THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE
ATTENTION. If you are in any doubt
as to the contents of this document and what action you should
take, you are recommended to seek your own personal financial,
legal and tax advice immediately from your stockbroker, bank
manager, solicitor, accountant, fund manager or other appropriate
independent financial adviser duly authorised under the Financial
Services and Markets Act 2000 (as amended), if you are resident in
the United Kingdom, or, if resident elsewhere, another
appropriately authorised independent financial adviser in the
relevant jurisdiction.
Hummingbird Shareholders should read the whole of this
document (including all information incorporated into this document
by reference to another source). In addition, this document should
be read in conjunction with the accompanying
documentation.
If you sell or otherwise transfer or
have sold or otherwise transferred all of your Hummingbird Shares
(other than to Nioko pursuant to the Offer), please forward this
document with the accompanying documentation (other than any
documents or forms personalised to you), immediately to the
purchaser or transferee, or to the stockbroker, bank or other agent
through whom the sale or transfer was effected, for onward
transmission to the purchaser or transferee. However, this document
and any accompanying document must not be forwarded, distributed or
transmitted in, into or from any Restricted
Jurisdiction.
If you sell or otherwise transfer or
have sold or otherwise transferred only part of your registered
holding of Hummingbird Shares, you should retain these documents
and consult the stockbroker, bank or other agent through whom the
sale or transfer was effected. If you have recently purchased or
otherwise been transferred Hummingbird Shares in certificated form,
notwithstanding receipt of this document from the transferor, you
should contact Hummingbird's registrars,
Link Group, on Tel: 0371 664 0321 from the United Kingdom (UK) or
+44 371 664 0321 from overseas or by post at Link Group, Corporate
Actions, Central Square, 29 Wellington Street, Leeds LS1 4DL. Calls
are charged at the standard geographic rate and will vary by
provider. Calls outside the UK will be charged at the applicable
international rate. Lines are open between 9.00 a.m. and 5.30 p.m.,
Monday to Friday (excluding public holidays in England and Wales),
or by email at operationalsupportteam@linkgroup.co.uk.
If you have any questions about this
document or the accompanying documents, or are in any doubt as to
how to complete the Form
of Acceptance (if you hold Hummingbird Shares in certificated form)
or as to how to make an Electronic Acceptance (if you hold
Hummingbird Shares in uncertificated form), or wish to obtain an
additional Form of Acceptance, please contact Link Group. Link
Group can be contacted on Tel: 0371 664 0321 from the United
Kingdom (UK) or +44 371 664 0321 from overseas or by post to Link
Group, Corporate Actions, Central Square, 29 Wellington Street,
Leeds LS1 4DL. Calls are charged at the standard geographic rate
and will vary by provider. Calls outside the UK will be charged at
the applicable international rate. Lines are open between 9.00 a.m.
and 5.30 p.m., Monday to Friday (excluding public holidays in
England and Wales), or by email at
operationalsupportteam@linkgroup.co.uk.
Please note that Link Group cannot provide any
financial, legal or tax advice and that calls may be recorded and
monitored for security and training purposes.
Neither this document nor any of the accompanying documents
do, or are intended to, constitute or form part of any offer or
invitation to purchase, otherwise acquire, subscribe for, sell or
otherwise dispose of, any securities or the solicitation of any
vote or approval, in any jurisdiction in which such offer,
invitation or solicitation is unlawful. The release, publication or distribution of this document
and/or the accompanying documents (in whole or in part) in or into
jurisdictions other than the United Kingdom may be restricted by
the laws of those jurisdictions and therefore persons into whose
possession this document and/or any accompanying document comes
should inform themselves about, and observe, any applicable
restrictions. Any failure to comply with these restrictions may
constitute a violation of the securities laws and regulations of
any such jurisdiction. In particular, this document should not be
released, published, distributed, forwarded or transmitted, in
whole or in part, in, into or from any Restricted
Jurisdiction.

Unconditional Recommended Cash Offer
for
Hummingbird Resources plc
by
Nioko Resources Corporation
to be implemented by
means of a takeover offer under Part 28 of the Companies
Act
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Your attention is drawn to the letter from the Chairman of
Hummingbird which contains the unanimous recommendation of the
Independent Hummingbird Directors that you accept or procure the
acceptance of the Offer and which is set out in Part 2
(Letter from the Chairman of
Hummingbird Resources plc) of this
document.
The
procedure for acceptance of the Offer is set out in
paragraph 20 of Part 1 (Letter from Nioko) of this document
and in respect of Hummingbird Shares held in certificated form, in
the Form of Acceptance. To accept the Offer in respect of
Hummingbird Shares held in certificated form, you must complete and
return the accompanying Form of Acceptance as soon as possible and,
in any event, so as to be received by the Receiving Agent by no
later than 1.00 p.m. (London time) on the Closing Date in
accordance with paragraph 20
of Part 1
(Letter from Nioko) of
this document. Acceptances in respect of Hummingbird Shares held in
uncertificated form should be made electronically through CREST so
that the TTE instruction settles by no later than 1.00 p.m. (London
time) on the Closing Date in accordance with
paragraph 20 of Part 1 (Letter from Nioko). If you are a CREST
sponsored member, you should refer to your CREST sponsor as only
your CREST sponsor will be able to send the necessary TTE
instruction to Euroclear. Please refer to the Expected Timetable of
Principal Events on page 10 for indicative dates and times of key
events (including payment dates) relating to the
Offer.
The
Offer can be accepted from 13 January 2025 and will continue to be
capable of acceptance until the Offer is closed at least 21 days
after the date of this document. Hummingbird Shareholders are
encouraged to ACCEPT the Offer as soon as possible and in any event
before 1.00 p.m. on the Closing Date. The Offer will remain open
for acceptances until Nioko confirms the Closing Date, with
shareholders receiving at least 14 days' notice prior to the
specified date (which cannot be less than 21 days after the posting
of this Offer Document).
Such notice will be given to Hummingbird Shareholders via an
announcement through a Regulatory Information Service and will
advise of the final settlement date, with such announcement being
made available on Hummingbird's website at
www.hummingbirdresources.co.uk.
Definitions used in this document
are as defined in Part 5
(Definitions) of this document unless
defined elsewhere herein or the context requires otherwise.
Hummingbird Shareholders may request hard copy forms of these
documents.
Stifel Nicolaus Europe Limited
(Stifel) which is
authorised and regulated by the Financial Conduct Authority in
the United Kingdom, is acting exclusively
for Hummingbird and for no one else in connection with
the subject matter of this document and will not be responsible to
anyone other than Hummingbird for providing the
protections afforded to its clients or for providing advice in
connection with the subject matter of this document. Neither
Stifel, nor any of its affiliates, owes or accepts any duty,
liability or responsibility whatsoever (whether direct or indirect,
whether in contract, in tort, under statute or otherwise) to any
person who is not a client of Stifel in connection with this
document, any statement contained herein or otherwise.
Strand Hanson
Limited (Strand
Hanson), which is authorised and regulated by the Financial
Conduct Authority in the United Kingdom, is acting exclusively
for Hummingbird and for no one else in connection with
the subject matter of this document and will not be responsible to
anyone other than Hummingbird for providing the
protections afforded to its clients or for providing advice in
relation to the matters referred to in this document. Neither
Strand Hanson, nor any of its affiliates, owes or accepts any duty,
liability or responsibility whatsoever (whether direct or indirect,
whether in contract, in tort, under statute or otherwise) to any
person who is not a client of Strand Hanson in connection with this
document, any statement contained herein or otherwise.
H&P Advisory Ltd (Hannam & Partners), which is
authorised and regulated by the Financial Conduct Authority in
the United Kingdom, is acting exclusively for Nioko and
for no one else in connection with the subject matter of this
document and will not be responsible to anyone other
than Nioko for providing the protections afforded to its
clients or for providing advice in relation to the matters referred
to in this document. Neither Hannam & Partners, nor any of its
affiliates, owes or accepts any duty, liability or responsibility
whatsoever (whether direct or indirect, whether in contract, in
tort, under statute or otherwise) to any person who is not a client
of Hannam & Partners in connection with this document, any
statement contained herein or otherwise.
SCP Resource Finance LP
(SCP Resource Finance),
which is authorised and regulated by the Financial Conduct
Authority in the United Kingdom, is acting exclusively
for Nioko and for no one else in connection with the subject
matter of this document and will not be responsible to anyone other
than Nioko for providing the protections afforded to its
clients or for providing advice in relation to the matters referred
to in this document. Neither SCP Resource Finance, nor any of its
affiliates, owes or accepts any duty, liability or responsibility
whatsoever (whether direct or indirect, whether in contract, in
tort, under statute or otherwise) to any person who is not a client
of SCP Resource Finance in connection with this document, any
statement contained herein or otherwise.
No person has been authorised to
give any information or make any representations other than those
contained in this document and, if given or made, such information
or representations must not be relied upon as having been
authorised by Hummingbird, the Hummingbird Directors, Nioko, the
Nioko Directors or by Stifel, Strand Hanson, Hannam & Partners
and SCP Resource Finance or any other person involved in the
Offer.
IMPORTANT NOTICES
The contents of this document are not to be
construed as legal, business, financial or tax advice. If you are
in any doubt about the contents of this document, you should
consult your own legal adviser, financial adviser or tax adviser
for legal, business, financial or tax advice.
Overseas Shareholders
Unless otherwise determined by Nioko or required
by the Takeover Code and permitted by applicable law and
regulation, the Offer is not being, and will not be, made
available, in whole or in part, directly or indirectly, in or into
or from a Restricted Jurisdiction where to do so would violate the
laws in that jurisdiction and no person may accept the Offer by any
such use, means, instrumentality or from within a Restricted
Jurisdiction or any other jurisdiction if to do so would constitute
a violation of the laws of that jurisdiction, and as of the date of
this document and the accompanying Form of Acceptance, Nioko
contemplates extending the Offer to Canadian residents and U.S.
residents pursuant to exemptions from the respective take-over bid
and tender offer requirements under Canadian and U.S. securities
laws. Copies of this document and any formal documentation relating
to the Offer are not being, and must not be, directly or
indirectly, mailed or otherwise forwarded, distributed or sent in
or into or from any Restricted Jurisdiction and persons receiving
such documents (including, without limitation, agents, custodians,
nominees and trustees) must not mail, or otherwise forward,
distribute or send it in or into or from any Restricted
Jurisdiction. Doing so may render invalid any related purported
acceptance of the Offer. Unless otherwise permitted by applicable
law and regulation, the Offer may not be made directly or
indirectly, in or into, or by the use of mails or any means or
instrumentality (including, but not limited to, facsimile, e-mail
or other electronic transmission, telex or telephone) of interstate
or foreign commerce of, or of any facility of a national, state or
other securities exchange of any Restricted Jurisdiction and the
Offer may not be capable of acceptance by any such use, means,
instrumentality or facilities.
This document and the accompanying Form of
Acceptance have been prepared for the purposes of complying with
English law, the applicable requirements of the Companies Act, the
Takeover Code, the Panel, the FCA and the London Stock Exchange and
applicable securities law and the information disclosed may not be
the same as that which would have been disclosed if this document
had been prepared in accordance with the laws of any other
jurisdiction (in particular, in Canada). Readers are reminded that
the Offer has not been approved or disapproved by any securities
regulatory authority in Canada nor has any securities regulatory
authority in Canada passed upon the fairness or merits of such
Offer or upon the accuracy or adequacy of the information contained
in this document.
Notice to U.S. holders of Hummingbird
Shares
The Offer is being made for the securities of an
English company that is listed on the London Stock Exchange by
means of a contractual takeover offer under the Takeover Code and
English law and is subject to disclosure requirements and practices
that are different, in some cases materially, from the tender offer
rules of the United States. The financial information included in
this document has been prepared in accordance with accounting
standards applicable in the United Kingdom and thus may not be
comparable to financial information of U.S. companies or companies
whose financial statements are prepared in accordance with
generally accepted accounting principles in the United
States.
For U.S. holders of Hummingbird Shares, the
receipt of cash pursuant to the terms of the Offer as consideration
for the transfer of their Hummingbird Shares, may be treated as a
taxable transaction for U.S. federal income tax purposes and under
applicable U.S. state and local, as well as foreign and other, tax
laws. Each holder of Hummingbird Shares is urged to consult with
its own legal, tax and financial advisers in connection with making
a decision regarding this transaction and as to the U.S. federal,
and applicable U.S. state, local, and foreign, tax consequences to
it of the transaction contemplated hereby in light of such holders'
specific circumstances.
For purposes of the U.S. Exchange Act, it is
intended that the Offer be made pursuant to Section 14(e) and
Regulation 14E under the U.S. Exchange Act and benefitting from
exemptions available to "Tier I" cross-border tender offers.
Accordingly, the Offer will be subject to disclosure and other
procedural requirements under the applicable laws of the United
Kingdom, including with respect to offer timetable, settlement
procedures and timing of payments that may be materially different
from those applicable under U.S. domestic tender offer procedures
and law, and certain rules applicable to tender offers made into
the United States, including rules promulgated under Section 14(d),
Section 14(e)(1) and Section 14(e)(2) of the U.S. Exchange Act, do
not apply.
Once the Offer closes, Nioko will acquire all
Hummingbird Shares that have by that time been validly tendered (or
deemed to have been validly tendered) in acceptance of the Offer
and will, in accordance with the Takeover Code, settle the relevant
consideration for all such accepted Hummingbird Shares (other than
in respect of Hummingbird Shares acquired pursuant to a Hummingbird
Share Plan, in respect of which settlement with the relevant
Hummingbird Shareholders will be effected through payroll or such
other method as may be determined by Hummingbird or Nioko) within
14 days of such date, rather than the three trading days that U.S.
investors may be accustomed to in U.S. domestic tender
offers.
To the extent permitted by the Takeover Code and
applicable law, in accordance with normal UK practice and Rule
14e-5(b) under the U.S. Exchange Act, Nioko and its nominees or
brokers (acting as agents), may from time to time make certain
purchases of, or arrangements to purchase, Hummingbird Shares,
other than pursuant to the Offer, before or during the period in
which the Offer remains open for acceptance. Also, to the extent
permitted by the Takeover Code and applicable law in accordance
with normal UK practice and Rule 14e-5(b) of the U.S. Exchange Act,
Stifel, Hannam & Partners and SCP Resource will continue to act
as exempt principal traders in Hummingbird Shares on the London
Stock Exchange. These purchases may occur either in the open market
at prevailing prices or in private transactions at negotiated
prices. Any information about such purchases will be disclosed as
required in the United Kingdom, will be reported to a Regulatory
Information Service of the FCA and will be available on the London
Stock Exchange website: www.londonstockexchange.com.
Neither the SEC nor any US state securities
commission has approved or disapproved of this transaction or
passed upon the merits or fairness of such transaction or passed
upon the adequacy of the information contained in this document.
Any representation to the contrary is a criminal offence. Nioko is
an investment company registered in the Trade and Personal Property
Credit Register of Burkina Faso. The Nioko Directors are residents
of countries other than the United States and are not citizens of
the United States. As a result, it may be difficult for investors
to effect service of process within the United States upon the
Nioko Directors or otherwise compel Nioko, Hummingbird or their
respective directors, officers and affiliates to subject themselves
to the jurisdiction and judgment of a U.S. court. It may not be
possible to sue Nioko or Hummingbird, or any of their respective
directors, officers or affiliates, in a non-U.S. court for
violations of U.S. securities laws. There is doubt as to the
enforceability in the United Kingdom, in original actions or in
actions for enforcement of judgments of the U.S. courts, of civil
liabilities predicated upon U.S. federal securities
laws.
Dealing disclosure requirements
Under Rule 8.3(a) of the Takeover Code, any
person who is "interested" in 1 per cent. or more of any class of
"relevant securities" of an offeree company or of any securities
exchange offeror (being any offeror other than an offeror in
respect of which it has been announced that its offer is, or is
likely to be, solely in cash) must make an Opening Position
Disclosure following the commencement of the "offer period" and, if
later, following the announcement in which any securities exchange
offeror is first identified.
An Opening Position Disclosure must contain
details of the person's interests and short positions in, and
rights to subscribe for, any "relevant securities" of each of: (i)
the offeree company; and (ii) any securities exchange offeror(s).
An Opening Position Disclosure by a person to whom Rule 8.3(a)
applies must be made by no later than 3.30 p.m. (London time) on
the 10th business day following the commencement of the offer
period and, if appropriate, by no later than 3.30 p.m. (London
time) on the 10th business day following the announcement in which
any securities exchange offeror is first identified. Relevant
persons who deal in the "relevant securities" of the offeree
company or of a securities exchange offeror prior to the deadline
for making an Opening Position Disclosure must instead make a
Dealing Disclosure.
Under Rule 8.3(b) of the Takeover Code, any
person who is, or becomes, interested in 1 per cent. or more of any
class of relevant securities of the offeree company or of any
securities exchange offeror must make a Dealing Disclosure if the
person "deals" in any relevant securities of the offeree company or
of any securities exchange offeror. A Dealing Disclosure must
contain details of the "dealing" concerned and of the person's
interests and short positions in, and rights to subscribe for, any
"relevant securities" of each of: (i) the offeree company; and (ii)
any securities exchange offeror, save to the extent that these
details have previously been disclosed under Rule 8. A Dealing
Disclosure by a person to whom Rule 8.3(b) applies must be made by
no later than 3.30 p.m. (London time) on the business day following
the date of the relevant "dealing".
If two or more persons act together pursuant to
an agreement or understanding, whether formal or informal, to
acquire or control an "interest in relevant securities" of an
offeree company or a securities exchange offeror, they will be
deemed to be a single person for the purpose of Rule
8.3.
Opening Position Disclosures must also be made
by the offeree company and by any offeror and Dealing Disclosures
must also be made by the offeree company, by any offeror and by any
persons "acting in concert" with any of them (see Rules 8.1, 8.2
and 8.4).
Details of the offeree and offeror companies in
respect of whose "relevant securities" Opening Position Disclosures
and Dealing Disclosures must be made can be found in the Disclosure
Table on the Panel's website at www.thetakeoverpanel.org.uk, including details of the
number of "relevant securities" in issue, when the "offer period"
commenced and when any offeror was first identified. You should
contact the Panel's Market Surveillance Unit on +44 (0)20 7638 0129
if you are in any doubt as to whether you are required to make an
Opening Position Disclosure or a Dealing Disclosure.
Forward-looking statements
This document (including information
incorporated by reference into this document), oral statements made
regarding the Offer and other information published by Nioko, the
CIG Parties and/or Hummingbird or members of the Hummingbird Group
may contain "forward-looking statements" relating to Nioko, the CIG
Parties, Hummingbird and the Hummingbird Group and the business
sectors in which they operate. Generally, the words "will", "may",
"should", "continue", "believes", "expects", "intends",
"anticipates", "forecast", "plan" and "project" or similar
expressions identify forward-looking statements. Such statements
reflect the relevant company's current views with respect to future
events and are subject to risks, assumptions and uncertainties that
could cause the actual results to differ materially from those
expressed or implied in the forward-looking statements. Many of
these risks, assumptions and uncertainties relate to factors that
are beyond the companies' abilities to control or estimate
precisely, such as future market conditions, changes in general
economic and business conditions and the behaviour of other market
participants. Neither Nioko, the CIG Parties, Hummingbird or the
Hummingbird Group can give any assurance that the forward-looking
statements will prove to have been correct. You should not,
therefore, place undue reliance on these forward-looking
statements, which speak only as of the date of this document.
Neither Nioko, the CIG Parties, Hummingbird nor the Hummingbird
Group undertakes any obligation to update or revise publicly any of
the forward-looking statements set out herein, whether as a result
of new information, future events or otherwise, except to the
extent legally required.
Profit forecasts
No statement in this document (including any
statement of estimated costs savings or synergies) is intended as a
profit forecast or estimate of the future financial performance of
Nioko or the Hummingbird Group for any period and, in particular,
no statement in this document should be interpreted to mean that
earnings or earnings per share or dividend per share for Nioko or
the Hummingbird Group, as appropriate, for the current or future
financial years would necessarily match or exceed the historical
published earnings or earnings per share or dividend per share for
Hummingbird or otherwise.
Electronic communications
Please be aware that addresses, electronic
addresses and certain other information provided by Hummingbird
Shareholders, persons with information rights and other relevant
persons for the receipt of communications from Hummingbird may be
provided to Nioko during the Offer Period as required under Section
4 of Appendix 4 of the Takeover Code to comply with Rule 2.11(c) of
the Takeover Code.
Publication on website and availability of hard
copies
A copy of this document is and will be available
free of charge, subject to certain restrictions relating to persons
resident or located in Restricted Jurisdictions, for inspection on
Hummingbird's website at www.hummingbirdresources.co.uk,
by no later than 12.00 p.m. (London time) on the date following
publication of this document and during the course of the Offer.
For the avoidance of doubt, unless otherwise stated, neither the
contents of Hummingbird's website nor the contents of any website
accessible from hyperlinks on Hummingbird's website (or any other
websites referred to in this document) are incorporated into, or
form part of, this document.
Pursuant to Rule 30.3 of the Takeover Code, you
may, subject to certain restrictions relating to persons resident
or located in Restricted Jurisdictions, request a hard copy of this
document and all information incorporated into this document by
submitting a request in writing to Hummingbird's registrars, Link
Group, on Tel: 0371 664 0321 from the United Kingdom (UK) or +44
371 664 0321 from overseas or by post at Link Group, Corporate
Actions, Central Square, 29 Wellington Street, Leeds LS1 4DL. Calls
are charged at the standard geographic rate and will vary by
provider. Calls outside the UK will be charged at the applicable
international rate. Lines are open between 9.00 a.m. and 5.30 p.m.,
Monday to Friday (excluding public holidays in England and Wales),
or by email at operationalsupportteam@linkgroup.co.uk.
All references to time in this document and in
the Form of Acceptance are to London time.
Hummingbird Shareholders may also, subject to
certain restrictions relating to persons resident or located in
Restricted Jurisdictions, request that all future documents,
announcements and information sent to them in relation to the Offer
be in hard copy form. A hard copy of such document (including this
document), announcement or information will not be sent unless so
requested.
Rounding
Certain figures included in this document have
been subjected to rounding adjustments. Accordingly, figures shown
for the same category presented in different tables may vary
slightly and figures shown as totals in certain tables may not be
an arithmetic aggregation of the figures that precede
them.
Date of publication
This document is dated 13
January 2025.
CONTENTS
Heading
IMPORTANT NOTICES
ACTION TO BE TAKEN
EXPECTED TIMETABLE OF PRINCIPAL EVENTS
PART 1 LETTER FROM NIOKO
PART 2 LETTER FROM THE CHAIR OF HUMMINGBIRD
RESOURCES PLC
PART 3 FURTHER TERMS OF THE OFFER AND
ACCEPTANCES
Part A FURTHER TERMS OF
THE OFFER
Part B FORM OF
ACCEPTANCE
Part C ELECTRONIC
ACCEPTANCE
PART 4 ADDITIONAL INFORMATION
Part A ADDITIONAL
INFORMATION ON THE CIG PARTIES AND HUMMINGBIRD
Part B ADDITIONAL
INFORMATION FOR OVERSEAS SHAREHOLDERS
Part C TAXATION
PART 5 DEFINITIONS
PART 6 HUMMINGBIRD'S EMPLOYEE REPRESENTATIVE AND
PENSION SCHEME TRUSTEE
WHERE TO FIND HELP
You will find answers to some of the questions
most often asked by shareholders about takeover offers and the
procedure for accepting the Offer in Part 1 (Letter
from Nioko) of this document.
If you have further questions on the Offer more
generally, there is a Shareholder Helpline available between the
hours of 9.00 a.m. and 5.30 p.m. (London time) Monday to Friday
(excluding public holidays in England and Wales) or by email at
operationalsupportteam@linkgroup.co.uk. The Shareholder Helpline
is operated by Link Group on Tel: 0371 664 0321 from
the UK and +44 371 664 0321 from overseas. Calls are charged at the
standard geographic rate and will vary by provider. Calls outside
the United Kingdom will be charged at the applicable international
rate. Please note that Link Group, as operator of the Shareholder
Helpline, will only be able to provide information contained in
this document and cannot provide any financial, legal or tax advice
and calls may be recorded and monitored for security and training
purposes.
ACTION TO BE
TAKEN
The
Independent Hummingbird Directors, who have been so
advised by Stifel and Strand Hanson as to the financial terms of
the Offer, consider the terms of the Offer to be fair and
reasonable as the Offer represents an opportunity for Hummingbird
Shareholders to realise some cash sum for their holding now, which
may not otherwise be available. In reaching this conclusion, the
Independent Hummingbird Directors acknowledge and accept the
potential proposed changes to employment and locations of
registered and trading office locations that may be necessary to
make. In addition, the Independent Hummingbird Directors consider
the terms of the Offer to be in the best interests of Hummingbird
Shareholders as a whole and accordingly unanimously recommend that
Hummingbird Shareholders accept or procure acceptance of the Offer,
as the Hummingbird Directors who hold Hummingbird Shares have
irrevocably undertaken to do in respect of their own beneficial
holdings of Hummingbird Shares.
Stifel and
Strand Hanson are providing independent financial advice to the
Hummingbird Directors for the purposes of Rule 3 of the Takeover
Code.
If Hummingbird Shareholders wish to accept the
Offer, it is important that they follow the instructions contained
in this document and, if their Hummingbird Shares are held in
certificated form, the Form of Acceptance.
If Hummingbird
Shareholders have not received all of these documents, please
contact Link Group on the relevant telephone number set out in the
paragraph under the section headed "Shareholder Helpline"
below.
If you hold your Hummingbird Shares in
certificated form (that is, not in
CREST), you should complete the accompanying Form of
Acceptance in accordance with the instructions printed thereon and
in paragraph 20 of Part 1 (Letter
from Nioko) of this document. You may also obtain additional
Forms of Acceptance by contacting the Shareholder Helpline operated
by the Receiving Agent at Link Group, on Tel: 0371 664 0321 from the United
Kingdom (UK) or +44 371 664 0321 from overseas or by post to Link
Group, Corporate Action, at Central Square, 29 Wellington Street,
Leeds LS1 4DL. Calls are charged at the standard geographic rate
and will vary by provider. Calls outside the UK will be charged at
the applicable international rate. Lines are open between 9.00 a.m.
and 5.30 p.m., Monday to Friday (excluding public holidays in
England and Wales), or by email at
operationalsupportteam@linkgroup.co.uk. The completed Form of
Acceptance, together with your share certificate(s) and/or other
document(s) of title, should be returned as soon as possible by
post using, if posted in the United Kingdom, the enclosed
reply-paid envelope to the Receiving Agent at Link Group, Corporate
Actions, Central Square, 29 Wellington Street, Leeds LS1 4DL, so as
to arrive no later than 1.00 p.m. (London time) on the Closing Date. If you are posting in the United Kingdom,
the enclosed reply-paid envelope has been provided for your
convenience. It is recommended to allow four Business Days for
delivery. Any Form of Acceptance received electronically will be
rejected as an invalid acceptance of the Offer.
The latest
time for Link Group to receive your Form of Acceptance will be 1.00
p.m. (London time) on the Closing Date.
You should allow sufficient time for posting for your Form of
Acceptance to be received. It is recommended to allow four Business
Days for delivery.
If you hold your Hummingbird Shares in
uncertificated form (that is, in
CREST), you should follow the procedures set out in
paragraph 20 of Part 1 (Letter
from Nioko) of this document and ensure that an Electronic
Acceptance is made by you or on your behalf and that settlement is
made no later than 1.00 p.m. (London time) on the Closing Date. If
you hold your Hummingbird Shares as a CREST sponsored member, you
should refer to your CREST sponsor as only your CREST sponsor will
be able to send the necessary TTE instruction to
Euroclear.
The latest
time for receipt of an Electronic Acceptance through CREST
(applicable only for Hummingbird Shareholders who hold their
Hummingbird Shares in uncertificated form) will be 1.00 p.m.
(London time) on the Closing Date.
The
Offer will remain open for acceptances until Nioko confirms the
Closing Date, with shareholders receiving at least 14 days' notice
prior to the specified date (which cannot be less than 21 days
after the posting of this Offer Document). Such notice will be given to
Hummingbird Shareholders via an announcement through a Regulatory
Information Service and will advise of the final settlement date,
with such announcement being made available on Hummingbird's
website at www.hummingbirdresources.co.uk.
Further
details about how to submit your Form of Acceptance and how to make
your Electronic Acceptance are set out in
Part
B and
Part C,
respectively, of Part 3 (Further terms of the Offer and
Acceptances) of this document.
Holdings of Hummingbird Shares in certificated
or uncertificated form will be treated as separate holdings for the
purpose of calculating entitlements and you are required to accept
in relation to each holding separately.
This section should be read in conjunction with
the rest of this document and, in the case of Hummingbird Shares
held in certificated form, the Form of Acceptance. Hummingbird
Shareholders are recommended to seek financial advice from their
stockbroker, bank manager, solicitor, accountant or other
independent financial adviser authorised under the FSMA if they are
resident in the United Kingdom or, if not, from another
appropriately authorised independent financial adviser in the
relevant jurisdiction.
Settlement
Other than in respect of Hummingbird Shares
acquired pursuant to the Hummingbird Share Plans, in respect of
which settlement with the relevant Hummingbird Shareholders will be
effected through payroll or such other method as may be determined
by Hummingbird or Nioko, settlement for those Hummingbird
Shareholders who have validly accepted the Offer prior to the
Closing Date will be effected within 14 days of the later of (i) 3
February 2025 (if they have validly accepted before such date) and
(ii) the date of receipt of an acceptance complete in all respects
(if they have validly accepted after such date).
Shareholder Helpline
If you have any questions about this document or
the accompanying documents, or are in any doubt as to how to
complete the Form of Acceptance (if you hold Hummingbird Shares in
certificated form) or as to how to make an Electronic Acceptance
(if you hold Hummingbird Shares in uncertificated form), or wish to
obtain an additional Form of Acceptance, please contact the
Shareholder Helpline. The Shareholder Helpline is operated by Link
Group on Tel: 0371 664 0321 from the UK and +44 371 664 0321 from
overseas. Calls are charged at the standard geographic rate and
will vary by provider. Calls outside the United Kingdom will be
charged at the applicable international rate. Lines are open
between 9.00 a.m. and 5.30 p.m., Monday to Friday excluding public
holidays in England and Wales, or by email at
operationalsupportteam@linkgroup.co.uk. Please note that Link Group
cannot provide any financial, legal or tax advice and calls may be
recorded and monitored for security and training purposes. Calls
are charged at the standard geographic rate and will vary by
provider. Calls outside the UK will be charged at the applicable
international rate.
EXPECTED TIMETABLE OF PRINCIPAL
EVENTS
The dates and times below are indicative only
and are based on current expectations and may be subject to
change.
