REG - Engage XR Holdings - Proposed Placing of New Ordinary Shares
06/02/2023 07:00
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RNS Number : 9466O Engage XR Holdings PLC 06 February 2023
THIS ANNOUNCEMENT, INCLUDING THE APPENDIX, AND THE INFORMATION CONTAINED
HEREIN IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION,
DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR INTO THE UNITED STATES,
CANADA, AUSTRALIA, JAPAN OR ANY OTHER STATE OR JURISDICTION IN WHICH SUCH
RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL. PLEASE SEE THE
IMPORTANT NOTICE AT THE END OF THIS ANNOUNCEMENT.
This announcement is released by ENGAGE XR Holdings plc and contains inside
information for the purposes of Article 7 of the Market Abuse Regulation (EU)
596/2014 ("EU MAR") and for the purposes of Article 7 of the Market Abuse
Regulation (EU) 596/2014 as it forms part of UK domestic law by virtue of the
European Union (Withdrawal) Act 2018 ("UK MAR"), and is disclosed in
accordance with the company's obligations under Article 17 of EU MAR and
Article 17 of UK MAR.
6 February 2023
ENGAGE XR Holdings plc
("ENGAGE XR" or the "Company")
Proposed Placing of New Ordinary Shares
ENGAGE XR, the metaverse technology company focused on becoming a leading
global provider of virtual communications solutions through its new fully
featured corporate metaverse, ENGAGE Link, announces its intention to raise up
to approximately £8.8 million (€9.9 million), before expenses, by way of a
placing (the "Placing") of new Ordinary Shares of €0.001 each in the Company
(the "Ordinary Shares") (the "Placing Shares") at a price of 4 pence per new
ordinary share (the "Placing Price").
The Placing will be conducted through an accelerated bookbuild process (the
"Bookbuild"), which will be launched immediately following this announcement
and is being conducted, subject to the satisfaction of certain conditions
described in the Appendix to this announcement (which forms part of this
announcement, such announcement and the Appendix together being the
"Announcement"), through the Bookbuild which will be made available to new and
existing eligible investors. J&E Davy Unlimited Company ("Davy"), finnCap
Ltd ("finnCap") and Shard Capital Partners LLP ("Shard") are acting as joint
bookrunners in respect of the Placing (the "Joint Bookrunners").
In addition, HTC has confirmed its intention to subscribe for new ordinary
shares pursuant to a separate subscription alongside the Placing, the details
of which are set out below.
About ENGAGE XR and the metaverse
The Directors believe that the creation and development of the metaverse is
facilitating the evolution of the internet from being a solo 2D surfing
experience, where users browse the web by themselves reading web pages and
looking at video streams, into a shared 3D spatial social experience capable
of being explored with friends and co-workers via virtual worlds. The
Directors believe that the metaverse and its use of avatars provide a more
immersive and interactive experience for users.
The Group has positioned its ENGAGE platform ("ENGAGE") as the metaverse
platform targeted at enterprise customers and universities looking for
immersive corporate communications, remote collaboration, training and
development, education and remote events enabling them to deliver their own
metaverse strategies. To date, ENGAGE XR has developed over 900 metaworlds for
its corporate clients and the Directors believe that the addressable market
for the ENGAGE product is between $10-44bn. A survey conducted by PwC in 2022
reported that at that time 67% of organisations surveyed were already actively
engaged with the metaverse and the Directors believe that this trend will
increase over the coming years.
Tailored for a professional audience, the Directors believe that ENGAGE is
only one fo the few metaverse platforms with ISO27001 Security Certification
and is currently trusted by a number of blue chip organisations, including
more than 20 Fortune 500 companies and is also being used by a number of
ENGAGE XR's perceived competitors, such as Meta and HTC. Furthermore, the
ENGAGE platform contains spatial recording features for quick content building
along with multiplatform support for Phones, Tablets, Mac, PC, VR and
Chromebooks and is the first platform to provide 'metatraversal' capabilities
between different applications.
The Company currently generates revenue through three revenue streams, as
follows:
· The sale of yearly enterprise license subscriptions to customers
(representing c.70% of total ENGAGE revenues in FY22);
· Immersive event production - one off virtual event services
chargeable per event (representing c.10% of total ENGAGE revenues in FY22);
and
· Professional content development on a bespoke basis for customers
(representing c.20% of total ENGAGE revenues in FY22).
Whilst the current model has to date demonstrated its ability to grow revenue,
the Directors believe the recent release of ENGAGE Link in November 2022, the
Company's most advanced metaverse platform, can enhance its revenue model to
include a B2C model where ENGAGE clients can sell direct to customers. The
successful implementation of this B2C model could provide the Company with
additional revenue streams including: MetaWorld hosting services, marketplace
content sales revenue share, metaverse events / subscriptions revenue share
and professional services revenue share.
Following the revenue growth demonstrated by the Company in FY22 and the
launch of ENGAGE Link, the Directors believe that with the capital to be
provided by the Placing, 2023 will be another formative year for ENGAGE XR
focused on delivering against its current pipeline and continuing with the
development of its ENGAGE platform.
Background to the Placing
2022 saw a continued growth in the Company's commercial customer numbers and
revenue and November 2022 saw the Company launch its fully featured corporate
metaverse, ENGAGE Link. The Directors believe that this momentum within the
group and the improved pipeline is as a result of an increasing number of
enterprise customers and universities seeking to collaborate with the Company
on how best to engage with employees, customers and students in the
Metaverse.
Demand for the Company's ENGAGE platform is now well established, having grown
to serve more than 190 commercial customers in the three years since its
launch in May 2019 with over 70 customers added in 2022. New customers added
include Lenovo, KPMG US, Kuehne + Nagel International AG and Adtalem Global
Education. ENGAGE provides users with a platform for creating, sharing and
delivering virtual reality content for education, training and online events
through its three solutions: Virtual Campus, Virtual Office and Virtual
Events.
The Directors believe that the recent launch of ENGAGE Link transforms the
Company into a leading metaverse technology company. The strategic focus of
the Group is on creating a platform that will allow companies to better engage
with their employees, customers and suppliers around the world, and
educational institutions to engage with their students.
The Directors believe that ENGAGE is fast becoming the next generation virtual
communications and training solution for enterprise and education customers.
Therefore, the Company is seeking to use the net proceeds from the Placing to
capitalise on the momentum of its ENGAGE platform and consolidate the
commercial and operational growth demonstrated in FY22 so as to ensure that
the Company can continue its commercial growth and deliver upon the strategic
opportunity before it. The strategic focus of the Board for the period to 2025
remains the delivery of €10 million in annual ENGAGE revenues across 500
active enterprise customers.
Use of Proceeds
The Company is proposing to raise gross proceeds of up to £8.8 million
(€9.9 million) from the Placing in order to capitalise on the growth
exhibited in FY22. The use of proceeds is expected to comprise:
Use of Funds €M
Working capital and general corporate purposes 6.9
Sales and marketing to convert pipeline and capitalise on market opportunity 3.0
to be deployed over the next 12-18 months.
Total use of funds available 9.9
Based on the Company's existing budgets and pipeline, the Directors believe
that the anticipated net proceeds from the Placing would give the Company an
expected cash runway to take the Company through to cash flow break-even
without the need for further funding and enable it to deliver against its
current pipeline of opportunities and continue with the development of the
Company's product roadmap. Furthermore, the funds raised will demonstrate
balance sheet strength to the Company's enterprise customers and enable it to
increase upfront work, as required by key partners/customers, to take
advantage of the opportunities that they bring to the Company.
HTC subscription
In addition to the Placing, HTC has provided written confirmation to the
Company that it intends to subscribe for approximately £0.58 million for new
Ordinary Shares at the Placing Price. The Company anticipates that the
subscription agreement pursuant to which HTC will subscribe for Shares will be
entered into prior to the intended date of the Extraordinary General
Meeting. The completion of the Placing is conditional on this subscription
agreement with HTC being entered into and becoming unconditional (save for
Admission).
The intended subscription by HTC, together with the proceeds of the Placing,
will provide the Company with gross proceeds of £9.375 million (€10.5
million)
Current trading and prospects
In the year to 31 December 2022, ENGAGE XR signed up more than 70 new
enterprise and institutional customers, including Lenovo, Kia and KPMG US.
More than €4 million in contract value for ENGAGE subscriptions was closed
in the year. A new monthly revenue record for the platform of €0.6 million
was achieved in December 2022, bringing total ENGAGE revenue for the year to
31 December 2022 to €3.3 million (up from €1.8 million in FY21), of which
70% is recurring, representing a year-on-year increase of 86%. Gross margin in
the year also increased to 82% (up from 80% in FY21).
The number of total active commercial clients has grown to 190 and there has
been a 64% increase in active licenses as at 31 December 2022 (compared to the
prior year). 16% of contracts are now greater than €75k in value (up from 6%
in FY21), aligning to the Group's medium-term outlook of an average contract
value in excess of €20k.
As at 31 December 2022, the Company's cash position was €2.2 million with
monthly cash burn in H1 2023 expected to be approximately €0.4 million per
month.
