REG - Berkeley Energia - Proposed Placing to raise US$25 to US$30 million <Origin Href="QuoteRef">BKY.AX</Origin> - Part 2

Berkeley EnergiaAnnouncement

04/11/2016 07:06

- Part 2: For the preceding part double click  ID:nRSD3175Oa 

any Placing Shares to the public in any member state of the
European Economic Area except in circumstances falling within Article 3(2) of
the Prospectus Directive which do not result in any requirement for the
publication of a prospectus pursuant to Article 3 of the Prospectus
Directive; 
 
18.       represents and warrants that it has only communicated or caused to
be communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the meaning
of section 21 of FSMA) relating to the Placing Shares in circumstances in
which it is permitted to do so pursuant to section 21 of FSMA and agreed and
acknowledges that the Joint Bookrunners have not approved the contents of this
Announcement in their capacity as authorised persons and it may therefore not
be subject to the controls which would apply if it is made or approved as
financial promotion by an authorised person; 
 
19.       represents and warrants that it has complied and will comply with
all applicable laws (including all relevant provisions of FSMA) with respect
to anything done by it in relation to the Placing Shares in, from, or
otherwise involving the United Kingdom; 
 
20.       represents and warrants that it has complied with its obligations in
connection with money laundering and terrorist financing under the Criminal
Justice Act 1993, the EU Market Abuse Regulation (2014/596/EU), the Proceeds
of Crime Act 2002 (as amended), the Terrorism Act 2000, the Terrorism Act
2006, the Antiterrorism Crime and Security Act 2001, the Money Laundering
Regulations (2007) (the "Regulations") and the Money Laundering Sourcebook of
the FCA and, if it is 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; 
 
21.       if in the United Kingdom, represents and warrants that it is a
person falling within (a) Article 19(5) of the FPO or (b) a person falling
within Article 49(2)(a) to (d) of the FPO 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; 
 
22.       if in the United Kingdom, represents and warrants that it is a
qualified investor as defined in section 86(7) of FSMA, being a person falling
within Article 2.1(e)(i), (ii) or (iii) of the Prospectus Directive; 
 
23.       represents and warrants that it has complied and will comply with
all applicable provisions of the Australian Corporations Act (including
relevant insider trading provisions) and the ASX Listing Rules in relation to
the Placing Shares; 
 
24.       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; 
 
25.       represents and warrants that its participation in the Placing will
not cause its (or its associates) aggregate shareholding in the Company to be
20% or more of the issued share capital of the Company; 
 
26.       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); 
 
27.       undertakes that it (and any person acting on their behalf) will pay
for the Placing Shares acquired by it in accordance with this Announcement on
the due time and date set out in this Announcement or any trade confirmation
issued pursuant to this Announcement against delivery of such Placing Shares
to it, failing which the relevant Placing Shares may be placed with other
Placees or sold as either the Managers or the Company may, in their absolute
discretion, determine and it will remain liable for any shortfall of the net
proceeds of such sale below the Placing proceeds of such Placing Shares and
may be required to bear any costs, commissions, stamp duty or stamp duty
reserve tax (together with any interest or penalties due pursuant to the terms
set out or referred to in this announcement) which may arise upon the sale of
such Placee's Placing Shares on its behalf; 
 
28.       if it has received any confidential price sensitive information
about the Company in advance of the Placing, it warrants that it has received
such information within the marketing soundings regime provided for in article
11 of Regulation (EU) No. 596/2014 on market abuse (as amended) and associated
delegated regulations and has not: (a) dealt in the securities of the Company;
(b) encouraged or required another person to deal in the securities of the
Company; or (c) disclosed such information to any person, prior to the
information being made publicly available; 
 
29.       undertakes that (i) the person whom it specifies for registration as
holder of the Placing Shares will be (a) the Placee or (b) the Placee's
nominee, as the case may be, (ii) neither the Managers nor the Company will be
responsible for any liability to stamp duty or stamp duty reserve tax
resulting from a failure to observe this requirement and (iii) the Placee and
any person acting on its behalf agrees to acquire the Placing Shares on the
basis that the Placing Shares will be issued to the CREST stock account of
Peel Hunt which will hold them as settlement agent as nominee for the Placee
until settlement in accordance with its standing settlement instructions with
payment for the Placing Shares being made simultaneously upon receipt of the
Placing Shares in the Placee's stock account on a delivery versus payment
basis; 
 
30.       acknowledges that it irrevocably appoints any member or officer of a
Manager 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; 
 
31.       represents and warrants that it is not a resident of any Restricted
Jurisdiction and acknowledges that the Placing Shares have not been and will
not be registered nor will a prospectus be issued in respect of the Placing
Shares under the securities legislation of any Restricted Jurisdiction and,
subject to certain exceptions, may not be offered, sold, taken up, renounced,
delivered or transferred, directly or indirectly, within any Restricted
Jurisdiction; 
 