If any of the
dates and/or times in this expected timetable change, notice of the
revised dates and/or times will be given to Hummingbird
Shareholders by announcement through a Regulatory Information
Service, with such announcement being made available on
Hummingbird's website at www.hummingbirdresources.co.uk.
Further updates and changes to these times will be notified in the
same way.
Unless
otherwise stated, all times referred to in this document and
timetable below are London times.
EVENT
|
TIME AND/OR
DATE
|
Rule 2.7 Announcement
|
16 December
2024
|
Notice of waiver of conditions
|
2 January
2025
|
Admission of the Ordinary Shares to Nioko under
the Stage 2 Conversion
|
7 January
2025
|
Publication and posting of this document and
Form of Acceptance
|
13 January
2025
|
Closing of the Offer period under the Takeover
Code**
|
3 February
2025
|
Latest time and date by which the Offer can be
accepted for Hummingbird Shares in certificated or uncertificated
form
|
1.00 p.m. on the
Closing Date
|
Cancellation of the admission to
trading on AIM
|
To be at least 20
business days after Nioko holds 75 per cent. of the ordinary share
capital of Hummingbird
|
**The Offer will remain open for acceptances until Nioko
confirms the closing date, with shareholders receiving at least 14
days' notice prior to the specified date (which cannot be less than
21 days after the posting of this Offer Document) (the "Closing
Date"). Such notice will
be given to Hummingbird Shareholders via an announcement through a
Regulatory Information Service and will advise of the final
settlement date, with such announcement being made available on
Hummingbird's website at www.hummingbirdresources.co.uk.
**Except with the consent of the Panel, the Cash Consideration
to Hummingbird Shareholders who accept the Offer prior to the
Closing Date must be settled within 14 days of the later of (i) 3
February 2025 (if they have validly accepted before such date) and
(ii) the date of receipt of an acceptance complete in all respects
after such date.
PART 1
LETTER FROM NIOKO
(an investment company registered in the Trade and Personal
Property Credit Register of Burkina Faso with registered number BF
OUA 2019 B 2606)
Nioko Resources
Corporation,
Avenue de
l'UEMOA,
01 BP 2061
Ouagadougou 01,
Burkina
Faso
13
January 2025
To the holders
of Hummingbird Shares and, for information only, to holders of
awards and options under the Hummingbird Share Plans and persons
with information rights.
Dear Hummingbird Shareholder,
1.
INTRODUCTION
On 16 December 2024, the board of directors of
each of Nioko and Hummingbird announced in the Rule 2.7
Announcement that they had reached agreement on the terms of a
recommended cash offer pursuant to which Nioko would acquire the
entire issued and to be issued share capital of Hummingbird not
otherwise owned, or agreed to be acquired, by Nioko. The Offer is
to be effected by means of a takeover offer for the purposes of
Part 28 of the Companies Act.
This document and, if you hold Hummingbird
Shares in certificated form, the accompanying Form of Acceptance,
contain the formal Offer (including its terms and conditions) for
your Hummingbird Shares. Acceptances of the Offer should be
received as soon as possible and, in any event, by no later than
1.00 p.m. (London time) on the Closing Date.
Your attention
is drawn to the Letter from the Chairman of Hummingbird set out in
Part 2 (Letter
from the Chairman of Hummingbird Resources plc)
of this document. That letter contains, amongst other things, the
background to and reasons for the unanimous recommendation of the
Independent Hummingbird Directors.
The Hummingbird Directors who hold Hummingbird
Shares have irrevocably undertaken to Nioko to accept, or procure
acceptance of, the Offer in respect of their entire beneficial
holdings of 15,377,902 Ordinary Shares (representing 0.92 per cent. of Hummingbird's total issued share
capital) as at the Latest Practicable Date.
Your attention is also drawn, in particular, to
the further terms of the Offer set out in Part 3 (Further terms of the Offer and
Acceptances) to this document and the information relating
to Nioko and Hummingbird in paragraphs 5
and 6 of this letter,
respectively.
2.
THE OFFER
Under the terms of the Offer, Hummingbird
Shareholders will be entitled to receive:
for each Hummingbird Share:
2.6777 pence in cash (the Offer Price).
Accordingly, the Offer values Hummingbird's
existing issued and to be issued Ordinary Share capital (not
already owned, or agreed to be acquired, by Nioko) at up to
approximately £13,434,987.
Other terms of
the Offer
As detailed in the Rule 2.7 Announcement, the
Offer was to be subject to the satisfaction of a number of
conditions including, among other things, the Rule 9 Waiver
Condition, the Regulatory Approvals, no Insolvency Event occurring
in respect of the Hummingbird Group and no cancellation/loss of any
Core Mining Licence (each condition as defined in the Rule 2.7
Announcement) (the Original
Conditions). The Rule 9 Waiver Condition has now been
satisfied following the passing of the resolutions at the
Hummingbird's general meeting on 23 December 2024, as announced by
Hummingbird on 23 December 2024.
On 2 January 2025,
Nioko informed Hummingbird that it wished to waive the outstanding
Original Conditions. As such, this Offer is unconditional from the
outset and acceptances under the Offer will be final and binding
with no rights of withdrawal save as otherwise agreed in writing
between Nioko and any particular Hummingbird Shareholder or as
otherwise permitted by Nioko (either generally or for any
particular Hummingbird Shareholder). There is no acceptance
condition in respect of the Offer. The Offer will remain open for
acceptances until Nioko confirms the Closing Date, with
shareholders receiving at least 14 days' notice prior to the
specified date (which cannot be less than 21 days after the posting
of this Offer Document).
Such notice will be given to Hummingbird Shareholders via an
announcement through a Regulatory Information Service and will
advise of the final settlement date, with such announcement being
made available on Hummingbird's website at www.hummingbirdresources.co.uk.
The Offer will be open for acceptance until 1.00 p.m. (London
time) on the Closing Date.
If, on or after the date of this Offer, any
dividend, distribution and/or other return of capital or value, is
announced, declared, made or paid in respect of the Hummingbird
Shares, Nioko reserves the right to reduce the consideration
payable under the terms of the Offer for the Hummingbird Shares by
the aggregate amount of such dividend and/or distribution and/or
other return of capital or value, in which case any reference in
this document to the consideration payable under the terms of the
Offer will be deemed to be a reference to the consideration as so
reduced. Any such exercise by Nioko of its rights shall be the
subject of an announcement and, for the avoidance of doubt, shall
not be regarded as constituting any revision or variation of the
terms of the Offer or the Offer. In such circumstances, Hummingbird
Shareholders would be entitled to retain any such dividend,
distribution and/or other return of capital or value.
Hummingbird Shares will be acquired by Nioko
pursuant to the Offer fully paid and free from all liens, charges,
encumbrances and other third party rights of any nature whatsoever
and together with all rights attaching to them as at completion of
the Offer, including the right to receive and retain all dividends
and distributions (if any) declared, made or paid following the
Offer closing.
3.
BACKGROUND TO AND REASONS FOR THE OFFER
Rule 9 Waiver and the Debt-to-Equity
Conversion
As set out in the Previous
Announcements, Hummingbird faces continued challenges around
operational performance at Yanfolila, equipment availability,
working capital constraints and further delays in the ramp up of
operations at Kouroussa, which have placed significant strain on
Hummingbird's balance sheet and its ability to meet near-term debt
repayment obligations. To address Hummingbird's immediate financial
obligations, Hummingbird agreed a non-binding term sheet for the
Debt-to-Equity Conversion with Nioko and CIG as described in
Hummingbird's announcement on 6 November 2024, and on 27 November
2024 entered into the CIG Subscription Agreement to implement the
Debt-to-Equity Conversion.
Under the terms of the
Debt-to-Equity Conversion, the Hummingbird Board agreed that the
principal amount of US$30 million which was outstanding under the
New CIG Loan would, subject to certain conditions, be converted, in
two tranches, into Ordinary Shares in Hummingbird pursuant to the
CIG Subscription Agreement, to be issued to CIG's wholly owned
subsidiary Nioko, at a conversion price of 2.6777 pence per
Ordinary Share. The Stage 1 Conversion was conditional,
inter alia, on the
approval by independent shareholders of the Rule 9 Waiver
Resolution. As announced by Hummingbird on
23 December 2024, the Rule 9 Waiver condition was satisfied
following the December General Meeting, and the Stage 1 Conversion
completed on 24 December 2024, resulting in Nioko holding
approximately 49.9 per cent. of Hummingbird's then issued share
capital.
On 2 January
2025, Nioko informed Hummingbird that it wished to waive the other
outstanding conditions under the Debt-to-Equity Conversion.
As such, the Debt-to-Equity Conversion has now
completed with the admission of the
Ordinary Shares to Nioko under the Stage 2 Conversion (as defined
below) occurring on 7 January 2025. As a result,
Nioko now holds 1,202,312,639 Ordinary Shares, representing approximately 71.8
per cent. of Hummingbird's issued share capital as at the date of
this document.
Nioko will continue to engage with
the relevant regulatory authorities in the jurisdictions where the
Hummingbird Group's assets are located in order to secure the
formal approvals and to take those assets to the next stage of
their development. Hummingbird also continues in negotiations with
the Malian Government in respect of the application of the 2023
Mining Code, which are expected to result in additional near-term
payment obligations. Hummingbird Shareholders should be aware
that the outcome of the discussions with regulatory authorities in
respect of the change of control are uncertain, could take several
months and could result in an adverse costs or impact in respect of
the mining and exploration licences.
The Offer Price under the Offer is
equal to the conversion price under the CIG Subscription
Agreement.
Approach to the Offer
An independent technical,
operational and financial review has confirmed the urgent need for
new equity funding to address a critical financial shortfall. This
funding is required to meet payments due to creditors, to replenish
essential spare parts, and to invest in engineering and drilling to
mitigate risks to mine plan forecasts, as well as covering
overheads until the business can demonstrate sustainable
profitability.
Hummingbird will need to work with
its creditors to restructure some US$140 million in debt (in
addition to the US$30 million that converted into equity as part of
the Debt-to-Equity Conversion). There are ongoing risks
to the business including those arising from grade reconciliation
issues at Kouroussa, supplier availability, and the political and
operating environment in Mali, as well as specific risks to
delivering Yanfolila's underground plan which currently relies on
further definition drilling which is currently unfunded. Nioko
believes that Hummingbird Shareholders face a potential zero equity
value outcome without further Nioko investment and risk going into
an administration process.
Delisting of Hummingbird
Nioko has informed Hummingbird that, once a
sufficient level of acceptances under the Offer is reached such
that Nioko would hold at least 75 per cent. of the Ordinary Shares
of Hummingbird (including, for the avoidance of doubt,
those Ordinary Shares already held by Nioko), it
intends to seek the cancellation of the admission to trading on AIM
of Hummingbird's Ordinary Shares (the Cancellation). There is no
acceptance condition in respect of the Offer but Nioko currently
holds 71.8 per cent. of
Hummingbird's existing issued share
capital. Following the proposed Cancellation,
Hummingbird Shares would no longer remain tradeable on AIM and
liquidity in, and marketability of, the Ordinary Shares will be
more limited and holdings of Ordinary Shares could be difficult to
value and to trade.
Please see paragraph 14
for further information on the proposed delisting process for
Hummingbird.
Your attention is drawn to Part 2
(Letter from the Chairman of
Hummingbird Resources plc) of this document which includes
the unanimous recommendation of the Independent Hummingbird
Directors and the reasons for their recommendation.
4.
INTENTIONS FOR THE HUMMINGBIRD GROUP
Strategic Plans for the Hummingbird
Group
In the first 12 months following
completion of the Offer, the CIG Parties intend to continue their
due diligence on the Hummingbird Group and will conduct an in-depth
assessment of the Hummingbird Group's operational assets, pursuant
to which the CIG Parties will consider how to optimise efficiencies
and cost effectiveness, enhance the liquidity position of the
Hummingbird Group, improve productivity and ensure that all
spending decisions are thoroughly scrutinised and optimally
structured (the Strategic
Review). As mentioned above, the CIG
Parties anticipate seeking to procure the Cancellation. It is the
CIG Parties' view that stabilising Hummingbird's financial and
operational situation will be achieved more easily as a private
company.
Consistent with its approach to
constructive, collaborative and respectful stakeholder
relationships, Nioko (in co-operation with Hummingbird) has
initiated discussions with each of the Malian, Guinean and Liberian
Governments to emphasise Nioko's commitment to each relevant
country and to maintaining Hummingbird's good working relationship
with each Government.
Employees and management
Subject to the Strategic Review,
the CIG Parties intend to simplify the Hummingbird Group's
corporate structure and employee base to reflect the Cancellation.
The CIG Parties intend to implement such changes as soon as
practicable following completion of the Offer in accordance with any
applicable employee information and consultation requirements, and
the CIG Parties intend to reduce Hummingbird Group's overall
headcount by not more than 20 per cent. This will include removing
operations that are no longer necessary as a result of the
Cancellation or reducing the amount of duplicative roles in the
context of Nioko's newly acquired control over the Hummingbird
Group. In connection with this simplification, the CIG Parties
intend to change the Group's existing registered office at 49-63
Spencer Street, Hockley, Birmingham, West Midlands, B18 6DE and its
operating London office at 26 Mount Row, London, W1K 3SQ to an
address to be identified as part of the Strategic Review. It is
intended for the new headquarters to be based in London which will
provide a space for Hummingbird
to manage the Group's day to day operations. It is
intended that the new headquarters are able to provide the same
functions as both the existing headquarters and operating office of
Hummingbird. Hummingbird does not currently have a standalone
research and development function and the CIG Parties also do not
intend on creating one or making material changes to any ongoing
research and development initiatives at
Hummingbird.
In connection with streamlining the
business, the CIG Parties have confirmed that, they intend to make
certain changes to the Hummingbird Board and the
Hummingbird's management
team including that Thomas Hill, the Finance Director, Stephen
Betts, the Non-Executive Director, David Straker-Smith, the
Non-Executive Director, Attie Roux, the Non-Executive Director and
Ernie Nutter, the Non-Executive Director, will cease to be
directors of the Board on or around the date of Cancellation. At the same time, Dan
Betts will cease to be Executive Chairman but is expected to remain
with Hummingbird in
a Non-Executive Chairman role, subject to terms to be agreed
between Hummingbird and Dan Betts. It is
anticipated that board changes will be implemented
at the operating level of the various Hummingbird
subsidiaries on or around the date of Cancellation.
Except as set out above, the CIG
Parties do not intend for the completion of the Offer to result in material changes in
the balance of skills and functions of employees of the Hummingbird
Group.
Existing rights and pension schemes
The CIG Parties do not intend to
make material changes to the existing contractual and statutory
employment rights, including in relation to pension contributions,
of existing Hummingbird employees and intend both to safeguard fully all such
contractual and statutory rights in accordance with applicable
laws, and pay any accrued but unpaid employee remuneration and
benefits, and amounts that will become due on the change of control
of the Company under pre-existing arrangements. The CIG Parties
understand that in the UK the Hummingbird Group automatically enrols
employees in a pension scheme through NEST Pensions but that a
number of employees have opted out and in these instances
the Hummingbird Group instead makes separate contributions into employees'
personal pension plans. The CIG Parties do not intend to make any
changes to the Hummingbird
Group's current employer pension contribution
arrangements.
Operations and Fixed Assets
As part of the Strategic Review to
be undertaken following completion of the Offer, the CIG Parties intend to
determine how to maximise value and potential from the
Hummingbird Group's
existing fixed assets. Subject to the outcome of the Strategic
Review, the CIG Parties believe that there is worthwhile potential
in the ramp up of operations at the Kouroussa gold mine in Guinea.
The CIG Parties intend to work proactively with Hummingbird as Kouroussa progresses
towards steady state production. The CIG Parties also intend to
review the status of the life of mine extensions at the Yanfolila
Gold Mine and to consider the opportunities for exploration and
resource expansion at the Yanfolila site before making any firm
decisions on its prospects. This may involve delays to going
underground and the possible development of further satellite
resources. The CIG Parties currently intend on following the
existing mine plans in place at the operating Kouroussa and
Yanfolila mines but will continue to review this and intend to make
optimisations in light of the Strategic Review.
The Dugbe gold project is owned by
Pasofino which is a non-wholly owned subsidiary of
Hummingbird and has its
own separate listing on TSX-V. The Dugbe project is not yet
at the development stage and therefore its operations and fixed
assets are limited. Pasofino announced in 2024 a strategic review
process and stated in November that it was continuing in
discussions for the potential disposal of Pasofino. The CIG Parties
have indicated that further due diligence will be undertaken on the
Dugbe gold project in Liberia as necessary as part of its Strategic
Review and to determine if continuing with Pasofino's sale process
is in the Hummingbird's best interests. All options for this asset remain on the
table including disposal and development and there are no specific
intentions for the operations or fixed assets at this stage as the
project requires funding to be secured to take it to the
development phase. Following completion of the Offer, the CIG Parties will consider
how best to maximise value and potential from the
Hummingbird Group's other
assets.
No post-offer
undertakings
None of the statements in this
paragraph 4 is a "post-offer undertaking"
for the purposes of Rule 19.5 of the
Takeover Code.
In Part 2 (Letter from the Chairman of Hummingbird
Resources plc) of this document, the Hummingbird Directors
have given due consideration to Nioko's intentions for Hummingbird
as set out above.
5.
INFORMATION ON NIOKO AND THE CIG PARTIES
Nioko
Nioko is a company incorporated in
Burkina Faso and a wholly-owned subsidiary of CIG, which is also
incorporated in Burkina Faso. CIG is wholly owned and controlled by
Mr. Idrissa Nassa, a Burkinabe national and
entrepreneur.
Nioko is the only CIG Party that
holds voting rights in Hummingbird
and will remain the only CIG Party to hold voting
rights in Hummingbird following completion of the Offer.
As at the Latest Practicable Date, Nioko holds
1,202,312,639 Ordinary Shares, representing
approximately 71.8 per cent. of
Hummingbird's existing issued share
capital.
The Nioko directors, registered office and
other incorporation information regarding Nioko is as
follows:
Directors
|
Mr. Oumar Toguyeni
Mr. Issaka Kanazoe
Mr. Yacouba Saré
|
Address
|
Avenue de l'UEMOA, 2cmeetage of the building built on
plot N°10 of lot 20 section 006 ZACA, 01 BP 2061 Ouagadougou 01,
Burkina Faso
|
Place of
Registration
|
Burkina Faso
|
Registered
Number
|
BF OUA-01-2024-B15-04845
|
CIG
CIG is a private company limited by
shares and is registered in the Trade and Personal Property Credit
Register of Burkina Faso, incorporated on 5 April 2019. Mr.
Idrissa Nassa, as sole shareholder of CIG, holds 100 per cent. of
its issued share capital. In addition, Mr. Idrissa Nassa holds a 98
per cent. interest in Coris Holdings, which in turn has a 63.61 per
cent. interest in Coris Bank. Mr Idrissa also holds, in his
personal name, an interest of 1.29 per cent. in Coris Bank and so
has an effective interest in Coris Bank of 63.6 per cent. Coris
Bank is Hummingbird's primary banking partner, with details of the
various facilities in place with Coris Bank set out in
paragraph (a)
(Banking Facility Arrangements with Coris
Bank) of Part 4
of this document.
CIG's aim is to focus on innovative
solutions in line with the financing needs of companies and
institutions with high local added value and capable of developing
a profitable and sustainable business. CIG specialises in
investment, strategy and consulting focusing on the West African
region. Currently, CIG has approximately US$100 million of
investments and fixed assets across more than 15 investments,
including a shareholding in Orezone Gold Corporation (held through
Nioko), a Canadian exploration and development company which owns
the Bombore gold mine project in Burkina Faso.
The CIG directors, registered
office and other incorporation information of the members of the
CIG are as follows:
Directors
|
Mr. Bolo SANOU
Mr. Idrissa NASSA
Mr. Talekaye ROMBA
Mr. Diakarya OUATTARA
Mr. Ablasse ILBOUDO
|
Address
|
Avenue de l'UEMOA, 2cmeetage of the
building built on plot N°10 of lot 20 section 006 ZACA, 01 BP 2061
Ouagadougou 01, Burkina Faso
|
Place of Registration
|
Burkina Faso
|
Registered Number
|
BF OUA 2019 B 2606
|
The Offer is not expected to have a material
effect on the CIG Parties' earnings, assets or
liabilities.
Mr. Idrissa Nassa
Mr. Nassa is an economist by
training, with over 35 years' experience in the financial,
insurance, international trade and industrial sectors. He is a
graduate of INTEC in Paris, and also holds a higher diploma in
Management from the AMP programme at the MDE/IESE Business Schoolà
in Barcelona, and a diploma in Management and Strategy from the
University of Paris Panthéon Sorbonne and the Hautes Finances from
the IFG Executive Education INSEEC Paris.
He has received various
recognitions in the countries where Coris Bank subsidiaries or
branches are present, including the African CEO of the Year 2020 by
Financial Afrik Awards, the rank of Grand Officer of the Order of
the Stallion (Burkina Faso) in 2019, the African Entrepreneur of
the Year Award 2019 by AGFRICANGELS, the Trophy of Excellence
awarded by CAVIE (African Centre for Economic Intelligence and
Monitoring) and the Special Award "BRVM" and "DC&BR" (Senegal)
in 2022. Mr Nassa is Chairman of Coris Bank and President of
Burkinabé Employers' Association. CIG's registered office address,
and primary place of business is Avenue de l'UEMOA, 2cmeetage of
the building built on plot N°10 of lot 20section 006 ZACA, 01 BP
2061 Ouagadougou 01, Burkina Faso.
Ratings
Neither CIG nor Nioko is required to publish
financial information and there is no financial information
relating to CIG or Nioko that is publicly available. There are no
current ratings or outlooks publicly accorded to CIG or Nioko by
ratings agencies.
6.
INFORMATION ON HUMMINGBIRD
Hummingbird (AIM: HUM) is a multi-asset,
multi-jurisdictional gold producing company, member of the World
Gold Council and founding member of Single Mine Origin
(www.singlemineorigin.com). Hummingbird currently has two core gold
projects, the operational Yanfolila Gold Mine in Mali, and the
operational Kouroussa Gold Mine in Guinea, which is now in
commercial production. Further, Hummingbird has a controlling
interest in the Dugbe Gold Project in Liberia that is being
developed by its joint venture partner, Pasofino Gold Limited. The
final feasibility results on Dugbe showcase 2.76Moz in reserves and
strong economics such as a 3.5-year capex payback period once in
production, and a 14-year life of mine at a low AISC profile.
Hummingbird's vision is to continue to grow its asset base,
producing profitable ounces with environmental, social &
governance policies and practices central to all its
activities.
The following sets out financial information in
respect of Hummingbird as required by Rule 24.3 of the Takeover
Code. The documents referred to below (or parts thereof), the
contents of which have previously been announced through a
Regulatory Information Service, are incorporated by reference into
this document pursuant to Rule 24.15 of the Takeover
Code:
·
the interim results of Hummingbird for the six months ended
30 June 2024, available on Hummingbird's website at www.hummingbirdresources.co.uk;
·
the audited accounts of Hummingbird for the financial year
ended 31 December 2023 set out on pages 118-195 of the 2023 Hummingbird Annual Report,
available on Hummingbird's website at www.hummingbirdresources.co.uk;
·
the audited accounts of Hummingbird for the financial year
ended 31 December 2022 set out on pages 100-168 of the 2022
Hummingbird Annual Report, available on Hummingbird's website at
www.hummingbirdresources.co.uk;
The above documents are available, free of
charge, in "read-only" format and can be printed from the web
addresses detailed above. Further, Hummingbird will provide,
without charge to each person to whom a copy of this document has
been delivered, upon the oral or written request of such person
pursuant to the instructions as set out in the section titled
'Publication on website and availability of hard copies' above, a
hard copy of any or all of the documents which are incorporated by
reference herein as soon as possible and in any event within two
Business Days of the receipt of such request. Hard copies of any
documents or information incorporated by reference into this
document will not be provided unless such a request is
made.
No Significant Change and Ratings
Save as disclosed in this document, the
Previous Announcements, as announced by
Hummingbird on 23 December 2024 in the
"Operational and Financial Position Update", or when it announced
its six-month results to 30 June 2024, there has been no
significant change in the financial or trading position of the
Group since 30 June 2024, being the date to which the unaudited
interim financial information for the Group was prepared. There are
no current public ratings or outlooks accorded to
Hummingbird by ratings agencies.
7.
THE HUMMINGBIRD DIRECTORS
The names of the Hummingbird Directors and the
details of their interests in Hummingbird Shares are set out in
paragraphs 2 and 3
of Part A of Part 4
(Additional Information)
of this document.
At the close of business on the Latest
Practicable Date the Hummingbird Directors were interested in, in
total, 15,377,902 Hummingbird Shares, amounting to 0.92 per cent. of the issued share capital of
Hummingbird.
In common with the other participants in the
Hummingbird Share Plans, Hummingbird Directors who hold awards
and/or options will be able to receive Hummingbird Shares to the
extent such awards vest and/or options become exercisable under
their relevant terms in connection with the Offer.
Particulars of the service contracts and the
letters of appointment of the Hummingbird Directors are set out in
paragraph 6 of
Part A of Part 4 (Additional Information) of this
document. It is intended that, Thomas Hill, the
Finance Director, Stephen Betts, the Non-Executive Director, David
Straker-Smith, the Non-Executive Director, Attie Roux, the
Non-Executive Director and Ernie Nutter, the Non-Executive Director
shall each resign from his or her roles on or around the date
of Cancellation. At the same time, Dan
Betts will also resign as Executive Chairman at the same time but
is expected to remain with Hummingbird in a Non-Executive Chairman
role, subject to terms to be agreed between Dan Betts and
Hummingbird. It is anticipated that board changes will
be implemented at the operating level of the various
Hummingbird subsidiaries on or around the date of
Cancellation.
8.
IRREVOCABLE UNDERTAKINGS
Hummingbird has received irrevocable
undertakings from each of Stephen Betts, Dan Betts, Tom Hill and
Ernie Nutter to accept the Offer in respect of their own beneficial
holdings amounting to, in aggregate, 15,377,902 Ordinary Shares,
representing approximately 0.92 per cent.
of the existing issued ordinary share capital of Hummingbird. The
irrevocable undertakings include undertakings to:
(a)
accept the Offer;
(b)
not to sell, transfer, charge, grant any option or other right over
or otherwise dispose of or deal (directly or indirectly and whether
beneficially, legally or otherwise) in the relevant Ordinary Shares
or any interest in all or any of them or permit any dealing, nor
enter into any agreement or arrangement (whether conditional or
not) to deal, nor accept (or permit to be accepted) any offer in
respect of all or any of such Ordinary Shares, save with consent
of Hummingbird;
(c)
continue to have full power and authority to enter into and perform
the irrevocable undertaking in accordance with its
terms;
(d)
if required by Hummingbird, return a duly
executed Form of Proxy in respect of the relevant Ordinary Shares
(if certificated), or in the case of uncertificated shares, to take
any action that may be required by Hummingbird
to make a valid proxy appointment and give valid CREST proxy
instructions; and
(e)
execute all such documents, acts and things as may be necessary and
desirable to be executed in connection with their obligations under
the irrevocable undertaking.
Further details of these irrevocable
undertakings are set out in paragraph 4
of Part A of Part 4
(Additional Information)
of this document.
9.
OFFER RELATED ARRANGEMENTS
For details of the offer-related
arrangements, see paragraph 8
(Offer
Related Arrangements) of Part 4
(Additional Information)
of this document.
10.
HUMMINGBIRD SHARE PLANS
Hummingbird operates the Hummingbird Share
Plans to reward and retain its employees.
Participants in the Hummingbird Share Plans
will receive a separate communication explaining the effect of the
Offer on their rights under the Hummingbird Share Plans (the
Share Plan
Proposals).
A summary of the effect of the Offer on the
Hummingbird Share Plans is set out below. In the event of any
conflict between the summary set out below and the rules of the
relevant Hummingbird Share Plan and/or the Share Plan Proposals,
the rules of the relevant Hummingbird Share Plan, or the terms of
the relevant Share Plan Proposals (as the case may be) will
prevail.
HIPPO 2016,
HIPPO 2018 and HIPPO 2020 (HIPPOs)
All outstanding awards under the HIPPOs have
vested prior to the date of publication of this document.
Accordingly, no more than 6,521,268
Hummingbird Shares will be issued pursuant to the exercise of
awards under the HIPPOs in connection with the Offer.
Hummingbird
LTIP 2021
Awards under the Hummingbird LTIP 2021 take the
form of time-based restricted share unit awards (RSU Awards) and performance-based
awards linked to total shareholder return (TSR Awards).
All outstanding RSU Awards granted in 2021
vested on their ordinary terms before the publication of this
document and any RSU Awards granted in 2022, 2023 and 2024 which
have not yet vested will vest in full on 3 February 2025 in
connection with the Offer. Accordingly, no more than
18,612,904 Hummingbird Shares will be issued
pursuant to the exercise of the RSU Awards in connection with the
Offer.
In respect of the outstanding TSR Awards which
were granted in 2022, 2023 and 2024, the Hummingbird Remuneration
Committee has determined that the performance conditions are
unlikely to be met in connection with the Offer. Accordingly, the
TSR Awards are not expected to vest in accordance with their
terms.
Hummingbird
Deferred Share Awards
All outstanding Hummingbird Deferred
Share Awards granted in 2021, 2022 and 2023 vested on their
ordinary terms before the publication of this document. All
outstanding Hummingbird Deferred Share Awards granted in 2024 will
vest in full on 3 February 2025. Accordingly, no more than
3,883,072 Hummingbird Shares will be issued under the Hummingbird
Deferred Share Awards in connection with the Offer.
11.
FINANCING OF THE OFFER
The Cash Consideration necessary to
satisfy the Offer in full will be funded from Nioko's existing cash
resources. Hannam & Partners, in its capacity as financial
adviser to Nioko, is satisfied that sufficient resources are
available to Nioko to satisfy in full the Cash Consideration
payable by Nioko to Shareholders pursuant to the Offer.
12.
CONDITIONS TO THE OFFER
The Offer is
unconditional from the outset and acceptances under the Offer are
final and binding with no rights of withdrawal
save as otherwise agreed in writing between Nioko
and any particular Hummingbird Shareholder or as otherwise
permitted by Nioko (either generally or for any particular
Hummingbird Shareholder).
The Offer will remain open for acceptances
until Nioko confirms the Closing Date, with shareholders receiving
at least 14 days' notice prior to the specified date (which cannot
be less than 21 days after the posting of this Offer
Document). Such notice
will be given to Hummingbird Shareholders via an announcement
through a Regulatory Information Service and will advise of the
final settlement date, with such announcement being made available
on Hummingbird's website at www.hummingbirdresources.co.uk.