Details of the Placing
Davy, finnCap and Shard (together, the "Joint Bookrunners" and each a "Joint
Bookrunner") will today commence a bookbuilding process in respect of the
Placing (the "Bookbuild") to determine demand for participation in the Placing
by investors. No commissions will be paid to Placees or by Placees in respect
of any Placing Shares. The book will open with immediate effect. Except as
disclosed in this Announcement under "Details of the Placing", members of the
public are not entitled to participate in the Placing.
The Joint Bookrunners have entered into an agreement with the Company (the
"Placing Agreement") under which, subject to the conditions set out therein,
the Joint Bookrunners have agreed to use their respective reasonable
endeavours to procure Placees for the Placing Shares at the Placing Price.
The final number of Placing Shares will be decided at the close of the
Bookbuild. All investors who participate in the Placing will be required to
make bids for Placing Shares at the Placing Price. The timing of the closing
of the book and allocations are at the discretion of the Company, Davy,
finnCap and Shard. Details of the number of Placing Shares will be announced
as soon as practicable after the close of the Bookbuild.
The Placing Shares, when issued, will be fully paid and will rank pari passu
in all respects with the existing Ordinary Shares of the Company, including
with respect to the right to receive all dividends and other distributions
declared, made or paid having a record date after the date of issue. The
Company currently has 290,451,146 Ordinary Shares in issue.
Circular and Extraordinary General Meeting
A Circular is expected to be posted to shareholders on 7 February 2023 giving
notice of an extraordinary general meeting of the Company to consider the
passing of resolutions which are necessary to effect the Placing. The meeting
will be held on 3 March 2023 at 11:00 a.m. at the offices of the ENGAGE XR at
Unit 9, Cleaboy Business Park, Old Kilmeaden Road, Waterford, X91 AX83,
Ireland. Following posting, a copy of the Circular will be available shortly
thereafter on the Company's website https://engagevr.io (https://engagevr.io)
.
The Directors believe that the resolutions to be proposed at the EGM are in
the best interests of the Company and Shareholders as a whole and unanimously
recommend that the Shareholders vote in favour of the Resolutions. The
Directors intend to vote in favour of all of the Resolutions in respect of
their own beneficial shareholdings, amounting to in aggregate, 78,488,400
existing Ordinary Shares, representing approximately 27.02 per cent. Of the
existing Ordinary Shares.
Applications for admission to trading
The Company will apply to Euronext Dublin and to the London Stock Exchange for
the Placing Shares to be admitted to trading on Euronext Growth and AIM
respectively ("Admission"). It is expected that settlement of the Placing
Shares will occur, Admission will become effective and that dealings will
commence in the Placing Shares at 8.00 a.m. on 6 March 2023. The Placing is
conditional, among other things, upon Admission becoming effective and the
Placing Agreement not being terminated in accordance with its terms. The
Appendix sets out further information relating to the Bookbuild and the terms
and conditions of the Placing.
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 and to be making such offer
on the terms and subject to the conditions in it, and to be providing the
representations, warranties, indemnities, acknowledgements and undertakings
contained in the Appendix.
This Announcement should be read in its entirety. In particular, you should
read and understand the information provided in the "Important Notice" section
of this Announcement.
This Announcement contains inside information for the purposes of EU MAR and
UK MAR. Market soundings, as defined in EU MAR and UK MAR, were taken in
respect of the Placing, with the result that certain persons became aware of
inside information relating to the Company and its securities, as permitted by
EU MAR and UK MAR. That inside information is set out in this Announcement.
Therefore, those persons who received inside information in a market sounding
are no longer in possession of inside information relating to the Company and
its securities. The person responsible for arranging release of this
Announcement on behalf of ENGAGE XR is Séamus Larrissey.
To bid in the Bookbuild, Placees should communicate their bid by telephone or
in writing to their usual sales contact at Davy, finnCap or Shard.
For further information on the Announcement, please contact:
ENGAGE XR plc Tel: +353 87 665 6708
David Whelan, CEO contact@vreducationholdings.com
Séamus Larrissey, CFO
Sandra Whelan, COO
Davy (Joint Broker & Euronext Growth Listing Sponsor) Tel: +353 1 679 6363
Barry Murphy / Lauren O'Sullivan
finnCap (Joint Broker & Nominated Advisor) Tel: +44 (0) 20 7220 0500
Marc Milmo / Seamus Fricker / Sunila de Silva
Shard Capital Partners LLP (Joint Broker) Tel: +44 (0) 20 7186 9952
Damon Heath / Erik Woolgar
Important Notice
This Announcement and the information contained herein is restricted and is
not for release, publication or distribution, directly or indirectly, in whole
or in part, in, into or from the United States (including its territories and
possessions, any state of the United States and the District of Columbia,
collectively the "United States"), Australia, Canada, Australia Japan or any
other state or jurisdiction in which the same would be restricted, unlawful or
unauthorised, in each case except pursuant to an available exemption from
applicable securities laws (each, a "Restricted Territory").
This Announcement is for information purposes only and does not constitute an
offer to buy, sell, issue, acquire or subscribe for, or the solicitation of an
offer to buy, sell, issue, acquire or subscribe for shares in the capital of
the Company in any Restricted Territory or to any person to whom it is
unlawful to make such offer or solicitation. Any failure to comply with these
restrictions may constitute a violation of the securities laws of such
jurisdictions. No public offer of the shares referred to in this Announcement
is being made in Ireland, the United Kingdom, the United States any Restricted
Territory or elsewhere.
This Announcement has been issued by and is the sole responsibility of the
Company. None of the Joint Bookrunners, nor any of their respective affiliates
accept any responsibility whatsoever for the contents of the information
contained in this Announcement or for any other statement made or purported to
be made by or on behalf of the Joint Bookrunners or any of their respective
affiliates in connection with the Company, the Placing Shares or the Placing.
The Joint Bookrunners and each of their respective affiliates accordingly
disclaim all and any liability, whether arising in tort, contract or otherwise
in respect of any statements or other information contained in this
Announcement and no representation or warranty, express or implied, is made by
or on behalf of the Joint Bookrunners or any of their respective affiliates as
to the accuracy, completeness or sufficiency of the information contained in
this Announcement.
Subject to certain exemptions, the securities referred to herein may not be
offered or sold in any Restricted Territory or for the account or benefit of
any national resident or citizen of any Restricted Territory. The Placing
Shares have not been and will not be registered under the United States
Securities Act of 1933, as amended ("Securities Act"), or under the securities
laws of, or with any securities regulatory authority of, any state or other
jurisdiction of the United States, and may not be offered, sold or
transferred, directly or indirectly, in or into the United States absent
registration under the Securities Act or pursuant to an exemption from, or in
a transaction not subject to, the registration requirements of the Securities
Act and in compliance with any applicable securities laws of any state or
other jurisdiction of the United States. Any offering of the Placing Shares to
be made (i) in the United States will be made only to a limited number of
"qualified institutional buyers" ("QIBs") within the meaning of Rule 144A
under the Securities Act ("Rule 144A") in accordance with Rule 144A or
pursuant to an exemption from the registration requirements of the Securities
Act in a transaction not involving any "public offering" and (ii) outside the
United States in offshore transactions within the meaning of, and in reliance
on, Regulation S under the Securities Act ("Regulation S").
Except as disclosed in this Announcement under "Details of the Placing",
members of the public are not eligible to take part in the Placing. All offers
of the Placing Shares will be made pursuant to an exemption under Regulation
(EU) 2017/1129 (the "Prospectus Regulation") or under the Prospectus
Regulation as it forms part of United Kingdom domestic law by virtue of the
European Union (Withdrawal) Act 2018 ("EUWA"), from the requirement to produce
a prospectus for offers of the Placing Shares. This Announcement and the terms
and conditions set out herein are directed only at and may only be
communicated to persons: (a) if in an EEA member state, who are qualified
investors within the meaning of Article 2(e) of the Prospectus Regulation
("Qualified Investors"); (b) in the United Kingdom who (i) have professional
experience in matters relating to investments who fall within the definition
of "investment professionals" in Article 19(5) of the Financial Services and
Markets Act 2000 (Financial Promotion) Order 2005 as amended (the "FPO") or
fall within the definition of "high net worth companies, unincorporated
associations etc" in Article 49(2)(a) to (d) of the FPO and (iii) are
"qualified investors" as defined in Article 2(e) of the Prospectus Regulation
as it forms part of UK domestic law by virtue of the EUWA; and (c) otherwise
to whom it may otherwise lawfully be communicated (all such persons together
being referred to as "Relevant Persons").
Except as disclosed in this Announcement under "Details of the Placing", this
Announcement and the terms and conditions set out in the Appendix to this
Announcement must not be acted or relied upon by persons who are not Relevant
Persons. Persons distributing this Announcement must satisfy themselves that
it is lawful for them to do so. Any investment or investment activity to which
this Announcement relates is available only to Relevant Persons and will be
engaged in only with Relevant Persons. This Announcement does not itself
constitute an offer for sale or subscription of any securities in the Company.
