REG - Nioko Resources Corp Hummingbird Res. - Unconditional Recommended Cash Offer
13/01/2025 17:00
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RNS Number : 1377T Nioko Resources Corporation 13 January 2025
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION. If you are
in any doubt as to the contents of this document and what action you should
take, you are recommended to seek your own personal financial, legal and tax
advice immediately from your stockbroker, bank manager, solicitor, accountant,
fund manager or other appropriate independent financial adviser duly
authorised under the Financial Services and Markets Act 2000 (as amended), if
you are resident in the United Kingdom, or, if resident elsewhere, another
appropriately authorised independent financial adviser in the relevant
jurisdiction.
Hummingbird Shareholders should read the whole of this document (including all
information incorporated into this document by reference to another source).
In addition, this document should be read in conjunction with the accompanying
documentation.
If you sell or otherwise transfer or have sold or otherwise transferred all of
your Hummingbird Shares (other than to Nioko pursuant to the Offer), please
forward this document with the accompanying documentation (other than any
documents or forms personalised to you), immediately to the purchaser or
transferee, or to the stockbroker, bank or other agent through whom the sale
or transfer was effected, for onward transmission to the purchaser or
transferee. However, this document and any accompanying document must not be
forwarded, distributed or transmitted in, into or from any Restricted
Jurisdiction.
If you sell or otherwise transfer or have sold or otherwise transferred only
part of your registered holding of Hummingbird Shares, you should retain these
documents and consult the stockbroker, bank or other agent through whom the
sale or transfer was effected. If you have recently purchased or otherwise
been transferred Hummingbird Shares in certificated form, notwithstanding
receipt of this document from the transferor, you should contact Hummingbird's
registrars, Link Group, on Tel: 0371 664 0321 from the United Kingdom (UK) or
+44 371 664 0321 from overseas or by post at Link Group, Corporate Actions,
Central Square, 29 Wellington Street, Leeds LS1 4DL. Calls are charged at the
standard geographic rate and will vary by provider. Calls outside the UK will
be charged at the applicable international rate. Lines are open between 9.00
a.m. and 5.30 p.m., Monday to Friday (excluding public holidays in England and
Wales), or by email at operationalsupportteam@linkgroup.co.uk
(mailto:%20operationalsupportteam@linkgroup.co.uk) .
If you have any questions about this document or the accompanying documents,
or are in any doubt as to how to complete the Form of Acceptance (if you hold
Hummingbird Shares in certificated form) or as to how to make an Electronic
Acceptance (if you hold Hummingbird Shares in uncertificated form), or wish to
obtain an additional Form of Acceptance, please contact Link Group. Link Group
can be contacted on Tel: 0371 664 0321 from the United Kingdom (UK) or +44 371
664 0321 from overseas or by post to Link Group, Corporate Actions, Central
Square, 29 Wellington Street, Leeds LS1 4DL. Calls are charged at the standard
geographic rate and will vary by provider. Calls outside the UK will be
charged at the applicable international rate. Lines are open between 9.00 a.m.
and 5.30 p.m., Monday to Friday (excluding public holidays in England and
Wales), or by email at operationalsupportteam@linkgroup.co.uk. Please note
that Link Group cannot provide any financial, legal or tax advice and that
calls may be recorded and monitored for security and training purposes.
Neither this document nor any of the accompanying documents do, or are
intended to, constitute or form part of any offer or invitation to purchase,
otherwise acquire, subscribe for, sell or otherwise dispose of, any securities
or the solicitation of any vote or approval, in any jurisdiction in which such
offer, invitation or solicitation is unlawful. The release, publication or
distribution of this document and/or the accompanying documents (in whole or
in part) in or into jurisdictions other than the United Kingdom may be
restricted by the laws of those jurisdictions and therefore persons into whose
possession this document and/or any accompanying document comes should inform
themselves about, and observe, any applicable restrictions. Any failure to
comply with these restrictions may constitute a violation of the securities
laws and regulations of any such jurisdiction. In particular, this document
should not be released, published, distributed, forwarded or transmitted, in
whole or in part, in, into or from any Restricted Jurisdiction.
Unconditional Recommended Cash Offer
for
Hummingbird Resources plc
by
Nioko Resources Corporation
to be implemented by means of a takeover offer under Part 28 of the Companies
Act
Your attention is drawn to the letter from the Chairman of Hummingbird which
contains the unanimous recommendation of the Independent Hummingbird Directors
that you accept or procure the acceptance of the Offer and which is set out in
Part 2 (Letter from the Chairman of Hummingbird Resources plc) of this
document.