The Offer will be open for acceptance until 1.00 p.m. (London time)
on the Closing Date.
13.
ALTERNATIVE MEANS OF IMPLEMENTING THE OFFER
Nioko reserves the right to elect (with the
consent of the Panel and the consent of Hummingbird) to implement
the Offer by means of a Scheme as an alternative to the Offer. In
such event, such Scheme would be implemented on substantially the
same terms and conditions, so far as applicable, as those which
would apply to the Offer, subject to appropriate amendments to
reflect the change in method of effecting the Offer.
14.
DELISTING AND SQUEEZE-OUT
If Nioko receives acceptances under the Offer
in respect of, and/or otherwise acquires, 90 per cent. or more of
the Hummingbird Shares to which the Offer relates, Nioko intends to
exercise its rights pursuant to the provisions of Chapter 3 of Part
28 of the Companies Act to acquire compulsorily any Hummingbird
Shares not acquired or agreed to be acquired by or on behalf of
Nioko pursuant to the Offer or otherwise on the same terms as the
Offer.
Nioko has informed Hummingbird that, once a
sufficient level of acceptances under the Offer is reached such
that Nioko would hold at least 75 per cent. of the Ordinary Shares
of Hummingbird (including, for the avoidance of doubt,
those Ordinary Shares already held by Nioko), it
intends to seek the Cancellation of the admission to trading on AIM
of Hummingbird's Ordinary Shares and Nioko shall seek
to re-register Hummingbird as a private limited company under the
relevant provisions of the Companies Act.
There is no acceptance condition in respect of the Offer but
Nioko currently holds 71.8 per cent.
of Hummingbird's existing issued share
capital. Following the proposed Cancellation,
Hummingbird Shares would no longer remain tradeable on AIM and
liquidity in, and marketability of, the Ordinary Shares will be
more limited and holdings of Ordinary Shares could be difficult to
value and to trade.
It is anticipated that, subject to any
applicable requirements of the London Stock Exchange, Cancellation
of admission to trading of Hummingbird Shares on AIM shall take
effect no earlier than the date that is 20 business days (in
accordance with the AIM Rules) after the date on which Nioko has
announced that it has acquired or agreed to acquire 75 per cent. of
the voting rights attaching to the Hummingbird Shares (including,
for the avoidance of doubt, those Ordinary Shares already held by
Nioko).
Nioko shall notify Hummingbird Shareholders
when the required 75 per cent. voting rights threshold has been
attained and confirm that the notice period has commenced and the
anticipated date of Cancellation.
Such Cancellation of admission to trading on
AIM of Hummingbird Shares and the re-registration of Hummingbird as
a private limited company shall significantly reduce the liquidity
and marketability of any Hummingbird Shares not acquired pursuant
to the Offer at that time and their value may be affected as a
consequence. Any remaining Hummingbird Shareholders (unless their
Hummingbird Shares are acquired by Nioko pursuant to the provisions
of Chapter 3 of Part 28 of the Companies Act) would become minority
shareholders in a majority controlled private limited company and
may therefore be unable to sell their Hummingbird Shares. There can
be no certainty that Hummingbird would pay any further dividends or
other distributions or that such minority Hummingbird Shareholders
would again be offered an opportunity to sell their Hummingbird
Shares on terms which are equivalent to or no less advantageous
than those under the Offer.
15.
PROCEDURE FOR ACCEPTANCE OF THE OFFER
Hummingbird Shareholders who hold their
Hummingbird Shares in certificated form should read this paragraph
in conjunction with the Form of Acceptance and Part B and Part C of
Part 3 (Further terms of the
Offer and Acceptances) of this document. Hummingbird
Shareholders who hold their shares in uncertificated form (that is,
through CREST) should read this paragraph in conjunction with
Part B and Part C of Part 3 (Further terms of the Offer and
Acceptances) of this document. The instructions on the Form
of Acceptance are deemed to form part of the terms of the
Offer.
The Offer will
remain open for acceptances until Nioko confirms the Closing Date,
with shareholders receiving at least 14 days' notice prior to the
specified date (which cannot be less than 21 days after the posting
of this Offer Document).
Such notice will be given to Hummingbird Shareholders via an
announcement through a Regulatory Information Service and will
advise of the final settlement date, with such announcement being
made available on Hummingbird's website at
www.hummingbirdresources.co.uk.
The Offer will be open for acceptance until 1.00 p.m. (London
time) on the Closing Date.
If you have any questions about this document
or the accompanying documents, or are in any doubt as to how to
complete the Form of Acceptance (if you hold Hummingbird Shares in
certificated form) or as to how to make an Electronic Acceptance
(if you hold Hummingbird Shares in uncertificated form), or wish to
obtain an additional Form of Acceptance, please contact the
Shareholder Helpline. The Shareholder Helpline is operated by Link
Group on Tel: 0371 664 0321 from the UK and +44 371 664 0321 from
overseas. Calls are charged at the standard geographic rate and
will vary by provider. Calls outside the United Kingdom will be
charged at the applicable international rate. Lines are open
between 09:00 and 17:30, Monday to Friday excluding public holidays
in England and Wales, or by email at
operationalsupportteam@linkgroup.co.uk. Please note that Link Group
cannot provide any financial, legal or tax advice and calls may be
recorded and monitored for security and training purposes. Calls
are charged at the standard geographic rate and will vary by
provider. Calls outside the UK will be charged at the applicable
international rate.
15.1 Hummingbird
Shares held in certificated form
(A)
Completion of the Form of Acceptance
Your Form of Acceptance accompanies this
document.
You may also obtain additional Forms of
Acceptance, by contacting the Shareholder Helpline operated by Link
Group on Tel: 0371 664 0321 from the UK and +44 371 664 0321 from
overseas. Calls are charged at the standard geographic rate and
will vary by provider. Calls outside the United Kingdom will be
charged at the applicable international rate. Lines are open
between 09:00 and 17:30, Monday to Friday excluding public holidays
in England and Wales, or by email at
operationalsupportteam@linkgroup.co.uk. The Receiving Agent will
send you a Form of Acceptance within 10 Business Days, and you will
be instructed to return the Form of Acceptance in accordance with
the instructions set out below and on the Form of
Acceptance.
To accept the Offer in respect of Hummingbird
Shares held in certificated form (that is, not in CREST), you must
complete the Form of Acceptance in accordance with the instructions
set out below and on the Form of Acceptance. The instructions
printed on the Form of Acceptance are deemed to form part of the
terms of the Offer. You should complete a separate Form of
Acceptance for Hummingbird Shares held in certificated form but
under different designations. If you have any queries as to how to
complete the Form of Acceptance, please contact the Shareholder
Helpline. The Shareholder Helpline is operated by Link Group on
Tel: 0371 664 0321 from the UK and +44 371 664 0321 from overseas.
Calls are charged at the standard geographic rate and will vary by
provider. Calls outside the United Kingdom will be charged at the
applicable international rate. Lines are open between 09:00 and
17:30, Monday to Friday excluding public holidays in England and
Wales, or by email at operationalsupportteam@linkgroup.co.uk.
Please note that the Receiving Agent cannot provide any financial,
legal or tax advice and calls may be recorded and monitored for
security and training purposes. Additional Forms of Acceptance are available
from the Receiving Agent upon request.
(i)
To accept the Offer in respect of
all your Hummingbird Shares in certificated form - you must
insert in Box 1 the total number of Hummingbird Shares in respect
of which you wish to accept the Offer and sign Box 2A or 2B, as
applicable, of the enclosed Form of Acceptance. In the case of
joint holders, all joint holders must sign Box 2A.
In all cases, if you are an individual, you must sign Box 2A on the
Form of Acceptance in the presence of a witness who should also
sign in accordance with the instructions printed on it. Any
Hummingbird Shareholder which is a company should execute Box 2B on
the Form of Acceptance in accordance with the instructions printed
on it. If you do not insert a number in Box 1 of the Form of
Acceptance, or if you insert in Box 1 a number which is greater
than the number of Hummingbird Shares that you hold and you have
signed in Box 2A or Box 2B, your acceptance will be deemed to be in
respect of all the certificated Hummingbird Shares held by
you.
(ii)
To accept the Offer in respect of
less than all your Hummingbird Shares in certificated form -
you must insert in Box 1 on the enclosed Form of Acceptance such
lesser number of Hummingbird Shares in respect of which you wish to
accept the Offer in accordance with the instructions printed
thereon. You should then follow the procedure set out in paragraph
(i) above in respect of such lesser number of Hummingbird
Shares.
(B)
Return of the Form of Acceptance
To accept the Offer in respect of Hummingbird
Shares held in certificated form, the completed, signed and (if
applicable) witnessed Form of Acceptance should be returned by post
to the Receiving Agent, Link Group, Corporate Actions, at Central
Square, 29 Wellington Street, Leeds LS1 4DL together (subject to
paragraph 15.1(C) below) with the
relevant share certificate(s) and/or other document(s) of title, as
soon as possible and, in any event, so as to be received not later
than 1.00 p.m. on the Closing Date. A reply-paid envelope for use
in the United Kingdom only is enclosed for your convenience. It is
recommended to allow four Business Days for delivery. No
acknowledgement of receipt of documents will be given.
Any Form of Acceptance received electronically
in respect of Hummingbird Shares held in certificated form will be
rejected as an invalid acceptance of the Offer.
Any Form of Acceptance received in an envelope
post-marked in a Restricted Jurisdiction or otherwise appearing to
Nioko or its agents to have been sent from any of these
jurisdictions may be rejected as an invalid acceptance of the
Offer. The attention of Hummingbird Shareholders holding
Hummingbird Shares and who are citizens or residents of
jurisdictions outside the United Kingdom is drawn to
paragraph 7 of Part C of Part 3 (Further terms of the Offer and
Acceptances) of this document.
(C)
Share certificates not readily available or lost
If your Hummingbird Shares are in certificated
form, a completed, signed and witnessed Form of Acceptance should
be accompanied by the relevant share certificate(s) and/or other
document(s) of title. If for any reason the relevant share
certificate(s) and/or other document(s) of title is/are not readily
available or is/are lost, you should nevertheless complete, sign
and lodge the Form of Acceptance as stated above so as to be
received by the Receiving Agent by post to Link Group, Corporate
Actions, at Central Square, 29 Wellington Street, Leeds LS1 4DL,
not later than 1.00 p.m. on the Closing Date. You should send with
the Form of Acceptance any share certificate(s) and/or other
document(s) of title which you may have available, accompanied by a
letter stating that the remaining documents will follow as soon as
possible or that you have lost one or more of your share
certificate(s) and/or other document(s) of title. You should then
arrange for the relevant share certificate(s) and/or other
document(s) of title to be forwarded as soon as possible thereafter
but in any event so as to arrive by no later than 1.00 p.m. on the
Closing Date. It is recommended to allow four Business Days for
delivery.
If you have lost your share certificate(s)
and/or other document(s) of title, and you hold 1,000,000 or fewer Hummingbird
Shares, please tick Box 1A at the time of submission of the
Form of Acceptance, by accepting the Offer and signing Box 2A or 2B
on the Form of Acceptance you confirm your agreement to the
Declaration and Undertaking for Lost Share Certificate(s) shown in
Note 6 on page 1 of the Form of Acceptance. You do not need to
provide a separate letter of indemnity for the lost share
certificate(s) and/or other document(s) of title.
If you have lost your share certificate(s)
and/or other document(s) of title and hold more than 1,000,000 Hummingbird
Shares at the time of submission of the Form of Acceptance,
you should separately write as soon as possible to the Receiving
Agent, Link Group Corporate Actions, at Central Square, 29
Wellington Street, Leeds LS1 4DL, requesting a letter of indemnity
for the lost share certificate(s) and/or other document(s) of
title. When completed in accordance with the instructions given,
you should return the letter of indemnity by post to the Receiving
Agent, Link Group, Corporate Actions, at Central Square, 29
Wellington Street, Leeds LS1 4DL, so as to arrive by no later than
1.00 p.m. on the Closing Date. It is recommended to allow four
Business Days for delivery.
If, following
the submission of a Form of Acceptance and prior to the Closing
Date, you acquire further Hummingbird Shares which bring your total
holding of Hummingbird Shares in certificated form to more than
1,000,000, but you have not provided a letter of indemnity relating
to your lost share certificate(s) and/or other document(s) of
title, your Form of Acceptance may be rejected.
(D)
Validity of Acceptances
Without prejudice to Part B and Part C of Part 3 (Further terms of the Offer and
Acceptances) of this document, subject to the provisions of
the Takeover Code, Nioko reserves the right to treat as valid in
whole or in part any acceptance of the Offer which is not entirely
in order or which is not accompanied by the relevant share
certificate(s) and/or other document(s) of title. In that event,
subject to the provisions of the Takeover Code, no payment of the
Cash Consideration under the Offer will be made until after the
relevant share certificate(s) and/or other document(s) of title or
indemnities reasonably satisfactory to Nioko have been
received.
15.2 Hummingbird
Shares held in uncertificated form (that is, in CREST)
(A)
General
If your Hummingbird Shares are in
uncertificated form, to accept the Offer you should take (or
procure the taking of) the action set out below to transfer the
Hummingbird Shares in respect of which you wish to accept the Offer
to the appropriate escrow balance(s), specifying the Receiving
Agent (in its capacity as a CREST participant under the Receiving
Agent's participant ID referred to below) as the escrow agent, as
soon as possible and in any event
so that the TTE instruction settles not later than 1.00 p.m. on the
Closing Date. Note that settlement cannot take place on weekends or
public holidays (or other times at which the CREST system is
non-operational). You should therefore ensure you time the input of
any TTE instructions accordingly.
The input and settlement of a TTE instruction
in accordance with this paragraph 15.2(A)
will (subject to satisfying the requirements set out
in Part B and
Part C of Part 3
(Further terms of the Offer and
Acceptances) of this document) constitute an acceptance of
the Offer in respect of the number of Hummingbird Shares so
transferred to escrow.
If you are a
CREST sponsored member, you should refer to your CREST sponsor
before taking any action. Only your CREST sponsor will be able to
send the TTE instruction(s) to Euroclear in relation to your
Hummingbird Shares.
After settlement of a TTE instruction, you will
not be able to access the Hummingbird Shares concerned in CREST for
any transaction or charging purposes. The Receiving Agent will
transfer the Hummingbird Shares concerned in accordance with
paragraph (d) of Part C of Part 3 (Further terms of the Offer and
Acceptances) of this document.
You are recommended to refer to the CREST
Manual for further information on the CREST procedure outlined
below.
You should
note that Euroclear does not make available special procedures, in
CREST, for any particular corporate action. Normal system timings
and limitations will therefore apply in connection with a TTE
instruction and its settlement. You should therefore ensure that
all necessary action is taken by you (or by your CREST sponsor) to
enable a TTE instruction relating to your Hummingbird Shares to
settle prior to 1.00 p.m. on the Closing Date. In this connection,
you are referred in particular to those sections of the CREST
Manual concerning the practical limitations of the CREST system and
timings.
The latest
time for receipt of an Electronic Acceptance through CREST will be
1.00 p.m. (London time) on the Closing Date. The latest time and
date by which the Offer can be accepted will be 1.00 p.m. (London
time) on the Closing Date. A separate announcement will be made in
due course confirming the timetable and the relevant deadline for
accepting the Offer, including on CREST. The Offer will remain open for
acceptances until Nioko confirms the Closing Date, with
shareholders receiving at least 14 days' notice prior to the
specified date (which cannot be less than 21 days after the posting
of this Offer Document).
Such notice will be given to Hummingbird Shareholders via an
announcement through a Regulatory Information Service and will
advise of the final settlement date, with such announcement being
made available on Hummingbird's website at
www.hummingbirdresources.co.uk.
(B)
To accept the Offer
To accept the Offer in respect of Hummingbird
Shares held in uncertificated form, you should send (or, if you are
a CREST sponsored member, procure that your CREST sponsor sends) to
Euroclear a TTE instruction in relation to such shares. A TTE
instruction to Euroclear must be properly authenticated in
accordance with Euroclear's specifications for transfers to escrow
and must contain the following details (being an Electronic
Acceptance):
(i)
the number of Hummingbird Shares
in respect of which you wish to accept the
Offer (i.e. the number of Hummingbird Shares to be
transferred to escrow);
(ii) your
member account ID;
(iii)
your participant ID;
(iv)
the participant ID of the escrow agent, Link Group, in its capacity
as a CREST receiving agent, being
RA10;
(v)
the member account ID(s) of the escrow agent, Link Group, in its
capacity as a CREST receiving agent, being NIOHUM01;
(vi)
the ISIN of the relevant Hummingbird Shares (this is
"GB00B60BWY28");
(vii) the
intended settlement date. This should be as soon as possible and,
in any event, not later than 1.00 p.m. on the Closing
Date;
(viii) the
corporate action number for the transaction; this is allocated by
Euroclear and can be found by viewing the relevant corporate action
details on screen in CREST;
(ix)
CREST standard delivery instructions priority of 80; and
(x) a
contact name and telephone number (inserted in the shared note
field).
(C)
Validity of Acceptances
Holders of Hummingbird Shares in uncertificated
form who wish to accept the Offer should note that a TTE
instruction will only be a valid acceptance of that Offer as at the
relevant closing date if it has settled at or before 1.00 p.m. on
that date. A Form of Acceptance which is received in respect of
Hummingbird Shares held in uncertificated form may be treated as an
invalid acceptance and may be disregarded.
Without prejudice to Part B and Part C of Part 3 (Further terms of the Offer and
Acceptances) of this document, subject to the provisions of
the Takeover Code, Nioko reserves the right to treat as valid in
whole or in part any acceptance of the Offer which is not entirely
in order or which is not accompanied by the relevant TTE
instruction. In that event, subject to the provisions of the
Takeover Code, no payment of the Cash Consideration under the Offer
will be made until after the relevant TTE instruction reasonably
satisfactory to Nioko has been received.
Nioko will make an appropriate announcement if
any of the details contained in this paragraph
15.2 alter for any reason.
(D)
Overseas Shareholders
The attention of Hummingbird Shareholders
holding Hummingbird Shares in uncertificated form and who are
citizens or residents of jurisdictions outside the United Kingdom
is drawn to paragraph 7 of
Part C, paragraph
(b) of Part C of Part 3 (Further terms of the Offer and
Acceptances) and Part B
of Part 4 (Additional
Information) of this document.
(E)
General
Normal CREST procedures (including timings)
apply in relation to any Hummingbird Shares that are, or are to be,
converted from uncertificated to certificated form, or from
certificated to uncertificated form, during the course of the Offer
(whether any such conversion arises as a result of a transfer of
Hummingbird Shares or otherwise). Holders of Hummingbird Shares who
are proposing so to convert any such shares are recommended to
ensure that the conversion procedures are implemented in sufficient
time to enable the person holding or acquiring the shares as a
result of the conversion to take all necessary steps in connection
with an acceptance of the Offer (in particular, as regards delivery
of share certificate(s) and/or other document(s) of title or
transfers to an escrow balance as described above) prior to 1.00
p.m. on the Closing Date.
16.
SETTLEMENT
Settlement of the consideration to which any
Hummingbird Shareholder is entitled under the Offer will be
effected (other than in respect of Hummingbird Shares acquired
pursuant to the Hummingbird Share Plans, in respect of which
settlement with the relevant Hummingbird Shareholders will be
effected through payroll or such other method as may be determined
by Hummingbird or Nioko) within 14 days of the later of (i) 3
February (if they have validly accepted before such date) and (ii)
the date of receipt of an acceptance complete in all respects after
such date.
Payment of the Cash
Consideration
16.1 Where
Hummingbird Shares are held in uncertificated form (that is, in
CREST)
Where a valid acceptance relates to Hummingbird
Shares in uncertificated form, the payment of Cash Consideration to
which the accepting Hummingbird Shareholder is entitled shall be
effected through CREST by Nioko instructing (or procuring the
instruction of) Euroclear to create a CREST assured payment
obligation in accordance with the CREST assured payment
arrangements in favour of the appropriate CREST account through
which the relevant Hummingbird Shareholder holds such
uncertificated Hummingbird Shares in respect of the Cash
Consideration due to that Hummingbird Shareholder.
The instruction by (or on behalf of) Nioko to
create an assured payment arrangement shall be a complete discharge
of Nioko's obligations under the Offer with reference to payments
through CREST.
The CREST payment obligations set out above will
be created: (i) in the case of valid acceptances received, complete
in all respects, by 3 February 2025, within 14 days of such date;
and (ii) in the case of acceptances received, complete in all
respects, after such date but while the Offer remains open for
acceptance, within 14 days of such receipt, and each applicable
holding of Hummingbird Shares credited to any stock account in
CREST in respect of which Cash Consideration has been paid will be
disabled and all applicable Hummingbird Shares in respect of which
Cash Consideration has been paid will be removed from CREST in due
course thereafter.
Nioko reserves the right to pay Cash
Consideration to all or any relevant CREST shareholders by cheque
if for any reason it wishes to do so.
16.2 Where
Hummingbird Shares are held in certificated form
Where a valid acceptance relates to
Hummingbird Shares in certificated form, settlement of the Cash
Consideration shall be despatched by cheque or by such other method
as may be approved by the Panel. Your attention is drawn in
particular to paragraphs 15.1(C) and 15.1(D) above which set out the
steps to be taken if your Form of Acceptance is not accompanied by
the relevant share certificate(s) and/or other document(s) of title
and the consequences thereof.
Subject to the above, all deliveries of cheques
required to be made pursuant to the Offer shall be effected by
posting them, (i) in the case of valid acceptances received,
complete in all respects, by 3 February 2025, within 14 days of
such date; and (ii) in the case of acceptances received, complete
in all respects, after such date but while the Offer remains open
for acceptance, within 14 days of such receipt, by first class post
or by such other method as may be approved by the Panel, addressed
to the persons entitled to them at their respective addresses as
appearing in the Register at the Closing Date (or, in the case of
joint holders, at the address of that one of the joint holders
whose name stands first in the Register in respect of such joint
holding at such time) and neither Hummingbird nor Nioko (nor any of
their respective nominees or agents) shall be responsible for any
loss or delay in the transmission of cheques sent in this
way.
All Cash Consideration due to Hummingbird
Shareholders shall be paid in sterling and, in the case of a
cheque, drawn on a UK clearing bank.
All cheques shall be made
payable to the Hummingbird Shareholder(s) (except that, in the case
of joint holders, Nioko reserves the right to make cheques payable
to the joint holder whose name stands first in the Register in
respect of such joint holding at the Closing Date) and the
encashment of any such cheque shall be a complete discharge by
Nioko for the obligation to pay the monies represented
thereby.
Payment terms
Cheques will not be mailed to any Hummingbird
Shareholder who holds their Hummingbird Shares in certificated form
where Hummingbird and/or the Receiving Agent has identified a
verification issue with the information provided for that
Hummingbird Shareholder or any underlying beneficial holders, where
the information is required for the purpose of payment of the
relevant consideration to the Hummingbird Shareholder, which needs
to be addressed before payment of the relevant consideration to
such Hummingbird Shareholder can be made. In these circumstances,
the Receiving Agent will, hold the relevant consideration for such
Hummingbird Shareholders and engage with each of them to verify
their identity and payment details before payment of such
consideration is made to them.
In addition, and without prejudice to the
foregoing, no electronic payment shall be made to any Hummingbird
Shareholder where Hummingbird and/or the Receiving Agent has been
unable to validate the electronic payment details to the
satisfaction of Hummingbird and/or the Receiving Agent. The
Receiving Agent shall also have the power to withhold any
consideration payable to any Hummingbird Shareholder where either
Hummingbird and/or the Receiving Agent believes that there is a
verification issue with the information provided for that
Hummingbird Shareholder or any underlying beneficial holders, where
the information is required for the purpose of payment of the
relevant consideration to the Hummingbird Shareholder.
16.3
General
All documents and remittances sent to
Hummingbird Shareholders will be sent at the risk of the person(s)
entitled thereto.
Except with the consent of the Panel, settlement
of the consideration to which any accepting Hummingbird Shareholder
is entitled under the Offer will be implemented in full in
accordance with the terms of the Offer free of any lien, right of
set-off, counterclaim or other analogous right to which any person
may otherwise be, or claim to be, entitled against such Hummingbird
Shareholder, and will be effected in the manner described in this
document.
17.
OVERSEAS SHAREHOLDERS
Overseas Shareholders should refer to
Part B of Part 4 (Additional Information) of this
document which contains important information relevant to such
Overseas Shareholders.
The implications of the Offer for Overseas
Shareholders may be affected by the laws of their relevant
jurisdictions. Overseas Shareholders should inform themselves about
and observe any applicable legal requirements. It is the
responsibility of each Overseas Shareholder to satisfy themselves
as to the full observance of the laws of the relevant jurisdiction
in connection with the Offer, including the obtaining of any
governmental, exchange control or other consents which may be
required, or the compliance with other necessary formalities which
are required to be observed and the payment of any issue, transfer
or other taxes due in such jurisdiction. If you remain in doubt,
you should consult your professional adviser in the relevant
jurisdiction without delay.
This document does not constitute an offer to
sell or issue or the solicitation of an offer to buy or subscribe
for shares in any jurisdiction in which such offer or solicitation
is unlawful.
This document and the accompanying Form of
Acceptance have been prepared for the purposes of complying with
English law, the applicable requirements of the Companies Act, the
Takeover Code, the Panel, the FCA and the London Stock Exchange and
applicable securities law and the information disclosed may not be
the same as that which would have been disclosed if this document
had been prepared in accordance with the laws of any other
jurisdiction.
18.
UNITED KINGDOM
TAXATION
A summary of relevant UK taxation, which is
intended as a general guide only, is set out in Part C of Part 4
(Additional Information)
of this document. If you are in any doubt as to your tax position,
or you are subject to taxation in a jurisdiction other than the
United Kingdom, you are strongly advised to consult an appropriate
independent professional adviser.
19.
FURTHER INFORMATION
The terms and conditions of the Offer are set
out in Part C (Further terms of the Offer and
Acceptances) of this document. Your attention is drawn in
particular to the letter from the Chair of Hummingbird set out in
Part 2 (Letter from the
Chairman of Hummingbird) of this document, and the further
information contained in this document and, if your Hummingbird
Shares held in certificated form, to the accompanying Form of
Acceptance which should be read in conjunction with this
document.
20.
ACTION TO BE TAKEN
To accept the
Offer:
(a)
If your Hummingbird Shares are in
uncertificated form (that is, in CREST), you should NOT return the
Form of Acceptance but instead ensure that an Electronic Acceptance
is made by you or on your behalf and that settlement is no later
than 1.00 p.m. on the Closing Date.
(b)
If your Hummingbird Shares are in
certificated form, the Form of Acceptance must be completed, signed
and returned as soon as possible (together with your share
certificate(s) and/or other document(s) of title), and in any event
so as to be received by the Receiving Agent to Link Group,
Corporate Actions, at Central Square, 29 Wellington Street, Leeds
LS1 4DL, United Kingdom no later than 1.00 p.m. on the Closing
Date.
The Offer will remain open for acceptances
until Nioko confirms the Closing Date, with shareholders receiving
at least 14 days' notice prior to the specified date (which cannot
be less than 21 days after the posting of this Offer
Document). Such notice
will be given to Hummingbird Shareholders via an announcement
through a Regulatory Information Service and will advise of the
final settlement date, with such announcement being made available
on Hummingbird's website at www.hummingbirdresources.co.uk.
If you have any questions relating to
acceptance of the Offer, please contact the Shareholder Helpline
operated by Link Group on Tel: 0371 664 0321 from the UK and +44
371 664 0321 from overseas. Calls are charged at the standard
geographic rate and will vary by provider. Calls outside the United
Kingdom will be charged at the applicable international rate. Lines
are open between 09:00 and 17:30, Monday to Friday excluding public
holidays in England and Wales, or by email at operationalsupportteam@linkgroup.co.uk. Please note that
Link Group cannot provide any financial, legal or tax advice and
calls may be recorded and monitored for security and training
purposes.
Yours faithfully
Nioko Resources Corporation
PART 2
LETTER FROM THE CHAIR OF HUMMINGBIRD RESOURCES PLC
Directors:
Registered Office:
Dan Betts (Executive
Chairman)
Geoff Eyre (Interim Chief
Executive Officer)
Thomas Hill (Finance
Director)
Stephen Betts (Non-Executive
Director)
David Straker-Smith
(Non-Executive Director)
Attie Roux
(Non-Executive Director)
Ernie
Nutter (Non-Executive Director)
Oumar Toguyeni (Non-
Executive Director)
|
49-63 Spencer Street
Hockley
Birmingham
West Midlands
B18 6DE
|
Incorporated in England and Wales with registration number
05467327
13
January 2025
To the
holders of Hummingbird Shares and, for information only, to holders
of awards and/or options under the Hummingbird
Share Plans and
persons with information rights
Dear Hummingbird
Shareholder,
Unconditional Recommended
Cash Offer for Hummingbird Resources plc ("Hummingbird" or the
"Company") by Nioko Resources Corporation
("Nioko")
1.
INTRODUCTION
On 16 December 2024, the board of directors of
each of Nioko and Hummingbird announced in the Rule 2.7
Announcement that they had reached agreement on the terms of a
recommended cash offer pursuant to which Nioko would acquire the
entire issued and to be issued share capital of Hummingbird not
already owned, or agreed to be acquired, by Nioko. The Offer is to
be effected by means of a takeover offer for the purposes of Part
28 of the Companies Act.
I am writing
to you today, on behalf of the Hummingbird Directors to set out the
background to the Offer, the reasons why the Independent
Hummingbird Directors unanimously consider the terms of the Offer
to be fair and reasonable, and why the Independent Hummingbird
Directors are unanimously recommending that Hummingbird
Shareholders accept or procure the acceptance of the Offer (as the
Hummingbird Directors who hold Hummingbird Shares have irrevocably
undertaken to do in respect of their own beneficial holdings, as
set out in paragraph 6 of this letter
below).
The formal Offer, together with details of the
procedure for acceptance, is contained in the letter from Nioko,
which is set out in Part 1 (Letter
from Nioko) of this document.
2.
THE OFFER
Nioko is offering to acquire,
subject to the further terms set out in Part C (Further terms of the Offer
and
Acceptances) of this document and, in
respect of Hummingbird Shares held in certificated form, the
accompanying Form of Acceptance, all Hummingbird Shares on the
following basis:
for each Hummingbird Share:
2.6777 pence in cash (the Offer Price)
Accordingly, the Offer values Hummingbird's
existing issued and to be issued Ordinary Share capital (not
already owned, or agreed to be acquired, by Nioko) at up to
approximately £13,434,987.