By participating in the bookbuilding process and the Placing, each person who
is invited to and who chooses to participate in the Placing by making an oral
and legally binding offer to acquire Placing Shares will be deemed to have
read and understood this Announcement in its entirety, to be participating,
making an offer and acquiring Placing Shares on the terms and conditions
contained in the Appendix to this Announcement and to be providing the
representations, warranties, indemnities, acknowledgements and undertakings
contained in the Appendix to this Announcement.
Davy, which is regulated in Ireland by the Central Bank of Ireland, is acting
as a Joint Bookrunner for the Company and for no-one else in connection with
the Placing referred to in this Announcement and is not, and will not be,
responsible to anyone other than the Company for providing the protections
afforded to its clients, nor for providing advice in relation to the Placing
and/or any other matter referred to in this Announcement.
finnCap, which is authorised and regulated by the Financial Conduct Authority
in the United Kingdom, is acting as a Joint Bookrunner for the Company and for
no-one else in connection with the Placing referred to in this Announcement
and is not, and will not be, responsible to anyone other than the Company for
providing the protections afforded to its clients, nor for providing advice in
relation to the Placing and/or any other matter referred to in this
Announcement.
Shard, which is authorised and regulated by the Financial Conduct Authority in
the United Kingdom, is acting as a Joint Bookrunner for the Company and for
no-one else in connection with the Placing referred to in this Announcement
and is not, and will not be, responsible to anyone other than the Company for
providing the protections afforded to its clients, nor for providing advice in
relation to the Placing and/or any other matter referred to in this
Announcement.
In connection with the Placing, each of the Joint Bookrunners and any of their
respective affiliates, acting as investors for their own accounts, may
purchase Placing Shares and in that capacity may retain, purchase, sell, offer
to sell or otherwise deal for their own accounts in such Placing Shares and
other securities of the Company or related investments in connection with the
Placing or otherwise.
The distribution of this Announcement and the offering of the Placing Shares
in certain jurisdictions may be restricted by law. No action has been taken by
the Company or the Joint Bookrunners that would permit an offering of such
shares or possession or distribution of this Announcement or any other
offering or publicity material relating to such shares in any jurisdiction
where action for that purpose is required. Persons into whose possession this
Announcement comes are required by the Company and the Joint Bookrunners to
inform themselves about, and to observe, such restrictions. The information in
this Announcement may not be forwarded or distributed to any other person and
may not be reproduced in any manner whatsoever. Any forwarding, distribution,
reproduction, or disclosure of this information in whole or in part is
unauthorised. Failure to comply with this directive may result in a violation
of the Securities Act or the applicable laws of other jurisdictions.
This Announcement does not identify or suggest, or purport to identify or
suggest, the risks (direct or indirect) that may be associated with an
investment in the Placing Shares. Any investment decision to subscribe for
Placing Shares in the Placing must be made solely on the basis of publicly
available information, which has not been independently verified by the Joint
Bookrunners.
This Announcement contains (or may contain) certain forward-looking statements
with respect to certain of the Company's current expectations and projections
about future events and the Company's future financial condition and
performance. These statements, which sometimes use words such as "aim",
"anticipate", "believe", "may", "will", "should", "intend", "plan", "assume",
"estimate", "expect" (or the negative thereof) and words of similar meaning,
reflect the Directors' current beliefs and expectations and involve known and
unknown risks, uncertainties and assumptions, many of which are outside the
Company's control and difficult to predict, that could cause actual results
and performance to differ materially from any expected future results or
performance expressed or implied by the forward-looking statement. Statements
contained in this Announcement regarding past trends or activities should not
be taken as a representation that such trends or activities will continue in
the future. The information contained in this Announcement speaks only as of
the date of this Announcement and is subject to change without notice and the
Company does not assume any responsibility or obligation to, and does not
intend to, update or revise publicly or review any of the information
contained herein, whether as a result of new information, future events or
otherwise, except to the extent required by the Euronext Growth Rules for
Companies, the AIM Rules for Companies, the London Stock Exchange, Euronext
Dublin, the Central Bank of Ireland or by applicable law or regulation. No
statement in this Announcement is or is intended to be a profit forecast or
profit estimate or to imply that the earnings of the Company for the current
or future financial years will necessarily match or exceed the historical or
published earnings of the Company.
The price of shares and the income from them may go down as well as up and
investors may not get back the full amount invested on the disposal of shares
acquired. Past performance is no guide to future performance and persons
needing advice should consult an independent financial adviser.
This Announcement does not constitute a recommendation concerning any
investor's options with respect to the Placing. The contents of this
Announcement are not to be construed as legal, business, financial or tax
advice. Each investor or prospective investor should consult his, her or its
own legal adviser, business adviser, financial adviser or tax adviser for
legal, financial, business or tax advice.
The Placing Shares to be issued pursuant to the Placing will not be admitted
to trading on any stock exchange other than AIM, a market operated by the
London Stock Exchange and Euronext Growth, a market operated by Euronext
Dublin.
The Placing has not been approved and will not be approved or disapproved by
the U.S. Securities and Exchange Commission, 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 unlawful. Persons (including, without limitation, nominees and trustees)
who have a contractual or other legal obligation to forward a copy of the
Appendix or this Announcement should seek appropriate advice before taking any
action.
The most recent Annual and Interim Reports and other information are available
on the ENGAGE XR website at https://engagevr.io/investors/. 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.
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
(together, the "MiFID II Product Governance Requirements"), and the product
governance requirements contained within the FCA Handbook Product Intervention
and Product Governance Sourcebook (the "UK Product Governance Rules" and,
together with the MiFID II Product Governance Requirements, the "MiFID II and
UK Product Governance Requirements"), and disclaiming all and any liability,
whether arising in tort, contract or otherwise, which any "manufacturer" (for
the purposes of the MiFID II and UK Product Governance Requirements) may
otherwise have with respect thereto, the Placing Shares have been subject to a
product approval process, which has determined that the Placing Shares are:
(i) compatible with an end target market of (a) retail investors, as defined
in MiFID II and Regulation (EU) NO 2017/565 as it forms part of domestic law
by virtue of the EUWA, (b) investors who meet the criteria of professional
clients, as defined in MiFID II and Regulation (EU) NO 600/2014 as it forms
part of domestic law by virtue of the EUWA, or (c) eligible counterparties, as
defined in MiFID II and the FCA's Conduct of Business Sourcebook ("COBS"); and
(ii) eligible for distribution through all distribution channels as are
permitted by MiFID II (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, the Joint Bookrunners 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 COBS; 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.
APPENDIX
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING EXCEPT AS
DISCLOSED IN THIS ANNOUNCEMENT UNDER "DETAILS OF THE PLACING". THIS
ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE TERMS AND CONDITIONS SET OUT
HEREIN (THE "ANNOUNCEMENT") IS FOR INFORMATION PURPOSES ONLY AND IS DIRECTED
ONLY AT PERSONS WHOSE ORDINARY ACTIVITIES INVOLVE THEM IN ACQUIRING, HOLDING,
MANAGING AND DISPOSING OF INVESTMENTS (AS PRINCIPAL OR AGENT) FOR THE PURPOSES
OF THEIR BUSINESS AND WHO HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO
INVESTMENTS AND ARE: (A) IF IN A MEMBER STATE OF THE EUROPEAN ECONOMIC AREA
(THE "EEA"), PERSONS WHO ARE QUALIFIED INVESTORS ("QUALIFIED INVESTORS"),
BEING PERSONS FALLING WITHIN THE MEANING OF THAT TERM UNDER REGULATION (EU)
2017/1129 (THE "PROSPECTUS REGULATION"); OR (B) IF IN THE UNITED KINGDOM,
"QUALIFIED INVESTORS" AS DEFINED IN ARTICLE 2(E) OF THE PROSPECTUS REGULATION
AS IT FORMS PART OF DOMESTIC LAW BY VIRTUE OF THE EUROPEAN UNION (WITHDRAWAL)
ACT 2018 ("EUWA") WHO ARE (I) PERSONS WHO FALL WITHIN THE DEFINITION OF
"INVESTMENT PROFESSIONAL" IN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND
MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMENDED (THE "FPO"), OR
(II) PERSONS WHO FALL WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH
COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE FPO, OR (C) PERSONS TO
WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS REFERRED TO
IN (A), (B) AND (C) ABOVE TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS").
THIS ANNOUNCEMENT MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT
RELEVANT PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY
THEMSELVES THAT IT IS LAWFUL FOR THEM TO DO SO. ANY INVESTMENT OR INVESTMENT
ACTIVITY TO WHICH THIS ANNOUNCEMENT RELATES IS AVAILABLE ONLY TO RELEVANT
PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS ANNOUNCEMENT
DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES
IN THE COMPANY.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO THE LEGAL, TAX,
BUSINESS AND RELATED ASPECTS OF AN INVESTMENT IN THE PLACING SHARES.