32.       represents and warrants that any person who confirms to the Managers
on behalf of a Placee an agreement to subscribe for Placing Shares and/or who
authorises the Managers to notify the Placee's name to the Company's
registrar, has authority to do so on behalf of the Placee; 
 
33.       acknowledges that the agreement to settle each Placee's acquisition
of Placing Shares (and/or the acquisition of a person for whom it is
contracting as agent) free of stamp duty and stamp duty reserve tax depends on
the settlement relating only to an acquisition by it and/or such person direct
from the Company of the Placing Shares in question. Such agreement 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 were any such arrangements, or the settlement
related to other dealing in the Placing Shares, stamp duty or stamp duty
reserve tax may be payable, for which neither the Company nor the Managers
will be responsible.  If this is the case, the Placee should take its own
advice and notify the Managers accordingly; 
 
34.       acknowledges that the Placing Shares will be issued subject to the
terms and conditions set out in this Announcement (including this Appendix); 
 
35.       acknowledges that when a Placee or any person acting on behalf of
the Placee is dealing with the Joint Bookrunners, any money held in an account
with Peel Hunt 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
relevant rules and regulations of the FCA. 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 Peel Hunt
money in accordance with the client money rules and will be used by Peel Hunt
in the course of its business; and the Placee will rank only as a general
creditor of Peel Hunt; 
 
36.       acknowledges and understands that the Company, the Managers and
others will rely upon the truth and accuracy of the foregoing representations,
warranties, agreements, undertakings and acknowledgements; 
 
37.       acknowledges that time is of the essence as regard its obligations
in respect of its participation in the Placing under these terms and
conditions; 
 
38.       acknowledges that the basis of allocation will be determined by the
Managers in their absolute discretion in consultation with the Company. The
right is reserved to reject in whole or in part and/or scale back any
participation in the Placing; 
 
39.       irrevocably authorises the Company and the Joint Bookrunners 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 in this
announcement; 
 
40.       it will be bound by the terms of the constitution of the Company; 
 
41.       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 Peel Hunt; 
 
42.       this Appendix and and all documents into which this Appendix are
incorporated by reference or otherwise validly form a part and/or any
agreements entered into pursuant to these terms and conditions and all
agreements to subscribe for shares pursuant to the Placing will be governed by
and construed in accordance with English law 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, except that enforcement proceedings
in respect of the obligation to make payment for the Placing Shares (together
with any interest chargeable thereon) may be taken by the Company or the Joint
Bookrunners 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; 
 
43.       the Joint Bookrunners and their Affiliates, acting as investors for
their own accounts, may bid or subscribe for and/or purchase Placing Shares
and, in that capacity, may retain, purchase, offer to sell or otherwise deal
for their own account in the Placing Shares, any other securities of the
Company or other related investments in connection with the Placing or
otherwise. Accordingly, references in this Announcement to the Placing Shares
being offered, subscribed, acquired or otherwise dealt with should be read as
including any offer to, or subscription, acquisition or dealing by, Managers
and/or any of its respective Affiliates acting as an investor for its or their
own account. None of the Joint Bookrunners or the Company intend to disclose
the extent of any such investment or transaction otherwise than in accordance
with any legal or regulatory obligation to do so; 
 
44.       it is aware e of the obligations regarding insider dealing in the
Criminal Justice Act 1993, the Market Abuse Regulation (596/2014) and the
Proceeds of Crime Act 2002 and confirms that it has and will continue to
comply with those obligations; 
 
45.       in order to ensure compliance with the Money Laundering Regulations
2007, Peel Hunt, (as agent on behalf of the Company) or the Company's
registrars may, in its absolute discretion, require verification of its
identity. Pending the provision to Peel Hunt, or the Company's registrars, as
applicable, of evidence of identity, definitive certificates in respect of the
Placing Shares may be retained at Peel Hunt's absolute discretion or, where
appropriate, delivery of the Placing Shares to it in uncertificated form may
be delayed at Manager's or the Company's registrars', as the case may be,
absolute discretion. If within a reasonable time after a request for
verification of identity Peel Hunt (for itself and as agent on behalf of the
Company) or the Company's registrars have not received evidence satisfactory
to them, Peel Hunt and/or the Company may, at its absolute discretion,
terminate its commitment in respect of the Placing, in which event the monies
payable on acceptance of allotment will, if already paid, be returned without
interest to the account of the drawee's bank from which they were originally
debited; 
 
46.       the allocation, allotment, issue and delivery to it, or the person
specified by it for registration as a holder of Placing Shares, will not give
rise to a stamp duty or stamp duty reserve tax liability under (or at a rate
determined under) any of sections 67, 70, 93 or 96 of the Finance Act 1986
(depositary receipts and clearance services) and that no instrument under
which it subscribes for Placing Shares (whether as principal, agent or
nominee) would be subject to stamp duty or the increased rates referred to in
those sections and that it, or the person specified by it for registration as
a holder of Placing Shares, is not participating in the Placing as nominee or
agent for any person or persons to whom the allocation, allotment, issue or
delivery of Placing Shares would give rise to such a liability; 
 