The procedure for acceptance of the Offer is set out in paragraph 20 of
Part 1 (Letter from Nioko) of this document and in respect of Hummingbird
Shares held in certificated form, in the Form of Acceptance. To accept the
Offer in respect of Hummingbird Shares held in certificated form, you must
complete and return the accompanying Form of Acceptance as soon as possible
and, in any event, so as to be received by the Receiving Agent by no later
than 1.00 p.m. (London time) on the Closing Date in accordance with paragraph
20 of Part 1 (Letter from Nioko) of this document. Acceptances in respect of
Hummingbird Shares held in uncertificated form should be made electronically
through CREST so that the TTE instruction settles by no later than 1.00 p.m.
(London time) on the Closing Date in accordance with paragraph 20 of Part 1
(Letter from Nioko). If you are a CREST sponsored member, you should refer to
your CREST sponsor as only your CREST sponsor will be able to send the
necessary TTE instruction to Euroclear. Please refer to the Expected Timetable
of Principal Events on page 10 for indicative dates and times of key events
(including payment dates) relating to the Offer.
The Offer can be accepted from 13 January 2025 and will continue to be capable
of acceptance until the Offer is closed at least 21 days after the date of
this document. Hummingbird Shareholders are encouraged to ACCEPT the Offer as
soon as possible and in any event before 1.00 p.m. on the Closing Date. The
Offer will remain open for acceptances until Nioko confirms the Closing Date,
with shareholders receiving at least 14 days' notice prior to the specified
date (which cannot be less than 21 days after the posting of this Offer
Document). Such notice will be given to Hummingbird Shareholders via an
announcement through a Regulatory Information Service and will advise of the
final settlement date, with such announcement being made available on
Hummingbird's website at www.hummingbirdresources.co.uk
(http://www.hummingbirdresources.co.uk/) .
Definitions used in this document are as defined in Part 5 (Definitions) of
this document unless defined elsewhere herein or the context requires
otherwise. Hummingbird Shareholders may request hard copy forms of these
documents.
Stifel Nicolaus Europe Limited (Stifel) which is authorised and regulated by
the Financial Conduct Authority in the United Kingdom, is acting exclusively
for Hummingbird and for no one else in connection with the subject matter of
this document and will not be responsible to anyone other
than Hummingbird for providing the protections afforded to its clients or
for providing advice in connection with the subject matter of this document.
Neither Stifel, nor any of its affiliates, owes or accepts any duty, liability
or responsibility whatsoever (whether direct or indirect, whether in contract,
in tort, under statute or otherwise) to any person who is not a client of
Stifel in connection with this document, any statement contained herein or
otherwise.
Strand Hanson Limited (Strand Hanson), which is authorised and regulated by
the Financial Conduct Authority in the United Kingdom, is acting exclusively
for Hummingbird and for no one else in connection with the subject matter of
this document and will not be responsible to anyone other
than Hummingbird for providing the protections afforded to its clients or
for providing advice in relation to the matters referred to in this document.
Neither Strand Hanson, nor any of its affiliates, owes or accepts any duty,
liability or responsibility whatsoever (whether direct or indirect, whether in
contract, in tort, under statute or otherwise) to any person who is not a
client of Strand Hanson in connection with this document, any statement
contained herein or otherwise.
H&P Advisory Ltd (Hannam & Partners), which is authorised and
regulated by the Financial Conduct Authority in the United Kingdom, is acting
exclusively for Nioko and for no one else in connection with the subject
matter of this document and will not be responsible to anyone other
than Nioko for providing the protections afforded to its clients or for
providing advice in relation to the matters referred to in this document.
Neither Hannam & Partners, nor any of its affiliates, owes or accepts any
duty, liability or responsibility whatsoever (whether direct or indirect,
whether in contract, in tort, under statute or otherwise) to any person who is
not a client of Hannam & Partners in connection with this document, any
statement contained herein or otherwise.
SCP Resource Finance LP (SCP Resource Finance), which is authorised and
regulated by the Financial Conduct Authority in the United Kingdom, is acting
exclusively for Nioko and for no one else in connection with the subject
matter of this document and will not be responsible to anyone other
than Nioko for providing the protections afforded to its clients or for
providing advice in relation to the matters referred to in this document.
