REG - 88 Energy Limited - Proposed placing to raise up to A$15 million
02/02/2023 07:00
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RNS Number : 7144O 88 Energy Limited 02 February 2023
THIS ANNOUNCEMENT, INCLUDING THE APPENDIX AND THE INFORMATION CONTAINED
HEREIN, IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN
WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM THE UNITED STATES,
CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA, AUSTRALIA, NEW ZEALAND, HONG
KONG, SINGAPORE OR ANY OTHER JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A
VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF THAT JURISDICTION. PLEASE SEE
THE IMPORTANT NOTICES AT THE END OF THIS ANNOUNCEMENT.
THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND SHALL NOT CONSTITUTE AN
OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY, SUBSCRIBE FOR
OR OTHERWISE ACQUIRE ANY NEW ORDINARY SHARES OF 88 ENERGY LIMITED IN THE
UNITED STATES, CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA, AUSTRALIA, NEW
ZEALAND, HONG KONG, SINGAPORE OR ANY OTHER JURISDICTION IN WHICH SUCH RELEASE,
PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL
THIS ANNOUNCEMENT IS NOT FOR PUBLICATION OR DISTRIBUTION, DIRECTLY OR
INDIRECTLY, IN OR INTO THE UNITED STATES OF AMERICA. THIS ANNOUNCEMENT IS NOT
AN OFFER OF SECURITIES FOR SALE INTO THE UNITED STATES. THE SECURITIES
REFERRED TO HEREIN HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN THE
UNITED STATES, EXCEPT PURSUANT TO AN APPLICABLE EXEMPTION FROM REGISTRATION.
NO PUBLIC OFFERING OF SECURITIES IS BEING MADE IN THE UNITED STATES.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION AS DEFINED IN ARTICLE 7 OF THE
UK VERSION OF THE MARKET ABUSE REGULATION NO. 596/2014 ("MAR"), WHICH IS PART
OF ENGLISH LAW BY VIRTUE OF EUROPEAN UNION (WITHDRAWAL) ACT 2018, AS AMENDED.
UPON THE PUBLICATION OF THIS ANNOUNCEMENT, THIS INSIDE INFORMATION IS NOW
CONSIDERED TO BE IN THE PUBLIC DOMAIN.
88 Energy Limited
Proposed placing to raise up to A$15 million
88 Energy Limited ("88 Energy" or the "Company") (ASX, AIM: 88E) today
announces that it proposes to raise up to A$12.0 million (£6.8 million)
(before expenses), with the ability to accept over-subscriptions to increase
the total amount raised to up to A$15.0 million (£8.1 million) within the
Company's existing placement capacity, pursuant to a placing (the "Placing")
of new ordinary shares of no par value in the Company (the "Placing Shares")
at a price per Placing Share of A$0.0095 (equivalent to £0.0055) (the
"Placing Price"). The Placing Price is equivalent to a discount of 20.8 % to
the closing price of the Company's shares on the Australian Securities
Exchange ("ASX") on 1 February 2023, being the latest practicable date prior
to this announcement, and a discount of 20% to the volume weighted average
price on the ASX for the ten days to 1 February 2023. The Company also
announces that its shares have been placed in a trading halt on the ASX
pending the release of an announcement in relation to the completion of the
Placing.
The Placing is being conducted through a bookbuilding process (the
"Bookbuild"), which is being managed by Cenkos Securities plc ("Cenkos") in
the UK (the "UK Placing") and EurozHartleys Ltd ("EurozHartleys") in Australia
(the "Australian Placing").
The Bookbuild will open with immediate effect following release of this
announcement. The number of Placing Shares to be issued in the UK (the "UK
Placing Shares") and in Australia (the "Australian Placing Shares") will be
agreed by Cenkos, EurozHartleys and the Company at the close of the Bookbuild.
The timing of the closing of the Bookbuild, the amount to be raised and
allocations are at the discretion of Cenkos, EurozHartleys and the Company.
Details of the number of Placing Shares to be issued will be announced as soon
as practicable after the close of the Bookbuild. The Company intends to rely
on the Company's placement capacity pursuant to ASX Listing Rule 7.1 to issue
up to a maximum of 1,578,947,368 new ordinary shares (equivalent to maximum
gross proceeds of approximately A$15.0 million (£8.1 million), such that
shareholder approval will not be required for the Placing.
Current trading and activity
The Company released its financial results for the half-year ending 30 June
2022 ("H1 2022"), including the events occurring after the period end, on 10
August 2022, and recently the Company released its fourth quarter report on 25
January 2023, and as at 31 December 2022 had cash resources of A$14.1 million.
Project Phoenix (formally Project Icewine East)
The former Icewine East area was renamed Project Phoenix to reflect the
Company's refreshed exploration strategy for this acreage. Since its
acquisition in 2014, exploration on the acreage targeted the unconventional
HRZ (Highly Radioactive Zone shale) play. Project Phoenix is focused on the
oil-bearing conventional reservoirs identified during the drilling and logging
of Icewine-1 and recently flow tested by Pantheon Resources. Project Phoenix
is strategically located on the Dalton Highway with the Trans-Alaska Pipeline
System running through the acreage.
During H1 2022 the Company announced that permitting and planning was underway
for the Hickory-1 exploration well, located in Project Phoenix on the North
Slope of Alaska. Hickory-1 is designed to appraise up to six conventional
plays within the SMD, SFS, BFF and KUP reservoirs targeting 647 million
barrels of oil. The optimised drilling location was informed by an extensive
data suite and intersects and will test the substantial potential oil volumes
noted across all mapped play fairways, particularly the SMD, SFS and BFF
reservoirs.
Spud of Hickory-1 is scheduled to occur in early March 2023 to a permitted
total depth of 12,500 feet. The well has been significantly de-risked by
recent Pantheon Resources' drilling and flow tests, interpretation of the
Icewine-1 well logs and modern Franklin Bluffs 3D seismic data (FB3D) and
associated AVO analysis.
The Company expects the Permit to Drill (PTD) to be approved imminently by the
AOGCC for the Hickory-1 exploration well. In addition, construction of the
Hickory-1 ice-pad is expected to commence shortly with mobilisation of the
Nordic Calista Rig-2 scheduled to begin around mid-February from the Pantheon
Resources Alkaid-2 well location. Planning and permitting for the Hickory-1
well is now largely complete with the approval of the PTD, ahead of targeted
spud in early March 2023. Hickory-1 Project Manager, Fairweather, LLC, is in
the final stages of the tendering and contracting program for the drilling
operations, with the final well cost anticipated to be lower than the
previously drilled Icewine-1 and 2 wells on the Project Phoenix acreage at
around US$13.5 million gross (88E 75% working interest).
Further details of the drilling program will be announced by the Company in
the lead-up to planned spud, scheduled for early March 2023.
The Company has received notice from the Alaska Department of Natural
Resources (DNR) that a recently submitted unit application covering the
Project Phoenix acreage was open for public comment until 31 December 2022.
The DNR is expected to issue a decision no later than 1 March 2023. The unit
approval will, if granted, extend the leases for Project Phoenix beyond their
primary term and provide an agreed program to assess commercialisation of the
acreage and a pathway to development and production.
Project Leonis
On 9 November 2022, the Company's wholly-owned subsidiary Captivate Energy
Alaska, Inc. was declared the highest bidder for select acreage offered as
part of the North Slope Areawide 2022W Oil and Gas lease sale. The Company's
new acreage will, if the leases are awarded, be known as Project Leonis
comprising ten leases covering approximately 25,600 contiguous acres. The
Project Leonis leases remain subject to an adjudication process, regulatory
approvals and formal award which is expected in 1H 2023. Project Leonis is
superbly located adjacent to TAPS and the Dalton Highway, enhancing future
potential development commercialisation.
Project Leonis is covered by the existing, recently purchased, Storms 3D
seismic data suite. The acreage contains the historical exploration well
Hemi Springs Unit #3, drilled by ARCO in 1985 to target the deep Kuparuk and
Ivishak reservoirs. At the time, these were the main producing intervals in
the giant northern fields. An initial review of the Hemi Springs Unit #3 well
indicated over 200 feet of low resistivity bypassed log pay within the Upper
Schrader Bluff (USB) reservoir, with good porosity and oil shows evident over
the interval. The USB reservoir has been successfully developed at the nearby
Orion, Polaris, West Sak and Milne Point oil fields.