THE PLACING SHARES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE
SECURITIES LAWS OF, OR WITH ANY SECURITIES REGULATORY AUTHORITY OF, ANY STATE
OR OTHER JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD OR
TRANSFERRED, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES ABSENT
REGISTRATION UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION OF THE UNITED STATES. ANY OFFERING OF THE PLACING
SHARES TO BE MADE (I) IN THE UNITED STATES WILL BE MADE ONLY TO A LIMITED
NUMBER OF "QUALIFIED INSTITUTIONAL BUYERS" ("QIBs") WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT ("RULE 144A") IN ACCORDANCE WITH RULE 144A OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT IN A TRANSACTION NOT INVOLVING A "PUBLIC OFFERING" AND (II)
OUTSIDE THE UNITED STATES IN OFFSHORE TRANSACTIONS WITHIN THE MEANING OF, AND
IN RELIANCE ON, REGULATION S UNDER THE SECURITIES ACT. NO PUBLIC OFFERING OF
THE SHARES REFERRED TO IN THIS ANNOUNCEMENT IS BEING MADE IN IRELAND, THE
UNITED KINGDOM ANY RESTRICTED TERRITORY OR ELSEWHERE.
Unless otherwise stated, capitalised terms in this Appendix have the meanings
ascribed to them in the Terms and Conditions below.
This Announcement is for information only and does not itself constitute or
form part of an offer to sell or issue or the solicitation of an offer to buy
or subscribe for securities referred to herein in any jurisdiction including,
without limitation, the United States, any Restricted Territory (as defined
below) or in any jurisdiction where such offer or solicitation is unlawful. No
public offering of securities will be made in connection with the Placing in
Ireland, the United Kingdom, the United States, any Restricted Territory or
elsewhere.
This Announcement, and the information contained herein, is not for release,
publication or distribution, directly or indirectly, to persons in the United
States, Canada, Australia, Japan (each a "Restricted Territory") or in any
jurisdiction in which such publication or distribution is unlawful. The
distribution of this Announcement and the Placing and/or the offer or sale of
the Placing Shares in certain jurisdictions may be restricted by law. No
action has been taken by the Company or the Joint Bookrunners or any of their
respective affiliates or agents which would permit an offer of the Placing
Shares or possession or distribution of this Announcement or any other
offering or publicity material relating to such Placing Shares in any
jurisdiction where action for that purpose is required. Persons distributing
any part of this Announcement must satisfy themselves that it is lawful to do
so. Persons (including, without limitation, nominees and trustees) who have a
contractual or other legal obligation to forward a copy of this Announcement
should seek appropriate advice before taking any such action. Persons into
whose possession this Announcement comes are required by the Company and the
Joint Bookrunners to inform themselves about, and to observe, any such
restrictions.
All offers of the Placing Shares will be made pursuant to an exemption under
the Prospectus Regulation and the Prospectus Regulation as it forms part of
the domestic law of the UK by virtue of the EUWA (the "UK Prospectus
Regulation") from the requirement to produce a prospectus. This Announcement
is being distributed and communicated to persons in the UK only in
circumstances to which section 21(1) of the Financial Services and Markets Act
2000, as amended ("FSMA") does not apply.
The Placing has not been approved and will not be approved or disapproved by
the U.S. Securities and Exchange Commission, 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 unlawful.
Subject to certain exceptions, the securities referred to in this Announcement
may not be offered or sold in any Restricted Territory or to, or for the
account or benefit of, a citizen or resident, or a corporation, partnership or
other entity created or organised in or under the laws of a Restricted
Territory.
This Announcement has been issued by, and is the sole responsibility of, the
Company. No representation or warranty, express or implied, is or will be made
as to, or in relation to, and no responsibility or liability is or will be
accepted by the Joint Bookrunners or any of their respective affiliates or
agents as to or in relation to, the accuracy or completeness of this
Announcement or any other written or oral information made available to or
publicly available to any party or its advisers, and any liability therefore
is expressly disclaimed.
The Joint Bookrunners are acting exclusively for the Company and no-one else
in connection with the Placing and are not, and will not be, responsible to
anyone (including the Placees) other than the Company for providing the
protections afforded to their clients nor for providing advice in relation to
the Placing and/or any other matter referred to in this Announcement.
None of the Company or the Joint Bookrunners makes any representation to any
Placees regarding an investment in the securities referred to in this
Announcement under the laws applicable to such Placees. Each Placee should
consult its own advisers as to the legal, tax, business, financial and related
aspects of an investment in the Placing Shares.
By participating in the Placing, Placees (including individuals, funds or
otherwise) by whom or on whose behalf a commitment to acquire Placing Shares
has been given will (i) be deemed to have read and understood this
Announcement, in its entirety; and (ii) be making such offer on the terms and
conditions contained in Appendix, 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 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
either (i) 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 Securities Act ("Regulation S"); or (ii) a "qualified institutional
buyer" (a "QIB") as defined in Rule 144A under the Securities Act ("Rule
144A"), which is acquiring the Placing Shares for its own account or for the
account of one or more QIBs, each of which is acquiring beneficial interests
in the Placing Shares for its own account; if acquiring the 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 the
Prospectus Regulation and the UK Prospectus Regulation, that it understands
the resale and transfer restrictions set out in this Appendix and 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 or the UK to Qualified Investors, or in circumstances in
which the prior consent of the Joint Bookrunners has been given to each such
proposed offer or resale.
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING
Defined terms used in this Appendix are set out at the end of this Appendix.
Bookbuild
The Joint Bookrunners will today commence a bookbuilding process in respect of
the Placing (the "Bookbuild") to determine demand for participation in the
Placing by investors. No commissions will be paid to Placees or by Placees in
respect of any Placing Shares. The book will open with immediate effect.
Members of the public are not entitled to participate in the Placing. This
Appendix gives details of the terms and conditions of, and the mechanics of
participation in, the Placing.
Details of the Placing Agreement and of the Placing Shares
The Joint Bookrunners have entered into an agreement with the Company (the
"Placing Agreement") under which, subject to the conditions set out therein,
the Joint Bookrunners will agree to use their respective reasonable endeavours
to procure placees for the Placing Shares at the Placing Price and as set out
in the Placing Agreement.
The final number of Placing Shares will be decided at the close of the
Bookbuild. All investors who participate in the Placing will be required to
make bids for Placing Shares in Sterling. The timing of the closing of the
book and allocations are at the discretion of the Company, Davy, finnCap and
Shard. Details of the number of Placing Shares will be announced as soon as
practicable after the close of the Bookbuild.
The Placing Shares have been duly authorised and will, when issued, be
credited as fully paid and will rank pari passu in all respects with the
existing Ordinary Shares (other than treasury shares which are non-voting and
do not qualify for dividends), including the right to receive all dividends
and other distributions declared, made or paid in respect of the Ordinary
Shares after the date of issue. The Placing Shares will be issued free of any
pre-emption rights, encumbrances, liens or other security interests.
Application for admission to trading
The Company will apply to Euronext Dublin and to the London Stock Exchange for
the Placing Shares to be admitted to trading on Euronext Growth and AIM
respectively ("Admission"). It is expected that Admission will become
effective and that dealings will commence in the Placing Shares at 8.00 a.m.
on 6 March 2023 (or such later date as may be agreed between the Company and
the Joint Bookrunners). The Placing is conditional upon, amongst other things,
Admission becoming effective and the grant by the shareholders of the Company
at the EGM of sufficient authority to the Directors to allot and issue the
Placing Shares and to disapply statutory pre-emption rights in relation to the
issue of the Placing Shares.
Participation in, and principal terms of, the Placing
1. The Joint Bookrunners are arranging the Placing severally, and not
jointly, nor jointly and severally, as Joint Bookrunners and agents of the
Company. Participation in the Placing will only be available to persons who
may lawfully be, and are, invited to participate by any of the Joint
Bookrunners. Each of the Joint Bookrunners and their respective affiliates are
entitled to enter bids as principal in the Bookbuild.
2. To bid in the Bookbuild, Placees should communicate their bid by
telephone or in writing to their usual sales contact at one of the Joint
Bookrunners. Each bid should state the number of Placing Shares which the
prospective Placee wishes to acquire at the Placing Price. Bids may be scaled
down by the Joint Bookrunners on the basis referred to in paragraph 5 below.
3. The Bookbuild is expected to close no later than 4:30 p.m. (London
time) on 6 February 2023, but may be closed earlier or later, at the
discretion of the Joint Bookrunners. The Joint Bookrunners may, in agreement
with the Company, accept bids that are received after the Bookbuild has
closed.
4. Each Placee's allocation will be confirmed to Placees orally by the
relevant Joint Bookrunner following the close of the Bookbuild, and a contract
note will be dispatched as soon as possible thereafter. The relevant Joint
Bookrunner's oral confirmation to such Placee will constitute an irrevocable
legally binding commitment upon such person (who will at that point become a
Placee) in favour of such Joint Bookrunner and the Company, under which such
Placee agrees to acquire the number of Placing Shares allocated to it and to
pay the relevant Placing Price on the terms and conditions set out in this
Appendix and in accordance with the Company's corporate documents.