Other
terms
As detailed in the Rule 2.7 Announcement, the
Offer was to be subject to the satisfaction of a number of
conditions including, among other things, the passing of the Rule 9
Waiver Resolution, the Regulatory Approvals, no Insolvency Event
occurring in respect of the Hummingbird Group and no
cancellation/loss of any Core Mining Licence (each condition as
defined in the Rule 2.7 Announcement) (the Original Conditions). The Rule 9 Waiver
condition has now been satisfied following the passing of the Rule
9 Waiver Resolution at the Hummingbird's general meeting on 23
December 2024, as announced by Hummingbird on 23 December
2024.
On 2 January
2025, Nioko informed Hummingbird that it wished to waive the other
outstanding conditions under the Debt-to-Equity Conversion.
As such, the Debt-to-Equity Conversion has now
completed with the admission of the
Ordinary Shares to Nioko under the Stage 2 Conversion (as defined
below) occurring on 7 January. As a result, Nioko now holds 1,202,312,639
Ordinary Shares, representing approximately
71.8 per cent. of Hummingbird's existing issued share
capital. Nioko is making the required
applications in respect of the Regulatory Approvals
(as defined in the announcement by Hummingbird on
5 December 2024) relating to the change of
control of Hummingbird. Whilst the formal responses to such
applications remain outstanding, Nioko believes that the best
interests of Hummingbird's stakeholders would be served by
proceeding with the Offer of control in order the stabilise the
Hummingbird Group's operations, accelerate the process of securing
additional external financing and work towards putting the
Hummingbird Group on a sustainable footing. This approach
will also enable the Hummingbird Group to extend its existing debt
facilities and secure the additional funding required, in order to
alleviate the Hummingbird Group's immediate financial pressures as
it moves to restructure its operations.
Nioko have indicated that they will
continue to engage with the relevant regulatory authorities in the
jurisdictions where the Hummingbird Group's assets are located in
order to secure the formal approvals and to take those assets to
the next stage of their development. Hummingbird also continues in
negotiations with the Malian Government in respect of the
application of the 2023 Mining Code, which are expected to result
in additional near-term payment obligations. Hummingbird
Shareholders should be aware that the outcome of the discussions
with regulatory authorities in respect of the change of control are
uncertain and could result in an adverse costs or impact in respect
of the mining and exploration licences.
Given the waiver of the Original Conditions,
this Offer is unconditional from the outset and acceptances under
the Offer will be final and binding with no rights of withdrawal
save as otherwise agreed in writing between Nioko and any
particular Hummingbird Shareholder or as otherwise permitted by
Nioko (either generally or for any particular Hummingbird
Shareholder). There is no acceptance condition in respect of the
Offer. The Offer will remain open for acceptances until Nioko
confirms the Closing Date, with shareholders receiving at least 14
days' notice prior to the specified date (which cannot be less than
21 days after the posting of this Offer Document). Such notice will be given to
Hummingbird Shareholders via an announcement through a Regulatory
Information Service and will advise of the final settlement date,
with such announcement being made available on Hummingbird's
website at www.hummingbirdresources.co.uk.
The Offer will be open for acceptance until 1.00 p.m. (London time)
on the Closing Date.
If, on or after the date of this Offer, any
dividend, distribution and/or other return of capital or value, is
announced, declared, made or paid in respect of the Hummingbird
Shares, Nioko reserves the right to reduce the consideration
payable under the terms of the Offer for the Hummingbird Shares by
the aggregate amount of such dividend and/or distribution and/or
other return of capital or value, in which case any reference in
this document to the consideration payable under the terms of the
Offer will be deemed to be a reference to the consideration as so
reduced. Any such exercise by Nioko of its rights shall be the
subject of an announcement and, for the avoidance of doubt, shall
not be regarded as constituting any revision or variation of the
terms of the Offer or the Offer. In such circumstances, Hummingbird
Shareholders would be entitled to retain any such dividend,
distribution and/or other return of capital or value.
Hummingbird Shares will be acquired by Nioko
pursuant to the Offer fully paid and free from all liens, charges,
encumbrances and other third party rights of any nature whatsoever
and together with all rights attaching to them as at completion of
the Offer, including the right to receive and retain all dividends
and distributions (if any) declared, made or paid following the
Offer closing.
3.
INDEPENDENT HUMMINGBIRD DIRECTORS' VIEWS ON THE TERMS OF THE
OFFER AND NIOKO'S INTENTIONS FOR HUMMINGBIRD
The Independent
Directors, who have been so advised by Stifel and
Strand Hanson as to the financial terms of the Offer,
consider the terms of the Offer to be fair and reasonable as the
Offer represents an
opportunity for Hummingbird Shareholders to realise some cash sum
for their holding now, which may not otherwise be
available.
Your attention is also drawn to the statement
of Nioko's intentions for the Hummingbird Group on completion of
the Offer as set out in paragraph 4 of
Part 1 (Letter from Nioko) of this
document. The Independent
Directors have considered the CIG Parties'
intentions in respect of the ongoing strategy and operation
of Hummingbird, including the
potential proposed changes to employment and locations of
registered and trading office locations that may be necessary to
make. In addition, the Independent Directors
consider the terms of the Offer to be in the best interests
of Hummingbird Shareholders as
a whole.
Mr. Oumar Toguyeni and Mr. Geoff Eyre, who are
Hummingbird Directors, are not considered to be independent for the
purposes of the Offer by virtue of their relationships with
Nioko. Mr. Toguyeni, a non-executive director, has been
appointed to the Hummingbird Board as a representative of
Nioko. Mr. Geoff Eyre, an executive director, was appointed
to the Board as Interim CEO on 6 November 2024, at the request of
Nioko and with the agreement of the Hummingbird Board, to
drive a transformation plan focused on improving operational
performance. The non-independent Hummingbird Directors support
the Offer and its terms but have not participated in the
consideration of the Offer by the Independent Hummingbird Directors
or the decision to recommend the Offer as set out
above.
4.
BACKGROUND TO AND REASONS FOR THE RECOMMENDATION
As set out in the Previous
Announcements, Hummingbird faces continued challenges around
operational performance at Yanfolila, equipment availability,
working capital constraints and further delays in the ramp up of
operations at Kouroussa, which have placed significant strain on
Hummingbird's balance sheet and its ability to meet near-term debt
repayment obligations. An independent
technical, operational and financial review has confirmed the
urgent need for new equity funding to address this critical
financial shortfall. This funding is required to meet payments due
to creditors, to replenish essential spare parts, and to invest in
engineering and drilling to mitigate risks to mine plan forecasts,
as well as covering overheads until the business can demonstrate
sustainable profitability.
Hummingbird will need to work with
its creditors to restructure some US$140 million in debt. There are
ongoing risks to the business including those arising from grade
reconciliation issues at Kouroussa supplier availability, and the
political and operating environment in Mali, as well as specific
risks to delivering Yanfolila's underground plan which currently
relies on further definition drilling which is currently
unfunded.
Despite the provision of
approximately US$35.6 million by Coris Bank under the
terms of a new loan agreement refinancing part of the current Coris
debt with SMK which was repayable on 31 December 2024 and is now
repayable on 31 December 2025, Hummingbird will be unable to
continue trading as a going concern without further external
funding being provided. The Offer represents an opportunity for
Hummingbird Shareholders to realise some cash sum for their holding
now, which may not otherwise be available, should the Company go
into an administration process.
Independent
Hummingbird Directors' Conclusion and
Recommendation
The Independent
Directors, who have been so advised by Stifel and
Strand Hanson as to the financial terms of the Offer,
consider the terms of the Offer to be fair and reasonable as the
Offer represents an
opportunity for Hummingbird Shareholders to realise some cash sum
for their holding now, which may not otherwise be available.
Your attention is also drawn to the statement of Nioko's
intentions for the Hummingbird Group on completion of the
Offer as set out in paragraph
6 of Part 1
(Letter from Nioko) of
this document. The Independent
Hummingbird Directors have considered the
CIG Parties' intentions in respect of the ongoing strategy and
operation of Hummingbird, including
the potential proposed changes to employment and locations of
registered and trading office locations that may be necessary to
make. In addition, the Independent Hummingbird
Directors consider the terms of the Offer to be in the best interests of Hummingbird
Shareholders as a whole and is recommending
unanimously the Offer to Hummingbird
Shareholders.
5.
HUMMINGBIRD CURRENT TRADING AND PROSPECTS
Hummingbird currently operates two
gold mines: the Yanfolila Gold Mine in Mali and the Kouroussa Gold
Mine in Guinea. Through Q4-2024 Hummingbird produced a total of
28,441 oz of gold from both mines, resulting in full-year
production of 97,539 oz, subject to final assays and
reconciliations, below its revised production guidance of
100,000-115,000 oz. All-In Sustaining Cost (AISC) is expected to be provided at a
later date once consolidated, however Hummingbird expect this to be
at or above the $2,100/oz revised guidance, due to operational and
cost challenges.
At the Yanfolila Mine in Mali, Q4-2024
production amounted to 10,648 oz, with FY-2024 production reaching
53,703 oz. Yanfolila has experienced challenges due to declining
grades and aging infrastructure. Investments in fleet replacement,
exploration, and extending the mine's life are required to improve
operational performance.
At the Kouroussa Mine in Guinea, Q4-2024
production was 17,794 oz, with full-year production of 43,835 oz.
Kouroussa achieved commercial production in November 2024, but
operational performance has been affected by lower-than-expected
mill feed grades and other challenges. Efforts are ongoing to
address mining practices, processing performance, and
infrastructure to optimise the mine's output.
Additionally, Hummingbird
also owns a 50.8 per cent. stake in Pasofino Gold Limited
(TSXV: VEIN), a Canadian-listed entity developing the Dugbe Gold
Project in Liberia. A completed feasibility study for Dugbe
outlines reserves of 2.76 million oz and attractive economic
metrics at a gold price of US$1,750 per ounce. These include a
3.5-year capital payback period once in production and a 14-year
mine life with a low AISC profile. Pasofino has reported
significant progress in its strategic review, as detailed in press
releases dated 26 August 2024 and 14 November 2024, which may
result in the sale of all or part of the company to a third party.
Pasofino is currently in active discussions with several interested
parties, with two having submitted non-binding expressions of
interest to acquire the company.
In 2022, the Malian Government initiated an
audit of the country's mining sector, focusing on existing mining
conventions. A new Mining Code (the 2023 Mining Code) was
introduced in August 2023, followed by the issuance of the
Implementation Decree in July 2024, which outlined key economic
parameters. A commission (the Commission), comprising of Malian
Government advisors and representatives, was also established to
negotiate certain aspects of existing mining agreements and to
clarify the application of the 2023 Mining Code to both existing
and new mining projects. Since late 2023, Hummingbird and its
Malian subsidiary, Société des Mines De Komana SA (SMK), have been engaging in
constructive discussions with the Commission to address outstanding
audit findings and clarify the application of the 2023 Mining Code
to the Yanfolila Gold Mine. These discussions are progressing,
and Hummingbird expects to finalise an
agreement in due course, which is highly likely to lead to
near-term payment obligations.
As announced by Hummingbird on 31 December
2024, Hummingbird have agreed a new loan agreement with the CIG
Parties which refinanced part of the current Coris debt with SMK
for the amount of approximately US$35.6 million with a new
repayment date of 31 December 2025.
Moreover, and as previously announced, despite
achieving commercial production at Kouroussa, the Group as a whole
is not projected to generate sufficient near-term cash flows to
alleviate its ongoing liquidity pressures. These challenges are
compounded by the current loss-making operations at Yanfolila, and
upcoming payments related to ongoing negotiations with the
Government of Mali. The Hummingbird Group, as of 30 November 2024,
had in excess of US$153.6 million of trade and other creditors that
are overdue for payment and which have been carefully managed in
negotiation with suppliers and service providers.
To address these financial pressures
outlined above, as announced on 31 December 2024, the CIG Parties
agreed to extend existing debt arrangements with the Hummingbird
Group until 31 December 2025 to enable Hummingbird to continue trading as a
going concern.
Nioko has informed
Hummingbird that, following completion of the
Offer, it will seek to procure the Cancellation of the admission to
trading of Hummingbird's Ordinary Shares
on AIM as it believes that Hummingbird's
financial and operational situation could be stabilised more easily
as a private company. Nioko have also indicated that they will
explore securing additional debt and equity funding for Hummingbird
to put it on a more sustainable long-term footing.
Save as disclosed in this document or the
Previous Announcements, or as announced by
Hummingbird since 24 September 2024 when it
announced its six-month results to 30 June 2024, there has been no
significant change in the financial or trading position of the
Group since 30 June 2024, being the date to which the unaudited
interim financial information for the Group was prepared. There are
no current public ratings or outlooks accorded to
Hummingbird by ratings agencies.
Financial information relating to the
Hummingbird Group is set out in paragraph 6 of Part 1 (Letter
from Nioko) and Part 4
(Additional
Information) of this
document.
6.
IRREVOCABLE UNDERTAKINGS
Hummingbird has received irrevocable
undertakings from each of Stephen Betts, Dan Betts, Tom Hill and
Ernie Nutter to accept the Offer in respect of their own beneficial
holdings amounting to, in aggregate, 15,377,902
Ordinary Shares, representing approximately
0.92 per cent. of the existing issued
ordinary share capital of Hummingbird. The irrevocable undertakings
include undertakings to:
(a)
accept the Offer;
(b)
not to sell, transfer, charge, grant any option or other right over
or otherwise dispose of or deal (directly or indirectly and whether
beneficially, legally or otherwise) in the relevant Ordinary Shares
or any interest in all or any of them or permit any dealing, nor
enter into any agreement or arrangement (whether conditional or
not) to deal, nor accept (or permit to be accepted) any offer in
respect of all or any of such Ordinary Shares, save with consent of
Hummingbird;
(c)
continue to have full power and authority to enter into and perform
the irrevocable undertaking in accordance with its
terms;
(d)
if required by Hummingbird, return a duly executed Form of Proxy in
respect of the relevant Ordinary Shares (if certificated), or in
the case of uncertificated shares, to take any action that may be
required by Hummingbird to make a valid proxy appointment and give
valid CREST proxy instructions; and
(e)
execute all such documents, acts and things as may be necessary and
desirable to be executed in connection with their obligations under
the irrevocable undertaking.
Further details of these irrevocable
undertakings are set out in paragraph 4
of Part A of Part 4 (Additional Information) of this
document.
7.
CANCELLATION OF TRADING OF HUMMINGBIRD SHARES AND COMPULSORY
OFFER
Your attention is drawn to paragraph
14 of the letter from Nioko in Part 1 (Letter
from Nioko) of this document in relation to Nioko's
intentions with regard to the delisting of, and Cancellation of
trading in, Hummingbird Shares from the London Stock Exchange, and
the possible compulsory Offer of Hummingbird Shares by
Nioko. Following the proposed Cancellation,
Hummingbird Shares would no longer remain tradeable on AIM and
liquidity in, and marketability of, the Ordinary Shares will be
more limited and holdings of Ordinary Shares could be difficult to
value and to trade.
8.
HUMMINGBIRD BOARD CHANGES
Your attention is drawn to the information in
this document, and in particular Nioko's intention for the
employees and management of Hummingbird as set out in
paragraph 4 of the letter from Nioko in
Part 1 (Letter from Nioko) of this
document.
9.
UNITED KINGDOM TAXATION
A summary of relevant UK taxation, which is
intended as a general guide only, is set out in Part C of Part 4
(Additional Information)
of this document. If you are in any doubt as to your tax position,
or you are subject to taxation in any jurisdiction other than the
United Kingdom, you are strongly advised to consult an appropriate
independent professional adviser.
10.
ACTION TO BE TAKEN
Your attention is drawn to the information in
this document, and in particular the letter from Nioko in
Part 1 (Letter from Nioko) of this document,
and the accompanying Form of Acceptance. The procedure for
acceptance of the Offer is set out in paragraph 20 of Part 1 (Letter from Nioko) of this document
and, if you hold your shares in certificated form, in the Form of
Acceptance.
Your decision as to whether to accept the Offer
will depend upon your individual circumstances. If you are in any
doubt as to the action you should take, you should seek your own
independent financial advice.
If you wish to accept the Offer in respect of
Hummingbird Shares held in uncertificated form (that is, shares
held in CREST) your acceptance should be made electronically
through CREST by following the procedure set out in paragraph 15.2
of Part 1 (Letter from Nioko) of this document,
so that the TTE instruction settles as soon as possible and, in any
event, no later than 1.00 p.m. (London time) on the Closing
Date.
If you wish to accept the Offer in respect of
Hummingbird Shares held in certificated form, you should complete,
sign and return the Form of Acceptance in accordance with the
instructions printed on it and set out in paragraph 15.1 of
Part 1 (Letter from Nioko) of this document,
together with any appropriate document(s) of title, so as to be
received by post to the Receiving Agent, Link Group, Corporate
Actions, at Central Square, 29 Wellington Street, Leeds LS1 4DL as
soon as possible and in any event so as to be received by no later
than 1.00 p.m. (London time) on the Closing Date. A reply-paid
envelope for use in the United Kingdom only is enclosed for your
convenience. It is recommended to allow four Business Days for
delivery.
11.
OVERSEAS SHAREHOLDERS
The attention of Overseas Shareholders is drawn
to paragraph 17 of Part 1 (Letter
from Nioko),
paragraph 6 of Part A of Part 3 (Further
terms of the Offer and Acceptances)
and Part B of
Part 4 (Additional
Information) of this document, and to the relevant
provisions of the Form of Acceptance, which they should read before
taking any action.
12.
FURTHER INFORMATION
Please note that the information contained in
this letter is not a substitute for reading the remainder of this
document.
The attention of Hummingbird Shareholders is
drawn to the letter from Nioko set out in Part 1 (Letter
from Nioko) of this document. Your attention is also drawn
to the further information contained in this document and, in
particular, to the further terms in Part 3
(Further terms of the Offer
and Acceptances), the information on Nioko and the
Hummingbird Group in Part 4 (Additional Information) (including the
information on United Kingdom taxation in
Part C of Part 4
(Additional
Information)) of this document.
13.
RECOMMENDATION
The
Independent Hummingbird Directors, who have been so
advised by Stifel and Strand Hanson as to the financial terms of
the Offer, consider the terms of the Offer to be fair and
reasonable and that the Offer represents an opportunity for
Hummingbird Shareholders to realise some cash sum for their holding
now, which may not otherwise be available. In reaching this
conclusion, the Independent Hummingbird Directors acknowledge and
accept the potential proposed changes to employment and locations
of registered and trading office locations that may be necessary to
make. In addition, the Independent Hummingbird Directors consider
the terms of the Offer to be in the best interests of Hummingbird
Shareholders as a whole and accordingly unanimously recommend that
Hummingbird Shareholders accept or procure acceptance of the Offer.
Stifel and Strand Hanson are providing independent financial advice
to the Hummingbird Directors for the purposes of Rule 3 of the
Takeover Code.
For the
reasons set out above, the Independent Hummingbird Directors
recommend unanimously that Hummingbird Shareholders accept or
procure acceptance of the Offer, as the Hummingbird Directors who
hold Hummingbird Shares have irrevocably undertaken to do so in
respect of their own beneficial holdings totalling in aggregate
15,377,902 Hummingbird Shares, representing approximately
0.92 per cent. of the issued share capital
of Hummingbird as at the Latest Practicable Date.
Yours faithfully
Dan Betts
Executive
Chairman
PART 3
FURTHER TERMS OF THE OFFER AND ACCEPTANCES
Part A
FURTHER TERMS OF THE OFFER
The following further terms apply to the Offer,
unless the contrary is expressed or the context requires
otherwise.
Unless the context requires otherwise, any
reference in this Part A to
Part 3 (Further terms of the
Offer and Acceptances) and in the Form of
Acceptance:
(a)
to "acceptances of the
Offer" includes deemed acceptances of the Offer;
(b)
to "acting in concert with
Nioko" means any such person acting or deemed to be acting
in concert with Nioko for the purposes of the Takeover Code and the
Offer;
(c)
to "as may be required by the
Takeover Code" includes as may be required by the
Panel;
(d)
to the "Offer" includes any
revision, variation, renewal or extension of the Offer and includes
any election available in connection with the Offer; and
(e)
to a "material official
authorisation or regulatory clearance" shall be to that term
as referred to in the Takeover Code.
1.
Offer timetable and acceptance
period
(a)
The Offer will be open for acceptance until 1.00 p.m. (London time)
on the Closing Date. The Offer is unconditional from the outset and
acceptances under the Offer are final and binding with no rights of
withdrawal save as otherwise agreed in writing between Nioko and
any particular Hummingbird Shareholder or as otherwise permitted by
Nioko (either generally or for any particular Hummingbird
Shareholder). The Offer will remain open for
acceptances until Nioko confirms the Closing Date, with
shareholders receiving at least 14 days' notice prior to the
specified date (which cannot be less than 21 days after the posting
of this Offer Document).
Such notice will be given to Hummingbird Shareholders via an
announcement through a Regulatory Information Service and will
advise of the final settlement date, with such announcement being
made available on Hummingbird's website at www.hummingbirdresources.co.uk.
The Offer will be open for acceptance until 1.00 p.m. (London
time) on the Closing Date.
(b)
If a competitive situation (as determined by the Panel) arises or
further develops after Nioko has made a "no increase" statement (as
referred to in the Takeover Code), in relation to the Offer, Nioko
may, if it specifically reserved the right to do so at the time
such statement was made (or otherwise with the consent of the
Panel) choose not to be bound by the terms of and set aside that
statement, and revise the Offer, provided that Nioko complies with
the requirements of the Takeover Code and, in particular, it
announces that the statement is set aside and that it is free to
revise the Offer as soon as possible (and in any event within four
Business Days of the firm announcement of the competing offer or
other competitive situation).
(c)
If, as a result of a Takeover Code matter remaining outstanding on
the Closing Date, Nioko may, with the consent of the Panel, extend
the latest time at which the Offer may close pending the final
determination of that outstanding Takeover Code matter.
(d)
The Offer will remain open for acceptance for not less than 21 days
from the date of this document. Nioko will give not less than 14
days' notice to those Hummingbird Shareholders who have not
accepted the Offer (and to persons with information rights) of the
Closing Date.
2.
Announcements
(a)
Except with the Panel's consent, Nioko shall, during the Offer
Period, make an announcement by 8.00 a.m. on the Business Day
following any amendment to the Closing Date (or such other time(s)
or date(s) as the Panel may require or consent to).
(b)
In this Part A
(Further terms of the
Offer and
Acceptances), references to the making of an announcement or
the giving of notice by or on behalf of Nioko include the release
of an announcement to the press and/or the transmission by whatever
means of an announcement to a Regulatory Information
Service.
(c)
Unless otherwise consented to by the Panel: (i) an announcement
made otherwise than to a Regulatory Information Service shall be
notified simultaneously to a Regulatory Information Service; and
(ii) an announcement which is published at a time when the relevant
Regulatory Information Service is not open for business shall be
distributed to not less than two newswire services operating in the
United Kingdom and submitted for publication as soon as the
relevant Regulatory Information Service re-opens.
(d) A
copy of any announcement made by Nioko in accordance with this
paragraph 2 of this Part A will be available, subject to certain
restrictions relating to persons outside the United Kingdom, for
inspection on Hummingbird's website at www.hummingbirdresources.co.uk
promptly after the making of such announcement and in any
event by no later than 12.00 p.m. (London time) on the
Business Day following the announcement.
(e)
Without limiting the manner in which Nioko may
choose to make any public statement and subject to Nioko's
obligations under applicable law and regulation and paragraph
2(d) of this
Part A, Nioko will have no obligation
to publish, advertise or otherwise communicate any such public
announcement other than by making a release to a Regulatory
Information Service.
3.
Rights of withdrawal
As the Offer is unconditional from the outset,
acceptances under the Offer are final and binding with no rights of
withdrawal save as otherwise agreed in writing between Nioko and
any particular Hummingbird Shareholder or as otherwise permitted by
Nioko (either generally or for any particular Hummingbird
Shareholder).
4.
Revisions of the Offer
(a)
Although no revision of the Offer is envisaged, if the Offer (in
its original or any previously revised form(s)) is revised (either
in its terms and conditions or in the value or nature of the
consideration offered or otherwise) and such revision represents on
the date on which it is announced an improvement or no diminution
in the value of the revised Offer compared with the consideration
or terms previously offered or in the overall value received and/or
retained by an Hummingbird Shareholder (under the Offer or
otherwise) the benefit of the revised Offer will, subject to
paragraphs 4(c),
4(d) and 7, of
this Part A, be made
available to any Hummingbird Shareholder who has accepted the Offer
in its original or any previously revised form(s) (Previous Acceptor). The acceptance of
the Offer by or on behalf of a Previous Acceptor in its original or
any previously revised form(s) shall, subject as provided in
paragraphs 4(c), 4(d)
and 7 of this Part A, be treated as an acceptance of the
Offer as so revised and shall also constitute the irrevocable and
separate appointment of Nioko, the Receiving Agent, Hannam &
Partners and SCP Resource and each of their directors as such
Previous Acceptor's attorney and/or agent with
authority:
(i)
to accept any such revised Offer on behalf
of such Previous Acceptor;
(ii) if such
revised Offer includes alternative forms of consideration, to make
on behalf of such Previous Acceptor such elections for and/or
accept such alternative forms of consideration in the proportions
such attorney and/or agent in their absolute discretion thinks fit;
and
(iii)
to execute on behalf of and in the name of such
Previous Acceptor all such further documents (if any) and to do all
such further things (if any) as may be required to give effect to
such acceptances and/or elections.
In making any such election and/or acceptance,
such attorney and/or agent shall be able to take into account the
nature of any previous acceptances made by or on behalf of the
Previous Acceptor and such other facts or matters as the attorney
and/or agent may reasonably consider relevant. The attorney and/or
agent shall not be liable to any Hummingbird Shareholder or any
other person in making such election and/or acceptance or in making
any determination in respect thereof.
(b)
Subject to paragraphs 4(c)
and 4(d) of this
Part A, the
powers of attorney and authorities conferred by this
paragraph 4 of this Part A, and
any acceptance of a revised Offer and/or any election pursuant
thereto shall be irrevocable.
(c)
The deemed acceptance referred to in
paragraph 4(a) of this
Part A shall not apply, and the
authorities conferred by that paragraph shall not be exercised, to
the extent that a Previous Acceptor:
(i) in
respect of Hummingbird Shares in certificated form, lodges with the
Receiving Agent Link Group, Corporate Actions, at Central Square,
29 Wellington Street, Leeds LS1 4DL, within 14 days of the posting
of the document containing the revised offer, a Form of Acceptance
(or other form validly issued by or on behalf of Nioko) in which
the Previous Acceptor validly elects to receive the consideration
receivable by them under such revised Offer in some other manner
than that set out in their original or any previous acceptance;
or
(ii) in
respect of Hummingbird Shares in uncertificated form, sends (or, if
a CREST sponsored member, procures that their CREST sponsor sends)
an ESA instruction to settle in CREST in relation to each
Electronic Acceptance in respect of which an election is to be
varied. Each ESA instruction must, in order for it to be valid and
settle, include the following details:
·
the number of Hummingbird Shares in respect of which the
changed election is made, together with their ISIN number (this is
" GB00B60BWY28");
·
the member account ID of the Previous Acceptor, together with
their participant ID;
·
the member account ID(s) of the escrow agent, Link Group, in
its capacity as a CREST receiving agent, being NIOHUM01;
·
the Receiving Agent's participant ID, being RA10;
·
the CREST transaction ID of the Electronic Acceptance in
respect of which the election is to be changed to be inserted at
the beginning of the shared note field;
·
the intended settlement date for the changed
election;
·
the corporate action number for the Offer allocated by
Euroclear which can be found by viewing the relevant corporate
action details in CREST,
and, in order that the desired change of
election can be effected, must include:
·
the member account ID of the
Receiving Agent relevant to the new election; and
·
input with a standard delivery instruction
priority of 80.
Any such change of election will be conditional
upon the Receiving Agent verifying that the request is validly
made. Accordingly the Receiving Agent will on behalf of Nioko
reject or accept the requested change of election by transmitting
in CREST a Receiving Agent reject (AEAD) or Receiving Agent accept
(AEAN) message as appropriate.
(d)
The deemed acceptance referred to in paragraph
4(a) of this Part A shall not apply, and the authorities
conferred by that paragraph shall not be exercised if, as a result
thereof, the Previous Acceptor would thereby receive and/or retain
(as appropriate) less in aggregate in consideration under the
revised Offer than they would have received and/or retained (as
appropriate) in aggregate as a result of acceptance of the Offer in
the form in which it was previously accepted by them or on their
behalf (unless the Previous Acceptor has previously agreed in
writing to receive and/or retain (as appropriate) less in aggregate
consideration). The authorities conferred by
paragraph 4(a) of this
Part A shall not be exercised in
respect of any election available under the revised Offer save in
accordance with this
paragraph 4(d).
(e)
Nioko and the Receiving Agent reserve the right to treat an
executed Form of Acceptance, Electronic Acceptance or TTE
instruction (in respect of the Offer in its original or any
previously revised form(s)) which is received (or dated) on or
after the announcement of any revised Offer as a valid acceptance
of the revised Offer and/or, where applicable, a valid election for
or acceptance of any of the alternative forms of consideration made
available pursuant thereto. Such acceptances shall constitute an
authority in the terms of paragraph 4(a)
of this Part A,
mutatis mutandis, on
behalf of the relevant Hummingbird Shareholder.
(f) Nioko may
(with the consent of the Panel) extend or revise the Offer provided
it complies with the requirements of the Takeover Code.
5.
Acceptances and
purchases
(a)
It is intended that the Offer will be implemented by way of a
takeover offer for the purposes of Chapter 3 of Part 28 of the
Companies Act. However, Nioko reserves the right to elect, with the
consent of the Panel and the consent of Hummingbird, to implement
the Offer by way of a Court-sanctioned Scheme in accordance with
Part 26 of the Companies Act. If the Offer is implemented by way of
a Scheme, such Scheme will be implemented on the same terms, so far
as applicable, as those that would apply to the Offer, subject to
appropriate amendments to reflect the change in method of effecting
the Offer, including (without limitation and subject to the consent
of the Panel) such amendments as may be required by law or
regulation. In particular: the Closing Date may cease to apply (and
Nioko may, in accordance with the Takeover Code, specify a new
closing date by which the Scheme must become effective and specific
dates by which the Meetings and the Sanction Hearing must be held);
and instead the Scheme would become effective and binding
following:
(i) its
approval by a majority in number representing 75 per cent. or more
in value of the relevant Hummingbird Shareholders (or the relevant
class or classes thereof, if applicable) present and voting, either
in person or by proxy, at the Court Meeting and at any separate
class meeting which may be required by the Court or at any
adjournment of any such meeting;
(ii) the
Resolutions necessary to approve and implement the Scheme being
duly passed by the requisite majority or majorities at the General
Meeting or at any adjournment of that meeting; and
(iii)
the sanction of the Scheme by the Court with or without
modification (but subject to any such modification being acceptable
to Nioko) and the delivery of a copy of the Scheme Court Order to
the Registrar of Companies.