A preliminary internal review and interpretation of the Storms 3D seismic data
reveals a strong seismic-well tie and a clear seismic amplitude at the USB
prospect level. Encouragingly, the prospect appears to be bound by faults on
three sides which potentially serve as the trapping mechanism. Further
analysis will determine further potential of the acreage and define a possible
exploration program and timeline for the project
Project Longhorn
During Q4 of 2022, the operator and ~24% net working interest partner,
Lonestar I, LLC, successfully completed the final two planned workovers
scheduled for 2022. The workovers were completed on time and commenced
production, with plans in place to optimise oil and gas rates from each well.
Production from the Longhorn wells averaged ~420 BOE per day gross (~70% oil)
during the quarter, peaking at 580 BOE per day gross.
Since acquisition, the Longhorn investment has resulted in net cash flow
returns to 88E of A$4.3M. Net cash flows from operations before capital
investment, generated A$6.5M in 2022. The Company's share of capital invested
in the six completed work overs for 2022 was A$9.1M of which A$2.2M was paid
in cash and the remaining A$6.9M (US$4.6M) in 88E shares.
Four workovers and at least six new drill targets remain on the acreage, with
the forward work program and timing for future capital investments to be
determined by the Joint Venture in 2023.
New Ventures
The Company has also actively assessed multiple new venture opportunities
across the asset life cycle to expand its portfolio of assets and opportunity
types, targeting assets that are complementary to the existing portfolio and
provide shareholders with exposure to additional value creation.
Rationale for the Placing and Use of Proceeds
The net proceeds of the Placing, together with the Company's existing cash
reserves, will strengthen the Company's balance sheet and will provide the
Company with sufficient capital to fund the planned Hickory-1 well at Project
Phoenix, payment for the new Project Leonis acreage, finance potential
portfolio expansion / new ventures (should any be identified and pursued), and
also additional working capital. Following completion of the proposed Placing,
the Company will have sufficient cash to fund its ongoing working capital
requirements and general and administrative overheads for at least 12 months.
Details of the Placing
The Placing is subject to the terms and conditions set out in the Appendix
(which forms part of this announcement, such announcement and the Appendix
together, the "Announcement").
Application will be made to the London Stock Exchange for the Placing Shares
to be admitted to trading on AIM. It is expected that admission to trading on
AIM ("Admission") will become effective and that dealings in the Placing
Shares will commence on AIM at 8.00 a.m. on 14 February 2023.
The Placing Shares will be issued and credited as fully paid and will rank in
full for all dividends and other distributions declared, made or paid after
the admission of those Ordinary Shares and will otherwise rank on Admission
pari passu in all respects with each other and with the existing ordinary
shares in the Company.
The Placing is conditional upon, inter alia, Admission taking place by no
later than 8.00 a.m. on 14 February 2023 (or such later date as Cenkos may
agree in writing with the Company, being not later than 8.00 a.m. on 24
February 2023) and the Placing Agreement entered into between the Company and
Cenkos not being terminated prior to Admission. If any of the conditions of
the Placing Agreement are not satisfied, the Placing Shares will not be issued
and Admission will not take place.
The Company, in conjunction with Cenkos and EurozHartleys, reserves the right
to accept over-subscriptions for Placing Shares and to determine the maximum
number of Placing Shares that will be issued in the Placing. However, the
Company intends to rely on the Company's placement capacity pursuant to ASX
Listing Rule 7.1 to issue up to a maximum of 1,578,947,368 new ordinary
shares (equivalent to maximum gross proceeds of approximately A$15.0 million
(£8.1 million)), such that shareholder approval will not be required for
the Placing.
The Placing Shares have not been made available to the public and have not
been offered or sold in any jurisdiction where it would be unlawful to do so.
This Announcement should be read in its entirety. In particular, your
attention is drawn to the "Important Notices" section of this Announcement, to
the detailed terms and conditions of the Placing and further information
relating to the Bookbuild described in the Appendix to this Announcement
(which forms part of this Announcement).
By choosing to participate in the Placing and by making an oral and legally
binding offer to acquire Placing Shares, investors will be deemed to have read
and understood this Announcement in its entirety (including the Appendix), and
to be making such offer on the terms and subject to the conditions of the
Placing contained herein, and to be providing the representations, warranties
and acknowledgements contained in the Appendix.
In this Announcement, references to "pounds sterling", "£", "pence" and "p"
are to the lawful currency of the United Kingdom and references to "Australian
dollars", "A$" and "A cents" are to the lawful currency of Australia. Unless
otherwise stated, the basis of translation of pounds sterling into Australian
dollars is £1.00/A$1.727.
For further information please contact:
88 Energy Ltd admin@88energy.com
Ashley Gilbert, Managing Director Tel: +61 8 9485 0990
Finlay Thomson, Investor Relations Tel: +44 7976 248 471
EurozHartleys Ltd
Dale Bryan Tel: +61 8 9268 2829
Cenkos Securities Plc
Neil McDonald Tel: +44 (0)131 220 6939 / +44 (0)20 7397 8900
Derrick Lee
Pearl Kellie
Pursuant to the requirements of the ASX Listing Rules Chapter 5 and the AIM
Rules for Companies, the technical information and resource reporting
contained in this announcement was prepared by, or under the supervision of,
Dr Stephen Staley, who is a Non-Executive Director of the Company. Dr Staley
has more than 37 years' experience in the petroleum industry, is a Fellow of
the Geological Society of London, and a qualified Geologist/Geophysicist who
has sufficient experience that is relevant to the style and nature of the oil
prospects under consideration and to the activities discussed in this
document. Dr Staley has reviewed the information and supporting documentation
referred to in this announcement and considers the prospective resource
estimates to be fairly represented and consents to its release in the form and
context in which it appears. His academic qualifications and industry
memberships appear on the Company's website and both comply with the criteria
for "Competence" under clause 3.1 of the Valmin Code 2015. Terminology and
standards adopted by the Society of Petroleum Engineers "Petroleum Resources
Management System" have been applied in producing this document.
Cautionary Statement
The estimated quantities of petroleum that may be potentially recovered by the
application of a future development project relate to undiscovered
accumulations. These estimates have both an associated risk of discovery and a
risk of development. Further exploration, appraisal and evaluation are
required to determine the existence of a significant quantity of potentially
movable hydrocarbons.
Important Notices
Forward-looking statements
This announcement may include certain "forward-looking statements" and
"forward-looking information" under applicable securities laws. Except for
statements of historical fact, certain information contained herein
constitutes forward-looking statements. Forward-looking statements are
frequently characterised by words such as "plan", "expect", "project",
"intend", "believe", "anticipate", "estimate", and other similar words, or
statements that certain events or conditions "may" or "will" occur.
Forward-looking statements are based on the opinions and estimates of
management at the date the statements are made, and are based on a number of
assumptions and subject to a variety of risks and uncertainties and other
factors that could cause actual events or results to differ materially from
those projected in the forward-looking statements. Assumptions upon which such
forward-looking statements are based include that all required third party
regulatory and governmental approvals will be obtained. Many of these
assumptions are based on factors and events that are not within the control of
the Company and there is no assurance they will prove to be correct. Factors
that could cause actual results to vary materially from results anticipated by
such forward-looking statements include changes in market conditions and other
risk factors discussed or referred to in this announcement and other documents
filed with the applicable securities regulatory authorities. Although the
Company has attempted to identify important factors that could cause actual
actions, events or results to differ materially from those described in
forward-looking statements, there may be other factors that cause actions,
events or results not to be anticipated, estimated or intended. There can be
no assurance that forward-looking statements will prove to be accurate, as
actual results and future events could differ materially from those
anticipated in such statements. The Company undertakes no obligation to update
forward-looking statements if circumstances or management's estimates or
opinions should change except as required by applicable securities laws. The
reader is cautioned not to place undue reliance on forward-looking statements.
As referenced above, the Company notes that it is continually assessing new
venture opportunities across the asset life cycle to expand its portfolio of
assets and opportunities. Such potential opportunities are not announced
until such time as the Company has agreed the material commercial and legal
terms with the relevant counterparty or counterparties, and customary due
diligence is completed. Until the material commercial and legal terms have
been agreed and due diligence completed, there can be no guarantee that such
discussions, whether or not they have been disclosed, will lead to the
announcement or completion of a binding agreement.
Cenkos is authorised and regulated by the Financial Conduct Authority (the
"FCA") in the United Kingdom and is acting exclusively for the Company and no
one else in connection with the Bookbuilding process and the Placing will not
be responsible to anyone (including any Placees) other than the Company for
providing the protections afforded to its clients or for providing advice in
relation to the Bookbuilding Process or the Placing or any other matters
referred to in this Announcement.