5. Subject to paragraph 2 above, the Joint Bookrunners will, in effecting
the Placing, agree with the Company the identity of the Placees and the basis
of allocation of the Placing Shares and may scale down any bids for this
purpose on such basis as it may determine. The Joint Bookrunners may also,
notwithstanding paragraph 2 above and subject to the prior consent of the
Company, (i) allocate Placing Shares after the time of any initial allocation
to any person submitting a bid after that time and (ii) allocate Placing
Shares after the Bookbuild has closed to any person submitting a bid after
that time. The acceptance of offers shall be at the absolute discretion of the
Joint Bookrunners.
6. A bid in the Bookbuild will be made on the terms and subject to the
conditions in this Appendix and will be legally binding on the Placee on
behalf of which it is made and except with the relevant Joint Bookrunner's
consent will not be capable of variation or revocation after the time at which
it is submitted. Each Placee will also have an immediate, separate,
irrevocable and binding obligation, owed to the relevant Joint Bookrunner, to
pay it (or as it may direct) in cleared funds an amount equal to the product
of the Placing Price and the number of Placing Shares that such Placee has
agreed to acquire. Each Placee's obligations will be owed to the relevant
Joint Bookrunner.
7. Except as required by law or regulation, no press release or other
announcement will be made by any of the Joint Bookrunners 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.
8. 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".
9. All obligations under the Bookbuild and Placing will be subject to
fulfilment or (where applicable) waiver 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".
10. By participating in the Bookbuild, each Placee agrees that its rights and
obligations in respect of the Placing will terminate only in the circumstances
described below and will not be capable of rescission or termination by the
Placee after confirmation (oral or otherwise) by a Joint Bookrunner.
11. To the fullest extent permissible by law, none of the Joint Bookrunners,
the Company or any of their respective affiliates shall have any
responsibility or liability to Placees (or to any other person whether acting
on behalf of a Placee or otherwise). In particular, none of the Joint
Bookrunners, nor the Company, nor any of their respective affiliates shall
have any responsibility or liability (including to the extent permissible by
law, any fiduciary duties) in respect of the Joint Bookrunners' conduct of the
Bookbuild or of such alternative method of effecting the Placing as the Joint
Bookrunners, their respective affiliates and the Company may agree.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional
and not having been terminated in accordance with its terms. The Joint
Bookrunners' obligations under the Placing Agreement are conditional on
certain conditions, including:
(a) Admission occurring at or before 8:00 a.m. (London time) on 6 March 2023
(or at such later time or date as the Company and the Joint Bookrunners may
agree);
(b) the Company having complied with its obligations under the Placing
Agreement;
(c) the publication by the Company of the results of the Placing on a
Regulatory Information Service by 7:00 a.m. on 7 February 2023 following the
date of the Placing Agreement; and
(d) the Placing Agreement not having been terminated in accordance with its
terms prior to the Placing Admission;
(e) the intended subscription agreement between HTC and the Company:
a. having been executed and delivered by the parties thereto and having
become unconditional by the times and dates stated therein (save as to any
condition relating to admission of the Ordinary Shares to be subscribed for
thereunder); and
b. becoming and continuing to be enforceable against each of the parties
thereto and having not being varied, modified, supplemented, rescinded, lapsed
or terminated and no party to the Subscription Agreement having failed to
enforce its rights thereunder in accordance with its terms or granted any
waiver thereunder or extension of time for its performance;
(f) the Company delivering to the Joint Bookrunners on or before 7 February
2023, a certified copy or original of the EGM Circular and the EGM Form of
Proxy and the resolutions of the Board approving the release of the same and
the despatch by post of the EGM Circular and the EGM Form of Proxy in
accordance with the 2014 Act;
(g) the passing of the Resolutions (without amendment) on the EGM Date and
the release of the result of the EGM by RIS; and
(h) the Company delivering to the Joint Bookrunners by 6:00 p.m. on the EGM
Date (unless otherwise expressly agreed in writing by the Joint Bookrunners):
a. a certified copy of the Allotment Resolutions, duly passed;
b. a certified copy of the Resolutions (as passed at the EGM);
(i) the payment of the subscription monies payable by HTC in respect of
the Ordinary Shares to be subscribed for under the Subscription Agreement
having been received in full and in cleared funds by the Company;
(j) each of the warranties on the part of the Company in the Placing
Agreement being true and accurate and not misleading on and as of the date of
the Placing Agreement and as of the closing of the Placing; and
(k) the Company allotting and/or issuing, as applicable, subject only to
Admission, the Placing Shares in accordance with the Placing Agreement.
If: (i) any of the conditions contained in the Placing Agreement, including
those described above, are not fulfilled or (where applicable) waived by the
Joint Bookrunners by the relevant time or date specified (or such later time
or date as the Company and the Joint Bookrunners may agree); or (ii) 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.
The Joint Bookrunners may, at their discretion 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 conditions
relating, inter alia, to Admission taking place and the Company allotting
and/or issuing, as applicable, the Placing Shares may not be waived. Any such
extension or waiver will not affect Placees' commitments as set out in this
Announcement.
None of the Joint Bookrunners shall 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 the Joint
Bookrunners.
By participating in the Bookbuild, each Placee agrees that its rights and
obligations hereunder terminate only in the circumstances described above and
under "Termination of the Placing Agreement" below and will not be capable of
rescission or termination by the Placee.
Termination of the Placing Agreement
The Joint Bookrunners are entitled, at any time before Admission, to terminate
the Placing Agreement in accordance with its terms in certain circumstances,
including, if: (i) there has been a breach by the Company of any of the
warranties or undertakings contained in the Placing Agreement or an event has
occurred or matter has arisen which would have rendered any of the warranties
untrue, inaccurate or misleading in any respect; (ii) in the joint opinion of
the Joint Bookrunners (acting in good faith), there has been a material
adverse change, in the condition (financial, operational, legal or otherwise)
or in the trading position, earnings, management, business, solvency or
prospects of the Company and/or the Group, whether or not arising in the
ordinary course of business; or (iii) either of the applications for Admission
are withdrawn or refused by Euronext Dublin or the London Stock Exchange (as
the case may be).
By participating in the Placing, Placees agree that the exercise by any Joint
Bookrunner of any right of termination or other discretion under the Placing
Agreement shall be within the absolute discretion of such Joint Bookrunner or
for agreement between the Company and the Joint Bookrunner(s) (as the case may
be) and that neither the Company nor the Joint Bookrunners need make any
reference to, or consultation with, Placees and that neither they nor any of
their respective affiliates, agents, directors, officers or employees shall
have any liability to Placees whatsoever in connection with any such exercise.
No prospectus
No offering document, prospectus or admission document has been or will be
prepared or submitted to be approved by the Central Bank of Ireland or the UK
Financial Conduct Authority (or any other authority) in relation to the
Placing, and Placees' commitments will be made solely on the basis of publicly
available information taken together with the information contained in this
Announcement, and any Exchange Information (as defined below) previously
published by or on behalf of the Company simultaneously with or prior to the
date of this Announcement and subject to the further terms set forth 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 and the publicly available information released
by or on behalf of 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 (other than publicly available information) or the Joint
Bookrunners or their respective Affiliates or any other person and none of the
Joint Bookrunners or the Company, or any of their respective Affiliates or 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 (regardless of whether or not
such information, representation, warranty or statement was given or made by
or on behalf of any such persons). 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 paragraph shall exclude or limit the liability of any person for
fraudulent misrepresentation by that person.
Lock-up
The Company has undertaken to the Joint Bookrunners that, between the date of
the Placing Agreement and 12 months after the Closing Date, it will not,
without the prior written consent of the Joint Bookrunners (such consent not
to be unreasonably withheld or delayed) enter into certain transactions
involving or relating to the Ordinary Shares, subject to certain carve-outs
agreed between the Joint Bookrunners and the Company.
By participating in the Placing, Placees agree that the exercise by the Joint
Bookrunners of any power to grant consent to waive the undertaking by the
Company of a transaction which would otherwise be subject to the lock-up under
the Placing Agreement shall be within the absolute discretion of the Joint
Bookrunners and that they need not make any reference to, or consultation
with, Placees and that they shall have no liability to Placees whatsoever in
connection with any such exercise of the power to grant consent.
Registration and settlement
Settlement of transactions in the Placing Shares (ISIN: IE00BG0HDR01)
following Admission will take place within the central securities depository
system administered by Euroclear Bank SA/NV ("Euroclear Bank") (the "Euroclear
System"), using the delivery versus payment mechanism, subject to certain
exceptions. Subject to certain exceptions, the Joint Bookrunners and the
Company reserve the right to require settlement for, and delivery of, the
Placing Shares to Placees by such other means that they deem necessary if
delivery or settlement is not practicable in the Euroclear System within the
timetable set out in this Announcement or would not be consistent with the
regulatory requirements in the Placee's jurisdiction.
Following the close of the Bookbuild for the Placing, each Placee allocated
Placing Shares in the Placing will be sent a contract note stating the number
of Placing Shares to be allocated to it at the Placing Price, the aggregate
amount owed by such Placee to the Joint Bookrunners and settlement
instructions. Placees should settle against Euroclear ID: EC 66909 for Davy,
Euroclear ID 75663 for finnCap and Euroclear ID: 94763 for Shard. It is
expected that such contract note will be despatched before close of business
on 7 February 2023. The expected trade date for the transaction is 2 March
2023.
