing Price is equivalent
to a discount of 27% to the closing price of the Company's shares
on the Australian Securities Exchange ("ASX") on 9 February 2021,
being the latest practicable date prior to this announcement, and a
discount of 20% to the volume weighted average price on the ASX for
the thirty days to 9 February 2021. The Company also announces that
its shares have been placed in a trading halt on the ASX pending
the release of an announcement in relation to the completion of the
Placing.
The Placing is being conducted through a bookbuilding process
(the "Bookbuild"), which is being managed by Cenkos Securities plc
("Cenkos") in the UK (the "UK Placing") and EurozHartleys Ltd
("EurozHartleys") in Australia (the "Australian Placing").
The Bookbuild will open with immediate effect following release
of this announcement. The number of Placing Shares to be issued in
the UK (the "UK Placing Shares") and in Australia (the "Australian
Placing Shares") will be agreed by Cenkos, EurozHartleys and the
Company at the close of the Bookbuild. The timing of the closing of
the Bookbuild and allocations are at the discretion of Cenkos,
EurozHartleys and the Company. Details of the number of Placing
Shares to be issued will be announced as soon as practicable after
the close of the Bookbuild.
Current trading and activity
The Company released its quarterly report for the three-month
period to 31 December 2020, including a summary of events
subsequent to the period, on 21 January 2021. As at 31 December,
the Company had cash resources of A$14.8 million including cash
balances held in Joint Venture bank accounts relating to Joint
Venture Partner contributions totalling A$5.2m. Following the
successful farm-out of the Project Peregrine acreage in December
2020, the Joint Venture partners have revised the phasing of
spending and contributions in relation to operations in preparation
for drilling at Merlin-1 and these changes have resulted in a
marginal increase in the Company's short-term working capital
requirements.
In addition, and as previously announced, as part of the annual
review of leases, the Company and its joint venture partners at
Project Icewine determined that several leases at Project Icewine
were no longer considered prospective and, consequently, a decision
was made to not renew these leases. These leases represented
approximately 25% of the gross lease position, resulting in a
231,000 net acreage position for 88E in the Central North Slope.
This has reduced the ongoing rental costs at the project as focus
shifts to the farm-out effort in the vicinity of the recently
drilled Charlie-1 well and resulted in a capital repayment of
US$0.3m under the Company's loan facility with FCS Advisors, LLC
(d/b/a Brevet Capital Advisors).
Project Peregrine
The Company has issued regular Operations Updates advising on
progress in relation to the preparations for drilling of the
Merlin-1 well at Project Peregrine. As previously announced, the
field operations for the Merlin-1 well were delayed by
approximately 6 days owing to the decision by the US Department of
the Interior to introduce 60 day suspension of authority for
Department Bureaus and Offices in relation to the issuance of new
drilling permits on Federal land. The Company received its Permit
to Drill from the Alaska Bureau of Land Management on 28 January
2021 and this was approved by the Deputy Assistant Secretary for
Land and Minerals Management on 29 January 2021. Owing to the
advanced status of preparation for the drilling operations at
Merlin-1, this brief hiatus has resulted in additional costs being
incurred which take the total costs of the Merlin-1 well (including
contingencies) to US$12.9 (US$1.4 net to 88E).
The Spud of Merlin-1 is now expected in late February / early
March 2021 and is targeting 645 million barrels of gross mean
prospective resource(#) . Subject to the result of the Placing and
adequate funding being secured, the Company plans to conduct a flow
test of the Merlin-1 well (at a cost of approximately US$2.0 net to
88E) in the event of a successful discovery and, if scheduling and
permit approvals allow, commence drilling of a second well,
Harrier-1, immediately following completion of drilling and testing
operations at Merlin-1. Harrier-1 is targeting gross mean
prospective resource of 417 million barrels(#) . Harrier-1 is
expected to cost US$7m (US$3.5m net to 88E).
Each of the Merlin and Harrier prospects is located on trend to
an existing discovery, in the same play type (Nanushuk topsets).
This has de-risked the prospects considerably and resulted in a
relatively high independently estimated geologic chance of
success.
Umiat
On 11 January 2021, the Company that its wholly owned
subsidiary, Emerald House LLC, had entered into a Sale and Purchase
Agreement with Malamute Energy, Inc and Renaissance Umiat LLC to
acquire the Umiat Oil Field, which lies immediately south of 88
Energy's Project Peregrine blocks and to the west of its Project
Icewine acreage. The consideration for the purchase was a 4% ORRI
and assumption of the liability for the abandonment of the Umiat-18
and Umiat-23H wells, drilled by Linc Energy in 2013/2014. The
estimated cost to abandon the two wells is approximately US$1m.
The Umiat Oil Field is covered by two leases comprising 17,633
acres, which are in a unit that was formed in September 2019 with
an initial 10-year term. The current conditions of the unit
stipulate a well commitment (exploration or appraisal) by 31 August
2022.
Umiat was discovered in the mid-1940s with 11 appraisal wells
drilled by 1953, several of which were tested. Umiat-5 flowed 268
barrels per day on a 3 month test and Umiat-8 had a peak flow rate
of 5.9mmcf/d of natural gas during a 4 day test. Little work was
done until 2013/2014 when Linc Energy drilled two wells, Umiat-18
and Umiat-23H. Umiat-23H was tested with a maximum flow rate of 800
barrels per day and sustained flow of 250 barrels per day.
Substantial engineering and environmental work was also done by
Linc Energy in support of a potential future development. One of
the routes for access to infrastructure runs directly through 88
Energy's Project Icewine leasehold where there are significant
independently estimated resources of oil and gas. 88 Energy will
now undertake a full field review to determine at what oil price
Umiat may be commercial as a stand-alone development and whether
optimisation of the previous development plan is possible. In the
event of a discovery at Project Peregrine, where drilling is
imminent, it is expected that Umiat would contribute significant
value to any development.
Tract-29 Acquisition
On 21 January 2021, the Company announced that it had been
formally awarded Lease AA095899, effective 1 January 2021. The
lease is considered highly prospective for oil and gas as several
prospects on the Central North Slope side of the boundary are
interpreted to extend into this area. It is considered likely that
a significant portion of these oil pools may be accessed without
surface access within the Coastal Plain area.
Board changes
The Board also wishes to advise shareholders that Mr David Wall
has tendered his resignation as Managing Director and will leave
the Company in May 2021. Mr Wall will continue in his role and
oversee the upcoming drilling and testing programme at Project
Peregrine as well as the abandonment operations at the Umiat Oil
Field. The Company will transition the role of Managing Director to
Mr Ashley Gilbert, the Company's current CFO and Company Secretary,
who will initially take on the role on an acting basis prior to Mr
Wall's departure, ensuring an appropriate handover occurs. It is
also proposed that Mr Gilbert will be appointed to the Board as an
Executive Director, subject to the completion of regulatory due
diligence being carried out by the Company's Nominated Adviser. Mr
Gilbert, who has been with the Company since 2017, is an
experienced Oil and Gas and finance executive with significant
international experience. A further announcement regarding Mr
Gilbert's proposed appointment to the Board will be made in due
course.
Rationale for the Placing and Use of Proceeds
The proceeds of the Placing, together with the Company's
existing cash reserves, will be used to fund the ongoing evaluation
of the conventional and unconventional prospectivity of the
Company's existing assets, and to enable it to identify and exploit
new opportunities on the North Slope of Alaska.
This net proceeds of the Placing will strengthen the Company's
balance sheet and will provide the Company with sufficient capital
to finance:
1. the Company's share of any potential cost overruns associated
with the drilling of the Merlin-1 well at Project Peregrine;
2. in the event of a successful drilling and logging at
Merlin-1, the Company's share of costs associated with subsequent
flow testing operations:
3. the P&A costs assumed in connection with the recently-acquired Umiat Oil Field;
4. the Company's share of costs associated with the drilling of
the Harrier-1 well at Project Peregrine; and
5. the Company's ongoing working capital requirements and
general and administrative overheads for at least 12 months.