No representation or warranty, express or implied, is or will be made as to,
or in relation to, and no responsibility or liability is or will be accepted
by Cenkos or by any of its affiliates or agents as to, or in relation to, the
accuracy or completeness of this Announcement or any other written or oral
information made available to or publicly available to any interested party or
its advisers, and any liability therefor is expressly disclaimed.
No statement in this Announcement is intended to be a profit forecast or
estimate, and no statement in this Announcement should be interpreted to mean
that earnings per share of the Company for the current or future financial
years would necessarily match or exceed the historical published earnings per
share of the Company.
The price of shares and any income expected from them may go down as well as
up and investors may not get back the full amount invested upon disposal of
the shares. Past performance is no guide to future performance, and persons
needing advice should consult an independent financial adviser.
The Placing Shares to be issued pursuant to the Placing will not be admitted
to trading or listed on any stock exchange other than on the AIM market
operated by the London Stock Exchange and the ASX.
Neither the content of the Company's website nor any website accessible by
hyperlinks on the Company's website is incorporated in, or forms part of, this
Announcement.
THE APPENDIX
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING AND NO
PUBLIC OFFERING OF PLACING SHARES IS BEING OR WILL BE MADE. THIS ANNOUNCEMENT
(WHICH IS FOR INFORMATION PURPOSES ONLY) AND THE TERMS AND CONDITIONS SET OUT
IN THIS ANNOUNCEMENT ("TERMS AND CONDITIONS") ARE DIRECTED ONLY AT: (A)
PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA ("EEA") WHO ARE
QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(E) OF THE EU PROSPECTUS
REGULATION (WHICH MEANS REGULATION (EU) 2017/1129, AS AMENDED FROM TIME TO
TIME, AND INCLUDES ANY RELEVANT IMPLEMENTING DIRECTIVE MEASURE IN ANY MEMBER
STATE) (THE "EU PROSPECTUS REGULATION") ("QUALIFIED INVESTORS"); (B) IN THE
UNITED KINGDOM, QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(E) OF THE
UK VERSION OF THE EU PROSPECTUS REGULATION (THE "UK PROSPECTUS REGULATION")
(WHICH IS PART OF ENGLISH LAW BY VIRTUE OF EUROPEAN UNION (WITHDRAWAL) ACT
2018, AS AMENDED) AND WHO ALSO ARE PERSONS WHO (I) HAVE PROFESSIONAL
EXPERIENCE IN MATTERS RELATING TO INVESTMENTS FALLING WITHIN ARTICLE 19(5) OF
THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005
(THE "ORDER"); OR (II) ARE PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D)
("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER;
AND (C) PERSONS TO WHOM IT MAY OTHERWISE LAWFULLY BE COMMUNICATED; IN EACH
CASE TO WHOM THE PLACING IS SPECIFICALLY ADDRESSED (ALL SUCH PERSONS TOGETHER
BEING REFERRED TO AS "RELEVANT PERSONS" AND EACH A "RELEVANT PERSON").
THE TERMS AND CONDITIONS MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE
NOT RELEVANT PERSONS. DISTRIBUTION OF THIS ANNOUNCEMENT IN CERTAIN
JURISDICTIONS MAY BE RESTRICTED OR PROHIBITED BY LAW. PERSONS DISTRIBUTING
THIS APPENDIX MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY
INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT AND THE TERMS AND
CONDITIONS RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN
ONLY WITH RELEVANT PERSONS. THIS APPENDIX DOES NOT ITSELF CONSTITUTE AN OFFER
FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
NEITHER THIS ANNOUNCEMENT NOR THE PLACING CONSTITUTES OR IS INTENDED TO
CONSTITUTE AN OFFER TO THE PUBLIC IN AUSTRALIA IN TERMS OF THE CORPORATIONS
ACT 2001 OF THE COMMONWEALTH OF AUSTRALIA (AS AMENDED)
THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE US SECURITIES ACT OF 1933 (THE "US SECURITIES ACT") OR UNDER ANY
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES AND
MAY NOT BE OFFERED, SOLD, RESOLD, TRANSFERRED OR DELIVERED, DIRECTLY OR
INDIRECTLY, IN OR INTO THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, US PERSONS (AS DEFINED IN REGULATION S UNDER THE US SECURITIES ACT) EXCEPT
PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
US SECURITIES ACT AND IN COMPLIANCE WITH THE US SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION OF THE UNITED STATES. THERE WILL BE NO PUBLIC OFFER OF
THE SECURITIES MENTIONED HEREIN IN THE UNITED STATES.
THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
US SECURITIES AND EXCHANGE COMMISSION (THE "SEC"), ANY STATE SECURITIES
COMMISSION OR ANY OTHER REGULATORY AUTHORITY IN THE UNITED STATES, NOR HAVE
ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THE
PLACING OR THE ACCURACY OR ADEQUACY OF THIS ANNOUNCEMENT. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENCE IN THE UNITED STATES.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS
AND RELATED ASPECTS OF AN ACQUISITION OF PLACING SHARES.
For the purposes of these Terms and Conditions the expression the "Placing"
shall mean the UK Placing (as defined in this Announcement, and, for the
avoidance of doubt, in these Terms and Conditions the expression the "Placing"
shall not include the Australian Placing (as defined in this Announcement) and
the expression the "Placing Shares" shall refer only to the UK Placing Shares
(as defined in this Announcement).
Persons who are invited to and who choose to participate in the Placing by
making an oral or written offer to acquire Placing Shares (as defined in this
Announcement), including any individuals, funds or others on whose behalf a
commitment to acquire Placing Shares is given, (the "Placees"), will (i) be
deemed to have read and understood this Announcement, including this Appendix,
in its entirety; and (ii) be making such offer on the terms and conditions
contained in these Terms and Conditions, including being deemed to be
providing (and shall only be permitted to participate in the Placing on the
basis that they have provided) the representations, warranties,
acknowledgements and undertakings set out herein.
In particular each such Placee represents, warrants and acknowledges that:
(a) it is a Relevant Person (as defined above) and undertakes
that it will acquire, hold, manage or dispose of any Placing Shares that are
allocated to it for the purposes of its business;
(b) it is and, at the time the Placing Shares are acquired, will
be outside the United States and is acquiring the Placing Shares in an
"offshore transaction" in accordance with Rule 903 or Rule 904 of Regulation S
under the US Securities Act and is acquiring beneficial interests in the
Placing Shares for its own account; if acquiring the Placing Shares for the
account of one or more other persons, it has full power and authority to make
the representations, warranties, agreements and acknowledgements herein on
behalf of each such account; and
(c) if it is a financial intermediary, as that term is used in
Article 5(1) of the UK Prospectus Regulation, that any Placing Shares acquired
by it in the Placing will not be acquired on a non-discretionary basis on
behalf of, nor will they be acquired with a view to their offer or resale to,
persons in circumstances which may give rise to an offer of securities to the
public other than an offer or resale in a member state of the EEA which has
implemented the EU Prospectus Regulation to Qualified Investors, or in
circumstances in which the prior consent of Cenkos has been given to each such
proposed offer or resale.
The Company and Cenkos will rely upon the truth and accuracy of the foregoing
representations, warranties, acknowledgements and agreements.
This Announcement and the information contained herein is not for publication
or distribution, directly or indirectly, to persons in the Republic of South
Africa ("South Africa"), Canada, Australia, New Zealand, Hong Kong, Singapore,
Japan or in any other jurisdiction in which such publication or distribution
would be unlawful (each a "Restricted Jurisdiction"). This Announcement and
the information contained in it is not for publication or distribution,
directly or indirectly, to persons in a Restricted Jurisdiction unless
permitted pursuant to an exemption under the relevant local law or regulation
in any such jurisdiction.
Persons into whose possession this Announcement may come are required by the
Company to inform themselves about and to observe any restrictions of transfer
in this Announcement. No public offer of securities of the Company is being
made in the United Kingdom or elsewhere.
This Announcement does not constitute an offer, and may not be used in
connection with an offer, to sell or issue or the solicitation of an offer to
buy or subscribe for Placing Shares in any jurisdiction in which such offer or
solicitation is or may be unlawful.
These materials may not be published, distributed or transmitted by any means
or media, directly or indirectly, in whole or in part, in or into the United
States. These materials do not constitute an offer to sell, or a solicitation
of an offer to buy, securities in the United States. Securities may not be
offered or sold in the United States absent (i) registration under the U.S.