(b)
In addition, if the Offer is implemented by way of a Scheme, the
Scheme will be subject to the terms set out in Part A of this Part 3 (Further terms of the Offer and
Acceptances).
(c)
Hummingbird Shares will be acquired by Nioko pursuant to the Offer
fully paid and free from all liens, charges, encumbrances and other
third party rights of any nature whatsoever and together with all
rights attaching to them as at completion of the Offer, including
the right to receive and retain all dividends and distributions (if
any) declared, made or paid following the Closing Date.
(d)
If, on or after the date of this Offer, any dividend, distribution
or other return of value is declared, paid or made or becomes
payable by Hummingbird in respect of the Hummingbird Shares, Nioko
reserves the right to reduce the Cash Consideration payable under
the terms of the Offer for the Hummingbird Shares by an amount up
to the amount of such dividend, distribution or return of value. If
(but only to the extent) Nioko exercises that right to make such a
reduction in respect of a dividend, distribution or return of
value, Hummingbird Shareholders will be entitled to receive and
retain such dividend, distribution or return of value and
references in this document to the Cash Consideration payable under
the terms of the Offer will be deemed to be references to the Cash
Consideration as so reduced. If and to the extent that any such
dividend or distribution or return of value has been announced or
declared, made or paid or is payable (i) transferred pursuant to
the Offer on a basis which entitles Nioko to receive the dividend
or distribution and to retain it; or (ii) cancelled before payment,
the Cash Consideration payable under the terms of the Offer shall
not be subject to change in accordance with this paragraph (d).
Any exercise by Nioko of its rights referred to in
this paragraph (d) shall not be regarded as constituting any
revision or variation of the Offer.
(e)
Except with the consent of the Panel, settlement of the
consideration to which any accepting Hummingbird Shareholder is
entitled under the Offer will be implemented in full in accordance
with the terms of the Offer free of any lien, right of set-off,
counterclaim or other analogous right to which any person may
otherwise be, or claim to be, entitled against such Hummingbird
Shareholder, and will be effected in the manner described in this
document.
(f) The Offer
is made on 13 January 2025 and is capable of acceptance from that
date. Copies of this document, a specimen Form of Acceptance, and
any related documents are available (subject to certain
restrictions relating to persons outside the United Kingdom) for
inspection on Hummingbird's website at www.hummingbirdresources.co.uk
and from the Receiving Agent at the address set out in
paragraph 4(c)(i) of this
Part A.
(g)
In respect of Hummingbird Shares in certificated form, the terms,
provisions, instructions and authorities contained in or deemed to
be incorporated in the Form of Acceptance constitute part of the
terms of the Offer. The provisions of this Part A (Further
terms of the Offer and Acceptances) shall be deemed to be
incorporated in and form part of each Form of Acceptance. Words and
expressions defined in this document have the same meanings when
used in the Form of Acceptance, unless the context otherwise
requires.
(h)
The Offer, all acceptances of it and all elections pursuant to it,
the Form of Acceptance and Electronic Acceptances, all contracts
made pursuant to the Offer, all action taken or made or deemed to
be taken or made pursuant to any of these terms and the
relationship between an Hummingbird Shareholder and Nioko, Stifel,
Strand Hanson, Hannam & Partners and SCP Resource or the
Receiving Agent shall be governed by and interpreted in accordance
with English law.
(i)
Subject to
paragraph 5(j)
of this Part
A, the Courts of England have exclusive
jurisdiction to decide any dispute which may arise in connection
with the creation, validity, effect, interpretation or performance
of, or the legal relationships established by the Offer and the
Form of Acceptance or the Electronic Acceptance or otherwise
arising in connection with the Offer and the Form of Acceptance or
the Electronic Acceptance. The execution of a Form of Acceptance or
making of an Electronic Acceptance by or on behalf of a Hummingbird
Shareholder constitutes such Hummingbird Shareholder's
irrevocable submission to the jurisdiction of the Courts of
England.
(j) The
agreement in paragraph 5(i) of
this Part A is included for
the benefit of Nioko, Hannam & Partners, SCP Resource and the
Receiving Agent and accordingly, Nioko, Hannam & Partners, SCP
Resource and the Receiving Agent shall each retain the right to,
and may in its absolute discretion, bring proceedings in the courts
of any other country which may have jurisdiction. The execution of
a Form of Acceptance or making of an Electronic Acceptance by or on
behalf of a Hummingbird Shareholder constitutes such Hummingbird
Shareholder's irrevocable submission to the jurisdiction of the
courts of any such country.
(k)
Any omission or failure to despatch this document or (where
relevant) the Form of Acceptance or any other
document relating to the Offer or any notice required to be
despatched under the terms of the Offer to, or any failure to
receive the same by, any person to whom the Offer is made, or
should be made, shall not invalidate the Offer in any way or create
any implication that the Offer has not been made to any such
person. Subject to paragraph 6 of this Part
A, the Offer extends to any such person and
to all Hummingbird Shareholders to whom this document, (where
relevant) the Form of Acceptance and any related documents may not
be despatched and who may not receive such documents, and such
persons may (subject to certain restrictions relating to persons
outside the United Kingdom) collect copies of those documents from
the Receiving Agent at the address set out in
paragraph 4(c)(i) of
this Part A or inspect
this document on Hummingbird's website at www.hummingbirdresources.co.uk
while the Offer remains open for
acceptances.
(l) All
powers of attorney, appointments as agent and authorities on the
terms conferred by or referred to in this Part A (Further
terms of the Offer and Acceptances) or (where relevant) in
the Form of Acceptance are given by way of security for the
performance of the obligations of the Hummingbird Shareholder
concerned and are irrevocable (in respect of powers of attorney in
accordance with Section 4 of the Powers of Attorney Act
1971).
(m)
Without prejudice to any other provisions of this
Part A and subject to the requirements of
the Takeover Code, Nioko, Hannam & Partners, SCP
Resource and the Receiving Agent reserve the right
to treat acceptances of the Offer as valid (in whole or in part) if
not entirely in order or not accompanied by the relevant TTE
instruction or (as applicable) relevant share certificate(s) and/or
other document(s) of title or if received by or on behalf of any of
them at any place or places or in any manner determined by any of
them or otherwise than as set out in this document or, in respect
of Hummingbird Shares held in certificated form, in the Form of
Acceptance. In that event, subject to the provisions of the
Takeover Code, no settlement of consideration of the Offer will be
made until after the acceptance is entirely in order and (as
applicable) the relevant transfer to escrow has settled or the
relevant share certificate(s) and/or other document(s) of
title or indemnities satisfactory to Nioko have been received by
the Receiving Agent.
(n)
All communications, notices, certificates, document(s) of title and
remittances to be delivered by or sent to or from any Hummingbird
Shareholders will be delivered by or sent to or from them (or their
designated agents) at their risk. No acknowledgement of receipt of
any Form of Acceptance, transfer by means of CREST, communication,
notice, share certificate(s) and/or other document(s) of title will
be given by or on behalf of Nioko.
(o)
If Nioko receives acceptances under the Offer in respect of, and/or
otherwise acquires, 90 per cent. or more in value of the
Hummingbird Shares to which the Offer relates and 90 per cent. or
more of the voting rights carried by those shares, Nioko intends to
exercise its rights in accordance with Chapter 3 of Part 28 of the
Companies Act to acquire compulsorily the remaining Hummingbird
Shares on the same terms as the Offer.
(p)
If Nioko receives acceptances under the Offer in respect of, and/or
otherwise acquires, 75 per cent. or more of the voting rights
carried by the Hummingbird Shares (including, for the
avoidance of doubt, those Ordinary Shares already held by
Nioko) or the appropriate special resolutions are
otherwise passed, and subject to any applicable requirements of the
London Stock Exchange, it is intended that Nioko will procure that
Hummingbird makes applications to cancel the listing of Hummingbird
Shares and cancel trading in Hummingbird Shares on AIM and to
re-register Hummingbird as a private limited company. A notice
period of not less than 20 business days (in accordance with the
AIM Rules) before the Cancellation will commence on the date on
which Nioko has announced that it has acquired or agreed to acquire
75 per cent. of the voting rights attaching to the Hummingbird
Shares (including, for the avoidance of doubt, those
Ordinary Shares already held by Nioko).
(q)
Any reference in this Part A
(Further terms of the Offer
and Acceptances) to any law or regulation of any
jurisdiction includes: (i) any subordinate legislation or
regulation made under it; (ii) any law or regulation which it has
amended, supplemented or replaced; and (iii) any law or regulation
amending, supplementing or replacing it (whether before or after
the date of this document).
(r) In
relation to any acceptance of the Offer in respect of a holding of
Hummingbird Shares which are in uncertificated form, Nioko reserves
the right to make such alterations, additions or modifications to
the terms of the Offer as may be necessary or desirable to give
effect to any purported acceptance of the Offer, whether in order
to comply with the facilities or requirements of CREST or
otherwise, provided such alterations, additions or modifications
are consistent with the requirements of the Takeover Code or are
otherwise made with the Panel's consent.
(s)
For the purposes of this document, the time of receipt of a TTE
instruction, an ESA instruction or an Electronic Acceptance shall
be the time at which the relevant instruction settles in
CREST.
(t) Neither
Nioko, nor any person acting on behalf of Nioko, shall have any
liability to any person for any loss or alleged loss arising from
any decision as to the treatment of acceptances of the Offer or
otherwise in connection therewith.
(u)
The Offer is subject to applicable requirements of the FCA, the
London Stock Exchange, the AIM Rules and the Takeover Code. In the
event of any conflict or inconsistency between the terms and
Conditions of the Offer and the Takeover Code, the provisions of
the Takeover Code shall prevail, and Nioko reserves the right to
(and shall if required by the Panel) make such alterations,
additions or modifications to the terms and Conditions of the Offer
so that any such conflict or inconsistency is removed.
(v)
Any question as to the validity (including time of receipt) of any
acceptance of the Offer and any question as to, or the acceptance
of, any words or markings on a Form of Acceptance will be
determined by Nioko, whose determination (save as the Panel
otherwise determines) will be final and binding. None of Nioko,
Hannam & Partners, SCP Resource, the Receiving Agent or any
other person will be under any duty to give notification of any
defect or irregularity in any purported acceptance of the Offer or
will incur any liability for failure to do so or for any
determination under this paragraph 5(v)
of this Part A.
6.
Overseas Shareholders
(a)
The making and availability of the Offer outside the United Kingdom
and/or to Overseas Shareholders (or to nominees, custodians or
trustees of such persons) may be prohibited or affected by the laws
of the relevant jurisdictions. Such Overseas Shareholders should
inform themselves about and observe any applicable legal
requirements. No person receiving a copy of this document and/or a
Form of Acceptance in any jurisdiction other than the United
Kingdom may treat the same as constituting an invitation or offer
to them, nor should they in any event use such Form of Acceptance
if, in the relevant jurisdiction, such invitation
or offer cannot lawfully be made to them or such Form of Acceptance
cannot lawfully be used without contravention of any relevant or
other legal requirements. In such circumstances, this document
and/or the Form of Acceptance are sent for information only. It is
the responsibility of such Overseas Shareholder receiving a copy of
this document and/or the Form of Acceptance and wishing to accept
the Offer to satisfy themselves as to the full observance of the
laws and regulatory requirements of the relevant jurisdiction in
connection with the Offer, including obtaining any governmental,
exchange control or other consents which may be required, or
compliance with other necessary formalities needing to be observed
and payment of any issue, transfer or other taxes or duties due in
such jurisdiction. Any such Overseas Shareholder will be
responsible for any such issue, transfer or other taxes or other
payments by whomsoever payable and Nioko, Hannam &
Partners and SCP Resource (and any person
acting on behalf of either of them) shall be fully indemnified and
held harmless by such Overseas Shareholder for any such issue,
transfer or other taxes or duties as Nioko or Hannam &
Partners and SCP Resource (and any person
acting on behalf of either of them) may be required to
pay.
If you are an
Overseas Shareholder and you are in doubt about your position, you
should consult your independent professional adviser in the
relevant jurisdiction.
(b)
In particular, unless otherwise determined by Nioko or required by
the Takeover Code, and permitted by applicable law and regulation,
the Offer will not be made available, directly or indirectly, in,
into or from a Restricted Jurisdiction where to do so would violate
the laws in that jurisdiction and the Offer may not be made
directly or indirectly, in or into, or by the use of any means
(including, but not limited to, facsimile, e-mail or other
electronic transmission, telex or telephone) of interstate or
foreign commerce of, or of any facility of a national, state or
other securities exchange of any Restricted Jurisdiction and the
Offer may not be capable of acceptance by any such use or means.
Accordingly, copies of this document and any formal documentation
relating to the Offer are not being, and must not be, directly or
indirectly, mailed or otherwise forwarded, distributed or sent in
or into or from any Restricted Jurisdiction.
Persons receiving such documents (including
without limitation, custodians, trustees and nominees) must not
mail or otherwise forward, distribute or send them, directly or
indirectly, in, into or from any Restricted Jurisdiction or use
Restricted Jurisdiction mails or any such means for any purpose,
directly or indirectly, in connection with the Offer. Doing so may
invalidate any purported acceptance of the Offer. Persons wishing
to accept the Offer must not use such mails or any such means,
directly or indirectly, for any purpose, directly or indirectly,
related to acceptance of the Offer.
Envelopes containing a Form of Acceptance,
evidence of title or any other document relating to the Offer
should not be postmarked in a Restricted Jurisdiction or otherwise
despatched from a Restricted Jurisdiction and all accepting
Hummingbird Shareholders must provide addresses outside a
Restricted Jurisdiction for the remittance of consideration or for
the return of the Form of Acceptance, share certificates and/or
other document(s) of title.
(c) A
Hummingbird Shareholder may be deemed not to have validly accepted
the Offer if:
(i) such
Hummingbird Shareholder puts "NO" in Box 5 of the Form of
Acceptance and thereby does not give the representations and
warranties set out in paragraph (b)
of Part C of this Part 3
(Further terms of the Offer and
Acceptances), having inserted in or having completed Box 4
of the Form of Acceptance with a registered address in a Restricted
Jurisdiction, such Hummingbird Shareholder does not insert in Box 4
of the Form of Acceptance the name and address of a person or agent
outside a Restricted Jurisdiction to whom such Hummingbird
Shareholder wishes the consideration to which they are entitled
under the Offer and/or any documents to be sent;
(ii) such
Hummingbird Shareholder inserts in Box 4 of the Form of Acceptance
the name and address of a person or agent in a Restricted
Jurisdiction to whom such Hummingbird Shareholder wishes the
consideration to which they are entitled under the Offer and/or any
documents to be sent;
(iii)
in any case, the Form of Acceptance is received in an envelope
postmarked in, or which otherwise appears to Nioko or its agent to
have been sent from, a Restricted Jurisdiction;
(iv)
such Hummingbird Shareholder inserts in the Form of Acceptance a
telephone number in a Restricted Jurisdiction; or
(v)
such Hummingbird Shareholder makes a Restricted Escrow Transfer (as
defined in paragraph 6(g)(i) of
this Part A) pursuant to
paragraph 6(g) of this
Part A unless they also make a
related Restricted ESA instruction (as defined in paragraph
6(g)(ii) of this Part
A) which is accepted by the Receiving
Agent.
Nioko reserves the right, in its sole
discretion, to investigate, in relation to any acceptance, whether
the representations and warranties set out in paragraph
(b) of Part C of
this Part 3 (Further terms
of the Offer and Acceptances),) could have been truthfully
given by the relevant Hummingbird Shareholder and, if such
investigation is made and, as a result, Nioko cannot satisfy itself
that such representation and warranty was true and correct, the
acceptance shall not be valid.
(d)
If, in connection with the making of the Offer, notwithstanding the
restrictions described above, any person (including, without
limitation, custodians, nominees and trustees), whether pursuant to
a contractual or legal obligation or otherwise, forwards this
document, the Form of Acceptance or any related offering documents,
in, into or from a Restricted Jurisdiction or uses any means
(including without limitation, electronic mail, facsimile
transmission, telex, telephone, internet or other forms of
electronic communication) of interstate or foreign commerce of, or
any facility of a national securities exchange of any Restricted
Jurisdiction in connection with such forwarding, such person
should:
(i) inform
the recipient of such fact;
(ii) explain
to the recipient that such action may invalidate any purported
acceptance by the recipient; and
(iii)
draw the attention of the recipient to this paragraph
6 of this Part
A.
(e)
Any acceptance of the Offer by
Hummingbird Shareholders who are unable to give the representations
and warranties set out in paragraph (b) of Part
B of this Part 3
(Further terms of the
Offer and
Acceptances)
or (as the case may be) paragraph (b) of Part C of
this Part 3 (Further terms
of the Offer and Acceptances) is liable to be
disregarded.
(f) Nioko
reserves the right, in its absolute discretion, to treat any
acceptance as invalid if it believes that such acceptance may
violate applicable legal or regulatory requirements.
(g)
If an Hummingbird Shareholder holding Hummingbird Shares in
uncertificated form cannot give the representations and warranties
set out in paragraph (b) of
Part C of this Part 3 (Further terms of the Offer and
Acceptances), but nevertheless can provide evidence
satisfactory to Nioko that they can accept the Offer in compliance
with all relevant legal and regulatory requirements, such
Hummingbird Shareholder may only purport to accept the Offer by
sending (or if a CREST sponsored member, procuring that their CREST
sponsor sends) both:
(i) a TTE
instruction to a designated escrow balance detailed below (a
"Restricted Escrow
Transfer"); and
(ii)
one or more valid ESA instructions
(a "Restricted
ESA instruction") which specify the form of consideration
which such Hummingbird Shareholder wishes to receive (consistent
with the alternatives offered under the Offer).
Such purported acceptance will not be
treated as a valid acceptance unless both the
Restricted Escrow Transfer and the Restricted ESA
instruction(s) settle in CREST and Nioko decides, in its absolute
discretion, to exercise its right described in
paragraph 7(h) of this
Part A to waive, vary or modify the
terms of the Offer relating to Overseas Shareholders, to the extent
required to permit such acceptance to be made, in each case during
the period for which the Offer is open for acceptance. If Nioko
accordingly decides to permit such acceptance to be made, the
Receiving Agent will, on behalf of Nioko, accept the purported
acceptance as an Electronic Acceptance on the terms of this
document (as so waived, varied or modified) by transmitting in
CREST a Receiving Agent accept (AEAN) message. Otherwise, the
Receiving Agent will, on behalf of Nioko, reject the purported
acceptance by transmitting in CREST a Receiving Agent reject (AEAD)
message. Each Restricted Escrow Transfer must, in order for it to
be valid and settle, include the following details:
·
the ISIN number for the Hummingbird Shares (this is
"GB00B60BWY28");
·
the number of Hummingbird Shares in uncertificated form in
respect of which you wish to accept the Offer (i.e. the number of
Hummingbird Shares to be transferred to escrow);
·
the member account ID and participant ID of the accepting
Hummingbird Shareholder;
·
the participant ID of the Receiving Agent specific to a
Restricted Escrow Transfer, being RA10;
·
the member account ID of the Receiving Agent for the Offer,
being RESTRICT;
·
the intended settlement date. This should be as soon as
possible and, in any event, not later than 1.00 p.m. (London time)
on the Closing Date;
·
the corporate action reference of the Offer. This is
allocated by Euroclear and will be available on screen from
Euroclear;
·
input with a standard delivery instruction priority of
80; and
·
a contact name and telephone number in the shared note
field.
Each Restricted ESA instruction must, in order
for it to be valid and settle, include the following
details:
·
the ISIN number for the Hummingbird Shares (this is
"GB00B60BWY28");
·
the number of Hummingbird Shares relevant to that Restricted
ESA instruction;
·
the member account ID and participant ID of the accepting
Hummingbird Shareholder;
·
the member account ID and participant ID of the Receiving
Agent set out in the Restricted Escrow Transfer;
·
the participant ID (being RA10) and the member account ID
(being RESTRICT) of the Receiving Agent relevant to the form of
consideration required;
·
the CREST transaction ID of the Restricted Escrow Transfer to
which the Restricted ESA instruction relates to be inserted at the
beginning of the shared note field;
·
the intended settlement date. This should be as soon as
possible and in any event not later than 1.00 p.m. (London time) on
the Closing Date;
·
the corporate action reference of the Offer. This is
allocated by Euroclear and will be available on screen from
Euroclear;
·
input with a standard delivery instruction priority of
80; and
·
the contact name and telephone number inserted in the shared
note field.
(h)
These provisions and any other terms of the Offer relating to
Overseas Shareholders may be waived, varied or modified as regards
specific Hummingbird Shareholders or on a general basis by Nioko in
its absolute discretion. Subject thereto, the provisions of this
paragraph 6 of this Part A supersede any terms of the Offer
inconsistent with them. References in this paragraph
6 of this Part A
to an Hummingbird Shareholder include references to the
person or persons executing a Form of Acceptance and, if more than
one person executes the Form of Acceptance, the provisions of this
paragraph 6 of this Part A shall apply to them jointly and
severally.
(i) Nioko
reserves the right to notify any matter, including the making of
the Offer, to all or any Hummingbird Shareholders:
(i) with a
registered address outside the United Kingdom; or
(ii) whom
Nioko knows to be a custodian, trustee or nominee holding
Hummingbird Shares for persons who are citizens, residents or
nationals of jurisdictions outside the United Kingdom,
by announcement in the United Kingdom through a
Regulatory Information Service or in any other appropriate manner
or by notice in the London Gazette or paid advertisement in one or
more newspapers published and circulated in the United Kingdom.
Such notice shall be deemed to have been sufficiently given,
despite any failure by any such Hummingbird Shareholder to receive
or see that notice.
(j) A
reference in this document to a notice or the provision of
information in writing by or on behalf of Nioko is to be construed
accordingly. No such document shall be sent to an address in a
Restricted Jurisdiction.
Part B
FORM OF ACCEPTANCE
This Part B applies only to Hummingbird Shares held in
certificated form. If you hold all of your Hummingbird Shares in
uncertificated form, you should ignore this Part B
and instead read
Part C of
this PART 3 (Further
terms of the Offer and Acceptances).
For the purposes of Part
B of this PART 3 (Further terms of the Offer and
Acceptances) and the Form of Acceptance, the phrase
"Hummingbird Shares in
certificated form comprised in the acceptance" shall mean
the number of Hummingbird Shares inserted in Box 1 of the Form of
Acceptance or, if no number is inserted (or a number greater than
the relevant Hummingbird Shareholder's holding of Hummingbird
Shares), the greater of:
·
the relevant Hummingbird Shareholder's entire holding of
Hummingbird Shares in certificated form as disclosed by details of
the Register made available to the Receiving Agent prior to the
time the relevant Form of Acceptance is processed by
them;
·
the relevant Hummingbird Shareholder's entire holding of
Hummingbird Shares in certificated form as disclosed by details of
the Register made available to the Receiving Agent prior to the
latest time for receipt of Form(s) of Acceptance on the Closing
Date; and
·
the number of Hummingbird Shares in certificated form in
respect of which certificates or an indemnity in lieu thereof is
received.
Each Hummingbird Shareholder by whom, or on
whose behalf, a Form of Acceptance is executed and delivered to the
Receiving Agent irrevocably undertakes, represents, warrants and
agrees to and with Nioko, Hannam & Partners, SCP Resource and
the Receiving Agent (so as to bind such Hummingbird Shareholder and
such Hummingbird Shareholder's personal or legal representatives,
heirs, successors and assigns) to the following effect:
(a)
that the execution of the Form of Acceptance (whether or not any
Boxes are completed and whether or not the Form of Acceptance is
validly executed as a deed) shall constitute:
(i) an
acceptance of the Offer in respect of the number of Hummingbird
Shares in certificated form inserted or deemed to be inserted in
Box 1 of the Form of Acceptance; and
(ii) an
undertaking to execute any further documents, take any further
action and give any further assurances which may be required to
enable Nioko to obtain the full benefit of this
Part B of this Part 3 (Further terms of the Offer and
Acceptances) and/or to perfect any of the authorities
expressed to be given hereunder and otherwise in connection with
such Hummingbird Shareholder's acceptance of the Offer,
in each case on and subject to the terms and
conditions set out or referred to in this document and in the Form
of Acceptance and that each such acceptance shall be irrevocable
provided that if:
(A)
Box 1 or any other Box is not completed; or
(B)
the total number of Hummingbird Shares inserted in Box 1 is greater
than the relevant Hummingbird Shareholder's holding of Hummingbird
Shares; or
(C)
the acceptance is otherwise completed incorrectly or the number
included is illegible,
but the Form of Acceptance is signed,
it will be deemed to be an acceptance of the Offer in respect of
all of the Hummingbird Shares in certificated form comprised in the
acceptance;
(b)
unless "NO" is put in Box
5 of the Form of Acceptance, that such Hummingbird
Shareholder:
(i) has not,
directly or indirectly, received or sent copies or originals of
this document, the Form of Acceptance or any related offering
documents in, into or from a Restricted Jurisdiction;
(ii) has not,
in connection with the Offer or the execution or delivery of the
Form of Acceptance, used, directly or indirectly, any means
(including, without limitation, facsimile transmission email,
telephone, internet or otherwise) of interstate or foreign commerce
of, or any facility of a national securities exchange of any
Restricted Jurisdiction;
(iii)
is accepting the Offer from outside any Restricted Jurisdiction and
was outside such jurisdictions when the Form of Acceptance was
executed, mailed, sent or delivered;
(iv)
is not an agent or fiduciary acting on a non-discretionary basis
for a principal, unless such agent or fiduciary is an authorised
employee of such principal or such principal has given all
instructions with respect to the Offer from outside a Restricted
Jurisdiction; and
(v)
if an Overseas Shareholder, has observed the laws of the relevant
jurisdiction in connection with the Offer, obtained all requisite
governmental, exchange control and other required consents,
complied with all necessary formalities and paid any issue,
transfer or other taxes or other requisite payments due in any such
jurisdiction in connection with such acceptance and has not taken
or omitted to take any action that will or may result in Nioko,
Hannam & Partners and SCP Resource or any other person acting
on behalf of them being in breach of the legal or regulatory
requirements of, or be liable for any issue, transfer or other
taxes or duties or other payments in, any such jurisdiction in
connection with the Offer or such Hummingbird Shareholder's
acceptance thereof;
(c)
that, in relation to Hummingbird Shares in
certificated form, the execution of the Form of Acceptance and its
delivery to the Receiving Agent constitutes the irrevocable and
separate appointment of each of Nioko, Hannam &
Partners, SCP Resource and any director of, or any
person authorised by, any of them as such shareholder's attorney
and/or agent (the "attorney") and an irrevocable
instruction and authorisation to the attorney to:
(i) complete
and execute all or any form(s) of transfer and/or other document(s)
at the discretion of the attorney in relation to the Hummingbird
Shares in certificated form comprised in the acceptance in favour
of Nioko or such other person or persons as Nioko or its agent may
direct in connection with the acceptance of the Offer;
(ii) deliver
such form(s) of transfer, renunciation and/or other document(s) in
the attorney's discretion and/or the certificate(s) and/or other
document(s) of title relating to such Hummingbird Shares for
registration within six months of the Closing Date; and
(iii)
execute all such other documents and do all such other acts and
things as may, in the attorney's opinion, be necessary or expedient
for the purpose of, or in connection with, the acceptance of the
Offer and to vest in Nioko (or its nominee) the Hummingbird Shares
in certificated form comprised in the acceptance;
(d)
that, in relation to Hummingbird Shares in
certificated form, the execution of the Form of Acceptance and its
delivery to the Receiving Agent constitutes an irrevocable
authority and request, subject to the provisions of
paragraph 7 of Part A of this Part 3
(Further terms of the
Offer and
Acceptances):
(i) to
Hummingbird and/or its agents to procure the registration of the
transfer of the Hummingbird Shares in certificated form comprised
in the acceptance and the delivery of the share certificate(s)
and/or other document(s) of title, or satisfactory indemnities, in
respect of the Hummingbird Shares to Nioko or as it may direct;
and
(ii) to
Nioko, Hannam & Partners, SCP Resource and the Receiving Agent
or their respective agents to procure the despatch by post (or by
such other method as the Panel may approve) of the cheque for the
Cash Consideration to which an accepting Hummingbird Shareholder is
entitled to under the Offer, at the risk of such shareholder, to
the person or agent whose name and address is set out in Box 3 or
Box 4 of the Form of Acceptance (outside a Restricted
Jurisdiction), or if none is set out, to the first-named or sole
holder at such holder's registered address (outside a Restricted
Jurisdiction);
(e) that the
execution of the Form of Acceptance and its delivery to the
Receiving Agent constitutes the giving of a separate authority to
each of Nioko, Hannam & Partners, SCP Resource
and the Receiving Agent and any director or agent
of, or any person authorised by, any of them as their agent and/or
attorney within the terms set out in paragraph
4 of Part A of this Part 3
(Further terms of the
Offer and
Acceptances) in respect of the
Hummingbird Shares in certificated form comprised in the
acceptance;
(f)
that, unless the Panel otherwise consents, in
respect of Hummingbird Shares in relation to which the Offer has
been accepted or deemed to be accepted and pending registration in
the name of Nioko or as it may direct:
(i) Nioko and
its agent shall be authorised to direct the exercise of any votes
and any or all other rights and privileges (including the right to
requisition the convening of a general meeting of Hummingbird or of
any class of its shareholders) attaching to the Hummingbird Shares
in certificated form comprised or deemed to be comprised in such
acceptance; and
(ii) the
execution of a Form of Acceptance by a Hummingbird Shareholder
shall constitute with regard to such Hummingbird Shares in
certificated form comprised in the acceptance:
(A)
an authority to Hummingbird and its agents to send any notice,
circular, warrant, document or other communication which may be
required to be sent to such Hummingbird Shareholder as a member of
Hummingbird (including any share certificate(s) or other
document(s) of title) to Nioko at its registered office;
(B)
an irrevocable authority to Nioko and the directors of and any
other person authorised by Nioko, to sign any document and to do
such things as may, in the opinion of that agent and/or attorney,
seem necessary or desirable in connection with the exercise of any
votes or other rights or privileges attaching to the Hummingbird
Shares held by such Hummingbird Shareholder in certificated form
(including, without limitation, signing any consent to short notice
of a general or separate class meeting as such Hummingbird
Shareholder's attorney and/or agent and on such Hummingbird
Shareholder's behalf and/or to attend and/or execute a form of
proxy in respect of such Hummingbird Shares appointing any person
nominated by Nioko to attend general and separate class meetings of
Hummingbird (and any adjournments thereof) and to exercise the
votes attaching to such shares on such Hummingbird Shareholder's
behalf, where relevant; and
(C)
the agreement of such Hummingbird Shareholder not to exercise any
of such rights without the consent of Nioko and the irrevocable
undertaking of such Hummingbird Shareholder not to appoint a proxy
to attend any such general meeting or separate class meeting of
Hummingbird,
(g) that such
Hummingbird Shareholder will deliver to the Receiving Agent, or
procure the delivery to the Receiving Agent at the address referred
to in paragraph 4(c)(i) of Part A of
this Part 3 (Further terms
of the Offer and
Acceptances) of, share
certificate(s) or other document(s) of title in respect of those
Hummingbird Shares in certificated form comprised in the
acceptance, or an indemnity acceptable to Nioko in lieu thereof, as
soon as possible, and in any event so as to arrive by no later than
the latest permissible time on the Closing Date;
(h) that such
Hummingbird Shareholder is the sole legal and beneficial owner of
the Hummingbird Shares comprised or deemed to be comprised in such
acceptance or is the legal owner of such Hummingbird Shares and has
the necessary capacity and authority to execute the Form of
Acceptance;
(i) that such
Hummingbird Shareholder is irrevocably and unconditionally entitled
to sell and transfer the beneficial ownership of the Hummingbird
Shares comprised or deemed to be comprised in such acceptance and
that such shares are sold fully paid up and free from all liens,
charges, equities, encumbrances, rights of pre-emption and any
other interests of any nature whatsoever and together with all
rights now or hereafter attaching thereto, including without
limitation voting rights and the right to receive and retain in
full all dividends and other distributions (if any) announced,
declared, made or paid or any other return of value on the Closing
Date;
(j) that the
terms and conditions of the Offer contained in this document shall
be deemed to be incorporated in, and form part of, the Form of
Acceptance which shall be read and construed
accordingly;
(k) that, if such
Hummingbird Shareholder accepts the Offer, they will do all such
acts and things as shall be necessary or expedient to vest the
Hummingbird Shares in certificated form comprised in the acceptance
in Nioko or its nominee(s) or such other persons as Nioko may
decide;
(l) that such
Hummingbird Shareholder agrees to ratify each and every act or
thing which may be done or effected by Nioko, Hannam
& Partners, SCP Resource or the Receiving
Agent or any of their respective directors or agents or persons
authorised by them, as the case may be, in the exercise of any of
any such person's powers and/or authorities under this
document;
(m) that the execution of
the Form of Acceptance constitutes such Hummingbird Shareholder's
agreement to the terms of paragraphs 6(i) and 6(j) of Part A of this Part 3
(Further terms of the
Offer and
Acceptances);
(n) that the Form of
Acceptance shall be deemed to be delivered on its date of execution
and shall take effect as a deed on such date;
(o) that if any
provision of Part A
or Part B
of this Part 3 (Further terms of the Offer
and
Acceptances) shall be unenforceable
or invalid or shall not operate so as to afford Nioko,
Hannam & Partners, SCP Resource or the
Receiving Agent or any of their respective directors, agents or
persons authorised by them, the benefit or authority expressed to
be given therein, such Hummingbird Shareholder shall, with all
practicable speed, do all such acts and things and execute all such
documents as may be required to enable Nioko, Hannam &
Partners, SCP Resource and/or the Receiving Agent
and any of their respective directors, agents or persons authorised
by them to secure the full benefits of Part A or Part B of this Part 3
(Further terms of the
Offer and
Acceptances); and
(p)
that such Hummingbird Shareholder is not a
customer (as defined by the FCA Handbook) of Hannam &
Partners and SCP Resource in connection with the
Offer.