As outlined above, the Company is on schedule to spud the
Merlin-1 well in late in late-February / early-March 2021, with
drilling and logging of the well anticipated to be completed by
mid-March. Subject to positive results from the Merlin-1 logging
program and having adequate funding in place through the Placing,
the Joint Venture expects to then elect to flow test the well which
is anticipated to last up to 10 days before proceeding to the
spudding of the Harrier-1 well in late March / early April 2021. It
should be noted that the drilling of the Harrier-1 well remains
subject to scheduling, permitting and related government approvals,
as well as agreement between the Joint Venture parties on the
forward programme, which may be subject to change.
Details of the Placing
The Placing is subject to the terms and conditions set out in
the Appendix (which forms part of this announcement, such
announcement and the Appendix together, the "Announcement").
Application will be made to the London Stock Exchange for the
Placing Shares to be admitted to trading on AIM. It is expected
that admission to trading on AIM ("Admission") will become
effective and that dealings in the Placing Shares will commence on
AIM at 8.00 a.m. on 22 February 2021.
The Placing Shares will be issued and credited as fully paid and
will rank in full for all dividends and other distributions
declared, made or paid after the admission of those Ordinary Shares
and will otherwise rank on Admission pari passu in all respects
with each other and with the existing ordinary shares in the
Company.
The Placing is conditional upon, inter alia, Admission taking
place by no later than 8.00 a.m. on 22 February 2021 (or such later
date as Cenkos may agree in writing with the Company, being not
later than 8.00 a.m. on 8 March 2021) and the Placing Agreement
entered into between the Company and Cenkos not being terminated
prior to Admission. If any of the conditions of the Placing
Agreement are not satisfied, the Placing Shares will not be issued
and Admission will not take place.
The Placing does not require shareholder approval and the issue
and allotment of the Placing Shares will rely on the Company's
placement capacity pursuant to ASX Listing Rule 7.1 and 7.1A.
The Placing Shares have not been made available to the public
and have not been offered or sold in any jurisdiction where it
would be unlawful to do so.
This Announcement should be read in its entirety. In particular,
your attention is drawn to the "Important Notices" section of this
Announcement, to the detailed terms and conditions of the Placing
and further information relating to the Bookbuild described in the
Appendix to this Announcement (which forms part of this
Announcement).
By choosing to participate in the Placing and by making an oral
and legally binding offer to acquire Placing Shares, investors will
be deemed to have read and understood this Announcement in its
entirety (including the Appendix), and to be making such offer on
the terms and subject to the conditions of the Placing contained
herein, and to be providing the representations, warranties and
acknowledgements contained in the Appendix.
In this Announcement, references to "pounds sterling", "GBP",
"pence" and "p" are to the lawful currency of the United Kingdom
and references to "Australian dollars", "A$" and "A cents" are to
the lawful currency of Australia. Unless otherwise stated, the
basis of translation of pounds sterling into Australian dollars is
GBP1.00/A$1.78.
For further information please contact:
88 Energy Ltd admin@88energy.com
Dave Wall, Managing Director Tel: +61 8 9485 0990
Finlay Thomson, Investor Tel: +44 7976 248 471
Relations
EurozHartleys Ltd
Dale Bryan Tel: +61 8 9268 2829
Cenkos Securities Plc
Neil McDonald Tel: +44 (0)131 220 6939 / +44 (0)20
7397 8900
Derrick Lee
Pearl Kellie
Pursuant to the requirements of the ASX Listing Rules Chapter 5
and the AIM Rules for Companies, the technical information and
resource reporting contained in this announcement was prepared by,
or under the supervision of, Dr Stephen Staley, who is a
Non-Executive Director of the Company. Dr Staley has more than 35
years' experience in the petroleum industry, is a Fellow of the
Geological Society of London, and a qualified
Geologist/Geophysicist who has sufficient experience that is
relevant to the style and nature of the oil prospects under
consideration and to the activities discussed in this document. Dr
Staley has reviewed the information and supporting documentation
referred to in this announcement and considers the prospective
resource estimates to be fairly represented and consents to its
release in the form and context in which it appears. His academic
qualifications and industry memberships appear on the Company's
website and both comply with the criteria for "Competence" under
clause 3.1 of the Valmin Code 2015. Terminology and standards
adopted by the Society of Petroleum Engineers "Petroleum Resources
Management System" have been applied in producing this
document.
Cautionary Statement
The estimated quantities of petroleum that may be potentially
recovered by the application of a future development project relate
to undiscovered accumulations. These estimates have both an
associated risk of discovery and a risk of development. Further
exploration, appraisal and evaluation are required to determine the
existence of a significant quantity of potentially movable
hydrocarbons.
About 88 Energy
88 Energy is an oil and gas exploration company with assets on
the North Slope of Alaska. It operates 310,000 net acres at Project
Icewine and 195,000 net acres at Project Peregrine. Additional
information can be found on the Company website
www.88energy.com.
Forward-looking statements
This announcement may include certain "forward-looking
statements" and "forward-looking information" under applicable
securities laws. Except for statements of historical fact, certain
information contained herein constitutes forward-looking
statements. Forward-looking statements are frequently characterised
by words such as "plan", "expect", "project", "intend", "believe",
"anticipate", "estimate", and other similar words, or statements
that certain events or conditions "may" or "will" occur.
Forward-looking statements are based on the opinions and estimates
of management at the date the statements are made, and are based on
a number of assumptions and subject to a variety of risks and
uncertainties and other factors that could cause actual events or
results to differ materially from those projected in the
forward-looking statements. Assumptions upon which such
forward-looking statements are based include that all required
third party regulatory and governmental approvals will be obtained.
Many of these assumptions are based on factors and events that are
not within the control of the Company and there is no assurance
they will prove to be correct. Factors that could cause actual
results to vary materially from results anticipated by such
forward-looking statements include changes in market conditions and
other risk factors discussed or referred to in this announcement
and other documents filed with the applicable securities regulatory
authorities. Although the Company has attempted to identify
important factors that could cause actual actions, events or
results to differ materially from those described in
forward-looking statements, there may be other factors that cause
actions, events or results not to be anticipated, estimated or
intended. There can be no assurance that forward-looking statements
will prove to be accurate, as actual results and future events
could differ materially from those anticipated in such statements.
The Company undertakes no obligation to update forward-looking
statements if circumstances or management's estimates or
opinions should change except as required by applicable
securities laws. The reader is cautioned not to place undue
reliance on forward-looking statements.
Cenkos is authorised and regulated by the Financial Conduct
Authority (the "FCA") in the United Kingdom and is acting
exclusively for the Company and no one else in connection with the
Bookbuilding process and the Placing will not be responsible to
anyone (including any Placees) other than the Company for providing
the protections afforded to its clients or for providing advice in
relation to the Bookbuilding Process or the Placing or any other
matters referred to in this Announcement.
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 the Bookrunners or by any of their
respective affiliates or agents as to, or in relation to, the
accuracy or completeness of this Announcement or any other written
or oral information made available to or publicly available to any
interested party or its advisers, and any liability therefor is
expressly disclaimed.
No statement in this Announcement is intended to be a profit
forecast or estimate, 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.
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.
The Placing Shares to be issued pursuant to the Placing will not
be admitted to trading or listed on any stock exchange other than
on AIM of the London Stock Exchange and the ASX.
Neither the content of the Company's website nor any website
accessible by hyperlinks on the Company's website is incorporated
in, or forms part of, this Announcement.