Securities Act of 1933, as amended (the "US Securities Act") or (ii) an
available exemption from registration under the US Securities Act. The
securities mentioned herein have not been, and will not be, registered under
the US Securities Act and will not be offered to the public in the United
States. The Placing Shares are being offered and sold outside the United
States to non-US persons (as defined in Regulation S under the US Securities
Act) in "offshore transactions" within the meaning of Regulation S.
The relevant clearances have not been, nor will they be, obtained from the
securities commission of any province or territory of Canada; no prospectus
has been lodged with or registered by the Australian Securities and
Investments Commission; no prospectus has been lodged with or registered by
the securities regulators in South Africa, New Zealand, Hong Kong, Singapore
or the Japanese Ministry of Finance; and none of the Placing Shares have been,
nor will they be, registered under or offered in compliance with the
securities laws of any state, province or territory of Australia, South
Africa, New Zealand, Hong Kong, Singapore, Canada or Japan. Accordingly, none
of the Placing Shares may (unless an exemption under the relevant securities
laws is applicable) be offered, sold, resold or delivered, directly or
indirectly, in or into Australia, South Africa, New Zealand, Hong Kong,
Singapore, Canada, Japan or any other jurisdiction outside the United Kingdom.
Persons (including, without limitation, nominees and trustees) who have a
contractual or other legal obligation to forward a copy of these Terms and
Conditions or the Announcement of which they form part should seek appropriate
advice before taking any action.
An indication in this Announcement of the price at which the Company's shares
have been bought or sold in the past cannot be relied upon as a guide to
future performance. Persons needing advice should consult an independent
financial adviser. No statement in this Announcement is intended to be a
profit forecast.
Market Abuse Regulation
Market soundings, as defined in the UK version ("UK MAR") of the Market Abuse
Regulation No. 596/2014 ("EU MAR"), which is part of English law by virtue
of the European Union (Withdrawal) Act 2018, as amended, were taken in respect
of the Placing, with the result that certain persons became aware of inside
information, as permitted by UK MAR. That inside information is set out in
this announcement and has been disclosed as soon as possible in accordance
with paragraph 7 of article 17 of UK MAR. Therefore, those persons that
received inside information in a market sounding are no longer in possession
of inside information relating to the Company and its securities.
Information to Distributors
Solely for the purposes of the product governance requirements contained
within: (a) EU Directive 2014/65/EU on markets in financial instruments, as
amended ("MiFID II"); (b) Articles 9 and 10 of Commission Delegated Directive
(EU) 2017/593 supplementing MiFID II; and (c) local implementing measures
constitute retained EU law (as defined in section 6(7) of the European Union
(Withdrawal) Act 2018) in the United Kingdom) ("Retained MiFID Provisions"
(together, the "MiFID II Product Governance Requirements"), and disclaiming
all and any liability, whether arising in tort, contract or otherwise, which
any "manufacturer" (for the purposes of the MiFID II Product Governance
Requirements) may otherwise have with respect thereto, the Placing Shares have
been subject to a product approval process, which has determined that such
securities are: (i) compatible with an end target market of retail investors
and investors who meet the criteria of professional clients and eligible
counterparties, each as defined in MiFID II and the Retained MiFID Provisions;
and (ii) eligible for distribution through all distribution channels as are
permitted by MiFID II and the Retained MiFID Provisions (the "Target Market
Assessment").
Notwithstanding the Target Market Assessment, distributors should note that:
the price of the Placing Shares may decline and investors could lose all or
part of their investment; the Placing Shares offer no guaranteed income and no
capital protection; and an investment in the Placing Shares is compatible only
with investors who do not need a guaranteed income or capital protection, who
(either alone or in conjunction with an appropriate financial or other
adviser) are capable of evaluating the merits and risks of such an investment
and who have sufficient resources to be able to bear any losses that may
result therefrom. The Target Market Assessment is without prejudice to the
requirements of any contractual, legal or regulatory selling restrictions in
relation to the Placing. Furthermore, it is noted that, notwithstanding the
Target Market Assessment, Cenkos will only procure investors who meet the
criteria of professional clients and eligible counterparties.
For the avoidance of doubt, the Target Market Assessment does not constitute:
(a) an assessment of suitability or appropriateness for the purposes of MiFID
II or the Retained MiFID Provisions; or (b) a recommendation to any investor
or group of investors to invest in, or purchase, or take any other action
whatsoever with respect to the Placing Shares.
Each distributor is responsible for undertaking its own target market
assessment in respect of the Placing Shares and determining appropriate
distribution channels.
Details of the Placing Agreement and the Placing Shares
Cenkos is acting as agent for and on behalf of the Company in connection with
the Placing and has entered into a placing agreement (the "Placing Agreement")
with the Company under which Cenkos has agreed to use its reasonable
endeavours to procure Placees (on a non-underwritten basis) to subscribe for
the Placing Shares at the Placing Price per Placing Share, on the terms and
subject to the conditions set out herein.
The Placing Shares will, when issued, be credited as fully paid and will rank
pari passu in all respects with the existing ordinary shares in the capital of
the Company (the "Ordinary Shares"), including the right to receive all
dividends and other distributions declared, made or paid on or in respect of
the Ordinary Shares after the date of issue of the Placing Shares, and will on
issue be free of all claims, liens, charges, encumbrances and equities.
Application for admission to trading on AIM
Applications will be made for the Placing Shares to be admitted to trading on
the AIM market operated by the London Stock Exchange plc ("AIM")
("Admission"). It is expected that settlement for the Placing Shares and
Admission will take place on or around 8.00 a.m. London time on 14 February
2023 (or such other time and date as Cenkos may agree with the Company, but no
later than 24 February 2023). The Placing is conditional upon, amongst other
things, Admission becoming effective and the Placing Agreement not being
terminated in accordance with its terms.
Participation in, and principal terms of, the Placing
1. Cenkos is arranging the Placing as placing agent of the
Company for the purpose of procuring Placees at the Placing Price (as defined
above) for the Placing Shares following completion of the Bookbuilding Process
(as defined below).
2. Commencing today, Cenkos will be conducting an accelerated
bookbuilding process (the "Bookbuilding Process") in the United Kingdom to
determine demand for participation in the Placing by Placees. These Terms and
Conditions give details of the terms and conditions of, and the mechanics of
participation in, the Placing.
3. Participation in the Placing will only be available to
persons who are Relevant Persons and who may lawfully be, and are, invited to
participate by Cenkos.
4. The Placing Price of £0.0055 per Placing Share payable by
all Placees whose bids are successful is fixed.
5. The number of Placing Shares will be agreed between Cenkos
and the Company following completion of the Bookbuilding Process. The Company,
in conjunction with Cenkos, reserves the right to accept over-subscriptions
for Placing Shares and to determine the maximum number of Placing Shares that
will be issued in the Placing. However, the Company intends to rely on the
Company's placement capacity pursuant to ASX Listing Rule 7.1 to issue up to a
maximum of 1,578,947,368 new ordinary shares (equivalent to maximum aggregate
gross proceeds of the UK Placing and the Australian Placing of A$ 15.0
million (£8.1 million)), such that shareholder approval will not be
required for the Placing.
6. The books will open with immediate effect. The Bookbuilding
Process is then expected to close not later than 5.00 p.m. London time on 2
February 2023 but may be closed earlier at the sole discretion of Cenkos. A
further announcement will be released on a Regulatory Information Service as
soon as practicable following the close of the Bookbuilding Process, detailing
the final number of Placing Shares and the gross and net proceeds of the
Placing. The Company reserves the right (upon the agreement of Cenkos) to
increase or reduce the amount to be raised pursuant to the Placing, in its
absolute discretion.
7. A bid in the Bookbuilding Process will be made on the terms
and conditions in these Terms and Conditions and will not be capable of
variation or revocation after the close of the Bookbuilding Process.
8. A Placee who wishes to participate in the Bookbuilding
Process should communicate its bid by telephone to the usual sales contact at
Cenkos. Each bid should either state the number of Placing Shares which the
prospective Placee wishes to subscribe for or a fixed monetary amount at, in
either case, the Placing Price. If successful, Cenkos will re-contact and
confirm orally to its Placees following the close of the Bookbuilding Process
the size of their respective allocations and contract notes will be dispatched
thereafter. The identity of Placees and the basis of the allocations are at
the discretion of Cenkos in consultation with the Company. Cenkos' oral
confirmation of the size of allocations will constitute an irrevocable legally
binding agreement with the Placee concerned in favour of the Company and
Cenkos, pursuant to which each such Placee will be required to accept the
number of Placing Shares allocated to the Placee at the Placing Price (up to
the number of Placing Shares indicated in its bid) and otherwise on the terms
and subject to the conditions set out herein and in accordance with the
Company's constitution. Each Placee's allocation and commitment will be
evidenced by a contract note issued to such Placee by Cenkos. The terms of
these Terms and Conditions will be deemed incorporated in that contract note.