References in this
Part B to an Hummingbird Shareholder shall
include references to the person or persons executing a Form of
Acceptance, and in the event of more than one person executing a
Form of Acceptance, the provisions of this Part B shall apply
to them jointly and to each of them.
Part C
ELECTRONIC ACCEPTANCE
This Part C applies only to Hummingbird Shares held in
uncertificated form, that is in CREST. If you hold all of your
Hummingbird Shares in certificated form, you should ignore this
Part C and instead read Part B of this Part 3 (Further terms
of the Offer and Acceptances).
For the purposes of this
Part C of this Part 3 (Further terms of the Offer and
Acceptances), the phrase "Hummingbird Shares in uncertificated form
comprised in the acceptance" shall mean the number of
Hummingbird Shares which are transferred by the relevant
Hummingbird Shareholder by Electronic Acceptance to an escrow
account by means of a TTE instruction.
Each Hummingbird Shareholder by whom, or on
whose behalf, an Electronic Acceptance is made irrevocably
undertakes, represents, warrants and agrees to and with Nioko,
Hannam & Partners, SCP Resource and the Receiving Agent (so as
to bind such Hummingbird Shareholder and such Hummingbird
Shareholder's personal or legal representatives, heirs, successors
and assigns) to the following effect:
(a)
that the Electronic Acceptance shall constitute:
(i) an
acceptance of the Offer in respect of the number of Hummingbird
Shares in uncertificated form to which a TTE instruction relates;
and
(ii) an
undertaking to execute any documents, take any further action and
give any further assurances which may be required to enable Nioko
to obtain the full benefit of this Part C
of this Part 3 (Further terms of the Offer and
Acceptances) and/or to perfect any of the authorities
expressed to be given hereunder and otherwise in connection with
his acceptance of the Offer,
in each case on and subject to the terms and
conditions set out or referred to in this document and that each
such acceptance and election shall be irrevocable;
(b)
that such Hummingbird Shareholder:
(i)
has not, directly or indirectly, received or sent
copies or originals of this document, the Form of Acceptance
or any related offering documents, in, into or from a Restricted
Jurisdiction;
(ii) has not
otherwise used in connection with the Offer, directly or
indirectly, any means (including, without limitation, facsimile
transmission email, TTE instruction, telephone, internet or
otherwise) of interstate or foreign commerce of, or any facility of
a national securities exchange of any Restricted
Jurisdiction;
(iii)
is accepting the offer from outside any Restricted Jurisdiction and
was outside those jurisdictions at the time of the input and
settlement of the relevant TTE instruction(s);
(iv)
in respect of the Hummingbird Shares to which an Electronic
Acceptance relates, is not an agent or fiduciary acting on a
non-discretionary basis for a principal, unless such agent or
fiduciary is an authorised employee of such principal or such
principal has given all instructions with respect to the Offer from
outside a Restricted Jurisdiction; and
(v)
if an Overseas Shareholder, has observed the laws of the relevant
jurisdiction, obtained all requisite governmental,
exchange control and other required consents, complied with all
necessary formalities and paid any issue, transfer or other taxes
or other requisite payments due in any such jurisdiction in
connection with such acceptance and has not taken or omitted to
take any action that will or may result in Nioko, Hannam
& Partners and SCP Resource or any other
person acting on behalf of them being in breach of the legal or
regulatory requirements of any such jurisdiction in connection with
the Offer or such Hummingbird Shareholder's acceptance
thereof;
(c)
that the Electronic Acceptance constitutes the
irrevocable appointment of each of Nioko, Hannam &
Partners and SCP Resource and any director of, or
any person authorised by, any of them as such shareholder's
attorney and/or agent and an irrevocable instruction and
authorisation to the attorney to execute all such documents and do
all such acts and things as may in the attorney's opinion be
necessary or expedient for the purpose of, or in connection
with, the acceptance of the Offer and to vest in Nioko (or its
nominee) the full legal title and beneficial ownership of
Hummingbird Shares in uncertificated form comprised in the
acceptance;
(d)
that the Electronic Acceptance constitutes the
irrevocable appointment of the Receiving Agent as escrow agent for
the purposes of the Offer and an irrevocable instruction and
authorisation.
(e)
that the Electronic Acceptance constitutes an irrevocable authority and request to
Nioko, the Receiving Agent or their respective agents to procure
the making of a CREST payment obligation in favour of the
Hummingbird Shareholder's payment bank in accordance with the CREST
payment arrangements in respect of any Cash Consideration to which
such shareholder is entitled, provided that:
(i) Nioko may
(if, for reasons, outside its reasonable control, it is not able to
effect settlement through CREST) determine that all or
any part of any such Cash Consideration shall be paid by
cheque despatched by post; and
(ii)
if the Hummingbird Shareholder concerned is a CREST member whose registered address is in a
Restricted Jurisdiction, any Cash Consideration to which such
shareholder is entitled may be paid by cheque despatched by
post,
in any case at the risk of such shareholder, and
such cheque shall be despatched to the first named holder at such
holder's registered address outside a Restricted Jurisdiction or as
otherwise determined by Nioko;
(f) that the
Electronic Acceptance constitutes the giving of a separate
authority to each of Nioko, Hannam & Partners, SCP
Resource and the Receiving Agent and their
respective directors, agents and authorised persons within the
terms of paragraph 4 of Part A of this Part 3
(Further terms of the
Offer and
Acceptances) in respect of the
Hummingbird Shares in uncertificated form comprised in the
acceptance;
(g)
that, unless the Panel otherwise consents, in
respect of Hummingbird Shares in relation to which the Offer has
been accepted or deemed to be accepted and pending registration in
the name of Nioko or as it may direct:
(i)
Nioko and its agent shall be authorised to direct the
exercise of any votes and any or all other rights and privileges
(including the right to requisition the convening of a general
meeting of Hummingbird or of any class of its shareholders)
attaching to the Hummingbird Shares in uncertificated form
comprised or deemed to be comprised in the
acceptance; and
(ii)
an Electronic Acceptance by a Hummingbird
Shareholder shall constitute with regard to such Hummingbird Shares
in uncertificated form comprised in the acceptance:
(A)
an authority to Hummingbird and its agents to send any notice,
circular, warrant, document or other communication which may be
required to be sent to such Hummingbird Shareholder as a member of
Hummingbird (including any share certificate(s) or other
document(s) of title issued as a result of a conversion of such
Hummingbird Shares into certificated form) to Nioko at its
registered office;
(B)
an irrevocable authority to each of Nioko and the directors of and
any other person authorised by Nioko to sign any document and to do
such things as may, in the opinion of that agent and/or attorney,
seem necessary or desirable in connection with the exercise of any
votes or other rights or privileges attaching to the Hummingbird
Shares held by such Hummingbird Shareholder in uncertificated form
(including, without limitation, signing any consent to short notice
of a general or separate class meeting as such Hummingbird
Shareholder's attorney and/or agent and on such Hummingbird
Shareholder's behalf and/or to attend and/or execute a form of
proxy in respect of such Hummingbird Shares appointing any person
nominated by Nioko to attend general and separate class meetings of
Hummingbird (and any adjournments thereof) and to exercise the
votes attaching to such shares on such Hummingbird Shareholder's
behalf); and
(C)
the agreement of such Hummingbird Shareholder not to exercise any
of such rights without the consent of Nioko and the irrevocable
undertaking of such Hummingbird Shareholder not to appoint a proxy
to attend any such general meeting or separate class
meeting;
(h) that such
Hummingbird Shareholder is irrevocably and unconditionally entitled
to sell and transfer the beneficial ownership of the Hummingbird
Shares comprised or deemed to be comprised in such acceptance and
that such shares are sold fully paid up and free from all liens,
charges, equities, encumbrances, rights of pre-emption and any
other interests of any nature whatsoever and together with all
rights now or hereafter attaching thereto, including without
limitation voting rights and the right to receive and retain in
full all dividends and other distributions (if any) announced,
declared, made or paid or any other return of value on the Closing
Date;
(i) that such
Hummingbird Shareholder is the sole legal and beneficial owner of
the Hummingbird Shares in uncertificated form in respect of which
the Offer is accepted or deemed to be accepted or is the legal
owner of such Hummingbird Shares and has the necessary capacity and
authority to effect an Electronic Acceptance;
(j) that such
Hummingbird Shareholder will do all such acts and things as shall,
in the opinion of Nioko, be necessary or expedient to vest in Nioko
(or its nominee(s)) the Hummingbird Shares in uncertificated form
comprised or deemed to be comprised in the acceptance and to enable
the Receiving Agent to perform its function as escrow agent for the
purposes of the Offer;
(k) that such
Hummingbird Shareholder agrees to ratify each and every act or
thing which may be done or effected by Nioko, Hannam
& Partners, SCP Resource or the Receiving
Agent or any of their respective directors, agents or persons
authorised by them, as the case may be, in the exercise of any of
such person's powers and/or authorities under this
document;
(l)
that if, for any reason, any Hummingbird Shares in
respect of which a TTE instruction has been effected in accordance
with paragraph 17.2 of Part 1 (Letter from Nioko) of this document
are converted to certificated form, such Hummingbird Shareholder
will (without prejudice to paragraph (g)(ii)(A) of
this Part C) immediately deliver, or procure the immediate delivery of,
the share certificate(s) or other document(s) of title in respect
of all such Hummingbird Shares as so converted to the Receiving
Agent at the address referred to in paragraph 3(b) of
Part A of this
Part 3 (Further terms of the
Offer and
Acceptances) or to Nioko at its
registered office or as Nioko or its agents may direct; and such
Hummingbird Shareholder shall be deemed upon conversion to
undertake, represent, warrant and agree in the terms set out
in Part B of
this Part 3 (Further terms
of the Offer and
Acceptances) in relation to such
Hummingbird Shares without prejudice to the application of this
Part 3 as far as Nioko deems appropriate;
(m) that the creation of a
CREST payment obligation in favour of such Hummingbird
Shareholder's payment bank in accordance with the CREST payment
arrangements referred to in paragraph ((e)) of this Part C shall, to the extent of
the obligation so created, discharge in full any obligation of
Nioko, Hannam & Partners, SCP Resource
or the Receiving Agent to pay such Hummingbird
Shareholder the Cash Consideration to which they are entitled
pursuant to the Offer;
(n) that the making
of an Electronic Acceptance constitutes such Hummingbird
Shareholder's agreement to the terms of paragraphs
6(i) and 6(j) of Part A of this Part 3
(Further terms of the
Offer and
Acceptances);
(o) that, by virtue
of the Regulations, the making of an Electronic Acceptance
constitutes an irrevocable power of attorney by the relevant
Hummingbird Shareholder in the terms of all the powers and
authorities expressed to be given by Part
A, Part B
(where applicable by virtue of
paragraph (l) of this Part C) and this Part C
of this Part 3 (Further terms of the Offer
and
Acceptances) to Nioko, the Receiving
Agent, Hannam & Partners and SCP Resource
and any of their respective directors or
agents;
(p) that if any
provision of Part A
or this Part C
of this Part 3 (Further terms of the Offer
and
Acceptances) shall be unenforceable
or invalid or shall not operate so as to afford Nioko,
Hannam & Partners, SCP Resource or the
Receiving Agent or any of their respective directors, agents or
persons authorised by them, the benefit or authority expressed to
be given therein, such Hummingbird Shareholder shall, with all
practicable speed, do all such acts and things and execute all such
documents that may be required to enable Nioko, Hannam &
Partners, SCP Resource or the Receiving Agent or
any of their respective directors, agents or persons authorised by
them to secure the full benefits of Part A or this
Part C of this
Part 3 (Further terms of the
Offer and
Acceptances); and
(q)
that such Hummingbird Shareholder is not a
customer (as defined by the FCA Handbook) of Hannam &
Partners and SCP Resource in connection with the
Offer.
References in this Part C to an Hummingbird Shareholder shall include
references to the person or persons making an Electronic Acceptance
and, if more than one makes an Electronic Acceptance, the
provisions of this Part C shall apply
to them jointly and to each of them.
PART 4
ADDITIONAL INFORMATION
Part A
ADDITIONAL INFORMATION ON THE CIG PARTIES AND
HUMMINGBIRD
1.
RESPONSIBILITY
(a)
The Nioko Directors, whose names are set out in
paragraph 2 of this Part A
of Part 4 (Additional Information), accept
responsibility for all the information contained in this document
(including any expressions of opinion) in relation to Nioko
including, without limitation, information relating to Nioko's
future intentions for Hummingbird, except for that information for
which the Hummingbird Directors accept responsibility under
paragraph 1(b) below. To the best of the
knowledge and belief of the Nioko Directors (who have taken all
reasonable care to ensure that such is the case), the information
contained in this document (including any expressions of opinion)
for which they accept responsibility is in accordance with the
facts and does not omit anything likely to affect the import of
that information.
(b)
The Hummingbird Directors, whose names are set out in paragraph 2
of this Part A of Part 4 (Additional Information), accept
responsibility for all the information contained in this document
(including any expressions of opinion) in relation to Hummingbird,
except for that information for which the Nioko Directors accept
responsibility under paragraph 1(a)above.
To the best of the knowledge and belief of the Hummingbird
Directors (who have taken all reasonable care to ensure that such
is the case), the information contained in this document (including
any expressions of opinion) for which they accept responsibility is
in accordance with the facts and does not omit anything likely to
affect the import of that information.
2.
NIOKO DIRECTORS AND HUMMINGBIRD DIRECTORS
(a)
The Nioko Directors and their respective positions are set out
below:
Mr. Oumar
Toguyeni
Director of Nioko
Mr. Issaka
Kanazoe
Director of Nioko
Mr. Yacouba
Saré
Director of Nioko
The registered office of Nioko and the business
address of the Nioko Directors is Avenue de l'UEMOA,
2cmeetage of the building built on plot N°10 of lot 20 section 006
ZACA, 01 BP 2061 Ouagadougou 01, Burkina
Faso.
(b)
The Hummingbird Directors and their respective functions
are:
Dan Betts
Executive Chairman
Geoff Eyre
Interim Chief Executive Officer
Thomas Hill
Finance Director
Stephen Betts
Non-Executive Director
David Straker-Smith
Non-Executive Director
Attie Roux
Non-Executive Director
Ernie Nutter
Non-Executive Director
Oumar Toguyeni
Non-Executive Director
The registered office of Hummingbird, which is
also the business address of each of the Hummingbird Directors,
is 49-63 Spencer Street, Hockley, Birmingham, West Midlands,
B18 6DE.
3.
DISCLOSURE OF INTERESTS AND DEALINGS
For the purposes of this
paragraph 3:
"acting in concert"
|
has the meaning given to it in the Takeover
Code;
|
"arrangement"
|
has the meaning given to it in Note 11 to the
definition of "acting in concert" set out in the Takeover
Code;
|
"Nioko Disclosure Period"
|
means the period commencing on 6 November 2023,
being the date 12 months before the commencement of the Offer
Period, and ending on the Latest Practicable Date;
|
"close relatives"
|
has the meaning given to it in the Takeover
Code;
|
"dealing"
|
has the meaning given to it in the Takeover
Code;
|
"derivative"
|
has the meaning given to it in the Takeover
Code;
|
"Hummingbird Disclosure
Period"
|
means the period commencing on 6 November 2024,
being the date of commencement of the Offer Period, and ending on
the Latest Practicable Date;
|
"Interested Persons"
|
means, in relation to a director, other persons
(including, without limitation, bodies corporate) whose interests
that director is taken as having by virtue of the application of
Part 22 of the Companies Act and related regulations;
|
"relevant securities"
|
means: (i) the Hummingbird Shares, (ii) the
equity share capital of Nioko and (iii) securities convertible
into, rights to subscribe for, options (including traded options)
in respect of and derivatives referenced to the Hummingbird Shares
and the equity share capital of Nioko (as appropriate); and
"relevant Hummingbird
securities" and "relevant
Nioko securities" shall be construed accordingly;
and
|
"short positions"
|
means short positions, whether conditional or
absolute and whether in the money or otherwise, including any short
position under a derivative, any agreement to sell or any delivery
obligation or right to require another person to purchase or take
delivery.
|
Interests in
relevant Hummingbird securities
(a)
Further to the approvals granted at the December General
Meeting, Nioko subscribed for 130,958,159 new Ordinary Shares in
Hummingbird under the Stage 1 Conversion, which were admitted on 24
December 2024. The Debt-to-Equity Conversion completed on 7 January
2025 with Nioko subscribing for an additional 732,121,332 newly
issued Ordinary Shares in Hummingbird under the Stage 2 Conversion.
As such, as at the close of business on the Latest
Practicable Date Nioko holds 1,202,312,639 Ordinary Shares, representing
approximately 71.8 per cent. of
Hummingbird's existing issued share
capital.
(b)
As at the close of business on the Latest Practicable Date, save as
disclosed in (a) above, none of Nioko, any persons acting in
concert with Nioko, the Nioko Directors, their immediate families,
close relatives or related trusts or other Interested Persons of
the Nioko Directors have any interests in, or rights to subscribe
in, the share capital of Hummingbird, nor has any such person dealt
in any relevant Hummingbird securities during the Nioko Disclosure
Period.
(c)
Save as announced by Hummingbird in its announcement of 27 December
2024 relating to Nioko's subscription for an additional 130,958,159
Ordinary Shares of Hummingbird under the Subscription Agreement, no
person with whom Nioko or any person acting in concert with Nioko
has dealt in any relevant Hummingbird securities during the Nioko
Disclosure Period.
(d)
As at the close of business on the Latest Practicable Date, none of
Hummingbird, the Hummingbird Directors, their immediate families or
persons connected with them, or acting in concert with them have
any interests in, or rights to subscribe in, the share capital of
Nioko.
(e)
As at the close of business on the Latest Practicable Date, the
interests, rights to subscribe and short positions of the
Hummingbird Directors, their immediate families and persons
connected with them in the share capital of Hummingbird, together
with any options in respect of such share capital (all of which
holdings are beneficially held unless otherwise stated), required
to be notified to Hummingbird or which are required to be entered
into Hummingbird's Shareholder register, are as set out
below):
Director
|
Number of
Ordinary Shares
|
Percentage of
voting rights (%)
|
Dan Betts1,
|
5,239,048
|
0.31
|
Thomas Hill
|
641,574
|
0.04
|
Stephen Betts1, 2
|
2,503,500
|
0.15
|
David Straker-Smith
|
-
|
-
|
Attie Roux
|
-
|
-
|
Ernie Nutter
|
6,993,780
|
0.42
|
Geoff Eyre
|
-
|
-
|
Oumar Toguyeni
|
-
|
-
|
1 In
addition, Dan and Stephen Betts are indirectly interested in a
further 495,101 Ordinary Shares held by Stephen Betts & Sons
Limited ("SBSL") and a
self-administered pension scheme. SBSL is a private company that is
wholly owned and controlled by Dan and Stephen Betts, certain other
close family members and a family trust.
2 Includes 800,000 shares held by Caroline Betts, the wife of
Stephen Betts.
(f) As at the
close of business on the Latest Practicable Date, the Hummingbird
Directors held the following options under the Hummingbird Share
Plans:
Director
|
No of vested Options held
|
No of unvested Options held**
|
Percentage of voting rights represented by
options, assuming full exercise (%)
|
Dan Betts
|
4,370,521
|
12,580,526
|
0.99
|
Thomas Hill
|
3,003,934
|
8,133,072
|
0.65
|
Stephen Betts*
|
698,747
|
272,021
|
0.06
|
David Straker-Smith*
|
698,747
|
272,021
|
0.06
|
Attie Roux*
|
698,747
|
272,021
|
0.06
|
Ernie Nutter*
|
698,747
|
272,021
|
0.06
|
Geoff Eyre
|
N/A
|
N/A
|
N/A
|
Oumar Toguyeni
|
N/A
|
N/A
|
N/A
|
* The total
of vested and unvested Options includes 970,768 Hummingbird Shares
under the Hummingbird Deferred Share Awards as referred to
below.
** Options
which have been granted but only vest subject to certain
milestones.
(g)
In recognition of the significant experience and the high level of
personal commitment of the Hummingbird Non-Executive Directors,
each Hummingbird Non-Executive Director (other than Oumar Toguyeni)
receives an annual Hummingbird Deferred Share Award. The
aggregate value of the award in 2024 was £26,250, vesting one year
from award date. Hummingbird Shares will not be issued in respect
of these awards until the earlier of an individual ceasing to hold
office or a change of control. Each of the Non-Executive Directors
hold Hummingbird Deferred Share Awards in respect of 970,768
Hummingbird Shares. For details on arrangements proposed to be
implemented in respect of the Hummingbird Deferred Share Awards,
see paragraph 10 (Hummingbird Share Plans) of
Part 1 (Letter from Nioko) of this
document.
(h)
As at the close of business on the Latest Practicable Date and save
as disclosed at (d) above, none of (i) Hummingbird, (ii) the
Hummingbird Directors; (iii) any of the Hummingbird Directors'
immediate families or related trusts; (iv) the pension funds of
Hummingbird or its subsidiary undertakings; (v) any employee
benefit trust of Hummingbird or its subsidiary undertakings; (vi)
any connected adviser to Hummingbird or its subsidiary undertakings
or any person acting in concert with the Hummingbird Directors;
(vii) any person controlling, controlled by or under the same
control as any connected adviser falling within (vi) above (except
for an exempt principal trader or an exempt fund manager); nor
(viii) any other person acting in concert with Hummingbird; owns or
controls, has a short position, or has borrowed or lent, or is
interested in, or has any right to subscribe for, or any
arrangement concerning, directly or indirectly, any relevant
securities of Hummingbird or Nioko.
(i) Save as
announced by Hummingbird on 10 January 2024 or the terms of the
Irrevocable Undertakings referred to in paragraph 4 of this Part A
of Part 4 below, none of the
Hummingbird Directors, nor any member of their immediate families
or related trusts (so far as the Hummingbird Directors are aware
having made due enquiry), dealt in relevant securities of
Hummingbird during the 12 months prior to the Latest Practicable
Date.
(j) Neither
Hummingbird nor any of the Hummingbird Directors nor any member of
their immediate families or related trusts, owns or controls or is
interested, directly or indirectly in or has any short position in
Nioko or any securities convertible into, or exchangeable for,
rights to subscribe for and options (including traded options) in
respect of, and derivatives referenced to, any of the
foregoing.
(k)
No management incentivisation arrangements have been discussed
between members of the Hummingbird's management and
Nioko.
(l) Other
than Nioko there are no shareholders with a direct or indirect
interest or potential interest in more than 5 per cent. voting rights in
Hummingbird.
4.
IRREVOCABLE UNDERTAKINGS
(a)
Nioko has procured irrevocable undertakings from the Hummingbird
Directors who hold Hummingbird Shares to accept (or procure the
acceptance of, as applicable) the Offer. Such irrevocable
undertakings are in respect of the following relevant Hummingbird
securities:*
Name of Hummingbird
Director
|
Number of Hummingbird Shares in respect
of which undertaking is given
|
Percentage of Hummingbird issued share
capital (excluding treasury shares) in respect of which undertaking
is given as at the Latest Practicable Date (%)
|
Dan
Betts1,
|
5,239,048
|
0.31
|
Thomas Hill
|
641,574
|
0.04
|
Stephen Betts1,
2
|
2,503,500
|
0.15
|
Ernie
Nutter
|
6,993,780
|
0.42
|
Total
|
15,377,902
|
0.92
|
*These
irrevocable undertakings extend to any Hummingbird Shares acquired
by the Hummingbird Director as a result of the vesting of awards
and/or the exercise of options under any Hummingbird share
plans.
1 In
addition, Dan and Stephen Betts are indirectly interested in a
further 495,101 Ordinary Shares held by Stephen Betts & Sons
Limited (SBSL) and a self-administered pension scheme. SBSL is a
private company that is wholly owned and controlled by Dan and
Stephen Betts, certain other close family members and a family
trust.
2 Includes
800,000 shares held by Caroline Betts, the wife of Stephen
Betts.
(b) These
irrevocable undertakings concern 15,377,902 Hummingbird Shares
representing approximately 0.92
per cent. of the issued share capital of Hummingbird
(excluding treasury shares) at close of business on 10 January 2025 (being the Latest Practicable
Date).
(c)
These irrevocable undertakings include undertaking to:
(i) accept
the Offer;
(ii) not to
sell, transfer, charge, grant any option or other right over or
otherwise dispose of or deal (directly or indirectly and whether
beneficially, legally or otherwise) in the relevant Ordinary Shares
or any interest in all or any of them or permit any dealing, nor
enter into any agreement or arrangement (whether conditional or
not) to deal, nor accept (or permit to be accepted) any offer in
respect of all or any of such Ordinary Shares, save with consent of
Hummingbird;
(iii)
continue to have full power and authority to enter into and perform
the irrevocable undertaking in accordance with its
terms;
(iv)
if required by Hummingbird, return a duly executed Form of Proxy in
respect of the relevant Ordinary Shares (if certificated), or in
the case of uncertificated shares, to take any action that may be
required by Hummingbird to make a valid proxy appointment and give
valid CREST proxy instructions;
(v)
execute all such documents, acts and things as may be necessary and
desirable to be executed in connection with their obligations under
the irrevocable undertaking.
The undertakings described in this
paragraph 4 are in addition to the
irrevocable undertakings relating to the Rule 9 Waiver Resolutions
as described in the Circular.
5.
MARKET QUOTATIONS
The following table sets out the middle market
quotations for Hummingbird Shares derived from Bloomberg, for: (i)
the first Business Day in each of the six months before the date of
this document, (ii) 5 November 2024 (the last Business Day before
the commencement of the Offer Period), and (iii) the Latest
Practicable Date:
Relevant date
|
Hummingbird Share price
(£)
|
1 July 2024
|
0.0850
|
1 August
2024
|
0.0865
|
2 September
2024
|
0.0860
|
1 October
2024
|
0.0665
|
1 November
2024
|
0.0640
|
5 November
2024
|
0.0635
|
2 December
2024
|
0.0180
|
2 January
2025
|
0.0250
|
Latest Practicable
Date
|
0.0260
|
6.
SERVICE CONTRACTS AND LETTERS OF APPOINTMENT OF HUMMINGBIRD
DIRECTORS
Certain details of the Hummingbird Directors'
service contracts, letters of appointment and the terms of their
appointment with a member of the Hummingbird Group are set out
below.
(a)
Executive Chairman
Dan Betts is currently employed as Executive
Chairman of Hummingbird. His employment is governed by the terms of
a service agreement with Hummingbird dated 01 January 2023. The
notice period required to terminate his employment is 12 months'
written notice by Hummingbird or 12 months' written notice by
Dan Betts. Hummingbird reserves the right under the service
agreement, exercisable in its absolute discretion, to terminate Dan
Betts employment and make a payment in lieu of the notice required
by the agreement or any unexpired part of such notice. If Dan Betts
commits any fundamental breach of the service agreement, such as
failing, after due and proper warning, to perform his duties
competently, Hummingbird may terminate the agreement without any
notice or payment in lieu thereof. In addition to basic salary of
£407,400, pursuant to a salary change letter dated 23 February
2024, he is also entitled to benefits, which include (i) pension
contributions equivalent to 10 per cent. of gross salary; (ii)
medical and life insurance policy providing cover of at least
£1,000,000 and includes international medical insurance for Mr
Betts and his immediate family, and critical illness cover; (iii)
an attendance fee of 1 ounce gold coin (post tax) for the physical
attendance at each of the quarterly Board meetings, and one Board
meeting held on the same day as the Annual General Meeting; and
(iii) a discretionary bonus of such amount as may be determined by
the Board at its absolute discretion. Dan Betts is also entitled to
out-of-pocket expenses reasonably incurred by him in the proper
performance of his duties.