THE APPIX
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING
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 (WHICH IS FOR INFORMATION PURPOSES ONLY)
AND THE TERMS AND CONDITIONS SET OUT IN THIS ANNOUNCEMENT ("TERMS
AND CONDITIONS") ARE DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES
OF THE EUROPEAN ECONOMIC AREA ("EEA") WHO ARE QUALIFIED INVESTORS
WITHIN THE MEANING OF ARTICLE 2(E) OF THE EU PROSPECTUS REGULATION
(WHICH MEANS REGULATION (EU) 2017/1129, AS AMED FROM TIME TO TIME,
AND INCLUDES ANY RELEVANT IMPLEMENTING DIRECTIVE MEASURE IN ANY
MEMBER STATE) (THE "EU PROSPECTUS REGULATION") ("QUALIFIED
INVESTORS"); (B) IN THE UNITED KINGDOM, QUALIFIED INVESTORS WITHIN
THE MEANING OF ARTICLE 2(E) OF THE UK VERSION OF THE EU PROSPECTUS
REGULATION (THE "UK PROSPECTUS REGULATION") (WHICH IS PART OF
ENGLISH LAW BY VIRTUE OF EUROPEAN UNION (WITHDRAWAL) ACT 2018, AS
AMED) AND WHO ALSOARE PERSONS WHO (I) HAVE PROFESSIONAL EXPERIENCE
IN MATTERS RELATING TO INVESTMENTS FALLING WITHIN ARTICLE 19(5) OF
THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION)
ORDER 2005 (THE "ORDER"); OR (II) ARE PERSONS FALLING WITHIN
ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED
ASSOCIATIONS, ETC") OF THE ORDER; AND (C) PERSONS TO WHOM IT MAY
OTHERWISE LAWFULLY BE COMMUNICATED; IN EACH CASE TO WHOM THE
PLACING IS SPECIFICALLY ADDRESSED (ALL SUCH PERSONS TOGETHER BEING
REFERRED TO AS "RELEVANT PERSONS" AND EACH A "RELEVANT
PERSON").
THE TERMS AND CONDITIONS MUST NOT BE ACTED ON OR RELIED ON BY
PERSONS WHO ARE NOT RELEVANT PERSONS. DISTRIBUTION OF THIS
ANNOUNCEMENT IN CERTAIN JURISDICTIONS MAY BE RESTRICTED OR
PROHIBITED BY LAW. PERSONS DISTRIBUTING THIS APPIX MUST SATISFY
THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT
ACTIVITY TO WHICH THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS
RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN
ONLY WITH RELEVANT PERSONS. THIS APPIX DOES NOT ITSELF CONSTITUTE
AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE
COMPANY.
NEITHER THIS ANNOUNCEMENT NOR THE PLACING CONSTITUTES OR IS
INTED TO CONSTITUTE AN OFFER TO THE PUBLIC IN AUSTRALIA IN TERMS OF
THE CORPORATIONS ACT 2001 OF THE COMMONWEALTH OF AUSTRALIA (AS AMED
)
THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE US SECURITIES ACT OF 1933 (THE "US SECURITIES
ACT") OR UNDER ANY SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD,
RESOLD, TRANSFERRED OR DELIVERED, DIRECTLY OR INDIRECTLY, IN OR
INTO THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, US
PERSONS (AS DEFINED IN REGULATION S UNDER THE US SECURITIES ACT)
EXCEPT PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE US SECURITIES ACT AND IN COMPLIANCE WITH THE US
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED
STATES. THERE WILL BE NO PUBLIC OFFER OF THE SECURITIES MENTIONED
HEREIN IN THE UNITED STATES.
THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE US SECURITIES AND EXCHANGE COMMISSION (THE
"SEC"), ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY
AUTHORITY IN THE UNITED STATES, NOR HAVE ANY OF THE FOREGOING
AUTHORITIES PASSED UPON ORORSED THE MERITS OF THE PLACING OR THE
ACCURACY OR ADEQUACY OF THIS ANNOUNCEMENT. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENCE IN THE UNITED STATES.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL,
TAX, BUSINESS AND RELATED ASPECTS OF AN ACQUISITION OF PLACING
SHARES.
For the purposes of these Terms and Conditions the expression
the "Placing" shall mean UK Placing (as defined in this
Announcement, and, for the avoidance of doubt, in these Terms and
Conditions the expression the "Placing" shall not include the
Australian Placing (as defined in this Announcement) and the
expression the "Placing Shares" shall refer only to the UK Placing
Shares (as defined in this Announcement).
Persons who are invited to and who choose to participate in the
Placing by making an oral or written offer to acquire Placing
Shares (as defined in this Announcement), including any
individuals, funds or others on whose behalf a commitment to
acquire Placing Shares is given (the "Placees"), will (i) be deemed
to have read and understood this Announcement, including this
Appendix, in its entirety; and (ii) be making such offer on the
terms and conditions contained in these Terms and Conditions,
including being deemed to be providing (and shall only be permitted
to participate in the Placing on the basis that they have provided)
the representations, warranties, acknowledgements and undertakings
set out herein.
In particular each such Placee represents, warrants and
acknowledges that:
(a) 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;
(b) it is and, at the time the Placing Shares are acquired, will
be outside the United States and is acquiring the Placing Shares in
an "offshore transaction" in accordance with Rule 903 or Rule 904
of Regulation S under the US Securities Act and is acquiring
beneficial interests in the Placing Shares for its own account; if
acquiring the Placing Shares for the account of one or more other
persons, it has full power and authority to make the
representations, warranties, agreements and acknowledgements herein
on behalf of each such account; and
(c) if it is a financial intermediary, as that term is used in
Article 5(1) of the UK Prospectus Regulation, that any Placing
Shares acquired by it in the Placing will not be acquired on a
non-discretionary basis on behalf of, nor will they be acquired
with a view to their offer or resale to, persons in circumstances
which may give rise to an offer of securities to the public other
than an offer or resale in a member state of the EEA which has
implemented the EU Prospectus Regulation to Qualified Investors, or
in circumstances in which the prior consent of Cenkos has been
given to each such proposed offer or resale.
The Company and Cenkos will rely upon the truth and accuracy of
the foregoing representations, warranties, acknowledgements and
agreements.
This Announcement and the information contained herein is not
for publication or distribution, directly or indirectly, to persons
in the Republic of South Africa ("South Africa"), Canada, Japan or
in any other jurisdiction in which such publication or distribution
would be unlawful (each a "Restricted Jurisdiction"). This
Announcement and the information contained in it is not for
publication or distribution, directly or indirectly, to persons in
a Restricted Jurisdiction unless permitted pursuant to an exemption
under the relevant local law or regulation in any such
jurisdiction.
Persons into whose possession this Announcement may come are
required by the Company to inform themselves about and to observe
any restrictions of transfer in this Announcement. No public offer
of securities of the Company is being made in the United Kingdom or
elsewhere.
This Announcement does not constitute an offer, and may not be
used in connection with an offer, to sell or issue or the
solicitation of an offer to buy or subscribe for Placing Shares in
any jurisdiction in which such offer or solicitation is or may be
unlawful.
These materials may not be published, distributed or transmitted
by any means or media, directly or indirectly, in whole or in part,
in or into the United States. These materials do not constitute an
offer to sell, or a solicitation of an offer to buy, securities in
the United States. Securities may not be offered or sold in the
United States absent (i) registration under the U.S. Securities Act
of 1933, as amended (the "US Securities Act") or (ii) an available
exemption from registration under the US Securities Act. The
securities mentioned herein have not been, and will not be,
registered under the US Securities Act and will not be offered to
the public in the United States. The Placing Shares are being
offered and sold outside the United States to non-US persons (as
defined in Regulation S under the US Securities Act) in "offshore
transactions" within the meaning of Regulation S.
The relevant clearances have not been, nor will they be,
obtained from the securities commission of any province or
territory of Canada; no prospectus has been lodged with or
registered by the Australian Securities and Investments Commission;
no prospectus has been lodged with or registered by the securities
regulator in South Africa or the Japanese Ministry of Finance; and
none of the Placing Shares have been, nor will they be, registered
under or offered in compliance with the securities laws of any
state, province or territory of Australia, South Africa, Canada or
Japan. Accordingly, none of the Placing Shares may (unless an
exemption under the relevant securities laws is applicable) be
offered, sold, resold or delivered, directly or indirectly, in or
into Australia, South Africa, Canada, Japan or any other
jurisdiction outside the United Kingdom.