Each such Placee will have an immediate, separate, irrevocable and binding
obligation, owed to Cenkos, to pay it or (as it may direct) one of its
affiliates in cleared funds an amount equal to the product of the Placing
Price and the number of Placing Shares allocated to such Placee.
9. Cenkos reserves the right to accept bids, either in whole
or in part, on the basis of allocations determined in accordance with the
Company and to scale back the number of Placing Shares to be subscribed for or
acquired by any Placee in the event of an oversubscription under the Placing.
Cenkos also reserves the right not to accept offers to subscribe for or
acquire Placing Shares or to accept such offers in part rather than in whole.
The acceptance of offers shall be at the absolute discretion of Cenkos. Cenkos
shall be entitled to effect the Placing by such alternative method to the
Bookbuilding Process as it may determine in agreement with the Company.
10. Irrespective of the time at which a Placee's allocation
pursuant to the Placing is confirmed, settlement for all Placing Shares to be
acquired pursuant to the Placing will be required to be made at the same time,
on the basis explained below under "Registration and Settlement".
11. All obligations of Cenkos under the Placing will be subject to
fulfilment of the conditions referred to below under "Conditions of the
Placing" and to the Placing not being terminated on the basis referred to
below under "Right to terminate under the Placing Agreement".
12. By participating in the Placing, each Placee will agree that
its rights and obligations in respect of the Placing will terminate only in
the circumstances described below and will not be capable of rescission or
termination by the Placee.
13. Except as required by law or regulation, no press release or
other announcement will be made by Cenkos or the Company using the name of any
Placee (or its agent), in its capacity as Placee (or agent), other than with
such Placee's prior written consent.
14. To the fullest extent permissible by law, neither Cenkos, nor
the Company, nor any of their respective affiliates, agents, directors,
officers or employees shall have any responsibility or liability to Placees
(or to any other person whether acting on behalf of a Placee or otherwise). In
particular, neither of Cenkos, nor the Company, nor any of their respective
affiliates, agents, directors, officers or employees shall have any
responsibility or liability (including to the extent permissible by law, any
fiduciary duties) in respect of Cenkos' conduct of the Placing and the
Bookbuilding Process or of such alternative method of effecting the Placing or
the Bookbuilding Process as Cenkos and the Company may agree.
15. The Placing is not subject to any minimum fundraising and no
element of the Placing is underwritten by Cenkos or any other person.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional
and not having been terminated in accordance with its terms.
Cenkos' obligations under the Placing Agreement in relation to the Placing of
the Placing Shares are conditional on, inter alia:
(a) admission of the Placing Shares to trading on AIM occurring
at or before 8.00 a.m. (London time) on 14 February 2023 (or such later time
and/or date as the Company and Cenkos may otherwise agree, being no later than
24 February 2023);
(b) the performance by the Company of its obligations under the
Placing Agreement so far as those obligations fall to be performed prior to
Admission; and
(c) the Company having confirmed to Cenkos that, prior to the
delivery of such confirmation, none of the representations, warranties and
agreements of the Company contained in the Placing Agreement was untrue,
inaccurate or misleading at the date of the Placing Agreement or will be
untrue, inaccurate or misleading immediately prior to Admission.
If: (i) any of the conditions in relation to the Placing of the Placing Shares
contained in the Placing Agreement, including those described above, are not
fulfilled or (where permitted) waived by Cenkos by the relevant time or date
specified (or such later time or date as the Company and Cenkos may agree,
being no later than 24 February 2023); or (ii) any of such conditions become
incapable of being fulfilled; or (iii) the Placing Agreement is terminated in
the circumstances specified below, the Placing will lapse and the Placees'
rights and obligations hereunder in relation to the Placing Shares shall cease
and terminate at such time and each Placee agrees that no claim can be made by
it in respect thereof.
Cenkos may, at its discretion and upon such terms as it considers fit, waive
compliance by the Company with the whole or any part of any of the Company's
obligations in relation to the conditions in the Placing Agreement save that
the above condition relating to Admission taking place may not be waived. Any
such extension or waiver will not affect Placees' commitments as set out in
this Announcement.
Cenkos shall not have any liability to any Placee (or to any other person
whether acting on behalf of a Placee or otherwise) in respect of any decision
it may make as to whether or not to waive or to extend the time and/or date
for the satisfaction of any condition to the Placing nor for any decision it
may make as to the satisfaction of any condition or in respect of the Placing
generally and by participating in the Placing each Placee agrees that any such
decision is within the absolute discretion of Cenkos.
Right to terminate under the Placing Agreement
Cenkos is entitled, at any time before Admission, to terminate the Placing
Agreement by giving notice to the Company if, amongst other things:
(a) any statement contained in or this Announcement has
become or has been discovered to be untrue, inaccurate or misleading in any
material respect or that there has been a material omission therefrom;
(b) any of the warranties given by the Company in the
Placing Agreement is untrue, inaccurate or misleading;
(c) the Company materially fails to comply with any of its
obligations under the Placing Agreement;
(d) there has occurred, in
Cenkos' opinion, acting in good faith, a material adverse change in the
business of the Group or in the financial or trading position or prospects of
the Group; or
(e) (i) any material adverse change in financial markets;
(ii) any incident of terrorism or outbreak or escalation of hostilities or any
declaration by the UK or the US of a national emergency or war or any other
calamity or crisis; (iii) any suspension or termination of trading in the
Ordinary Shares or AIM or the ASX generally; or (iv) a banking moratorium in
the UK or Australia;
which in the reasonable opinion of Cenkos, acting in good faith, would or
would be likely to prejudice materially the Group or the Placing.
Upon such termination, the parties to the Placing Agreement shall be released
and discharged (except for any liability arising before or in relation to such
termination) from their respective obligations under or pursuant to the
Placing Agreement subject to certain exceptions.
By participating in the Placing, Placees agree that the exercise by Cenkos of
any right of termination or by Cenkos of any other discretion under the
Placing Agreement shall be within the absolute discretion of Cenkos, and that
Cenkos need not make any reference to Placees and that Cenkos shall have no
liability to Placees whatsoever in connection with any such exercise or
failure so to exercise.
No Admission Document or Prospectus
The Placing Shares are being offered to a limited number of specifically
invited persons only, and will not be offered in such a way as to require an
admission document or prospectus in the United Kingdom or in any other
jurisdiction. No offering document or prospectus has been or will be submitted
to be approved by the London Stock Exchange or by the exchange operated by the
ASX, or by the FCA or by any other regulatory body in relation to the Placing.
Placees' commitments will be made solely on the basis of the information
contained in this Announcement released by the Company today and subject to
the further terms set out in these Terms and Conditions and in the contract
note to be provided to individual prospective Placees. Each Placee, by
accepting a participation in the Placing, agrees that the content of this
Announcement (including this Appendix) and all other publicly available
information previously published by the Company by notification to a
Regulatory Information Service or otherwise filed by the Company is
exclusively the responsibility of the Company and confirms that it has neither
received nor relied on any other information, representation, warranty, or
statement made by or on behalf of the Company or Cenkos or any other person
and neither the Company, nor Cenkos, nor any other person will be liable for
any Placee's decision to participate in the Placing based on any other
information, representation, warranty or statement which the Placees may have
obtained or received. No representation or warranty, express or implied, is or
will be made by Cenkos in relation to, and no representation or liability is
or will be accepted by Cenkos, or by any of their affiliates or agents, as to
or in relation to, the accuracy or completeness of this Announcement or any
other such information. Each Placee acknowledges and agrees that it has relied
on its own investigation of the business, financial or other position of the
Company in accepting a participation in the Placing. Nothing in this
Announcement shall exclude the liability of any person for fraudulent
misrepresentation by that person.
Registration and Settlement
United Kingdom
Settlement of transactions in the Placing Shares (ISIN: AU00000088E2)
following Admission will take place within the system administered by
Euroclear UK & International Limited ("CREST") by the issue of depository
instruments. Subject to certain exceptions, Cenkos and the Company reserve the
right to require settlement for, and delivery of, the Placing Shares (or any
part thereof) to Placees by such other means that they deem necessary if
delivery or settlement is not possible or practicable within the CREST system
within the timetable set out in this Announcement or would not be consistent
with the regulatory requirements in the Placee's jurisdiction.