In the event of a change in control of
Hummingbird and either Mr Betts or Hummingbird terminate the
employment of Mr Betts (in the case of Hummingbird, other than for
cause) then Hummingbird shall pay to Mr Betts, within one month of
such termination an amount equivalent to the gross value of two
years basic salary, including pension contributions, together with
the cash equivalent of medical and life insurance benefits for 2
years (unless that cover remains in place) (less any statutory
deductions).
(b)
Interim Chief Executive Officer
Geoff Eyre is currently employed as Interim
Chief Executive Officer of Hummingbird
since 6 November 2024. His employment is governed by the
terms of a service agreement with Hummingbird
dated 25 November 2024 (Service Agreement).
The first 6 months of Geoff Eyre's employment
is a probationary period. During the first 3 month of the
probationary period Hummingbird may
terminate employment by giving one weeks' notice or payment in lieu
of notice. Thereafter during the last 3 months of the probationary
period, Geoff will be entitled to receive a termination payment
comprising 6 months of salary and benefits (unless
Hummingbird offers Geoff Eyre a new Executive
Committee position directly reporting to the replacement
CEO).
After the probationary period, the notice
period required to terminate Geoff Eyre's employment is three
months' written notice by Hummingbird or
three months' written notice by Geoff.
Hummingbird reserves the right under the Service
Agreement, exercisable in its absolute discretion, to terminate
Geoff Eyre's employment and make a payment in lieu of his notice or
any unexpired part of such notice.
Hummingbird may terminate the
employment without any notice or payment in lieu thereof in certain
circumstances set out in clause 16 of the Service Agreement. Such
circumstances include a failure on Geoff's part (in the reasonable
opinion of the Board) to perform his duties to a satisfactory
standard or if Geoff commits any serious breach of the Service
Agreement or is guilty of any gross misconduct or any wilful
neglect in the discharge of his duties.
In addition to a basic salary of £318,833 per
annum, Geoff is also entitled to receive employer pension
contributions at a rate of 10 per cent. of his basic salary,
certain insured benefits, namely medical insurance, life insurance
and critical illness cover and may be eligible for a discretionary
annual bonus on such terms and of such amount as may be determined
by the Board at its absolute discretion. Geoff Eyre is entitled to
be reimbursed for all authorised out-of-pocket expenses reasonably
incurred by him in the proper performance of his duties. Geoff Eyre
is also entitled to receive his full salary for any period of
sickness absence totalling 6 months in any consecutive period of 24
months.
Geoff Eyre is permitted during the employment
to continue acting as a director of those companies of which he is
a director as at the date of his Service Agreement and to take on
new non-executive director roles subject to complying with his duty
to avoid a conflict of interest and providing written notice
to Hummingbird and, in each case,
provided he can continue to comply with his duty to devote such
time and attention to the business and interests of the Group and
as are necessary for the proper performance of his
duties.
Geoff Eyre is subject to 6 month restrictive
covenants seeking to prevent him from carrying out certain
competitive activity post termination of his employment.
(c)
Finance Director
Tom Hill is currently employed as Finance
Director of Hummingbird. His employment
is governed by the terms of a service agreement with
Hummingbird dated 2 August 2010, as amended with
effect from time to time, and, most recently, on 30 July 2019, and
1 February 2023, respectively. The notice period required to
terminate his employment is 12 months' written notice by
Hummingbird or 12 months' written notice by Tom
Hill. If Tom Hill commits any fundamental breach of the service
agreement, such as failing, after due and proper warning, to
perform his duties competently, Hummingbird
may terminate the agreement without any notice or payment in
lieu thereof. In addition to basic salary of £270,000 per annum, he
is also entitled to benefits, which include (i) pension
contributions; (ii) medical and life insurance policy; (iii)
payment of professional subscriptions; (iv) a discretionary bonus,
option or other incentive scheme of such amount as may be
determined by a remuneration committee or the Board; (v) the right
to subscribe for up to 1,000 Ordinary Shares of £0.01 each
in Hummingbird, at the price of US$35.00
per share, notwithstanding that notice must have been given within
seven (7) days of signing the employment contract; (vi) the right
to participate in any future fundraisings; (vii) discretionary sick
leave at the normal rate of pay, up to a period of three (3)
consecutive months of absence; and (viii) an attendance fee of 1
ounce gold coin (post tax) for the physical attendance at each of
the quarterly Board meetings, and one Board meeting held on the
same day as the Annual General Meeting. Tom Hill is also entitled
to out-of-pocket expenses reasonably incurred by him in the proper
performance of his duties.
Pursuant to the amendment letter dated 30 July
2019, Tom Hill's service agreement was amended to include
provisions relating to a change of control. Where a change of
control of Hummingbird occurs, and within
12 months of the change of control Tom Hill or
Hummingbird terminates, or serves notice to
terminate, Tom Hill's employment, Hummingbird
shall pay to Tom Hill the equivalent of two (2) years' gross
salary and pension contributions, and shall continue to provide the
same level of medical and life insurance, as particularised in the
service agreement, for a period of two (2) years.
Tom Hill's service agreement was also amended
with effect from 1 February 2023 such that his annual salary was
increased to £270,000.00 per annum, and with effect from 1 November
2023 such that his notice period was amended to 12
months
(d)
Founders Equity Alignment Plan (FEAP)
On 1 July 2014, the shareholders approved the
adoption of a long-term incentive plan for the purpose of retaining
and motivating the executive Directors to deliver the proposed new
strategy, which was rebased on 21 June 2016 as part of the
fundraise to recapitalise
Hummingbird.
In accordance with the terms of the FEAP, the
initial management incentive pool vested on 1 February 2023 with no
value accruing to participants, and a new management incentive pool
with a life of up to ten years was created on a consistent
basis.
Participants in the FEAP are limited to
executive Directors. Allocations of the FEAP are proposed by the
"Principal Director" (currently the Mr Dan Betts) and ratified by
the board. As at 31 December 2023 no allocation had been proposed.
The FEAP will issue shares to the participants for adding material
long term shareholder value and therefore align the interest of the
executives with the shareholders by providing a strong incentive
for the executives to drive shareholder value.
Under the FEAP, shares may be distributed to
participants depending upon the value that has been added to
shareholders over the vesting period. No value will accrue to the
FEAP if the growth in shareholder value is less than 50 per cent.
from 1 February 2023. If the growth in shareholder value is over 50
per cent., a proportion of value added to shareholders will accrue
to the FEAP, increasing progressively, starting at 5 per cent. of
the value added to shareholders up to a maximum of 15 per cent. of
the value added to shareholders above 150 per cent.. Shares with a
value equal to the value accrued in the FEAP will be issued on
vesting or the value can be settled in cash at
Hummingbird's option. There is also the
flexibility to allow early payments under the FEAP where assets or
companies are disposed of and value has been added exceeding 50 per
cent. on the same principles.
No allocations to date have been made under the
FEAP and at the Latest Practicable Date there is no value accruing
to the FEAP.
(e)
Bonus Arrangements
As noted above, Tom Hill and Dan Betts are
entitled to a short-term incentive discretionary bonus, where they
can earn up to 125 per cent. of their base salaries, based on the
achievements of Hummingbird, and subject to any personal targets.
Any bonus is usually declared at the end of a financial year and
paid in three tranches. As at the Latest Practicable Date, in
relation to the bonuses declared in respect of the financial year
ended 2022, a remaining amount of £65,136 was to be paid to Dan
Betts and Tom Hill collectively in December 2024, but remains
unpaid. Further, as at the date of this document, in relation to
the bonuses declared in respect of the financial year ended 2023, a
remaining amount of £92,731 was to be paid to Dan Betts and Tom
Hill collectively in December 2024 but remains unpaid, and £92,731
is due to be paid to them collectively in December 2025.
On 1 June 2014, contingent on the successful
acquisition by Hummingbird (or any member of the Group) of the
Yanfolila project Hummingbird awarded Daniel Betts a deferred bonus
in the form of a cash settled share-based payment equivalent to the
cash value on the date of payment of 1,785,714 shares (subject to a
maximum share price of £2.016). This bonus was deferred and except
in the event of a change of control, only became payable after a
vesting period of 2 years and at the earlier of Daniel Betts
ceasing to be a director of Hummingbird or 10 years. The Yanfolila
project was acquired on 2 July 2014. Accordingly, this cash
settled share-based payment was granted on that date and then
vested on 2 July 2024 with a value of £148,214.29 which was due for
payment on 2 July 2024 but has not yet been paid.
(f)
Other service contracts
Other than as described in this
paragraph 5, no service contracts
have been entered into or amended within 6 months of the date of
this document.
(g)
Non-Executive Directors
All of the other Directors are Non-Executive
and do not have service contracts with Hummingbird. Instead, the
Directors were appointed pursuant to letters of
appointment.
All Non-Executive Directors remunerations
arrangements comprise base remuneration of £52,500. Non-Executive
Directors (other than Oumar Toguyeni) will also receive an
additional £5,250 fee for each Board Committee they serve on and an
additional £2,625 for chairing any of these committees (other than
the Technical Advisory Committee). Members of the Technical
Advisory Committee receive and additional annual payment of
US$30,000. In addition all Non-Executive directors (other
than Oumar Toguyeni) are entitled by Board resolution to receive an
attendance fee of a 1 ounce gold coin (post tax) for the physical
attendance at each of the quarterly Board meetings, and one Board
meeting held on the same day as the Annual General
Meeting.
Each of the Non-Executive Director appointments
can be terminated in accordance with the Articles and without
compensation. The Articles provide that the office of Director
shall be terminated by, among other things: written resignation,
unauthorised absences from board meetings for six consecutive
months or more; or written request of all of the other
Directors.
All Non-Executive Directors are subject to a
one month notice period, except for Oumar Toguyeni, who has been
appointed as a Board representative of Nioko and so his appointment
is not subject to termination by Hummingbird but is subject to the
requirement to retire in accordance with the Articles.
The dates of the appointment letters for each
of the Non-Executive Directors and the Committees on which they
serve, are set out in the table below:
Name
|
Contract date
|
Committee position(s)
|
Stephen Betts
|
23 November 2010
|
Transaction
|
David Straker-Smith
|
24 May 2017
|
Audit*, Remuneration*, ESG* and
Transaction
|
Attie Roux
|
30 April 2018
|
Technical Advisory*, ESG and
Transaction
|
Ernie Nutter
|
30 April 2018
|
Audit, Remuneration, Technical Advisory and
Transaction*
|
Oumar Toguyeni
|
19 November 2024
|
Technical Advisory and ESG
|
*being the chairman of the relevant committee.
The Transaction Committee, referred to above,
was formed pursuant to a board meeting held on 6 November 2024, and
Ernie Nutter was appointed as chairman of the Transaction
Committee. The purpose of the Transaction Committee is to discuss
and consider matters relating to, and ancillary to, the
transactions discussed herein and any alternative
transactions.
(h)
Other Letters of
Appointment
Other than as described above, no letters of
appointment have been entered into or amended within 6 months of
the date of this document.
7.
HUMMINGBIRD MATERIAL CONTRACTS
Save as set out below, neither
Hummingbird nor any of its subsidiaries has, during the period
beginning on 6 November 2022 (being two years before the
commencement of the Offer Period) and ending on the Latest
Practicable Date, entered into any material contract otherwise than
in the ordinary course of business. The
following contracts, not being contracts entered into in the
ordinary course of business, and which are or may be material, have
been entered into by Hummingbird or its subsidiaries in the period
beginning on 6 November 2022 and ending on the Latest Practicable
Date.
CIG
Agreements
(a)
By way of an original subscription agreement between CIG and
Hummingbird dated 6 February 2023, CIG subscribed for, in aggregate
157,084,808 Ordinary Shares (February Shares) in two tranches for a
total consideration of US$15 million (representing a price of 7.79
pence per Ordinary Share). The terms of the original subscription
agreement include:
(i) an
undertaking by CIG that it will not (save in limited circumstances)
dispose of the February Shares for a period of 12 months from the
date on which they were admitted to AIM; and
(ii) the
grant to CIG of a pre-emption right in relation to further equity
issued by Hummingbird while it holds 20 per cent or more of the
Ordinary Shares.
(b)
By way of a relationship agreement between CIG, Hummingbird and
Strand Hanson dated 7 February 2023, CIG gave certain undertakings
which imposes certain obligations on CIG in its position as a
substantial shareholder (as defined under the AIM Rules) in
Hummingbird to ensure that Hummingbird will at all times be capable
of carrying on its business independently of CIG and the members of
its group. The relationship agreement remains in force for so long
as CIG's holding remains at 10 per cent. or above of Hummingbird's
issued share capital. The Independent Directors (as defined in the
Relationship agreement) have unanimously resolved to waive or
consent (as applicable) to such matters under the Relationship
Agreement necessary to ensure that the terms contemplated under the
Subscription Agreement are permissible and do not conflict with the
Relationship Agreement.
(c)
On 16 May 2024, CIG entered into a short-term loan of US$10
million. The loan was unsecured, attracted interest at a rate of 14
per cent per annum and had a maturity date of 30 September 2024.
The loan was advanced by CIG on 25 June 2024.
(d)
On 26 September 2024, Hummingbird entered into a short-term loan
facility of US$30 million with CIG (the CIG Loan Agreement). The CIG Loan
Agreement consisted of a new US$20 million loan, to be provided in
tranches, and consolidated the previous US$10 million short-term
loan from CIG. The CIG Loan Agreement was unsecured, carried an
interest rate of 14 per cent per annum and had an initial maturity
date of 31 December 2024.
(e)
On 30 September 2024, CIG advanced US$10 million, bringing the
total amount advanced by CIG under the CIG Loan Agreement to
US$20million.
(f) On 6
November 2024, Hummingbird and CIG entered into a new loan
agreement (the New CIG
Loan) to document the terms upon which CIG would advance the
remaining US$10 million.
(g)
Under the terms of the New CIG Loan, the interest payable in
respect of any advances was 14 per cent. per annum and the final
repayment date was 31 December 2024. The New CIG Loan contains
customary representations and undertakings for a loan facility of
this nature, including a cross-default event of default which would
be triggered by any default by Hummingbird or the local holding
companies in Guinea and Mali under the facilities in place with
Coris Bank. Furthermore, it contains an event of default that would
be triggered in the event that an offer from an offeror (other than
CIG or its concert parties) for the entire issued share capital of
Hummingbird that it does not already own becomes unconditional (as
such terms are defined in the Takeover Code).
(h)
Details of the CIG Subscription Agreement are set out in
paragraph 3 of Part 1 and
paragraph 8 (Offer Related Arrangements) of this
Part 4 of this document.
(i) On 31
December 2024, Hummingbird's Malian subsidiary SMK and Coris Bank's
Malian subsidiary Coris Bank International Mali entered into a new
loan agreement in the amount of approximately US$35.6 million
consolidating unpaid instalments of Hummingbird's Malian subsidiary
SMK and extending out the repayment dates.
(j) On 24
December 2024, Hummingbird, CIG and Nioko entered into a tripartite
agreement (the Tripartite
Agreement) documenting the terms on which CIG assigned the
rights and benefits of certain debt arrangements to
Nioko.
Agreement with
Pasofino Gold Limited
(a)
By way of a share exchange agreement dated 8 December 2023
(SEA) between Hummingbird,
Pasofino Gold Limited (Pasofino) and ARX Resources Limited, a
wholly owned subsidiary of Pasofino (ARX), Hummingbird has
converted its 51 per cent.
interest in the Dugbe Gold
Project, Liberia (the Project),
into a 51 per cent.
controlling shareholding interest
in TSX-V listed Pasofino, resulting in
Pasofino (through ARX) becoming the sole owner of the Project,
subject to the 10 per cent.
carried interest of the Government of
Liberia. In consideration for the ownership
conversion, Pasofino has issued 54,027,783 new common shares to
Hummingbird, resulting in Hummingbird holding a 51 per cent.
shareholding interest in Pasofino, and Pasofino being classified as
a subsidiary of Hummingbird.
Banking
Facility Arrangements with Coris Bank
(a)
Confirmation of loan (notification d'accord de financement) entered
into between Coris Bank International and Kourou's Gold Mine S.A.
("KGM") dated 9 November 2021;
(b)
Loan agreement (ouverture de credit) entered into between Coris
Bank International Guinée and KGM dated 28 February
2022;
(c)
Loan agreement (convention de compte courant) between Coris Bank
International (Mali, Burkina, Togo, Benin, Niger, Senegal) and
Société des Mines de Komana S.A. ("SMK") dated 31 December
2021;
(d)
Loan agreement (convention de prêt) between Coris Bank
International Burkina (with the sub-participation of Coris Bank
International Benin, Togo, Senegal, and Côte d'Ivoire) and SMK
dated April 14, 2023;
(e)
Loan agreement (convention de prêt) between Coris Bank
International Burkina and SMK dated September 27, 2023;
(f) Loan
agreement (convention de crédit) between Coris Bank International
Mali (with the sub-participation of Coris Bank International
Burkina, Benin, Togo, Senegal, and Côte d'Ivoire) and SMK dated
December 4, 2023;
(g)
Loan agreement (convention de crédit) between Coris Bank
International Mali and SMK dated December 29, 2023;
(h)
Loan agreement (convention de crédit) between Coris Bank
International Benin and SMK dated September 4, 2024 (disbursed
earlier in 15 April 2024); and
(i) Loan
agreement (convention de crédit) between Coris Bank International
(Mali, Burkina, Benin, Togo, Senegal, Niger, and Côte d'Ivoire) and
SMK dated August 19, 2024; and
(j) Loan
agreement between Coris Bank International Coris Bank International
(Mali, Burkina, Benin, Togo, Senegal, Niger, and Côte d'Ivoire) and
SMK dated 30 December 2024.
Confidentiality
Agreement
(a)
See paragraph 8 (Offer Related
Arrangements) of this Part 4 for details of the Confidentiality
Agreement.
CIG
Subscription Agreement
(b)
See paragraph 8 (Offer Related Arrangements) of this
Part 4 for details of the CIG Subscription Agreement.
Nioko and the
CIG Parties
Save as set out below, neither Nioko nor any
other member of the CIG Parties has, during the period beginning on
6 November 2022 (being two years before the commencement of the
Offer Period) and ending on the Latest Practicable Date, entered
into any material contract otherwise than in the ordinary course of
business.
The following contracts, not being contracts
entered into in the ordinary course of business, and which are or
may be material, have been entered into by Nioko or members of the
CIG Parties in the period beginning on 6 November 2022 and ending
on the Latest Practicable Date.
(i)
Confidentiality Agreement
See paragraph 8
(Offer Related
Arrangements) of this Part 4 for details of the Confidentiality
Agreement.
(ii)
CIG Subscription Agreement
See paragraph 8 (Offer Related Arrangements)
of this Part 4 for details
of the CIG Subscription Agreement.
(iii)
Tripartite
Agreement
See paragraph (iii)
of this Part 4 above for details of the Tripartite
Agreement.
8.
Offer Related Arrangements
(a)
Confidentiality Agreement
CIG, Coris Holdings and Hummingbird have entered
into a mutual confidentiality agreement dated 28 October 2024 (the
Confidentiality Agreement)
pursuant to which the CIG Parties and Hummingbird has undertaken,
amongst other things, to: (i) keep confidential information
relating to the Offer and the other party and not to disclose it to
third parties (other than certain permitted parties) unless
required by law or regulation; and (ii) use the confidential
information for the sole purpose of discussing a potential
transaction between the parties thereto.
(b) CIG
Subscription Agreement
The CIG Subscription Agreement documented the
terms of the Debt-to-Equity Conversion and detailed the conditions
on which the US$30 million principal amount under the New CIG Loan
converted into new Ordinary Shares in Hummingbird. The
Debt-to-Equity Conversion comprised of (i) the Stage 1 Conversion and (ii) the
conversion of the remainder of the principal amount of the New CIG
Loan in the Stage 2
Conversion.
The Admission of the Ordinary Shares under the Stage
1 Conversion contemplated in the CIG Subscription Agreement
occurred on 24 December 2024. On
2 January 2025, Nioko informed Hummingbird
that it wished to waive the other outstanding
conditions under the Debt-to-Equity Conversion. As
such, the Debt-to-Equity Conversion under the CIG Subscription
Agreement has now completed with the admission of the
Ordinary Shares to Nioko under the Stage 2 Conversion occurring on
7 January. As a result, Nioko now holds
1,202,312,639 Ordinary Shares,
representing approximately 71.8 per cent.
of Hummingbird's existing issued share
capital.
The CIG Subscription Agreement also contained
provisions around the parties agreeing to cooperate, engage in good
faith and provide the other party and its respective professional
advisers all reasonable assistance and access that they may
reasonably require in connection with the CIG Subscription
Agreement. This included, unless prohibited by applicable law, the
collaboration and sharing of information between the parties in
relation to engagement that each party has with the Takeover Panel
in connection with any of the proposals contemplated under the CIG
Subscription Agreement.
(c)
Waiver of Conditions
As announced by Hummingbird via RNS on 2
January 2025, Nioko informed Hummingbird that it wished to waive
the outstanding conditions identified in the Rule 2.7 Announcement
which was released on 16 December 2024.
9.
CONCERT PARTIES
In addition to the Nioko Directors (together
with their close relatives and related trusts) and members of the
CIG Parties, the persons who, for the purposes of the Takeover
Code, are acting, or deemed to be acting, in concert with Nioko in
respect of the Offer are:
Name
|
Registered office
|
Relationship with
Nioko
|
Hannam &
Partners
|
7-10 Chandos Street,
London, W1G 9DQ
|
Connected
Adviser
|
SCP Resource
Finance
|
Harbour Yard, Chelsea,
Unit 211, London, SW10 0XD
|
Connected
Adviser
|
In addition to the Hummingbird Directors
(together with their close relatives and related trusts) and
members of the Hummingbird Group, the persons who, for the purposes
of the Takeover Code, are acting, or are deemed to be acting, in
concert with Hummingbird in respect of the Offer are:
Name
|
Registered or principal
office
|
Relationship with
Hummingbird
|
Stifel
|
150 Cheapside, City of
London, EC2V 6ET
|
Financial adviser;
Rule 3 adviser
|
Strand
Hanson
|
26 Mount Row, London,
W1K 3SQ
|
Financial adviser;
Rule 3 adviser
|
10.
GOVERNING LAW
The Offer shall be governed by and construed in
accordance with English law. The Court shall have exclusive
jurisdiction for determining any matter which may arise under or in
connection with the Offer.
11.
POST-OFFER UNDERTAKINGS
No statements in this document constitute
"post-offer undertakings" for the purposes of Rule 19.5 of the
Takeover Code.
12.
SOURCES AND BASES
In this document, unless otherwise stated or the
context otherwise requires, the following bases and sources have
been used:
a. all references to Hummingbird
Ordinary Shares are to ordinary shares of £0.01 each;
b. unless otherwise stated, all
prices for Hummingbird Shares are closing middle market quotations
derived from data provided by Bloomberg for the particular date(s)
concerned;
c. as at the close of business on
the Latest Practicable Date, Hummingbird had in issue 1,674,388,481 Ordinary Shares;
d. the fully diluted share capital
of Hummingbird (being 1,703,405,725
Ordinary Shares) has been calculated on the basis of:
i) the number of issued
Hummingbird Ordinary Shares referred to in c above; plus
ii) any further Hummingbird
Ordinary Shares which may be issued on or after the date of this
Offer on the vesting and/or exercise of awards under the
Hummingbird Share Plans that were outstanding as at the Latest
Practicable Date or which will vest or be exercisable on or before
the Cancellation, amounting in aggregate up to a maximum of
29,017,244 Hummingbird Ordinary
Shares;
e. unless otherwise stated, the
financial information of Hummingbird is extracted (without material
adjustment) from (i) the annual report and audited accounts of the
Hummingbird Group for the 12 months ended 31 December 2023; or (ii)
the unaudited interim results of the Hummingbird Group for the
six-month period ended 30 June 2024;
f. all information relating
to Nioko and Hummingbird has been provided by persons duly
authorised by the Nioko Board and the Hummingbird Board
respectively; and
g. certain figures included in this
document have been subject to rounding adjustments. Accordingly,
figures shown for the same category presented in different tables
may vary slightly and figures shown as totals in certain tables may
not be an arithmetic aggregation of the figures that precede
them.
13.
GENERAL
(a)
Save as otherwise disclosed elsewhere in this document, no
agreement, arrangement or understanding (including any compensation
arrangement) exists between Nioko or any party acting in concert
with Nioko and any of the directors, recent directors, shareholders
or recent shareholders of Hummingbird or any person interested or
recently interested in shares of Hummingbird, having any connection
with or dependence on the Offer.
(b)
There is no agreement, arrangement or understanding under which any
securities acquired pursuant to the Offer will be transferred to
any other person, save that Nioko reserves the right to transfer
any such securities to any other member of the Nioko
group.
(c)
Save for the irrevocable undertakings described in paragraph
4 of Part A
of Part 4 (Additional
Information) of this document neither:
(i) Nioko,
nor any person acting in concert with Nioko; nor
(ii)
Hummingbird, nor any person acting in concert with
Hummingbird,
has any arrangement (including any indemnity or
option arrangement), agreement or understanding, formal or
informal, of whatever nature relating to relevant Hummingbird
securities, which may be an inducement to deal or refrain from
dealing, with any other person.
(d)
Save as disclosed in this document, there is no agreement to which
Nioko is a party which relates to the circumstances in which it
may, or may not, invoke a condition to the Offer.
(e)
The financial information on Nioko and the Hummingbird Group
contained in this document does not constitute statutory accounts
within the meaning of section 434 of the Companies Act.
14.
FEES AND EXPENSES
(a)
The aggregate fees and expenses expected to be incurred by Nioko in
connection with the Offer are estimated to amount to approximately
£1.93 million (plus applicable VAT and
other taxes). The following are estimates expected to comprise the
aggregate figure (in each case exclusive of VAT):
(i) Financial
and corporate broking
advice
£0.94 million
(ii) Legal
advice(1)
£0.89 million
(iii)
Public relations
advice
£0.07 million
(iv)
Other costs and
expenses
£0.03 million
(1)
These services
include services charged by reference to hourly or daily rates. The
amounts included here reflect the services incurred up to the
Latest Practicable Date and an estimate of the residual amount of
time required until the completion of the Offer.
(b)
The aggregate fees and expenses expected to be incurred by
Hummingbird in connection with the Offer are estimated to amount to
approximately £3.35 million (plus
applicable VAT and other taxes). The following are estimates
expected to comprise the aggregate figure (in each case exclusive
of VAT):
(i) Financial
and corporate broking
advice
£2.29 million
(ii) Legal
advice(1)
£0.55 million
(iii)
Accounting
advice
£0.08 million
(iv)
Public relations
advice
£0.07 million
(v)
Other costs and
expenses
£0.36 million
(1)
These services
include services charged by reference to hourly or daily rates. The
amounts included here reflect the services incurred up to the
Latest Practicable Date and an estimate of the residual amount of
time required until the completion of the Offer.
15.
FINANCING OF THE OFFER
The Cash Consideration necessary to satisfy the
Offer in full will be funded from Nioko's existing cash resources.
Hannam & Partners, in its capacity as financial adviser to
Nioko, is satisfied that sufficient resources are available to
Nioko to satisfy in full the Cash Consideration payable by Nioko to
Hummingbird Shareholders pursuant to the
Offer.
16. NO
SIGNIFICANT CHANGE AND RATINGS
Save as disclosed in the Previous Announcements
or in this document, or as announced by Hummingbird since 24
September 2024 when it announced its six-month results to 30 June
2024, the Hummingbird Directors are not aware of any significant
change in the financial or trading position of Hummingbird since 30
June 2024, being the date to which the unaudited interim financial
information for the Group were prepared. There are no current
public ratings or outlooks accorded to Hummingbird by ratings
agencies.
17.
CONSENT
Each of Hannam & Partners and SCP Resource
Finance (as financial advisers to Nioko) have given and not
withdrawn their written consent to the issue of this document with
the inclusion of their respective names and the references to them
in the form and context in which they are included.
Each of Stifel and Strand Hanson (as financial
advisers to Hummingbird) have given and not withdrawn their written
consent to the issue of this document with the inclusion herein of
the references to their respective names and the advice it has
given to Hummingbird in the form and context in which they
appear.
18.
DOCUMENTS AVAILABLE ON WEBSITE
Copies of the following documents will be made
available on Hummingbird's website at www.hummingbirdresources.co.uk
during the period from the date on which this document is published
up to and including the completion of the Offer:
(a)
this document;
(b)
the Form of Acceptance and other documents in relation to the Offer
sent to the Hummingbird Shareholders, persons with information
rights and other relevant persons;
(c)
any announcements issued by Hummingbird in connection with the
Offer;
(d)
the memorandum and articles of association of
Hummingbird;
(e)
the memorandum and articles of association of Nioko;
(f) the
financial information relating to Hummingbird referred to in
paragraph 5 of Part 1 (Letter
from Nioko) of this document;
(g)
the letters of consent referred to in paragraph
17 of Part A
of Part 4 (Additional
Information) of this document;
(h)
the Confidentiality Agreement;
(i) the CIG
Subscription Agreement;
(j) any 2.11
Letters;
(k)
the irrevocable undertakings referred to in paragraph
4 of Part A
of Part 4 (Additional
Information) of this document; and
(l) copies of
the documents setting out the Hummingbird Share Plan Proposals that
have been made to participants holding outstanding awards in the
Hummingbird Shares Plans referred to at paragraph
10 (Hummingbird Share Plans) of
Part 1 (Letter from Nioko) of this
document.
Except as otherwise expressly referred to in
this document, neither the contents of these websites nor any
website accessible from hyperlinks is incorporated into or forms
part of this document.
19.