Persons (including, without limitation, nominees and trustees)
who have a contractual or other legal obligation to forward a copy
of these Terms and Conditions or the Announcement of which they
form part should seek appropriate advice before taking any
action.
An 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.
Market Abuse Regulation
Market soundings, as defined in the UK version ("UK MAR") of the
Market Abuse Regulation NO. 596/2014 ("EU MAR"), which is part of
English law by virtue of the European Union (Withdrawal) Act 2018,
as amended ("MAR"), were taken in respect of the Placing, with the
result that certain persons became aware of inside information, as
permitted by UK MAR. That inside information is set out in this
announcement and has been disclosed as soon as possible in
accordance with paragraph 7 of article 17 of UK MAR. Therefore,
those persons that received inside information in a market sounding
are no longer in possession of inside information relating to the
Company and its securities.
Information to Distributors
Solely for the purposes of the product governance requirements
contained within: (a) EU Directive 2014/65/EU on markets in
financial instruments, as amended ("MiFID II"); (b) Articles 9 and
10 of Commission Delegated Directive (EU) 2017/593 supplementing
MiFID II; and (c) local implementing measures constitute retained
EU law (as defined in section 6(7) of the European Union
(Withdrawal) Act 2018) in the United Kingdom) ("Retained
MiFID Provisions ") (together, the "MiFID II Product Governance
Requirements"), and disclaiming all and any liability, whether
arising in tort, contract or otherwise, which any "manufacturer"
(for the purposes of the MiFID II Product Governance Requirements)
may otherwise have with respect thereto, the Placing Shares have
been subject to a product approval process, which has determined
that such securities 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 the Retained MiFID Provisions; and (ii) eligible
for distribution through all distribution channels as are permitted
by MiFID II and the Retained MiFID Provisions (the "Target Market
Assessment"). Notwithstanding the Target Market Assessment,
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 Assessment is without prejudice to the requirements of any
contractual, legal or regulatory selling restrictions in relation
to the Placing. Furthermore, it is noted that, notwithstanding the
Target Market Assessment, Cenkos will only procure investors who
meet the criteria of professional clients and eligible
counterparties.
For the avoidance of doubt, the Target Market Assessment does
not constitute: (a) an assessment of suitability or appropriateness
for the purposes of MiFID II or the Retained MiFID Provisions; 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.
Details of the Placing Agreement and the Placing Shares
Cenkos is acting as agent for and on behalf of the Company in
connection with the Placing and has entered into a placing
agreement (the "Placing Agreement") with the Company under which
Cenkos has agreed to use its reasonable endeavours to procure
Placees (on a non-underwritten basis) to subscribe for the Placing
Shares at the Placing Price per Placing Share, on the terms and
subject to the conditions set out herein.
The Placing Shares will, when issued, be credited as fully paid
and will rank pari passu in all respects with the existing ordinary
shares in the capital of the Company (the "Ordinary Shares"),
including the right to receive all dividends and other
distributions declared, made or paid on or in respect of the
Ordinary Shares after the date of issue of the Placing Shares, and
will on issue be free of all claims, liens, charges, encumbrances
and equities.
Application for admission to trading on AIM
Applications will be made for the Placing Shares to be admitted
to trading on the AIM market operated by the London Stock Exchange
plc ("AIM") ("Admission"). It is expected that settlement for the
Placing Shares and Admission will take place on or around 8.00 a.m.
London time on 22 February 2021 (or such other time and date as
Cenkos may agree with the Company, but no later than 8 March 2021
). The Placing is conditional upon, amongst other things, Admission
becoming effective and the Placing Agreement not being terminated
in accordance with its terms.
Participation in, and principal terms of, the Placing
1. Cenkos is arranging the Placing as placing agent of the
Company for the purpose of procuring Placees at the Placing Price
(as defined above) for the Placing Shares following completion of
the Bookbuilding Process (as defined below).
2. Commencing today, Cenkos will be conducting an accelerated
bookbuilding process (the "Bookbuilding Process") in the United
Kingdom to determine demand for participation in the Placing by
Placees. These Terms and Conditions give details of the terms and
conditions of, and the mechanics of participation in, the
Placing.
3. Participation in the Placing will only be available to
persons who are Relevant Persons and who may lawfully be, and are,
invited to participate by Cenkos.
4. The Placing Price of 0.45 pence per Placing Share payable by
all Placees whose bids are successful is fixed.
5. The number of Placing Shares will be agreed between Cenkos
and the Company following completion of the Bookbuilding
Process.
6. The books will open with immediate effect. The Bookbuilding
Process is then expected to close not later than 5.00 p.m. London
time on 11 February 2021 , but may be closed earlier at the sole
discretion of Cenkos. A further announcement will be released on a
Regulatory Information Service as soon as practicable following the
close of the Bookbuilding Process, detailing the final number of
Placing Shares and the gross and net proceeds of the Placing. The
Company reserves the right (upon the agreement of Cenkos) to
increase or reduce the amount to be raised pursuant to the Placing,
in its absolute discretion.
7. A bid in the Bookbuilding Process will be made on the terms
and conditions in these Terms and Conditions and will not be
capable of variation or revocation after the close of the
Bookbuilding Process.
8. A Placee who wishes to participate in the Bookbuilding
Process should communicate its bid by telephone to the usual sales
contact at Cenkos. Each bid should either state the number of
Placing Shares which the prospective Placee wishes to subscribe for
or a fixed monetary amount at, in either case, the Placing Price.
If successful, Cenkos will re-contact and confirm orally to its
Placees following the close of the Bookbuilding Process the size of
their respective allocations and contract notes will be dispatched
thereafter. The identity of Placees and the basis of the
allocations are at the discretion of Cenkos in consultation with
the Company. Cenkos' oral confirmation of the size of allocations
will constitute an irrevocable legally binding agreement with the
Placee concerned in favour of the Company and Cenkos, pursuant to
which each such Placee will be required to accept the number of
Placing Shares allocated to the Placee at the Placing Price (up to
the number of Placing Shares indicated in its bid) and otherwise on
the terms and subject to the conditions set out herein and in
accordance with the Company's constitution. Each Placee's
allocation and commitment will be evidenced by a contract note
issued to such Placee by Cenkos. The terms of these Terms and
Conditions will be deemed incorporated in that contract note. Each
such Placee will have an immediate, separate, irrevocable and
binding obligation, owed to Cenkos , to pay it or (as it may
direct) one of its affiliates in cleared funds an amount equal to
the product of the Placing Price and the number of Placing Shares
allocated to such Placee.
9. Cenkos reserves the right to accept bids, either in whole or
in part, on the basis of allocations determined in accordance with
the Company and to scale back the number of Placing Shares to be
subscribed for or acquired by any Placee in the event of an
oversubscription under the Placing. Cenkos also reserves the right
not to accept offers to subscribe for or acquire Placing Shares or
to accept such offers in part rather than in whole. The acceptance
of offers shall be at the absolute discretion of Cenkos. Cenkos
shall be entitled to effect the Placing by such alternative method
to the Bookbuilding Process as it may determine in agreement with
the Company.
10. Irrespective of the time at which a Placee's allocation
pursuant to the Placing is confirmed, settlement for all Placing
Shares to be acquired pursuant to the Placing will be required to
be made at the same time, on the basis explained below under
"Registration and Settlement".
11. All obligations of Cenkos 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 under the Placing
Agreement".
12. By participating in the Placing, each Placee will agree that
its rights and obligations in respect of the Placing will terminate
only in the circumstances described below and will not be capable
of rescission or termination by the Placee.
13. Except as required by law or regulation, no press release or
other announcement will be made by Cenkos or the Company using the
name of any Placee (or its agent), in its capacity as Placee (or
agent), other than with such Placee's prior written consent.