Each Placee agrees that it will do all things necessary to ensure that
delivery and payment is completed in accordance with either the standing
Euroclear System or other settlement instructions that it has in place with
the relevant Joint Bookrunner.
The Company will deliver the Placing Shares to Euroclear Bank securities
settlement accounts operated by Davy, finnCap and Shard respectively, in each
case as agents for the Company, and Davy, finnCap and Shard will enter their
respective delivery instructions into the Euroclear System. Davy, finnCap and
Shard will hold any Placing Shares delivered to their respective Euroclear
Bank securities settlement accounts as nominee for the Placees. The input to
Euroclear Bank by a Placee of a matching or acceptance instruction will then
allow delivery of the relevant Placing Shares to that Placee against payment.
It is expected that settlement will be on 6 March 2023 in accordance with the
instructions given to the Joint Bookrunners (or such other basis as may be
agreed with the Joint Bookrunners).
Interest is chargeable daily on payments not received from Placees on the due
date in accordance with the arrangements set out above at the rate of two
percentage points above LIBOR as determined by the Joint Bookrunners.
Each Placee agrees that, if it does not comply with these obligations, the
Joint Bookrunners may sell any or all of the Placing Shares allocated to that
Placee on such Placee's behalf and retain from the proceeds, for the Company's
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 shall be required
to bear any stamp duty, stamp duty reserve tax or other stamp, securities,
transfer, registration, execution, documentary or other similar impost, duty
or tax (together with any interest or penalties) 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 contract note 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 to as provided
below, be so registered free from any liability to UK or Irish stamp duty or
UK stamp duty reserve tax. If there are any circumstances in which any other
stamp duty or stamp duty reserve tax (together with interest and penalties) is
payable in respect of the issue of the Placing Shares, neither the Joint
Bookrunners nor the Company shall be responsible for the payment thereof.
Representations and warranties
By participating in the Placing each Placee (and any person acting on such
Placee's behalf) irrevocably acknowledges, confirms, undertakes, represents,
warrants and agrees (as the case may be) with the Joint Bookrunners (in their
capacity as Joint Bookrunners and placing agents of the Company in respect of
the Placing) and the Company, in each case as a fundamental term of its
application for Placing Shares, the following:
1. it has read and understood this Announcement, including this Appendix, in
its entirety and that its subscription for Placing Shares is subject to and
based upon all the terms, conditions, representations, warranties,
indemnities, acknowledgements, agreements and undertakings and other
information contained herein and undertakes not to redistribute or duplicate
this Announcement and that it has not relied on, and will not rely on, any
information given or any representations, warranties or statements made at any
time by any person in connection with Admission, the Placing, the Company, the
Placing Shares or otherwise;
2. that no offering document or prospectus or admission document has been or
will be prepared in connection with the Placing or is required under the
Prospectus Regulation or the UK Prospectus Regulation and it has not received
and will not receive a prospectus, admission document or other offering
document in connection with the Bookbuild, the Placing or the Placing Shares;
3. that the Ordinary Shares are admitted to trading on the AIM market of the
London Stock Exchange and the Euronext Growth market of Euronext Dublin, and
that the Company is therefore required to publish certain business and
financial information in accordance with the EU Market Abuse Regulation
(2014/596/EU) ("EU MAR") and EU MAR as it forms part of UK domestic law by
virtue of the EUWA ("UK MAR") and the rules and practices of the London Stock
Exchange and Euronext Dublin (collectively, the "Exchange Information"), which
includes a description of the nature of the Company's business and the
Company's most recent balance sheet and profit and loss account, and similar
statements for preceding financial years and that it has reviewed such
Exchange Information and that it is able to obtain or access such Exchange
Information, or comparable information concerning any other publicly traded
company, without delay;
4. that none of the Joint Bookrunners or the Company or any of their
respective Affiliates nor any person acting on behalf of any of them has
provided, and none of them will provide, it with any material or information
regarding the Placing Shares, the Placing or the Company or any other person
other than this Announcement, nor has it requested any of the Joint
Bookrunners, the Company, or any of their respective Affiliates nor any person
acting on behalf of any of them to provide it with any such material or
information;
5. unless otherwise specifically agreed with the Joint Bookrunners, 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 a Restricted
Territory or any other jurisdiction in which it would be unlawful to make or
accept an offer to acquire the Placing Shares, and further acknowledges that
the Placing Shares have not been and will not be registered or otherwise
qualified, for offer and sale nor will an offering document, prospectus or
admission document be cleared or approved in respect of any of the Placing
Shares under the securities legislation of the United States or any other
Restricted Territory and, subject to certain exceptions, may not be offered,
sold, transferred, delivered or distributed, directly or indirectly, in or
into those jurisdictions or in any country or jurisdiction where any such
action for that purpose is required;
6. that the content of this Announcement is exclusively the responsibility of
the Company and that none of the Joint Bookrunners or any of their respective
Affiliates or any person acting on their behalf has or shall have any
responsibility or liability for any information, representation or statement
contained in this Announcement or any information previously or subsequently
published by or on behalf of the Company, including, without limitation, any
Exchange Information, 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 any information previously
published by or on behalf of the Company or otherwise. Each Placee further
represents, warrants and agrees that the only information on which it is
entitled to rely and on which such Placee has relied in committing itself to
acquire the Placing Shares is contained in this Announcement and any Exchange
Information, such information being all that it deems necessary to make an
investment decision in respect of the Placing Shares, and that it has neither
received nor relied on any other information given or investigations,
representations, warranties or statements made by the Joint Bookrunners or the
Company and none of the Joint Bookrunners 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. Each
Placee further acknowledges and agrees that it has relied on its own
investigation of the business, financial or other position of the Company in
deciding to participate in the Placing and that none of the Joint Bookrunners
or any of their respective Affiliates have made any representations to it,
express or implied, with respect to the Company, the Placing and/or the
Placing Shares or the accuracy, completeness or adequacy of the Exchange
Information, and each of them expressly disclaims any liability in respect
thereof. Nothing in this paragraph or otherwise in this Announcement excludes
the liability of any person for fraudulent misrepresentation made by that
person;
7. that it has not relied on any information relating to the Company contained
in any research reports prepared by the Joint Bookrunners, any of their
respective Affiliates or any person acting on the Joint Bookrunners' or any of
their respective Affiliates' behalf and understands that (i) none of the Joint
Bookrunners or any of their respective Affiliates nor any person acting on
their behalf has or shall have any liability for public information or any
representation; (ii) none of the Joint Bookrunners or any of their respective
Affiliates nor any person acting on their behalf has or shall have any
liability for any additional information that has otherwise been made
available to such Placee, whether at the date of publication, the date of this
document or otherwise; and that (iii) none of the Joint Bookrunners or any of
their respective Affiliates nor any person acting on their behalf makes any
representation or warranty, express or implied, as to the truth, accuracy or
completeness of such information, whether at the date of publication, the date
of this Announcement or otherwise;
8. that the allocation, allotment, issue and delivery 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 it is not
participating in the Placing as nominee or agent for any person to whom the
allocation, allotment, issue or delivery of the Placing Shares would give rise
to such a liability 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;
9. that it acknowledges that no action has been or will be taken by the
Company, the Joint Bookrunners or any person acting on behalf of the Company
or the Joint Bookrunners 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;
10. that it and any person acting on its behalf is entitled to acquire the
Placing Shares under the laws of all relevant jurisdictions which apply to it
and that it has fully observed such laws and obtained all such governmental
and other guarantees, permits, authorisations, approvals and consents which
may be required thereunder and complied with all necessary formalities and
that it has not taken any action or omitted to take any action which will or
may result in the Joint Bookrunners, the Company or any of their respective
Affiliates acting in breach of the legal or regulatory requirements of any
jurisdiction in connection with the Placing;
11. that it has all necessary capacity and has obtained all necessary consents
and authorities to enable it to commit to its 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, all necessary consents
and authorities to agree to the terms set out or referred to in this
Announcement) and will honour such obligations;
12. that it has complied with its obligations under the Criminal Justice Act
1993, section 118 of the Financial Services and Markets Act 2000, as amended
(the "FSMA"), EU MAR and UK MAR and in connection with money laundering and
terrorist financing under the Criminal Justice (Money Laundering and Terrorist
Financing) Acts 2010 and 2013 (as amended) (in Ireland) the Proceeds of Crime
Act 2002 (as amended), the Terrorism Act 2000, the Terrorism Act 2006, the
Money Laundering Regulations 2007 (the "Regulations") and the Money Laundering
Sourcebook of the FCA 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. Each Placee
acknowledges and agrees that if within a reasonable time after a request for
verification of identity, the Joint Bookrunners have not received such
satisfactory evidence, the Joint Bookrunners may, in their absolute
discretion, terminate the Placee's Placing Participation in which event all
funds delivered by the Placee to the Joint Bookrunners will be returned
without interest to the account of the drawee bank or Euroclear securities
account from which they were originally debited;
13. 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, and does make, the acknowledgments, representations and
agreements herein on behalf of each such person; and (ii) it is and will
remain liable to the Joint Bookrunners and the Company 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);
14. if in a member state of the EEA or the UK and except as disclosed in this
Announcement under "Details of the Placing", that it is a "Qualified Investor"
within the meaning of Article 2(e) of the Prospectus Regulation or the UK
Prospectus Regulation (as the case may be);
15. if in the United Kingdom, that it is a person (i) who falls within the
definition of "investment professional" 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 FPO or (iii) to whom this
Announcement may otherwise lawfully be communicated and it undertakes that it
will acquire, hold, manage and (if applicable) dispose of any Placing Shares
that are allocated to it for the purposes of its business only;
16. that it will not distribute, transfer or otherwise transmit this
Announcement or any part of it, or any other presentation or other materials
concerning the Placing, in or into the United States (including electronic
copies thereof) to any person, and it has not distributed, forwarded,
transferred or otherwise transmitted any such materials to any person;
17. where it is acquiring the Placing Shares for one or more managed accounts,
it represents, warrants and undertakes that it is authorised in writing by
each managed account to acquire the Placing Shares for each managed account
and it has full power to make the acknowledgements, representations and