INFORMATION INCORPORATED BY REFERENCE
The following Hummingbird documents (or parts
thereof, where specified) are incorporated by reference in, and
form part of, this document:
Source
document from which information is incorporated into this document
by reference
|
Information
incorporated by reference
|
Page number(s)
in source document
|
Audited financial statements for the year ended
31 December 2021
|
Independent Auditor's Report
|
80
|
Consolidated Statement of Comprehensive Income
|
86
|
Consolidated Statement of Financial Position
|
87
|
Consolidated Statement of Changes in Equity
|
139
|
Consolidated Statement of Cash Flows
|
88
|
Notes to the Financial Statements
|
140
|
Audited financial statements for the year ended
31 December 2022
|
Independent Auditor's Report
|
100
|
|
Consolidated Statement of Comprehensive Income
|
105
|
|
Consolidated Statement of Financial Position
|
157
|
|
Consolidated Statement of Changes in Equity
|
159
|
|
Consolidated Statement of Cash Flows
|
107
|
|
Notes to Financial Statements
|
160
|
Audited financial statements for the year ended
31 December 2023
|
Independent Auditor's Report
|
118
|
Consolidated Statement of Comprehensive Income
|
126
|
Consolidated Statement of Financial Position
|
127
|
Consolidated Statement of Changes in Equity
|
129
|
Consolidated Statement of Cash Flows
|
128
|
Notes to the Financial Statements
|
187
|
Unaudited interim financial statements for the
six months to 30 June 2024
|
Consolidated Statement of Comprehensive Income
|
3
|
Consolidated Statement of Financial Position
|
4
|
Consolidated Statement of Changes in Equity
|
6
|
Consolidated Statement of Cash Flows
|
5
|
Notes to the condensed Group interim financial
statements
|
9
|
A person who has received this document may
request a copy of the documents incorporated by reference and
referred to in the table above. A copy of any such documents or
information incorporated by reference will not be sent to such
persons unless requested of Hummingbird at its registered office at
49-63 Spencer Street, Hockley, Birmingham, West Midlands, B18 6DE,
or by telephone at +44 (0)20 7409 6660 or requested of the
Receiving Agent, Link Group. Link Group can be
contacted on Tel: 0371 664 0321 from the United Kingdom (UK)
or +44 371 664 0321 from overseas or by post to Link Group at
Central Square, 29 Wellington Street, Leeds LS1 4DL. Calls are
charged at the standard geographic rate and will vary by provider.
Calls outside the UK will be charged at the applicable
international rate. Lines are open between 9.00 a.m. and 5.30 p.m.,
Monday to Friday (excluding public holidays in England and Wales),
or by email at operationalsupportteam@linkgroup.co.uk. Please note that Link Group cannot
provide any financial, legal or tax advice and that calls may be
recorded and monitored for security and training
purposes.
Part B
ADDITIONAL INFORMATION FOR OVERSEAS SHAREHOLDERS
1.
GENERAL
(a)
This document and the accompanying Form of Acceptance have been
prepared for the purposes of complying with English law, the
applicable requirements of the Companies Act, the Takeover Code,
the Panel, the FCA and the London Stock Exchange and applicable
securities law and the information disclosed may not be the same as
that which would have been disclosed if this document had been
prepared in accordance with the laws of any other
jurisdiction.
(b)
The release, publication or distribution of this document and any
accompanying documents (in whole or in part) in or into
jurisdictions other than the United Kingdom may be restricted by
law and therefore any persons who are subject to the law of any
jurisdiction other than the United Kingdom should inform themselves
of, and observe, any applicable legal or regulatory requirements.
The availability of the Offer to Hummingbird Shareholders who are
not resident in and citizens of the United Kingdom may be affected
by the laws of the relevant jurisdictions in which they are located
or of which they are citizens and therefore persons who are not
resident in the United Kingdom should inform themselves of, and
observe, any applicable legal or regulatory requirements of their
jurisdictions. Any failure to comply with such requirements may
constitute a violation of the securities laws of any such
jurisdiction. To the fullest extent permitted by applicable law,
the companies and persons involved in the Offer disclaim any
responsibility or liability for the violation of such restrictions
by any person.
(c)
Unless otherwise determined by Nioko or required by the Takeover
Code and permitted by applicable law and regulation, the Offer is
not being, and will not be, made available, in whole or in part,
directly or indirectly, in or into or from a Restricted
Jurisdiction where to do so would violate the laws in that
jurisdiction and no person may accept the Offer by any such use,
means, instrumentality or from within a Restricted Jurisdiction or
any other jurisdiction if to do so would constitute a violation of
the laws of that jurisdiction. Copies of this document and any
formal documentation relating to the Offer are not being, and must
not be, directly or indirectly, mailed or otherwise forwarded,
distributed or sent in or into or from any Restricted Jurisdiction
and persons receiving such documents (including, without
limitation, agents, custodians, nominees and trustees) must not
mail, or otherwise forward, distribute or send it in or into or
from any Restricted Jurisdiction. Doing so may render invalid any
related purported acceptance of the Offer. Unless otherwise
permitted by applicable law and regulation, the Offer may not be
made directly or indirectly, in or into, or by the use of mails or
any means or instrumentality (including, but not limited to,
facsimile, e-mail or other electronic transmission, telex or
telephone) of interstate or foreign commerce of, or of any facility
of a national, state or other securities exchange of any Restricted
Jurisdiction and the Offer may not be capable of acceptance by any
such use, means, instrumentality or facilities.
(d)
This document does not constitute an offer or invitation to
purchase or subscribe for any securities or a solicitation of an
offer to buy any securities pursuant to this document or otherwise
in any jurisdiction in which such offer or solicitation is
unlawful.
(e)
The Offer shall be subject to the applicable requirements of the
Takeover Code, the Panel, the London Stock Exchange, the FCA and
the AIM Rules.
(f)
Overseas Shareholders should
consult their own legal and tax advisers with respect to the legal
and tax consequences of the Offer.
2.
NOTICE TO U.S. HOLDERS OF HUMMINGBIRD SHARES
(a)
The Offer is being made for the securities of an English company
that is listed on the London Stock Exchange by means of a
contractual takeover offer under the Takeover Code and English law
and is subject to disclosure requirements and practices that are
different, in some cases materially, from the tender offer rules of
the United States. The financial information included in this
document has been prepared in accordance with accounting standards
applicable in the United Kingdom and thus may not be comparable to
financial information of U.S. companies or companies whose
financial statements are prepared in accordance with generally
accepted accounting principles in the United States.
(b)
For U.S. holders of Hummingbird Shares, the receipt of cash
pursuant to the terms of the Offer as consideration for the
transfer of their Hummingbird Shares, may be treated as a taxable
transaction for U.S. federal income tax purposes and under
applicable U.S. state and local, as well as foreign and other, tax
laws. Each holder of Hummingbird Shares is urged to consult with
its own legal, tax and financial advisers in connection with making
a decision regarding this transaction and as to the U.S. federal,
and applicable U.S. state, local, and foreign, tax consequences to
it of the transaction contemplated hereby in light of such holders'
specific circumstances.
(c)
For purposes of the U.S. Exchange Act, it is intended that the
Offer be made pursuant to Section 14(e) and Regulation 14E under
the U.S. Exchange Act and benefitting from exemptions available to
"Tier I" cross-border tender offers. Accordingly, the Offer will be
subject to disclosure and other procedural requirements under the
applicable laws of the United Kingdom, including with respect to
offer timetable, settlement procedures and timing of payments that
may be materially different from those applicable under U.S.
domestic tender offer procedures and law, and certain rules
applicable to tender offers made into the United States, including
rules promulgated under Section 14(d), Section 14(e)(1) and Section
14(e)(2) of the U.S. Exchange Act, do not apply.
(d)
Nioko will acquire all Hummingbird Shares that have by that time
been validly tendered (or deemed to have been validly tendered) in
acceptance of the Offer and will, in accordance with the Takeover
Code, settle the relevant consideration for all such accepted
Hummingbird Shares (other than in respect of Hummingbird Shares
acquired pursuant to the Hummingbird Share Plans, in respect of
which settlement with the relevant Hummingbird Shareholders will be
effected through payroll or such other method as may be determined
by Hummingbird or Nioko), within 14 days of the later
of (i) 3 February 2025 (for valid acceptances received prior to
such date) and (ii) the date of receipt
of an acceptance complete in all respects (for valid acceptances
received after such date), rather than the three
trading days that U.S. investors may be accustomed to in U.S.
domestic tender offers.
(e) To
the extent permitted by the Takeover Code and applicable
law, in accordance with normal UK practice and Rule
14e-5(b) under the U.S. Exchange Act, Nioko and its nominees or
brokers (acting as agents), may from time to time make certain
purchases of, or arrangements to purchase, Hummingbird Shares,
other than pursuant to the Offer, before or during the period in
which the Offer remains open for acceptance. Also, to
the extent permitted by the Takeover Code and applicable law
in accordance with normal UK practice and Rule 14e-5(b) of
the U.S. Exchange Act, Stifel, Strand Hanson, Hannam & Partners
and SCP Resource will continue to act as exempt principal traders
in Hummingbird Shares on the London Stock Exchange. These purchases
may occur either in the open market at prevailing prices or in
private transactions at negotiated prices. Any information about
such purchases will be disclosed as required in the United Kingdom,
will be reported to a Regulatory Information Service of the FCA and
will be available on the London Stock Exchange website:
www.londonstockexchange.com.
(f) Neither
the SEC nor any US state securities commission has approved or
disapproved of this transaction or passed upon the merits or
fairness of such transaction or passed upon the adequacy of the
information contained in this document. Any representation to the
contrary is a criminal offence.
(g)
Nioko is an investment company registered in the Trade and Personal
Property Credit Register of Burkina Faso. The Nioko Directors are
residents of countries other than the United States and are not
citizens of the United States. As a result, it may be difficult for
investors to effect service of process within the United States
upon the Nioko Directors or otherwise compel Nioko, Hummingbird or
their respective directors, officers and affiliates to subject
themselves to the jurisdiction and judgment of a U.S. court. It may
not be possible to sue Nioko or Hummingbird, or any of their
respective directors, officers or affiliates, in a non-U.S. court
for violations of U.S. securities laws. There is doubt as to the
enforceability in the United Kingdom, in original actions or in
actions for enforcement of judgments of the U.S. courts, of civil
liabilities predicated upon U.S. federal securities
laws.
Part C
TAXATION
The following paragraphs provide summary
information on taxation as a guide only and are not a substitute
for professional tax advice. Any tax consequences of the Offer for
a Hummingbird Shareholder will depend on their particular
circumstances. Any Hummingbird Shareholders who are in any doubt
about their tax position, or who are resident for tax purposes
outside the UK, should contact an appropriate tax
adviser.
1.
UK TAXATION
The comments set out below summarise certain
limited aspects of the UK taxation treatment of certain Hummingbird
Shareholders under the Offer and do not purport to be a complete
analysis of all tax considerations relating to the Offer. They are
based on current UK legislation as applied in England and Wales and
what is understood to be current HM Revenue and Customs
("HMRC") practice (which
may not be binding on HMRC), both of which are subject to change,
possibly with retrospective effect. They are not, and should not be
taken as being, advice.
The comments are intended as a general guide
and do not deal with certain categories of Hummingbird Shareholder
such as: persons subject to special tax regimes (such as collective
investment schemes and persons subject to UK tax on the remittance
basis) or able to benefit from specific reliefs or exemptions (such
as charities); brokers, dealers in securities, intermediaries,
insurance companies, trustees of certain trusts; persons holding
their Hummingbird Shares as part of hedging or commercial
transactions; persons who have or could be treated for tax purposes
as having acquired their Hummingbird Shares in connection with a
trade, profession or vocation carried out in the UK (whether
through a branch or agency or otherwise), who are connected with
Hummingbird or who have or could be treated for tax purposes as
having acquired their Hummingbird Shares by reason of employment or
as holding their Hummingbird Shares as carried interest. Nothing in
these paragraphs should be taken as providing personal tax advice.
In particular, the following paragraphs do not refer to UK
inheritance tax. They also assume that the changes announced (on 30
October 2024) by the UK Government in the Budget proposals are
implemented in full.
References in this paragraph 1 to
"UK Holders" are to
Hummingbird Shareholders who: (a) are resident for tax purposes in,
and only in, the UK at all relevant times and, in the case of
individuals, to whom "split year" treatment does not apply, and who
are domiciled, or deemed domiciled, for tax purposes only in the
UK; (b) hold their Hummingbird Shares as an investment (other than
under a self-invested personal pension plan or individual savings
account); and (c) are the absolute beneficial owners of their
Hummingbird Shares.
1.1 UK
tax on chargeable gains
The transfer of Hummingbird Shares to Nioko in
exchange for Cash Consideration under the Offer should be treated
as a disposal of a UK Holder's Hummingbird Shares for the purposes
of UK taxation of chargeable gains. Depending on a UK Holder's
specific circumstances (including the UK Holder's base cost and the
availability of any exemptions, reliefs and/or allowable losses),
the disposal of the UK Holder's Hummingbird Shares may give rise to
a liability to UK taxation on chargeable gains or an allowable
capital loss.
(a)
Subject to any available exemption, relief or allowance, chargeable
gains made by a UK Holder who is an individual will generally be
charged to capital gains tax at a rate of either 18 per cent. or 24
per cent., depending on the total amount of the individual's
taxable income and chargeable gains for the tax year. The
chargeable gains annual exempt amount (which for individuals, is
£3,000 for the tax year running from 6 April 2024 to 5 April 2025)
may be available to any individual UK Holder to offset any
chargeable gain (to the extent it is not otherwise
utilised).
(b)
Subject to any available exemption, relief or allowance, chargeable
gains of a UK Holder within the charge to UK corporation tax will
be charged to corporation tax on chargeable gains at the applicable
corporation tax rate. In respect of the financial year running from
1 April 2024 to 31 March 2025: (i) for companies whose profits are
under £50,000, the applicable rate is the small profits rate of 19
per cent.; (ii) for companies whose profits are in excess of
£250,0000, the applicable rate is the main rate of
25 per cent.; and (iii) for companies whose profits fall between
£50,000 and £250,000, they can claim marginal relief which gives
them an effective rate between 19 per cent. and 25 per cent.. For a
UK Holder within the charge to UK corporation tax who acquired
their Hummingbird Shares before 31 December 2017, an indexation
allowance may be available to reduce the amount of the chargeable
gain realised (but not to create or increase any allowable loss) on
a disposal of those Hummingbird Shares.
1.2 UK
stamp duty and stamp duty reserve tax ("SDRT")
No UK stamp duty or SDRT should be payable by
any Hummingbird Shareholder on the transfer of their Hummingbird
Shares to Nioko.
PART 5
DEFINITIONS
The following definitions apply throughout this
document (other than in those parts of this document containing
separate definitions) unless the context otherwise
requires.
"2022-2023 Hummingbird Annual
Report"
|
the annual report and audited accounts of the
Hummingbird Group for the year ended 31 December 2023;
|
"2023-2024 Hummingbird Annual
Report"
|
the annual report and audited accounts of the
Hummingbird Group for the Financial Year ended 31 December
2024;
|
"AIM"
|
the AIM market 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);
|
"associated undertaking"
|
shall be construed in accordance with paragraph
19 of Schedule 6 to The Large and Medium sized Companies and Groups
(Accounts and Reports) Regulations 2008 (SI 2008/410) but for this
purpose ignoring paragraph 19(1)(b) of Schedule 6 to those
regulations;
|
"Business Day"
|
a day, not being a public holiday in
the UK, a Saturday or Sunday, on which clearing banks in London are
open for normal business;
|
"Cash
Consideration"
|
the cash consideration of 2.6777
pence per Hummingbird Share payable to Hummingbird Shareholders by
Nioko under the Offer in respect of each Hummingbird Share, as may
be adjusted in accordance with the terms of the Offer as set out in
this document;
|
"certificated" or
"in
certificated form"
|
in relation to a share or other
security, a share or other security title to which is recorded in
the relevant register of the share or other security as being held
in certificated form (that is, not in CREST);
|
"CIG"
|
CIG SA, an investment company
registered in the Trade and Personal Property Credit Register of
Burkina Faso with registered number BF OUA 2019 B 2606, and which
is controlled by the same principal as Hummingbird's primary
lending bank;
|
"CIG
Parties"
|
together CIG, Nioko and Coris
Bank;
|
"CIG
Subscription Agreement"
|
the agreement dated 27 November 2024
between (1) Hummingbird (2) CIG and (3) Nioko pursuant to which the
Debt-to-Equity Conversion has been implemented;
|
"Circular"
|
the circular distributed to the
Ordinary Shareholders on 5 December 2024 in relation to the General
Meeting to be held on 23 December 2024;
|
"Closing Date"
|
the closing
date as will be specified by Nioko through a Regulatory Information
Service, with shareholders receiving at least 14 days' notice prior
to the specified date, falling at least 21 days after the posting
of this Offer Document;
|
"Closing Price"
|
the closing middle market quotations
of a share derived from Bloomberg;
|
"Companies Act"
|
the Companies Act 2006, as amended
from time to time;
|
"Confidentiality Agreement"
|
the confidentiality agreement between
CIG and Coris Holdings and Hummingbird dated 28 October
2024;
|
"Coris Bank"
|
company registered in the Trade and
Personal Property Credit Register Burkina Faso with a registered
address at Bd de L'Insurrection Populaire des 30 et 31 Octobre
2014, 01 Bp 6092 Ouagadougou, Burkina Faso. Coris and its
wholly-owned subsidiaries (together (but excluding
CIG)),
|
"Coris Holdings"
|
Coris Holdings SA, a 63.61 per cent.
shareholder in Coris Bank;
|
"Court"
|
the High Court of Justice in England
and Wales;
|
"Court Meeting"
|
if the Offer is to be implemented by
means of a Scheme, the meeting of Hummingbird Shareholders (or the
relevant classes thereof) to be convened at the direction of the
Court pursuant to Part 26 of the Companies Act at which a
resolution will be proposed to approve the Scheme (with or without
amendment), including any adjournment, postponement or reconvening
thereof;
|
"CREST"
|
the relevant system (as defined in
the Regulations) in respect of which Euroclear is the operator (as
defined in the CREST Manual);
|
"CREST Manual"
|
the CREST Manual published by
Euroclear, as amended from time to time;
|
"Dealing Disclosure"
|
a dealing disclosure
in accordance with Rule 8 of the Takeover
Code;
|
"Debt-to-Equity
Conversion"
|
the conversion at the Offer Price of
the US$30 million principal amount under the New CIG Loan into the
new Ordinary Shares on the terms set out in the CIG Subscription
Agreement, with such conversion having taken place in two stages,
the Stage 1 Conversion and the Stage 2 Conversion;
|
"December General Meeting"
|
the general meeting of Hummingbird held on 23
December 2024;
|
"Disclosure Guidance and Transparency
Rules"
|
the Disclosure Guidance and
Transparency Rules sourcebook issued by the FCA;
|
"Electronic Acceptance"
|
the inputting and settling of a TTE
instruction which constitutes or is deemed to constitute an
acceptance of the Offer on the terms set out in this
document;
|
"ESA instruction"
|
an Escrow Account Adjustment Input
(AESN), transaction type "ESA" (as described in the CREST
Manual);
|
"Euroclear"
|
Euroclear UK & International
Limited;
|
"European Union"
|
the economic and political
confederation of European nations which share a common foreign and
security policy and co-operate on justice and home affairs known as
the European Union;
|
"FCA" or "Financial
Conduct Authority"
|
the Financial Conduct Authority or
its successor from time to time;
|
"FCA
Handbook"
|
the FCA's Handbook of rules and
guidance as amended from time to time;
|
"Form
of Acceptance"
|
the form of acceptance and authority
relating to the Offer for use by Hummingbird Shareholders who hold
Hummingbird Shares in certificated form;
|
"FSMA"
|
the Financial Services and Markets
Act 2000, as amended from time to time;
|
"General Meeting"
|
if the Offer is to be implemented by
means of a Scheme, the general meeting of Hummingbird Shareholders
to be convened to consider and if thought fit pass,
inter
alia, the resolutions (with or
without amendment) in relation to the Scheme including any
adjournments, postponement or reconvening thereof;
|
"HIPPO 2016"
|
the Hummingbird Incentive Plan - Performance
Orientated adopted by the Hummingbird Board on 9 September
2016;
|
"HIPPO 2018"
|
the Hummingbird Incentive Plan - Performance
Orientated 2018 adopted by the Hummingbird Board on 12 April 2018
and amended by the Hummingbird Board on 24 January 2019;
|
"HIPPO 2020"
|
the Hummingbird Incentive Plan - Performance
Orientated adopted by the Hummingbird Board on 27 February
2020;
|
"holder"
|
a registered holder, including any
person entitled by transmission;
|
"Hummingbird"
|
Hummingbird Resources plc, a company
registered in England and Wales with company number
05467327;
|
"Hummingbird Board" or
"Hummingbird Directors"
|
the directors of
Hummingbird;
|
"Hummingbird Deferred Share Awards"
|
the Hummingbird
Non-executive Director Deferred Share Award
agreements;
|
"
FEAP"
|
the
Hummingbird Founders Equity Alignment Plan established by the
Hummingbird Board on 29 May 2014, approved by the Hummingbird
Shareholders on 1 July 2014 and amended by the Hummingbird Board on
29 November 2023;
|
"Hummingbird Group"
|
together Hummingbird and its
subsidiary undertakings and where the context permits, each of
them;
|
"Hummingbird LTIP 2021"
|
the Hummingbird Incentive Plan - Long Term
Incentive Plan 2021 adopted by the Hummingbird Board on 3 November
2021 and amended by the Hummingbird Board on 17 October
2023;
|
"Hummingbird Remuneration Committee"
|
the remuneration committee of the
board of directors of Hummingbird;
|
"Hummingbird
Share
Plans"
|
the HIPPO 2016, the
HIPPO 2018, the HIPPO 2020, the Hummingbird LTIP 2021 and the
Hummingbird Deferred Share Awards;
|
"Hummingbird Shareholders"
|
the holders of Hummingbird Shares,
but the term shall, where the context requires, exclude
Nioko;
|
"Hummingbird Shares"
|
the existing unconditionally
allotted or issued and fully paid ordinary shares of 1p each in the
capital of Hummingbird and any further shares which are
unconditionally allotted or issued before the Offer closes (or
before such earlier date as Nioko, subject to the Takeover Code,
may determine);
|
"Independent Hummingbird Directors"
|
all of the Hummingbird Directors,
with the exception of Geoff Eyre and Oumar Toguyen;
|
"ISIN"
|
International Securities
Identification Number;
|
"Latest Practicable Date"
|
10 January 2025 (being the latest
practicable date prior to the publication of this
document);
|
"London Stock Exchange"
|
London Stock Exchange plc or its
successor;
|
"Meetings"
|
if the Offer is to be implemented by
means of a Scheme, the Court Meeting and the General
Meeting;
|
"New CIG
Loan"
|
the consolidated loan for
approximately US$30 million under a loan agreement dated 6 November
2024 between CIG and Hummingbird;
|
"Nioko"
|
Nioko Resources Corporation an investment
company registered in the Trade and Personal Property Credit
Register of Burkina Faso with registered number BF OUA 2019 B 2606
whose registered office is at Avenue de l'UEMOA, 2cmeetage of the
building built on plot N°10 of lot 20section 006 ZACA, 01 BP 2061
Ouagadougou 01, Burkina Faso, a wholly owned subsidiary of
CIG;
|
"Nioko Board" or "Nioko Directors"
|
the directors of Nioko;
|
"Offer"
|
the recommended all cash offer by Nioko for the
entire issued, and to be issued, share capital of Hummingbird not
already owned, or agreed to be acquired by Nioko by means of a
takeover offer for the purposes of Part 28 of the Companies Act, or
should Nioko so elect with the consent of the Panel and the consent
of Hummingbird, by means of a Scheme and, where the context admits,
any subsequent revision, variation, extension or renewal
thereof;
|
"Offer Document"
|
this
documented dated 13 January 2025;
|
"Offer Period"
|
the offer period (as defined in the
Takeover Code) relating to Hummingbird which commenced on
6 November 2024 until the time and
date of an announcement that the Offer has closed;
|
"Offer Price"
|
for each Ordinary Share 2.6777 pence
in cash;
|
"Official List"
|
the Official List of the
FCA;
|
"Opening Position Disclosure"
|
an announcement pursuant to Rule 8
of the Takeover Code containing details of interests or short
positions in, or rights to subscribe for, any relevant securities
of a party to the Offer;
|
"Operational and Financial Position
Update"
|
The announcement via RNS on 23
December 2024 whereby Hummingbird provided an update regarding its
operations and financial position;
|
"Ordinary Shares"
|
ordinary shares of £0.01 each in the
capital of Hummingbird;
|
"Overseas Shareholders"
|
holders of Hummingbird Shares who
are resident in, ordinarily resident in, or citizens of,
jurisdictions outside the United Kingdom;
|
"Panel"
|
the UK Panel on Takeovers and
Mergers;
|
Previous
Announcements
|
(i) dated 6 November 2024 as required by Rule
2.4 of the Takeover Code, (ii) dated 28 November 2024 in respect of
the Debt to Equity Conversion, (iii) dated 5 December 2024 in
relation to the Circular, and (iv) dated 23 December 2024 in
relation to the operational and financial position of
Hummingbird;
|
"Previous Acceptor"
|
has the meaning given to it in
paragraph 4(a) of
Part A of
Part 3 (Further terms of the
Offer and
Acceptances) of this
document;
|
"Receiving Agent" or
"Link
Group" or "Registrar"
|
Link Group, Central Square, 29 Wellington Street, Leeds, LS1
4DL;
|
"Register"
|
the register of members of
Hummingbird kept and maintained on behalf of Hummingbird by the
Registrar;
|
"Registrar of Companies"
|
the Registrar of Companies in
England and Wales;
|
"Regulations"
|
the Uncertified Securities
Regulations 2001;
|
"Regulatory Information Service"
|
a regulatory information service as
defined in the FCA Handbook;
|
"relevant securities"
|
"relevant securities" as defined in
the Takeover Code;
|
"Resolutions"
|
if the Offer is to be implemented by
means of a Scheme, the resolution(s) to be proposed at the General
Meeting necessary to implement the Scheme, including, amongst other
things, a special resolution proposed in connection with,
inter
alia, implementation of the Scheme
and certain amendments to be made to the articles of association of
Hummingbird;
|
"Restricted Jurisdiction"
|
each of Australia, New
Zealand, the Republic of South Africa and Japan and any other
jurisdiction where local laws or regulations may result in a
significant risk of civil, regulatory or criminal exposure if
information concerning the Offer is sent or made available to
Hummingbird Shareholders in that jurisdiction;
|
"Rule 2.7 Announcement"
|
the announcement made under Rule 2.7 of the
Takeover Code on 16 December 2024 regarding the Offer;
|
"Rule 9 Panel Waiver"
|
the waiver granted by the Takeover Panel,
subject to approval of the independent shareholders, of any
obligation on Nioko (both individually and collectively with those
parties deemed to be acting in concert with it) to make a mandatory
offer to Shareholders for the Ordinary Shares not owned by Nioko
following any increase in the percentage of Ordinary Shares
carrying voting rights that Nioko are interested in as a result of
the Debt-to-Equity Conversion;
|
"Rule 9 Waiver Resolution"
|
Resolution 3 as set out in the Notice of
General Meeting circulated by Hummingbird on 5 December
2024;
|
"Sanction Hearing"
|
if the Offer is to be implemented by
means of a Scheme, the Court hearing to sanction the
Scheme;
|
"Scheme" or "Scheme
of
Arrangement"
|
subject to the consent of the Panel
and the consent of Hummingbird, should the Offer be implemented by
means of a scheme of arrangement under Part 26 of the Companies Act
between Hummingbird and the holders of the Hummingbird Shares to
which the Scheme applies, with or subject to any modification,
addition or condition approved or imposed by the Court and agreed
by Hummingbird and Nioko;
|
"Scheme Court Order"
|
should the Offer be implemented by
means of a Scheme, the order of the Court sanctioning the
Scheme;
|
"SEC"
|
the United States Securities and
Exchange Commission;
|
"Shareholder Helpline"
|
the shareholder telephone helpline
operated by Link Group on Tel: 0371 664 0321 from the
UK and +44 371 664 0321 from overseas;
|
"Stage 1 Conversion"
|
the increase of Nioko's voting
rights from 41.81 per cent. to approximately 49.9 per cent. in
Hummingbird as per the terms of the CIG Subscription
Agreement;
|
"Stage 2 Conversion"
|
the increase of Nioko's voting
rights from 49.9 per cent. to 71.8 per cent. of Hummingbird's
enlarged share capital as per the terms of the CIG Subscription
Agreement;
|
"subsidiary",
"subsidiary undertaking" and
"undertaking"
|
shall be construed in accordance
with the Companies Act;
|
"Takeover Code"
|
the City Code on Takeovers and
Mergers issued by the Panel on Takeovers and Mergers, as amended
from time to time;
|
"TFE
instruction"
|
Transfer from Escrow (as defined in
the CREST Manual);
|
"TTE instruction"
|
Transfer to Escrow (as defined in
the CREST Manual);
|
"UK" or "United
Kingdom"
|
United Kingdom of Great Britain and
Northern Ireland.
|
"uncertificated" or in
"uncertificated form"
|
a share or other security title to
which is recorded in the relevant register of the share or security
as being held in uncertificated form, in CREST, and title to which,
by virtue of the Regulations may be transferred by means of
CREST;
|
"U.S." or "United
States"
|
United States of America;
|
"U.S.
Exchange Act"
|
the United States Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder;
|
In this document, the following
terms have the meaning given to them in the Takeover Code:
"acting in concert",
"connected adviser",
"dealing" (and
"dealt" shall be construed
accordingly), "derivative",
"exempt fund
manager", "exempt principal
trader", "interests in
securities" (and reference to a person having an interest in
securities shall be construed accordingly).
Unless otherwise indicated, all references in
this document to "sterling", "pounds sterling", "£", "pence", "penny" or "p" are to the lawful currency of the
United Kingdom.
Words importing the singular shall include the
plural and vice versa. Words importing the masculine gender shall
include the feminine or neutral gender and vice versa.
The terms "parent undertaking", "subsidiary undertaking" and
"associated undertaking"
shall have the same meanings as defined in section 1162 of the
Companies Act and references to "parent" and "subsidiary" shall be interpreted
accordingly.
All references to an "adjournment" of a meeting or to a
meeting being "adjourned"
shall be deemed to include a postponement of that meeting or that
meeting being postponed,
All references to a statutory provision or law
or to any order or regulation shall be construed as a reference to
that provision, law, order or regulation as extended, modified,
replaced or re-enacted from time to time and all statutory
instruments, regulations and orders from time to time made
thereunder or deriving validity therefrom.
A reference to "includes" shall mean "includes
without limitation", and references to "including" and any other
similar term shall be construed accordingly.
All the times referred to in this document are
London (UK) times unless otherwise stated.
PART 6
HUMMINGBIRD'S EMPLOYEE REPRESENTATIVE AND PENSION
SCHEME TRUSTEE
As required under Rule 2.11(d) of
the Takeover Code, Hummingbird has informed its employee
representatives of their right under Rule 25.9 to have a separate
opinion on the effects of the offer on employment or the pension
scheme, as applicable, appended to this document and that
Hummingbird would be responsible for the costs reasonably incurred
by the employee representatives in obtaining advice for the
verification of the information contained in their
opinion.
If Hummingbird receives a request
for and obtains any such opinion following the publication of this
document, Hummingbird will publish it on its website and make an
announcement in accordance with Rule 25.9(b) of the Takeover
Code.