14. To the fullest extent permissible by law, neither Cenkos,
nor the Company, nor any of their respective affiliates, agents,
directors, officers or employees shall have any responsibility or
liability to Placees (or to any other person whether acting on
behalf of a Placee or otherwise). In particular, neither of Cenkos,
nor the Company, nor any of their respective affiliates, agents,
directors, officers or employees shall have any responsibility or
liability (including to the extent permissible by law, any
fiduciary duties) in respect of Cenkos' conduct of the Placing and
the Bookbuilding Process or of such alternative method of effecting
the Placing or the Bookbuilding Process as Cenkos and the Company
may agree.
15. The Placing is not subject to any minimum fundraising and no
element of the Placing is underwritten by Cenkos or any other
person.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming
unconditional and not having been terminated in accordance with its
terms.
Cenkos' obligations under the Placing Agreement in relation to
the Placing of the Placing Shares are conditional on, inter
alia:
(a) admission of the Placing Shares to trading on AIM occurring
at or before 8.00 a.m. (London time) on 22 February 2021 (or such
later time and/or date as the Company and Cenkos may otherwise
agree, being no later than 8 March 2021 );
(b) the performance by the Company of its obligations under the
Placing Agreement so far as those obligations fall to be performed
prior to Admission; and
(c) the Company having confirmed to Cenkos that, prior to the
delivery of such confirmation, none of the representations,
warranties and agreements of the Company contained in the Placing
Agreement was untrue, inaccurate or misleading at the date of the
Placing Agreement or will be untrue, inaccurate or misleading
immediately prior to Admission.
If: (i) any of the conditions in relation to the Placing of the
Placing Shares contained in the Placing Agreement, including those
described above, are not fulfilled or (where permitted) waived by
Cenkos by the relevant time or date specified (or such later time
or date as the Company and Cenkos may agree, being no later than 8
March 2021 ); or (ii) any of such conditions become incapable of
being fulfilled; or (iii) the Placing Agreement is terminated in
the circumstances specified below, the Placing will lapse and the
Placees' rights and obligations hereunder in relation to the
Placing Shares shall cease and terminate at such time and each
Placee agrees that no claim can be made by it in respect
thereof.
Cenkos may, at its discretion and upon such terms as it
considers fit, waive compliance by the Company with the whole or
any part of any of the Company's obligations in relation to the
conditions in the Placing Agreement save that the above condition
relating to Admission taking place may not be waived. Any such
extension or waiver will not affect Placees' commitments as set out
in this Announcement.
Cenkos shall not have any liability to any Placee (or to any
other person whether acting on behalf of a Placee or otherwise) in
respect of any decision it may make as to whether or not to waive
or to extend the time and/or date for the satisfaction of any
condition to the Placing nor for any decision it may make as to the
satisfaction of any condition or in respect of the Placing
generally and by participating in the Placing each Placee agrees
that any such decision is within the absolute discretion of
Cenkos.
Right to terminate under the Placing Agreement
Cenkos is entitled, at any time before Admission, to terminate
the Placing Agreement by giving notice to the Company if, amongst
other things:
(a) any statement contained in or this Announcement has become
or has been discovered to be untrue, inaccurate or misleading in
any material respect or that there has been a material omission
therefrom;
(b) any of the warranties given by the Company in the Placing
Agreement is untrue, inaccurate or misleading;
(c) the Company materially fails to comply with any of its
obligations under the Placing Agreement;
(d) there has occurred, in Cenkos' opinion, acting in good
faith, a material adverse change in the business of the Group or in
the financial or trading position or prospects of the Group; or
(e) (i) any material adverse change in financial markets; (ii)
any incident of terrorism or outbreak or escalation of hostilities
or any declaration by the UK or the US of a national emergency or
war or any other calamity or crisis; (iii) any suspension or
termination of trading in the Ordinary Shares or AIM or the ASX
generally; or (iv) a banking moratorium in the UK or Australia;
which in the reasonable opinion of Cenkos, acting in good faith,
would or would be likely to prejudice materially the Group or the
Placing.
Upon such termination, the parties to the Placing Agreement
shall be released and discharged (except for any liability arising
before or in relation to such termination) from their respective
obligations under or pursuant to the Placing Agreement subject to
certain exceptions.
By participating in the Placing, Placees agree that the exercise
by Cenkos of any right of termination or by Cenkos of any other
discretion under the Placing Agreement shall be within the absolute
discretion of Cenkos, and that Cenkos need not make any reference
to Placees and that Cenkos shall have no liability to Placees
whatsoever in connection with any such exercise or failure so to
exercise.
No Admission Document or Prospectus
The Placing Shares are being offered to a limited number of
specifically invited persons only, and will not be offered in such
a way as to require an admission document or prospectus in the
United Kingdom or in any other jurisdiction. No offering document
or prospectus has been or will be submitted to be approved by the
London Stock Exchange or by the exchange operated by the ASX, or by
the FCA or by any other regulatory body in relation to the
Placing.
Placees' commitments will be made solely on the basis of the
information contained in this Announcement released by the Company
today and subject to the further terms set out in these Terms and
Conditions and in the contract note to be provided to individual
prospective Placees. Each Placee, by accepting a participation in
the Placing, agrees that the content of this Announcement
(including this Appendix) and all other publicly available
information previously published by the Company by notification to
a Regulatory Information Service or otherwise filed by the Company
is exclusively the responsibility of the Company and confirms that
it has neither received nor relied on any other information,
representation, warranty, or statement made by or on behalf of the
Company or Cenkos or any other person and neither the Company, nor
Cenkos, nor any other person will be liable for any Placee's
decision to participate in the Placing based on any other
information, representation, warranty or statement which the
Placees may have obtained or received. No representation or
warranty, express or implied, is or will be made by Cenkos in
relation to, and no representation or liability is or will be
accepted by Cenkos, or by any of their affiliates or agents, as to
or in relation to, the accuracy or completeness of this
Announcement or any other such information. Each Placee
acknowledges and agrees that it has relied on its own investigation
of the business, financial or other position of the Company in
accepting a participation in the Placing. Nothing in this
Announcement shall exclude the liability of any person for
fraudulent misrepresentation by that person.
Registration and Settlement
United Kingdom
Settlement of transactions in the Placing Shares (ISIN:
AU00000088E2) following Admission will take place within the system
administered by Euroclear UK & Ireland Limited ("CREST") by the
issue of depository instruments. Subject to certain exceptions,
Cenkos and the Company reserve the right to require settlement for,
and delivery of, the Placing Shares (or any part thereof) to
Placees by such other means that they deem necessary if delivery or
settlement is not possible or practicable within the CREST system
within the timetable set out in this Announcement or would not be
consistent with the regulatory requirements in the Placee's
jurisdiction.
Each Placee allocated Placing Shares in the Placing will be sent
a contract note by Cenkos stating the number of Placing Shares
allocated to it at the Placing Price, the aggregate amount owed by
such Placee to Cenkos and settlement instructions. Each Placee
agrees that it will do all things necessary to ensure that delivery
and payment is completed in accordance with the standing CREST or
certificated settlement instructions in respect of the Placing
Shares that it has in place with Cenkos.
It is expected that settlement of the Placing Shares will be on
22 February 2021 , in accordance with the instructions set out in
the trade confirmation.
Interest is chargeable daily on payments not received from
Placees on the due date in accordance with the arrangements set out
above at the rate of two percentage points above LIBOR as
determined by Cenkos.
Each Placee is deemed to agree that, if it does not comply with
these obligations, Cenkos may sell any or all of the Placing Shares
allocated to that Placee on such Placee's behalf and retain from
the proceeds, for Cenkos' account and benefit, an amount equal to
the aggregate amount owed by the Placee plus any interest due. The
relevant Placee will, however, remain liable for any shortfall
below the aggregate amount owed by it and may be required to bear
any stamp duty or stamp duty reserve tax (together with any
interest or penalties) or other similar taxes imposed in any
jurisdiction which may arise upon the sale of such Placing Shares
on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or
settlement agent, Placees should ensure that the trade confirmation
is copied and delivered immediately to the relevant person within
that organisation.