agreements herein on behalf of each such account;
18. that if it is a pension fund or investment company, it represents,
warrants and undertakes that its acquisition of Placing Shares is in full
compliance with applicable laws and regulations;
19. if it is acting as a financial intermediary, as that term is used in the
Prospectus Regulation and the UK Prospectus Regulation, that the Placing
Shares acquired by it in the Placing will not be acquired for on a
nondiscretionary basis on behalf of, nor will they be acquired for with a view
to their offer or resale to, persons in a member state of the EEA or the UK
other than Qualified Investors, or in circumstances in which the prior consent
of the Joint Bookrunners has been given to the proposed offer or resale;
20. that it has not offered or sold and, prior to the expiry of a period of
six months from Admission, will not offer or sell any Placing Shares to
persons in the United Kingdom, except to Qualified Investors 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 FSMA;
21. that any offer of Placing Shares may only be directed at persons in member
states of the EEA who are Qualified Investors and represents, warrants and
undertakes 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 Qualified
Investors 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 Prospectus Regulation;
22. 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;
23. that it has complied and will comply with all applicable laws (including
all relevant provisions of the FSMA) with respect to anything done by it in
relation to the Placing Shares in respect of anything done in, from or
otherwise involving, the United Kingdom;
24. if it has received any confidential price sensitive information about the
Company in advance of the Placing, it has not: (i) dealt in the securities of
the Company; (ii) encouraged or required another person to deal in the
securities of the Company; or (iii) disclosed such information to any person
except as permitted by EU MAR or UK MAR (as the case may be), prior to the
information being made publicly available;
25. that (i) it (and any person acting on its behalf) has capacity and
authority and is otherwise entitled to purchase the Placing Shares under the
laws of all relevant jurisdictions which apply to it; (ii) it has paid any
issue, transfer or other taxes due in connection with its participation in any
territory; (iii) it has not taken any action which will or may result in the
Company, the Joint Bookrunners, any of their Affiliates or any person acting
on their behalf being in breach of the legal and/or regulatory requirements
and/or any anti money laundering requirements of any territory in connection
with the Placing and (iv) that the subscription for and purchase of the
Placing Shares by it or any person acting on its behalf will be in compliance
with applicable laws and regulations in the jurisdiction of its residence, the
residence of the Company, or otherwise;
26. that it (and any person acting on its behalf) will make payment for the
Placing Shares allocated to it in accordance with this Announcement on the due
time and date set out herein against delivery of such Placing Shares to it,
failing which the relevant Placing Shares may be placed with other Placees or
sold as the Joint Bookrunners may in their absolute discretion determine and
without liability to such Placee. Each Placee acknowledges and agrees that it
will, however, remain liable for any shortfall below the net proceeds of such
sale and the placing proceeds of such Placing Shares and may be required to
bear any 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;
27. that its allocation (if any) of Placing Shares will represent a maximum
number of Placing Shares to which it will be entitled, and required, to
acquire, and that the Joint Bookrunners 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;
28. that none of the Joint Bookrunners nor any of their respective Affiliates
nor any person acting on their behalf, is making any recommendations to it, or
advising it regarding the suitability or merits of any transactions it may
enter into in connection with the Placing and that participation in the
Placing is on the basis that it is not and will not be a client of the Joint
Bookrunners and that the Joint Bookrunners do not have any 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 the Joint Bookrunners rights and obligations thereunder
including any rights to waive or vary any conditions or exercise any
termination right;
29. 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.
Each Placee acknowledges and agrees that none of the Joint Bookrunners nor the
Company will be responsible for any liability to stamp duty or stamp duty
reserve tax or other similar duties or taxes (together with any interest or
penalties) resulting from a failure to observe this requirement. Each Placee
and any person acting on behalf of such Placee agrees to indemnify each of the
Joint Bookrunners and the Company and any of their respective Affiliates in
respect of the same on an after-tax basis on the basis that the Placing Shares
will be allotted to the Euroclear Bank securities clearance account of
finnCap, Davy or Shard (as the case may be) who will hold them as nominee on
behalf of such Placee until settlement in accordance with its standing
settlement instructions;
30. that these terms and conditions and any agreements entered into by it
pursuant to these terms and conditions, and any non-contractual obligations
arising out of or in connection with such agreements, shall be governed by and
construed in accordance with the laws of Ireland 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 Irish 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 Joint Bookrunners or
the Company 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;
31. that each of the Joint Bookrunners and the Company and their respective
Affiliates and others will rely upon the truth and accuracy of the
representations, warranties, agreements, undertakings and acknowledgements set
forth herein and which are given to each of the Joint Bookrunners on their own
behalf and on behalf of the Company and are irrevocable and it irrevocably
authorises each of the Joint Bookrunners and the Company 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;
32. that it will indemnify on an after-tax basis and hold each of the Joint
Bookrunners and the Company and their respective Affiliates and any person
acting on their behalf 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 this Appendix and further
agrees that the provisions of this Appendix shall survive after completion of
the Placing;
33. acknowledges that it irrevocably appoints any director of the Joint
Bookrunners 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;
34. that it acknowledges that its commitment to acquire Placing Shares on the
terms set out herein and in the contract note will continue notwithstanding
any amendment that may in future be made to the terms and conditions of the
Placing and that Placees will have no right to be consulted or require that
their consent be obtained with respect to the Company's or the Joint
Bookrunners conduct of the Placing;
35. that in making any decision to acquire the Placing Shares (i) it has
sufficient knowledge, sophistication and experience in financial, business and
international investment matters as is required to evaluate the merits and
risks of subscribing for or purchasing the Placing Shares, (ii) it 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 participating in, and is able to sustain a complete loss in connection
with, the Placing, (iii) it has relied on its own examination, due diligence
and analysis of the Company and its Affiliates taken as a whole, including the
markets in which the Group operates, and the terms of the Placing, including
the merits and risks involved and not upon any view expressed or information
provided by or on behalf of the Joint Bookrunners, (iv) it has had sufficient
time to consider and conduct its own investigation with respect to the offer
and purchase of the Placing Shares, including the legal, regulatory, tax,
business, currency and other economic and financial considerations relevant to
such investment, and (v) it will not look to the Company or the Joint
Bookrunners or any of their respective Affiliates or any person acting on
their behalf for all or part of any such loss or losses it or they may suffer;
36. acknowledges and agrees that none of the Joint Bookrunners or the Company
owe any fiduciary or other duties to it or any Placee in respect of any
representations, warranties, undertakings or indemnities in the Placing
Agreement;
37. understands and agrees that it may not rely on any investigation that the
Joint Bookrunners or any person acting on their behalf may or may not have
conducted with respect to the Company and its Affiliates or the Placing and
the Joint Bookrunners have not made any representation or warranty to it,
express or implied, with respect to the merits of the Placing, the
subscription for the Placing Shares, or as to the condition, financial or
otherwise, of the Company and its Affiliates, or as to any other matter
relating thereto, and nothing herein shall be construed as a recommendation to
it to acquire the Placing Shares. It acknowledges and agrees that no
information has been prepared by, or is the responsibility of, the Joint
Bookrunners for the purposes of the Placing;
38. acknowledges and agrees that it will not hold any of the Joint Bookrunners
or any of their respective Affiliates or any person acting on their behalf
responsible or liable for any misstatements in or omission from any publicly
available information relating to the Group or information made available
(whether in written or oral form) relating to the Group (the "Information")
and that none of the Joint Bookrunners of any of their respective Affiliates
or any person acting on their behalf, makes any representation or warranty,
express or implied, as to the truth, accuracy or completeness of such
Information or accepts any responsibility for any of such Information;
39. that in connection with the Placing, the Joint Bookrunners and any of
their respective Affiliates acting as an investor for its own account may take
up shares in the Company and in that capacity may retain, purchase or sell for
its own account such shares in the Company and any securities of the Company
or related investments and may offer or sell such securities or other
investments otherwise than in connection with the Placing. Accordingly,
references in this Announcement to shares being issued, offered or placed
should be read as including any issue, offering or placement of such shares in
the Company to the Joint Bookrunners and any of their respective Affiliates
acting in such capacity. In addition, the Joint Bookrunners may enter into
financing arrangements and swaps with investors in connection with which the
Joint Bookrunners may from time to time acquire, hold or dispose of such
securities of the Company, including the Placing Shares. None of the Joint
Bookrunners or any of their respective Affiliates intend to disclose the
extent of any such investment or transactions otherwise than in accordance
with any legal or regulatory obligation to do so;
40. acknowledges that (i) the Placing Shares have not been and will not be
registered under the Securities Act or under the securities laws of any state
or other jurisdiction of the United States, nor approved or disapproved by the
U.S. Securities and Exchange Commission, any state securities commission in
the United States or any other United States regulatory authority; (ii) the
Placing Shares are being offered and sold (a) in the United States to a
limited number of QIBs in accordance with Rule 144A or pursuant to an
available exemption from the registration requirements of the Securities Act
in a transaction not involving any "public offering", (b) outside the United
States in reliance on Regulation S, or (c) pursuant to another transaction
exempt from or not subject to the registration requirements of the Securities
Act and (iii) the Placing Shares may not be reoffered, resold, pledged or
otherwise transferred except in transactions not requiring registration under
the Securities Act;
41. represents and warrants that unless it is a QIB in the United States to
whom the Placing Shares will be offered on a private placement basis, (a) each
of it and each beneficial owner of the Placing Shares for whom it is acting is
and at the time the Placing Shares are acquired will be, located outside the
United States and is and will be acquiring the Placing Shares in an "offshore
transaction" as defined in, and in accordance with, Regulation S and (b) it
will not offer or sell, directly or indirectly, any of the Placing Shares
except in an "offshore transaction" in accordance with Regulation S or in the
United States pursuant to an available exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act; and
42. that it is not acquiring any of the Placing Shares as a result of any form
of general solicitation or general advertising (within the meaning of Rule
502(c) of Regulation D under the Securities Act) or it is located outside the
United States and it is not acquiring any of the Placing Shares as a result of
any form of directed selling efforts (as defined in Regulation S).