Each Placee allocated Placing Shares in the Placing will be sent a contract
note by Cenkos stating the number of Placing Shares allocated to it at the
Placing Price, the aggregate amount owed by such Placee to Cenkos and
settlement instructions. Each Placee agrees that it will do all things
necessary to ensure that delivery and payment is completed in accordance with
the standing CREST or certificated settlement instructions in respect of the
Placing Shares that it has in place with Cenkos.
It is expected that settlement of the Placing Shares will be on 14 February
2023, in accordance with the instructions set out in the trade confirmation.
Interest is chargeable daily on payments not received from Placees on the due
date in accordance with the arrangements set out above at the rate of two
percentage points above the prevailing Sterling Overnight Index Average as
determined by Cenkos.
Each Placee is deemed to agree that, if it does not comply with these
obligations, Cenkos may sell any or all of the Placing Shares allocated to
that Placee on such Placee's behalf and retain from the proceeds, for Cenkos'
account and benefit, an amount equal to the aggregate amount owed by the
Placee plus any interest due. The relevant Placee will, however, remain liable
for any shortfall below the aggregate amount owed by it and may be required to
bear any stamp duty or stamp duty reserve tax (together with any interest or
penalties) or other similar taxes imposed in any jurisdiction which may arise
upon the sale of such Placing Shares on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or settlement agent,
Placees should ensure that the trade confirmation is copied and delivered
immediately to the relevant person within that organisation.
Insofar as Placing Shares are registered in a Placee's name or that of its
nominee or in the name of any person for whom a Placee is contracting as agent
or that of a nominee for such person, such Placing Shares should, subject as
provided below, be so registered free from any liability to UK stamp duty or
stamp duty reserve tax. Placees will not be entitled to receive any fee or
commission in connection with the Placing.
Representations, Warranties and Further Terms
By participating in the Placing each Placee (and any person acting on such
Placee's behalf) irrevocably:
1. represents and warrants that it has read and understood the
Announcement, in its entirety and that its acquisition of Placing Shares is
subject to and based upon all the terms, conditions, representations,
warranties, acknowledgements, agreements and undertakings and other
information contained herein and undertakes not to redistribute or duplicate
this Announcement;
2. acknowledges that no offering document or prospectus has
been or will be prepared in connection with the Placing and represents and
warrants that it has not received and will not receive a prospectus or other
offering document in connection with the Placing or the Placing Shares nor is
any such prospectus or offering document required under the UK Prospectus
Regulation;
3. acknowledges that neither Cenkos, nor the Company, nor any
of their respective affiliates, agents, directors, officers or employees or
any person acting on behalf of any of them has provided, nor will provide, it
with any material regarding the Placing Shares, the Company or its Group other
than (in the case of the Company) this Announcement; nor has it requested
Cenkos, nor the Company, any of their respective affiliates or any person
acting on behalf of any of them to provide it with any such information;
4. acknowledges that the Company's ordinary shares are
admitted to trading on AIM and listed on the ASX and that the Company is
therefore required to publish certain business and financial information in
accordance with the rules and practices of the FCA, the AIM Rules for
Companies and the ASX Listings Rules, which includes a description of the
Company's business and the Company's financial information, including balance
sheets and income statements, and that it is able to obtain or access such
information, or comparable information concerning other publicly traded
companies, in each case without undue difficulty;
5. acknowledges that neither Cenkos, nor any person acting on
behalf of Cenkos, nor any of their respective affiliates has or shall have any
liability for any publicly available or filed information or any
representation relating to the Company or its Group, provided that nothing in
this paragraph excludes the liability of any person for fraudulent
misrepresentation made by that person;
6. acknowledges that the content of this Announcement is
exclusively the responsibility of the Company and that neither Cenkos, nor its
affiliates or any person acting on behalf of Cenkos has or shall have any
liability for any information, representation or statement contained in, or
omission from, this Announcement, or any information previously published by
or on behalf of the Company or its Group, pursuant to applicable laws, and
will not be liable for any Placee's decision to participate in the Placing
based on any information, representation or statement contained in this
Announcement or otherwise. Each Placee further represents, warrants and agrees
that the only information on which it is entitled to rely and on which such
Placee has relied in committing itself to acquire Placing Shares is contained
in this Announcement and any information previously published by the Company
by notification to a Regulatory Information Service, such information being
all that such Placee deems necessary or appropriate and sufficient to make an
investment decision in respect of the Placing Shares and that it has neither
received nor relied on any other information given, or representations,
warranties or statements made, by Cenkos or the Company, nor any of their
respective affiliates and neither of Cenkos or the Company will be liable for
any Placee's decision to accept an invitation to participate in the Placing
based on any other information, representation, warranty or statement,
provided that nothing in this paragraph excludes the liability of any person
for fraudulent misrepresentation made by that person;
7. acknowledges and agrees that it may not rely, and has not
relied, on any investigation that Cenkos, any of its affiliates or any person
acting on Cenkos' behalf, may have conducted with respect to the Placing
Shares or the Company or its Group, and none of such persons has made any
representation, express or implied, with respect to the Company, its Group,
the Placing Shares or the accuracy, completeness or adequacy of any publicly
available or filed information or any representation relating to the Company
or its Group; each Placee further acknowledges that it has conducted its own
investigation of the Company, its Group and the Placing Shares and has
received all information it believes necessary or appropriate in connection
with its investment in the Placing Shares;
8. acknowledges that it has made its own assessment and has
satisfied itself concerning the relevant tax, legal, currency and other
economic considerations relevant to its investment in the Placing Shares;
9. acknowledges that neither Cenkos, nor its affiliates, nor
any person acting on behalf of any of them has or shall have any liability for
any information made publicly available by or in relation to the Company or
its Group or any representation, warranty or statement relating to the Company
or the Group contained therein or otherwise, provided that nothing in this
paragraph excludes the liability of any person for fraudulent
misrepresentation made by that person;
10. represents and warrants that it is and, at the time the
Placing Shares are acquired, will be located outside the United States and is
not a US person (as defined in Regulation S) and is acquiring the Placing
Shares in an "offshore transaction" in accordance with Rule 903 or Rule 904 of
Regulation S; (ii) if it is acquiring the Placing Shares for the account of
one or more other persons, it has full power and authority to make the
representations, warranties, agreements and acknowledgements herein on behalf
of each such account; (iii) it is not acquiring the Placing Shares as a result
of any "directed selling efforts" as defined in Regulation S or as a result of
any form of general solicitation or general advertising (within the meaning of
Rule 502(c) of Regulation D under the US Securities Act); and (iv) it will not
publish, distribute or transmit these or any other documents or information
related to the Placing, by any means or media, directly or indirectly, in
whole or in part, in or into the United States;
11. acknowledges that the Placing Shares have not been and will
not be registered under the US Securities Act or the securities laws of any
state of the United States and that the Company has not been and will not be
registered under the Investment Company Act; and the Placing Shares may not be
offered or sold within the United States or to, or for the account or benefit
of, US persons (as defined in Regulation S) except in an "offshore
transaction" in accordance with Regulation S or in a transaction exempt from,
or not subject to, the registration requirements of the US Securities Act and
the Investment Company Act;
12. acknowledges that in making any decision to acquire Placing
Shares it (i) has such knowledge and experience in financial and business
matters to be capable of evaluating the merits and risks of subscribing for or
purchasing the Placing Shares, (ii) has relied on its own examination, due
diligence and analysis of the Company, including the markets in which the
Company and the Group operates and the terms of the Placing, including the
merits and risks involved, (iii) has had sufficient time to consider and
conduct its own investigation with respect to the Placing and purchase of
Placing Shares, including the legal, regulatory, tax, business, currency and
other economic and financial considerations relevant to such an investigation,
(iv) will not look to Cenkos for all or part of any such loss it may suffer,
(v) is experienced in investing in securities of this nature in this sector
and is aware that it may be required to bear, and is able to bear, the
economic risk of an investment in the Placing Shares, (vi) is able to sustain
a complete loss of an investment in the Placing Shares and (vii) has no need
for liquidity with respect to its investment in the Placing Shares;
13. acknowledges that the Placing is not conditional upon the
quotation of the Placing Shares on the ASX and that the quotation of the
Placing Shares on the ASX is subject to ASX approval;
14. undertakes, unless otherwise specifically agreed with Cenkos,
that it is not and at the time the Placing Shares are acquired, neither it nor
the beneficial owner of the Placing Shares will be, a resident of the United
States, Australia, South Africa, Canada, New Zealand, Hong Kong, Singapore or
Japan or any other jurisdiction where it would be unlawful to offer or
subscribe for the Placing Shares, and further acknowledges that the Placing
Shares have not been and will not be registered under the securities
legislation of the United States, Australia, South Africa, Canada, New
Zealand, Hong Kong, Singapore or Japan or other such jurisdictions and,
subject to certain exceptions, may not be offered, sold, transferred,
delivered or distributed, directly or indirectly, in or into those
jurisdictions;
15. acknowledges that the Placing Shares have not been and will