Insofar as Placing Shares are registered in a Placee's name or
that of its nominee or in the name of any person for whom a Placee
is contracting as agent or that of a nominee for such person, such
Placing Shares should, subject as provided below, be so registered
free from any liability to UK stamp duty or stamp duty reserve tax.
Placees will not be entitled to receive any fee or commission in
connection with the Placing.
Representations, Warranties and Further Terms
By participating in the Placing each Placee (and any person
acting on such Placee's behalf) irrevocably:
1. represents and warrants that it has read and understood the
Announcement, in its entirety and that its acquisition of Placing
Shares is subject to and based upon all the terms, conditions,
representations, warranties, acknowledgements, agreements and
undertakings and other information contained herein and undertakes
not to redistribute or duplicate this Announcement;
2. acknowledges that no offering document or prospectus has been
or will be prepared in connection with the Placing and represents
and warrants that it has not received and will not receive a
prospectus or other offering document in connection with the
Placing or the Placing Shares nor is any such prospectus or
offering document required under the UK Prospectus Regulation;
3. acknowledges that neither Cenkos, nor the Company, nor any of
their respective affiliates, agents, directors, officers or
employees or any person acting on behalf of any of them has
provided, nor will provide, it with any material regarding the
Placing Shares, the Company or its Group other than (in the case of
the Company) this Announcement; nor has it requested Cenkos, nor
the Company, any of their respective affiliates or any person
acting on behalf of any of them to provide it with any such
information;
4. acknowledges that the Company's ordinary shares are admitted
to trading on AIM and listed on the ASX and that the Company is
therefore required to publish certain business and financial
information in accordance with the rules and practices of the FCA,
the AIM Rules for Companies and the ASX Listings Rules, which
includes a description of the Company's business and the Company's
financial information, including balance sheets and income
statements, and that it is able to obtain or access such
information, or comparable information concerning other publicly
traded companies, in each case without undue difficulty;
5. acknowledges that neither Cenkos, nor any person acting on
behalf of Cenkos, nor any of their respective affiliates has or
shall have any liability for any publicly available or filed
information or any representation relating to the Company or its
Group, provided that nothing in this paragraph excludes the
liability of any person for fraudulent misrepresentation made by
that person;
6. acknowledges that the content of this Announcement is
exclusively the responsibility of the Company and that neither
Cenkos, nor its affiliates or any person acting on behalf of Cenkos
has or shall have any liability for any information, representation
or statement contained in, or omission from, this Announcement, or
any information previously published by or on behalf of the Company
or its Group, pursuant to applicable laws, and will not be liable
for any Placee's decision to participate in the Placing based on
any information, representation or statement contained in this
Announcement or otherwise. Each Placee further represents, warrants
and agrees that the only information on which it is entitled to
rely and on which such Placee has relied in committing itself to
acquire Placing Shares is contained in this Announcement and any
information previously published by the Company by notification to
a Regulatory Information Service, such information being all that
such Placee deems necessary or appropriate and sufficient to make
an investment decision in respect of the Placing Shares and that it
has neither received nor relied on any other information given, or
representations, warranties or statements made, by Cenkos or the
Company, nor any of their respective affiliates and neither of
Cenkos or the Company will be liable for any Placee's decision to
accept an invitation to participate in the Placing based on any
other information, representation, warranty or statement, provided
that nothing in this paragraph excludes the liability of any person
for fraudulent misrepresentation made by that person;
7. acknowledges and agrees that it may not rely, and has not
relied, on any investigation that Cenkos, any of its affiliates or
any person acting on Cenkos' behalf, may have conducted with
respect to the Placing Shares or the Company or its Group, and none
of such persons has made any representation, express or implied,
with respect to the Company, its Group, the Placing Shares or the
accuracy, completeness or adequacy of any publicly available or
filed information or any representation relating to the Company or
its Group; each Placee further acknowledges that it has conducted
its own investigation of the Company, its Group and the Placing
Shares and has received all information it believes necessary or
appropriate in connection with its investment in the Placing
Shares;
8. acknowledges that it has made its own assessment and has
satisfied itself concerning the relevant tax, legal, currency and
other economic considerations relevant to its investment in the
Placing Shares;
9. acknowledges that neither Cenkos, nor its affiliates, nor any
person acting on behalf of any of them has or shall have any
liability for any information made publicly available by or in
relation to the Company or its Group or any representation,
warranty or statement relating to the Company or the Group
contained therein or otherwise, provided that nothing in this
paragraph excludes the liability of any person for fraudulent
misrepresentation made by that person;
10. represents and warrants that it is and, at the time the
Placing Shares are acquired, will be located outside the United
States and is not a US person (as defined in Regulation S) and is
acquiring the Placing Shares in an "offshore transaction" in
accordance with Rule 903 or Rule 904 of Regulation S; (ii) if it is
acquiring the Placing Shares for the account of one or more other
persons, it has full power and authority to make the
representations, warranties, agreements and acknowledgements herein
on behalf of each such account; (iii) it is not acquiring the
Placing Shares as a result of any "directed selling efforts" as
defined in Regulation S or as a result of any form of general
solicitation or general advertising (within the meaning of Rule
502(c) of Regulation D under the US Securities Act); and (iv) it
will not publish, distribute or transmit these or any other
documents or information related to the Placing, by any means or
media, directly or indirectly, in whole or in part, in or into the
United States;
11. acknowledges that the Placing Shares have not been and will
not be registered under the US Securities Act or the securities
laws of any state of the United States and that the Company has not
been and will not be registered under the Investment Company Act;
and the Placing Shares may not be offered or sold within the United
States or to, or for the account or benefit of, US persons (as
defined in Regulation S) except in an "offshore transaction" in
accordance with Regulation S or in a transaction exempt from, or
not subject to, the registration requirements of the US Securities
Act and the Investment Company Act;
12. acknowledges that in making any decision to acquire Placing
Shares it (i) has such knowledge and experience in financial and
business matters to be capable of evaluating the merits and risks
of subscribing for or purchasing the Placing Shares, (ii) has
relied on its own examination, due diligence and analysis of the
Company, including the markets in which the Company and the Group
operates and the terms of the Placing, including the merits and
risks involved, (iii) has had sufficient time to consider and
conduct its own investigation with respect to the Placing and
purchase of Placing Shares, including the legal, regulatory, tax,
business, currency and other economic and financial considerations
relevant to such an investigation, (iv) will not look to Cenkos for
all or part of any such loss it may suffer, (v) is experienced in
investing in securities of this nature in this sector and is aware
that it may be required to bear, and is able to bear, the economic
risk of an investment in the Placing Shares, (vi) is able to
sustain a complete loss of an investment in the Placing Shares and
(vii) has no need for liquidity with respect to its investment in
the Placing Shares;
13. acknowledges that the Placing is not conditional upon the
quotation of the Placing Shares on the ASX and that the quotation
of the Placing Shares on the ASX is subject to ASX approval;
14. undertakes, unless otherwise specifically agreed with
Cenkos, that it is not and at the time the Placing Shares are
acquired, neither it nor the beneficial owner of the Placing Shares
will be, a resident of the United States, Australia, South Africa,
Canada or Japan or any other jurisdiction where it would be
unlawful to offer or subscribe for the Placing Shares, and further
acknowledges that the Placing Shares have not been and will not be
registered under the securities legislation of the United States,
Australia, South Africa, Canada or Japan or other such
jurisdictions and, subject to certain exceptions, may not be
offered, sold, transferred, delivered or distributed, directly or
indirectly, in or into those jurisdictions;
15. acknowledges that the Placing Shares have not been and will
not be registered and that a prospectus will not be cleared in
respect of any of the Placing Shares under the securities laws or
legislation of the United States or any state or jurisdiction
thereof, Australia, South Africa, Canada or Japan and, subject to