47.       where it is acquiring Placing Shares for one or more managed
accounts, it is authorised in writing by each managed account: (a) to acquire
the Placing Shares for each managed account; (b) to make on its behalf the
representations, warranties, acknowledgements, undertakings and agreements in
this Appendix and the Announcement of which it forms part; and (c) to receive
on its behalf any investment letter relating to the Placing in the form
provided to it by the relevant Joint Bookrunner; 
 
48.       if it is a financial intermediary, as that term is used in Article
3(2) of the Prospectus Directive (including any relevant implementing measure
in any Relevant Member State), the 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 a
Relevant Member State of the EEA which has implemented the Prospectus
Directive other than Qualified Investors, or in circumstances in which the
express prior written consent of the Managers has been given to the offer or
resale; 
 
49.       the Company's ordinary shares are admitted to trading on AIM, and
the Company is therefore required to publish certain business and financial
information in accordance with the rules and practices of AIM, which includes
a description of the nature of the Company's business, the Company's most
recent balance sheet and profit and loss account and the Company's
announcements and circulars published in the past 12 months and the Placee is
able to obtain or access such information or comparable information concerning
any other publicly traded company without undue difficulty; 
 
50.       that its commitment to subscribe for Placing Shares on the terms set
out in this announcement 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; and 
 
51.       its participation in the Placing, these terms and conditions and any
contractual or non-contractual obligations arising out of, or in relation to
thereto, shall be governed by and construed in accordance with English law and
that the courts of England shall have exclusive jurisdiction to hear and
decide any proceedings which may arise out of or in connection with these
terms and conditions, except that enforcement proceedings in respect of the
Placee's obligation to make payment for the Placing Shares (together with any
interest chargeable thereon) may be taken by the Managers in any
jurisdiction. 
 
The acknowledgements, agreements, undertakings, representations and warranties
referred to above are given to each of the Company and the Managers (for their
own benefit and, where relevant, the benefit of their respective Affiliates)
and any person acting on their behalf and are irrevocable. 
 
No claim shall be made against the Company, or the Managers or their
respective Affiliates or any other person acting on behalf of any of such
persons by a Placee to recover any damage, cost, charge or expense which it
may suffer or incur by reason of or arising from the carrying out by it of the
work to be done by it pursuant to this announcement or the performance of its
obligations pursuant to this announcement or otherwise in connection with the
Placing. 
 
No UK stamp duty or stamp duty reserve tax should be payable to the extent
that the Placing Shares in the form of Depository Interests are issued or
transferred (as the case may be) into CREST to, or to the nominee of, a Placee
who holds those shares beneficially (and not as agent or nominee for any other
person) within the CREST system and registered in the name of such Placee or
such Placee's nominee. 
 
Any arrangements to issue or transfer the Placing Shares into a depositary
receipts system or a clearance service or to hold the Placing Shares as agent
or nominee of a person to whom a depositary receipt may be issued or who will
hold the Placing Shares in a clearance service, or any arrangements
subsequently to transfer the Placing Shares, may give rise to stamp duty
and/or stamp duty reserve tax, for which neither the Company nor the Managers
will be responsible and the Placee to whom (or on behalf of whom, or in
respect of the person for whom it is participating in the Placing as an agent
or nominee) the allocation, allotment, issue or delivery of Placing Shares has
given rise to such stamp duty or stamp duty reserve tax undertakes to pay such
stamp duty or stamp duty reserve tax forthwith and to indemnify on an
after-tax basis and to hold harmless the Company and the Managers in the event
that any of the Company and/or the Managers has incurred any such liability to
stamp duty or stamp duty reserve tax. 
 
In addition, Placees should note that they will be liable for any capital
duty, 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. 
 
All times and dates in this announcement may be subject to amendment. The
Managers shall notify the Placees and any person acting on behalf of the
Placees of any such changes. 
 
This Announcement has been issued by the Company and is the sole
responsibility of the Company. 
 
Each Placee, and any person acting on behalf of the Placee, acknowledges that
the Managers do not owe any fiduciary or other duties to any Placee in respect
of any representations, warranties, undertakings or indemnities in the Placing
Agreements.  Each Placee and any person acting on behalf of the Placee
acknowledges and agrees that the Managers or any of their respective
Affiliates may, at its absolute discretion, agree to become a Placee in
respect of some or all of the Placing Shares. 
 
The rights and remedies of the Managers 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 or partial
exercise of one will not prevent the exercise of others. 
 
Each Placee may be asked to disclose in writing or orally to either of the
Managers: 
 
(a)        if he is an individual, his nationality; or 
 
(b)        if he is a discretionary fund manager, the jurisdiction in which
the funds are managed or owned. 
 
This information is provided by RNS
The company news service from the London Stock Exchange