not be registered and that a prospectus will not be cleared in respect of any
of the Placing Shares under the securities laws or legislation of the United
States or any state or jurisdiction thereof, Australia, South Africa, Canada,
New Zealand, Hong Kong, Singapore or Japan and, subject to certain exceptions,
may not be offered, sold, or delivered or transferred, directly or indirectly,
in or into those jurisdictions;
16. acknowledges that the Placing Shares are being subscribed for
investment purposes, and not with a view to offer, resell or distribute within
the meaning of the United States securities laws;
17. acknowledges that no representation has been made as to the
availability of any exemption under the US Securities Act for the reoffer,
resale, pledge or transfer of the Placing Shares;
18. represents and warrants that the issue to it, or the person
specified by it for registration as holder, of Placing Shares will not give
rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act
1986 (depositary receipts and clearance services) and that the Placing Shares
are not being acquired in connection with arrangements to issue depositary
receipts or to issue or transfer Placing Shares into a clearance service;
19. represents and warrants that: (i) it has complied with its
obligations under the Criminal Justice Act 1993, the Financial Services and
Markets Act 2000 ("FSMA") and UK MAR; (ii) in connection with money laundering
and terrorist financing under the Proceeds of Crime Act 2002 (as amended), the
Terrorism Act 2000, the Terrorism Act 2006 and the Money Laundering, Terrorist
Financing and Transfer of Funds (Information on the Payer) Regulations 2017
and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any government agency having jurisdiction in
respect thereof and the Money Laundering Sourcebook of the FCA; and (iii) it
is not a person: (a) with whom transactions are prohibited under the Foreign
Corrupt Practices Act of 1977 or any economic sanction programmes administered
by, or regulations promulgated by, the Office of Foreign Assets Control of the
U.S. Department of the Treasury; (b) named on the Consolidated List of
Financial Sanctions Targets maintained by HM Treasury of the United Kingdom;
or (c) subject to financial sanctions imposed pursuant to a regulation of the
European Union or a regulation adopted by the United Nations (together, the
"Regulations"); and, if making payment on behalf of a third party, that
satisfactory evidence has been obtained and recorded by it to verify the
identity of the third party as required by the Regulations and has obtained
all governmental and other consents (if any) which may be required for the
purpose of, or as a consequence of, such purchase, and it will provide
promptly to Cenkos such evidence, if any, as to the identity or location or
legal status of any person which Cenkos may request from it in connection with
the Placing (for the purpose of complying with such Regulations or
ascertaining the nationality of any person or the jurisdiction(s) to which any
person is subject or otherwise) in the form and manner requested by Cenkos on
the basis that any failure by it to do so may result in the number of Placing
Shares that are to be purchased by it or at its direction pursuant to the
Placing being reduced to such number, or to nil, as Cenkos may decide in its
sole discretion;
20. represents and warrants that it is acting as principal only in
respect of the Placing or, if it is acting for any other person: (i) it is
duly authorised to do so and has full power to make the acknowledgments,
representations and agreements herein on behalf of each such person; and (ii)
it is and will remain liable to the Company and/or Cenkos for the performance
of all its obligations as a Placee in respect of the Placing (regardless of
the fact that it is acting for another person);
21. if a financial intermediary, as that term is used in Article
5(1) of the EU Prospectus Regulation, represents and warrants that the Placing
Shares purchased by it in the Placing will not be acquired on a
non-discretionary basis on behalf of, nor will they be acquired with a view to
their offer or resale to, persons in a member state of the EEA which has
implemented the EU Prospectus Regulation other than Qualified Investors, or in
circumstances in which the prior consent of Cenkos has been given to the offer
or resale;
22. represents and warrants that it has not offered or sold and
will not offer or sell any Placing Shares to persons in the United Kingdom,
except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their business or otherwise in circumstances which have not
resulted and which will not result in an offer to the public in the United
Kingdom within the meaning of section 85(1) of the FSMA;
23. represents and warrants that it has not offered or sold and
will not offer or sell any Placing Shares to persons in the EEA prior to
Admission except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their business or otherwise in circumstances which
have not resulted in and which will not result in an offer to the public in
any member state of the EEA within the meaning of the EU Prospectus
Regulation;
24. represents and warrants that it has only communicated or
caused to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment activity
(within the meaning of section 21 of the FSMA) relating to the Placing Shares
in circumstances in which section 21(1) of the FSMA does not require approval
of the communication by an authorised person;
25. represents and warrants that it has complied and will comply
with all applicable provisions of the FSMA with respect to anything done by it
in relation to the Placing Shares in, from or otherwise involving, the United
Kingdom;
26. represents and warrants, if in a member state of the EEA,
unless otherwise specifically agreed with Cenkos in writing, that it is a
"qualified investor" within the meaning of Article 2(e) of the EU Prospectus
Regulation;
27. represents and warrants, if in the United Kingdom, that it is
a person (i) having professional experience in matters relating to investments
who falls within the definition of "investment professionals" in Article 19(5)
of the Financial Services and Markets Act 2000 (Financial Promotion) Order
2005 (the "Order") or (ii) who falls within Article 49(2)(a) to (d) ("High Net
Worth Companies, Unincorporated Associations, etc.") of the Order, or (iii) to
whom this Announcement may otherwise lawfully be communicated;
28. represents and warrants that it is not a 'related party' of
the Company as that term is defined in section 228 of the Australian
Corporations Act and/or the ASX Listing Rules, (or, if it is a 'related party'
of the Company, that its acquisition of Placing Shares would not require the
Company to obtain the approval of its shareholders under section 208(1)(a) of
the Australian Corporations Act); agrees that it must comply with all
applicable provisions of the Australian Foreign Investments and Takeovers Act,
1975 (Cth) in relation to the Placing Shares by no later than the settlement
date for the relevant Placing Shares;
29. acknowledges and agrees that no action has been or will be
taken by either the Company or Cenkos or any person acting on behalf of the
Company or Cenkos that would, or is intended to, permit a public offer of the
Placing Shares in any country or jurisdiction where any such action for that
purpose is required;
30. represents and warrants that it and any person acting on its
behalf is entitled to acquire the Placing Shares under the laws of all
relevant jurisdictions and that it has fully observed such laws and obtained
all such governmental and other guarantees, permits, authorisations, approvals
and consents which may be required thereunder and complied with all necessary
formalities to enable it to commit to this participation in the Placing and to
perform its obligations in relation thereto (including, without limitation, in
the case of any person on whose behalf it is acting, it has the necessary
powers and capacity and all necessary consents and authorities to agree to the
terms set out or referred to in these Terms and Conditions) and will honour
such obligations and that it has not taken any action or omitted to take any
action which will or may result in Cenkos, the Company or any of their
respective directors, officers, agents, employees or advisers acting in breach
of the legal or regulatory requirements of any jurisdiction in connection with
the Placing;
31. undertakes that it (and any person acting on its behalf) will
make payment in respect of the Placing Shares allocated to it in accordance
with these Terms and Conditions on the due time and date set out herein,
failing which the relevant Placing Shares may be placed with other acquirers
or sold as Cenkos may in its sole discretion determine and without liability
to such Placee, who will remain liable for any amount by which the net
proceeds of such sale falls short of the product of the Placing Price and the
number of Placing Shares allocated to it and may be required to bear any stamp
duty, stamp duty reserve tax or other similar taxes (together with any
interest or penalties) which may arise upon the sale of such Placee's Placing
Shares;
32. that its allocation (if any) of Placing Shares will represent
a maximum number of Placing Shares which it will be entitled, and required, to
acquire, and that Cenkos and/or the Company may call upon it to acquire a
lower number of Placing Shares (if any), but in no event in aggregate more
than the aforementioned maximum;
33. acknowledges that none of the Company, nor Cenkos, nor any of
their respective affiliates, nor any person acting on behalf of them, is
making any recommendations to it, advising it regarding the suitability of any
transactions it may enter into in connection with the Placing and that its
participation in the Placing is on the basis that it is not and will not be a
client of Cenkos in connection with its participation in the Placing and that
Cenkos have no duties or responsibilities to it for providing the protections
afforded to their respective clients or customers or for providing advice in
relation to the Placing nor in respect of any representations, warranties,
undertakings or indemnities contained in the Placing Agreement nor for the
exercise or performance of any of their respective rights and obligations
thereunder including any rights to waive or vary any conditions or exercise
any termination right. Further, it acknowledges that any payment by it will
not be treated as client money as governed by the FCA Handbook rules;
34. acknowledges that any money held in an account by Cenkos on
behalf of the Placee and/or any person acting on behalf of the Placee will not
be treated as client money within the meaning of the rules and regulations
under FSMA and that the money will therefore not be subject to the protections
conferred by the client money rules. As a consequence, the Placee acknowledges
that its money will not be segregated from Cenkos' money in accordance with
the client money rules and will be used by each of Cenkos in the course of its
own business and the Placee will rank only as a general creditor of Cenkos;
35. undertakes that the person whom it specifies for registration
as holder of the Placing Shares will be (i) itself or (ii) its nominee, as the
case may be. Neither Cenkos nor the Company will be responsible for any
liability to stamp duty or stamp duty reserve tax or other similar taxes
resulting from a failure to observe this requirement ("Indemnified Taxes").