The foregoing acknowledgements, agreements, undertakings, representations,
warranties and confirmations are given for the benefit of the Company as well
as each of the Joint Bookrunners (for their own benefit and, where relevant,
the benefit of their respective Affiliates and any person acting on their
behalf) and are irrevocable. Each Placee, and any person acting on behalf of a
Placee, acknowledges that none of the Joint Bookrunners or the Company owe any
fiduciary or other duties to any Placee in respect of any representations,
warranties, undertakings or indemnities in the Placing Agreement.
Please also note that the agreement to allot and issue Placing Shares to
Placees (or the persons for whom Placees are contracting as agent) free of
Irish stamp duty and stamp duty reserve tax in the UK 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, and is based on a warranty from each Placee, 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. Neither the Joint Bookrunners nor the Company are liable to
bear any stamp duty or stamp duty reserve tax or any other similar duties or
taxes (transfer taxes) that arise on a sale of Placing Shares, if there are
any such arrangements, or any arrangements that arise subsequent to their
acquisition by Placees or for transfer taxes arising otherwise than under the
laws of Ireland or the United Kingdom. Each Placee should, therefore, take its
own advice as to whether any such transfer tax liability arises. Furthermore,
each Placee agrees to indemnify on an after-tax basis and hold the Joint
Bookrunners and/or the Company and their respective Affiliates harmless from
any and all interest, fines or penalties in relation to transfer taxes to the
extent that such interest, fines or penalties arise from the unreasonable
default or delay of that Placee or its agent.
Each Placee and any person acting on behalf of each Placee acknowledges and
agrees that any of the Joint Bookrunners or any of their respective Affiliates
may, at their absolute discretion, agree to become a Placee in respect of some
or all of the Placing Shares. Each Placee acknowledges and is aware that the
Joint Bookrunners is receiving a fee in connection with their role in respect
of the Placing as detailed in the Placing Agreement.
When a Placee or person acting on behalf of the Placee is dealing with the
Joint Bookrunners, any money held in an account with any of the Joint
Bookrunners 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 or the Central Bank of Ireland. 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 the Joint Bookrunners money in accordance with the client
money rules and will be used by the Joint Bookrunners in the course of its own
business; and the Placee will rank only as a general creditor of the Joint
Bookrunners.
All times and dates in this Announcement may be subject to amendment by the
Joint Bookrunners (in its absolute discretion). The Joint Bookrunners shall
notify the Placees and any person acting on behalf of the Placees of any
changes.
Past performance is no guide to future performance and persons needing advice
should consult an independent financial adviser.
The rights and remedies of the Joint Bookrunners 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.
Each Placee may be asked to disclose in writing or orally to the Joint
Bookrunners:
(a) if he or she is an individual, his or her nationality; or
(b) if he or she is a discretionary fund manager, the jurisdiction in which
the funds are managed or owned.
DEFINITIONS
In this Announcement:
"Admission" means the admission of the Placing Shares to trading on the
Alternative Investment Market of the London Stock Exchange and the Euronext
Growth market of Euronext Dublin;
"Affiliate" has the meaning given in Rule 501(b) of Regulation D under the
Securities Act or Rule 405 under the Securities Act, as applicable;
"AIM" means the AIM market operated by the London Stock Exchange;
"Announcement" means this Announcement (including the Appendix to this
Announcement);
"Bookbuild" means the bookbuilding process to be commenced by the Joint
Bookrunners to use reasonable endeavours to procure placees for the Placing
Shares, as described in this Announcement and subject to the terms and
conditions set out in this Announcement and the Placing Agreement;
"Business Day" any day on which banks in the City of London and Dublin are
open for business (excluding Saturdays, Sundays and public holidays)
"Circular" means a circular setting out full details of the proposals to be
considered at the EGM including the notice of EGM;
"Company" or "ENGAGE XR" means ENGAGE XR plc;
"Davy" means J&E Davy Unlimited Company (trading as Davy);
"Directors" means the directors of the Company from time to time;
"EEA" means the European Economic Area;
"EGM" means the extraordinary general meeting of the Company to be held at
11:00 a.m. at Unit 9, Cleaboy Business Park, Old Kilmeaden Road, Waterford,
X91 AX83, Ireland on 3 March 2023 at which the Resolutions are to be proposed;
"EU MAR" means the Market Abuse Regulation (EU) 596/2014;
"Euroclear Bank" means Euroclear Bank SA/NV;
"Euroclear System" means the central securities depositary system operated by
Euroclear Bank;
"Euronext Dublin" means The Irish Stock Exchange plc, trading as Euronext
Dublin;
"Euronext Growth" means the Euronext Growth market operated by Euronext
Dublin;
"EUWA" means the European Union (Withdrawal) Act 2018;
"FCA" means the UK Financial Conduct Authority;
"finnCap" means finnCap Ltd;
"Form of Proxy", means the personalised form of proxy for use by Shareholders
in connection with the EGM;
"FPO" means the Financial Services and Markets Act 2000 (Financial Promotion)
Order 2005, as amended;
"FSMA" means the Financial Services and Markets Act 2000, as amended;
"Group" means the Company and its subsidiaries;
"HTC" means H.T.C. (B.V.I.) Corporation and its affiliate;
"Joint Bookrunners" means Davy, finnCap and Shard;
"London Stock Exchange" means London Stock Exchange plc;
"Ordinary Share" means an ordinary share of €0.001 in the capital of the
Company;
"Placee" means any person (including individuals, funds or otherwise) by whom
or on whose behalf a commitment to acquire Placing Shares has been given;
"Placing" means the placing of the Placing Shares by the Joint Bookrunners, on
behalf of the Company;
"Placing Admission" means the admission of the Placing Shares to trading on
the Alternative Investment Market of the London Stock Exchange and the
Euronext Growth market of Euronext Dublin;
"Placing Agreement" means the placing agreement dated the same date as this
Announcement between the Company and the Joint Bookrunners in respect of the
Placing;
"Placing Price" means the 4 pence per Ordinary Share;
"Placing Shares" means the new Ordinary Shares to be issued by the Company to
Placees pursuant to the Placing;
"Prospectus Regulation" means Regulation (EU) 2017/1129;
"QIB" means a qualified institutional buyer as defined in Rule 144A;
"Regulation S" means Regulation S promulgated under the Securities Act;
"Regulatory Information Service" means an information service that is approved
by Euronext Dublin and the London Stock Exchange;
"Resolutions", means the resolutions to be proposed at the EGM as set out in
the Circular;
"Restricted Territory" means the United States, Australia, Canada or Japan;
"Rule 144A" means Rule 144A under the Securities Act;
"Securities Act" means the U.S. Securities Act of 1933, as amended;
"Shard" means Shard Capital Partners LLP;
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