certain exceptions, may not be offered, sold, or delivered or
transferred, directly or indirectly, in or into those
jurisdictions;
16. acknowledges that the Placing Shares are being subscribed
for investment purposes, and not with a view to offer, resell or
distribute within the meaning of the United States securities
laws;
17. acknowledges that no representation has been made as to the
availability of any exemption under the US Securities Act for the
reoffer, resale, pledge or transfer of the Placing Shares;
18. represents and warrants that the issue to it, or the person
specified by it for registration as holder, of Placing Shares will
not give rise to a liability under any of sections 67, 70, 93 or 96
of the Finance Act 1986 (depositary receipts and clearance
services) and that the Placing Shares are not being acquired in
connection with arrangements to issue depositary receipts or to
issue or transfer Placing Shares into a clearance service;
19. represents and warrants that: (i) it has complied with its
obligations under the Criminal Justice Act 1993, the Financial
Services and Markets Act 2000 ("FSMA") and UK MAR; (ii) in
connection with money laundering and terrorist financing under the
Proceeds of Crime Act 2002 (as amended), the Terrorism Act 2000,
the Terrorism Act 2006 and the Money Laundering Regulations 2017
and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any government agency having
jurisdiction in respect thereofand the Money Laundering Sourcebook
of the FCA; and (iii) it is not a person: (a) with whom
transactions are prohibited under the Foreign Corrupt Practices Act
of 1977 or any economic sanction programmes administered by, or
regulations promulgated by, the Office of Foreign Assets Control of
the U.S. Department of the Treasury; (b) named on the Consolidated
List of Financial Sanctions Targets maintained by HM Treasury of
the United Kingdom; or (c) subject to financial sanctions imposed
pursuant to a regulation of the European Union or a regulation
adopted by the United Nations (together, the "Regulations"); and,
if making payment on behalf of a third party, that satisfactory
evidence has been obtained and recorded by it to verify the
identity of the third party as required by the Regulations and has
obtained all governmental and other consents (if any) which may be
required for the purpose of, or as a consequence of, such purchase,
and it will provide promptly to Cenkos such evidence, if any, as to
the identity or location or legal status of any person which Cenkos
may request from it in connection with the Placing (for the purpose
of complying with such Regulations or ascertaining the nationality
of any person or the jurisdiction(s) to which any person is subject
or otherwise) in the form and manner requested by Cenkos on the
basis that any failure by it to do so may result in the number of
Placing Shares that are to be purchased by it or at its direction
pursuant to the Placing being reduced to such number, or to nil, as
Cenkos may decide in its sole discretion;
20. represents and warrants that it is acting as principal only
in respect of the Placing or, if it is acting for any other person:
(i) it is duly authorised to do so and has full power to make the
acknowledgments, representations and agreements herein on behalf of
each such person; and (ii) it is and will remain liable to the
Company and/or Cenkos for the performance of all its obligations as
a Placee in respect of the Placing (regardless of the fact that it
is acting for another person);
21. if a financial intermediary, as that term is used in Article
5(1) of the EU Prospectus Regulation, represents and warrants that
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 which has implemented the EU Prospectus
Regulation other than Qualified Investors, or in circumstances in
which the prior consent of Cenkos has been given to the offer or
resale;
22. represents and warrants that it has not offered or sold and
will not offer or sell any Placing Shares to persons in the United
Kingdom, except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their business or otherwise
in circumstances which have not resulted and which will not result
in an offer to the public in the United Kingdom within the meaning
of section 85(1) of the FSMA;
23. represents and warrants that it has not offered or sold and
will not offer or sell any Placing Shares to persons in the EEA
prior to Admission except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
business or otherwise in circumstances which have not resulted in
and which will not result in an offer to the public in any member
state of the EEA within the meaning of the EU Prospectus
Regulation;
24. represents and warrants that it has only communicated or
caused to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the FSMA) relating to
the Placing Shares in circumstances in which section 21(1) of the
FSMA does not require approval of the communication by an
authorised person;
25. represents and warrants that it has complied and will comply
with all applicable provisions of the FSMA with respect to anything
done by it in relation to the Placing Shares in, from or otherwise
involving, the United Kingdom;
26. represents and warrants, if in a member state of the EEA,
unless otherwise specifically agreed with Cenkos in writing, that
it is a "qualified investor" within the meaning of Article 2(e) of
the EU Prospectus Regulation;
27. represents and warrants, if in the United Kingdom, that it
is a person (i) having professional experience in matters relating
to investments who falls within the definition of "investment
professionals" in Article 19(5) of the Financial Services and
Markets Act 2000 (Financial Promotion) Order 2005 (the "Order") or
(ii) who falls within Article 49(2)(a) to (d) ("High Net Worth
Companies, Unincorporated Associations, etc.") of the Order, or
(iii) to whom this Announcement may otherwise lawfully be
communicated;
28. represents and warrants that it is not a 'related party' of
the Company as that term is defined in section 228 of the
Australian Corporations Act and/or the ASX Listing Rules, (or, if
it is a 'related party' of the Company, that its acquisition of
Placing Shares would not require the Company to obtain the approval
of its shareholders under section 208(1)(a) of the Australian
Corporations Act); agrees that it must comply with all applicable
provisions of the Australian Foreign Investments and Takeovers Act,
1975 (Cth) in relation to the Placing Shares by no later than the
settlement date for the relevant Placing Shares;
29. acknowledges and agrees that no action has been or will be
taken by either the Company or Cenkos or any person acting on
behalf of the Company or Cenkos that would, or is intended to,
permit a public offer of the Placing Shares in any country or
jurisdiction where any such action for that purpose is
required;
30. represents and warrants that it and any person acting on its
behalf is entitled to acquire the Placing Shares under the laws of
all relevant jurisdictions and that it has fully observed such laws
and obtained all such governmental and other guarantees, permits,
authorisations, approvals and consents which may be required
thereunder and complied with all necessary formalities to enable it
to commit to this participation in the Placing and to perform its
obligations in relation thereto (including, without limitation, in
the case of any person on whose behalf it is acting, it has the
necessary powers and capacity and all necessary consents and
authorities to agree to the terms set out or referred to in these
Terms and Conditions) and will honour such obligations and that it
has not taken any action or omitted to take any action which will
or may result in Cenkos, the Company or any of their respective
directors, officers, agents, employees or advisers acting in breach
of the legal or regulatory requirements of any jurisdiction in
connection with the Placing;
31. undertakes that it (and any person acting on its behalf)
will make payment in respect of the Placing Shares allocated to it
in accordance with these Terms and Conditions on the due time and
date set out herein, failing which the relevant Placing Shares may
be placed with other acquirers or sold as Cenkos may in its sole
discretion determine and without liability to such Placee, who will
remain liable for any amount by which the net proceeds of such sale
falls short of the product of the Placing Price and the number of
Placing Shares allocated to it and may be required to bear any
stamp duty, stamp duty reserve tax or other similar taxes (together
with any interest or penalties) which may arise upon the sale of
such Placee's Placing Shares;
32. that its allocation (if any) of Placing Shares will
represent a maximum number of Placing Shares which it will be
entitled, and required, to acquire, and that Cenkos and/or the
Company may call upon it to acquire a lower number of Placing
Shares (if any), but in no event in aggregate more than the
aforementioned maximum;
33. acknowledges that none of the Company, nor Cenkos, nor any
of their respective affiliates, nor any person acting on behalf of
them, is making any recommendations to it, advising it regarding
the suitability of any transactions it may enter into in connection
with the Placing and that its participation in the Placing is on
the basis that it is not and will not be a client of Cenkos in
connection with its participation in the Placing and that Cenkos
have no duties or responsibilities to it for providing the
protections afforded to their respective clients or customers or
for providing advice in relation to the Placing nor in respect of
any representations, warranties, undertakings or indemnities
contained in the Placing Agreement nor for the exercise or
performance of any of their respective rights and obligations
thereunder including any rights to waive or vary any conditions or
exercise any termination right. Further, it acknowledges that any
payment by it will not be treated as client money as governed by