Each Placee and any person acting on behalf of such Placee agrees to
participate in the Placing and it agrees to indemnify the Company and Cenkos
on an after-tax basis in respect of any Indemnified Taxes on the basis that
the Placing Shares will be allotted to the CREST stock account of Cenkos who
will hold them as nominee on behalf of such Placee until settlement in
accordance with its standing settlement instructions;
36. acknowledges that these Terms and Conditions and any
agreements entered into by it pursuant to these Terms and Conditions set out
in this Appendix, and all non-contractual or other obligations arising out of
or in connection with them, shall be governed by and construed in accordance
with the laws of England and Wales and it submits (on behalf of itself and on
behalf of any person on whose behalf it is acting) to the exclusive
jurisdiction of the English courts as regards any claim, dispute or matter
arising out of any such contract (including any dispute regarding the
existence, validity or termination of such contract or relating to any
non-contractual or other obligation arising out of or in connection with such
contract), except that enforcement proceedings in respect of the obligation to
make payment for the Placing Shares (together with any interest chargeable
thereon) may be taken by either the Company or Cenkos in any jurisdiction in
which the relevant Placee is incorporated or in which any of its securities
have a quotation on a recognised stock exchange;
37. agrees to indemnify on an after-tax basis and hold the
Company, Cenkos and their respective affiliates harmless from any and all
costs, claims, liabilities and expenses (including legal fees and expenses)
arising out of or in connection with any breach of the representations,
warranties, acknowledgements, agreements and undertakings in these Terms and
Conditions and further agrees that the provisions of these Terms and
Conditions shall survive after completion of the Placing;
38. represents and warrants that it has neither received nor
relied on any inside information concerning the Company prior to or in
connection with accepting this invitation to participate in the Placing and is
not purchasing Placing Shares on the basis of material non-public information
and if it has received any confidential price sensitive information about the
Company in advance of the Placing, it has neither dealt in securities of the
Company, encouraged or required any other person to deal in securities of the
Company or disclosed any such information to any other person prior to the
information being made publicly and generally available;
39. acknowledges that its commitment to subscribe for Placing
Shares on the terms set out herein and in the trade confirmation or contract
note will continue notwithstanding any amendment that may in future be made to
the terms of the Placing, and that Placees will have no right to be consulted
or require that their consent be obtained with respect to the Company's
conduct of the Placing;
40. if it is a pension fund or investment company, its purchase of
Placing Shares is in full compliance with applicable laws and regulations;
41. acknowledges and agrees that it irrevocably appoints any
director of Cenkos as its agent for the purposes of executing and delivering
to the Company and/or its registrars any documents on its behalf necessary to
enable it to be registered as the holder of any of the Placing Shares agreed
to be taken up by it under the Placing;
42. represents and warrants that it will provide Cenkos with such
relevant documents as it may reasonably request to comply with requests or
requirements that either they or the Company may receive from regulators in
relation to the Placing, subject to its legal, regulatory and compliance
requirements and restrictions;
43. agrees that the Company, Cenkos and their respective
affiliates and others will rely upon the truth and accuracy of the foregoing
representations, warranties, acknowledgements and undertakings which are given
to Cenkos on its own behalf and on behalf of the Company and are irrevocable
and irrevocably authorises the Company and Cenkos to produce this
Announcement, pursuant to, in connection with, or as may be required by any
applicable law or regulation, administrative or legal proceeding or official
inquiry with respect to the matters set forth herein;
44. acknowledges that the Placing Shares will be issued subject to
the terms and conditions set out in the Announcement;
45. acknowledges that time is of the essence as regard its
obligations in respect of its participation in the Placing under these Terms
and Conditions;
46. acknowledges that it will be bound by the terms of the
constitution of the Company; and
47. acknowledges that any document that is to be sent to it in
connection with the Placing will be sent at its own risk and may be sent to it
at any address provided by it to Cenkos.
The foregoing representations, warranties and confirmations are given to
Cenkos for itself and on behalf of the Company and are irrevocable and shall
not be capable of termination in any circumstances.
The agreement to allot and issue Placing Shares to Placees (and/or to persons
for whom such Placee is contracting as agent) free of stamp duty and stamp
duty reserve tax relates only to their allotment and issue to Placees, or such
persons as they nominate as their agents, direct from the Company for the
Placing Shares in question. Such agreement also assumes that the Placing
Shares are not being acquired in connection with arrangements to issue
depositary receipts or to issue or transfer the Placing Shares into a
clearance service. If there are any such arrangements, or the settlement
relates to any other dealing in the Placing Shares, stamp duty or stamp duty
reserve tax or other similar taxes may be payable, for which neither the
Company nor Cenkos will be responsible and the Placees shall indemnify the
Company and Cenkos on an after-tax basis for any stamp duty or stamp duty
reserve tax paid by them in respect of any such arrangements or dealings. If
this is the case, each Placee should seek its own advice and notify Cenkos
accordingly.
The Company and Cenkos are not liable to bear any transfer taxes that arise on
a sale of Placing Shares subsequent to their acquisition by Placees or for
transfer taxes arising otherwise than under the laws of the United Kingdom.
Each Placee should, therefore, take its own advice as to whether any such
transfer tax liability arises and notify Cenkos accordingly. Furthermore, each
Placee agrees to indemnify on an after-tax basis and hold each of Cenkos and
the Company and their respective affiliates harmless from any and all
interest, fines or penalties in relation to stamp duty, stamp duty reserve tax
and all other similar duties or taxes to the extent that such interest, fines
or penalties arise from the unreasonable default or delay of that Placee or
its agent.
In addition, Placees should note that they will be liable for any stamp duty
and all other stamp, issue, securities, transfer, registration, documentary or
other duties or taxes (including any interest, fines or penalties relating
thereto) payable outside the UK by them or any other person on the acquisition
by them of any Placing Shares or the agreement by them to acquire any Placing
Shares.
Each Placee, and any person acting on behalf of the Placee, acknowledges that
neither the Company, nor Cenkos owe any fiduciary or other duties to any
Placee in respect of any representations, warranties, undertakings or
indemnities in the Placing Agreement.
Each Placee and any person acting on behalf of the Placee acknowledges and
agrees that Cenkos or any of its affiliates may, at its absolute discretion,
agree to become a Placee in respect of some or all of the Placing Shares.
When a Placee or person acting on behalf of the Placee is dealing with Cenkos,
any money held in an account with Cenkos on behalf of the Placee and/or any
person acting on behalf of the Placee will not be treated as client money
within the meaning of the rules and regulations of the FCA made under the
FSMA. The Placee acknowledges that the money will not be subject to the
protections conferred by the client money rules; as a consequence, this money
will not be segregated from Cenkos' money in accordance with the client money
rules and will be used by Cenkos in the course of its own business and the
Placee will rank only as a general creditor of Cenkos.
The rights and remedies of Cenkos and the Company under these terms and
conditions are in addition to any rights and remedies which would otherwise be
available to each of them and the exercise or partial exercise of one will not
prevent the exercise of others.
All times and dates in this Announcement may be subject to amendment. Cenkos
shall notify the Placees and any person acting on behalf of the Placees of any
changes.
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