the FCA Handbook rules;
34. acknowledges that any money held in an account by Cenkos on
behalf of the Placee and/or any person acting on behalf of the
Placee will not be treated as client money within the meaning of
the rules and regulations under FSMA and that the money will
therefore not be subject to the protections conferred by the client
money rules. As a consequence, the Placee acknowledges that its
money will not be segregated from Cenkos' money in accordance with
the client money rules and will be used by each of Cenkos in the
course of its own business and the Placee will rank only as a
general creditor of Cenkos;
35. undertakes that the person whom it specifies for
registration as holder of the Placing Shares will be (i) itself or
(ii) its nominee, as the case may be. Neither Cenkos nor the
Company will be responsible for any liability to stamp duty or
stamp duty reserve tax or other similar taxes resulting from a
failure to observe this requirement ("Indemnified Taxes"). Each
Placee and any person acting on behalf of such Placee agrees to
participate in the Placing and it agrees to indemnify the Company
and Cenkos on an after-tax basis in respect of any Indemnified
Taxes on the basis that the Placing Shares will be allotted to the
CREST stock account of Cenkos who will hold them as nominee on
behalf of such Placee until settlement in accordance with its
standing settlement instructions;
36. acknowledges that these Terms and Conditions and any
agreements entered into by it pursuant to these Terms and
Conditions set out in this Appendix, and all non-contractual or
other obligations arising out of or in connection with them, shall
be governed by and construed in accordance with the laws of England
and Wales and it submits (on behalf of itself and on behalf of any
person on whose behalf it is acting) to the exclusive jurisdiction
of the English courts as regards any claim, dispute or matter
arising out of any such contract (including any dispute regarding
the existence, validity or termination of such contract or relating
to any non-contractual or other obligation arising out of or in
connection with such contract), except that enforcement proceedings
in respect of the obligation to make payment for the Placing Shares
(together with any interest chargeable thereon) may be taken by
either the Company or Cenkos in any jurisdiction in which the
relevant Placee is incorporated or in which any of its securities
have a quotation on a recognised stock exchange;
37. agrees to indemnify on an after-tax basis and hold the
Company, Cenkos and their respective affiliates harmless from any
and all costs, claims, liabilities and expenses (including legal
fees and expenses) arising out of or in connection with any breach
of the representations, warranties, acknowledgements, agreements
and undertakings in these Terms and Conditions and further agrees
that the provisions of these Terms and Conditions shall survive
after completion of the Placing;
38. represents and warrants that it has neither received nor
relied on any inside information concerning the Company prior to or
in connection with accepting this invitation to participate in the
Placing and is not purchasing Placing Shares on the basis of
material non-public information and if it has received any
confidential price sensitive information about the Company in
advance of the Placing, it has neither dealt in securities of the
Company, encouraged or required any other person to deal in
securities of the Company or disclosed any such information to any
other person prior to the information being made publicly and
generally available;
39. acknowledges that its commitment to subscribe for Placing
Shares on the terms set out herein and in the trade confirmation or
contract note will continue notwithstanding any amendment that may
in future be made to the terms of the Placing, and that Placees
will have no right to be consulted or require that their consent be
obtained with respect to the Company's conduct of the Placing;
40. if it is a pension fund or investment company, its purchase
of Placing Shares is in full compliance with applicable laws and
regulations;
41. acknowledges and agrees that it irrevocably appoints any
director of Cenkos as its agent for the purposes of executing and
delivering to the Company and/or its registrars 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;
42. represents and warrants that it will provide Cenkos with
such relevant documents as it may reasonably request to comply with
requests or requirements that either they or the Company may
receive from regulators in relation to the Placing, subject to its
legal, regulatory and compliance requirements and restrictions;
43. agrees that the Company, Cenkos and their respective
affiliates and others will rely upon the truth and accuracy of the
foregoing representations, warranties, acknowledgements and
undertakings which are given to Cenkos on its own behalf and on
behalf of the Company and are irrevocable and irrevocably
authorises the Company and Cenkos to produce this Announcement,
pursuant to, in connection with, or as may be required by any
applicable law or regulation, administrative or legal proceeding or
official inquiry with respect to the matters set forth herein;
44. acknowledges that the Placing Shares will be issued subject
to the terms and conditions set out in the Announcement;
45. acknowledges that time is of the essence as regard its
obligations in respect of its participation in the Placing under
these Terms and Conditions;
46. acknowledges that it will be bound by the terms of the constitution of the Company; and
47. acknowledges that any document that is to be sent to it in
connection with the Placing will be sent at its own risk and may be
sent to it at any address provided by it to Cenkos.
The foregoing representations, warranties and confirmations are
given to Cenkos for itself and on behalf of the Company and are
irrevocable and shall not be capable of termination in any
circumstances.
The agreement to allot and issue Placing Shares to Placees
(and/or to persons for whom such Placee is contracting as agent)
free of stamp duty and stamp duty reserve tax relates only to their
allotment and issue to Placees, or such persons as they nominate as
their agents, direct from the Company for the Placing Shares in
question. Such agreement also assumes that the Placing Shares are
not being acquired in connection with arrangements to issue
depositary receipts or to issue or transfer the Placing Shares into
a clearance service. If there are any such arrangements, or the
settlement relates to any other dealing in the Placing Shares,
stamp duty or stamp duty reserve tax or other similar taxes may be
payable, for which neither the Company nor Cenkos will be
responsible and the Placees shall indemnify the Company and Cenkos
on an after-tax basis for any stamp duty or stamp duty reserve tax
paid by them in respect of any such arrangements or dealings. If
this is the case, each Placee should seek its own advice and notify
Cenkos accordingly.
The Company and Cenkos are not liable to bear any transfer taxes
that arise on a sale of Placing Shares subsequent to their
acquisition by Placees or for transfer taxes arising otherwise than
under the laws of the United Kingdom. Each Placee should,
therefore, take its own advice as to whether any such transfer tax
liability arises and notify Cenkos accordingly. Furthermore, each
Placee agrees to indemnify on an after-tax basis and hold each of
Cenkos and the Company and their respective affiliates harmless
from any and all interest, fines or penalties in relation to stamp
duty, stamp duty reserve tax and all other similar duties or taxes
to the extent that such interest, fines or penalties arise from the
unreasonable default or delay of that Placee or its agent.
In addition, Placees should note that they will be liable for
any stamp duty and all other stamp, issue, securities, transfer,
registration, documentary or other duties or taxes (including any
interest, fines or penalties relating thereto) payable outside the
UK by them or any other person on the acquisition by them of any
Placing Shares or the agreement by them to acquire any Placing
Shares.
Each Placee, and any person acting on behalf of the Placee,
acknowledges that neither the Company, nor Cenkos owe any fiduciary
or other duties to any Placee in respect of any representations,
warranties, undertakings or indemnities in the Placing
Agreement.
Each Placee and any person acting on behalf of the Placee
acknowledges and agrees that Cenkos or any of its affiliates may,
at its absolute discretion, agree to become a Placee in respect of
some or all of the Placing Shares.
When a Placee or person acting on behalf of the Placee is
dealing with Cenkos, any money held in an account with Cenkos on
behalf of the Placee and/or any person acting on behalf of the
Placee will not be treated as client money within the meaning of
the rules and regulations of the FCA made under the FSMA. The
Placee acknowledges that the money will not be subject to the
protections conferred by the client money rules; as a consequence,
this money will not be segregated from Cenkos' money in accordance
with the client money rules and will be used by Cenkos in the
course of its own business and the Placee will rank only as a
general creditor of Cenkos.
The rights and remedies of Cenkos and the Company under these
terms and conditions are in addition to any rights and remedies
which would otherwise be available to each of them and the exercise
or partial exercise of one will not prevent the exercise of
others.
All times and dates in this Announcement may be subject to
amendment. Cenkos shall notify the Placees and any person acting on
behalf of the Placees of any changes.
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END
IOEFIFIRFLIILIL
(END) Dow Jones Newswires
February 10, 2021 02:00 ET (07:00 GMT)
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