Neither SCP Resource Finance, nor any of its affiliates, owes or accepts any
duty, liability or responsibility whatsoever (whether direct or indirect,
whether in contract, in tort, under statute or otherwise) to any person who is
not a client of SCP Resource Finance in connection with this document, any
statement contained herein or otherwise.
No person has been authorised to give any information or make any
representations other than those contained in this document and, if given or
made, such information or representations must not be relied upon as having
been authorised by Hummingbird, the Hummingbird Directors, Nioko, the Nioko
Directors or by Stifel, Strand Hanson, Hannam & Partners and SCP Resource
Finance or any other person involved in the Offer.
IMPORTANT NOTICES
The contents of this document are not to be construed as legal, business,
financial or tax advice. If you are in any doubt about the contents of this
document, you should consult your own legal adviser, financial adviser or tax
adviser for legal, business, financial or tax advice.
Overseas Shareholders
Unless otherwise determined by Nioko or required by the Takeover Code and
permitted by applicable law and regulation, the Offer is not being, and will
not be, made available, in whole or in part, directly or indirectly, in or
into or from a Restricted Jurisdiction where to do so would violate the laws
in that jurisdiction and no person may accept the Offer by any such use,
means, instrumentality or from within a Restricted Jurisdiction or any other
jurisdiction if to do so would constitute a violation of the laws of that
jurisdiction, and as of the date of this document and the accompanying Form of
Acceptance, Nioko contemplates extending the Offer to Canadian residents and
U.S. residents pursuant to exemptions from the respective take-over bid and
tender offer requirements under Canadian and U.S. securities laws. Copies of
this document and any formal documentation relating to the Offer are not
being, and must not be, directly or indirectly, mailed or otherwise forwarded,
distributed or sent in or into or from any Restricted Jurisdiction and persons
receiving such documents (including, without limitation, agents, custodians,
nominees and trustees) must not mail, or otherwise forward, distribute or send
it in or into or from any Restricted Jurisdiction. Doing so may render invalid
any related purported acceptance of the Offer. Unless otherwise permitted by
applicable law and regulation, the Offer may not be made directly or
indirectly, in or into, or by the use of mails or any means or instrumentality
(including, but not limited to, facsimile, e-mail or other electronic
transmission, telex or telephone) of interstate or foreign commerce of, or of
any facility of a national, state or other securities exchange of any
Restricted Jurisdiction and the Offer may not be capable of acceptance by any
such use, means, instrumentality or facilities.
This document and the accompanying Form of Acceptance have been prepared for
the purposes of complying with English law, the applicable requirements of the
Companies Act, the Takeover Code, the Panel, the FCA and the London Stock
Exchange and applicable securities law and the information disclosed may not
be the same as that which would have been disclosed if this document had been
prepared in accordance with the laws of any other jurisdiction (in particular,
in Canada). Readers are reminded that the Offer has not been approved or
disapproved by any securities regulatory authority in Canada nor has any
securities regulatory authority in Canada passed upon the fairness or merits
of such Offer or upon the accuracy or adequacy of the information contained in
this document.
Notice to U.S. holders of Hummingbird Shares
The Offer is being made for the securities of an English company that is
listed on the London Stock Exchange by means of a contractual takeover offer
under the Takeover Code and English law and is subject to disclosure
requirements and practices that are different, in some cases materially, from
the tender offer rules of the United States. The financial information
included in this document has been prepared in accordance with accounting
standards applicable in the United Kingdom and thus may not be comparable to
financial information of U.S. companies or companies whose financial
statements are prepared in accordance with generally accepted accounting
principles in the United States.
For U.S. holders of Hummingbird Shares, the receipt of cash pursuant to the
terms of the Offer as consideration for the transfer of their Hummingbird
Shares, may be treated as a taxable transaction for U.S. federal income tax
purposes and under applicable U.S. state and local, as well as foreign and
other, tax laws. Each holder of Hummingbird Shares is urged to consult with
its own legal, tax and financial advisers in connection with making a decision
regarding this transaction and as to the U.S. federal, and applicable U.S.
state, local, and foreign, tax consequences to it of the transaction
contemplated hereby in light of such holders' specific circumstances.
For purposes of the U.S. Exchange Act, it is intended that the Offer be made
pursuant to Section 14(e) and Regulation 14E under the U.S. Exchange Act and
benefitting from exemptions available to "Tier I" cross-border tender offers.
Accordingly, the Offer will be subject to disclosure and other procedural
requirements under the applicable laws of the United Kingdom, including with
respect to offer timetable, settlement procedures and timing of payments that
may be materially different from those applicable under U.S. domestic tender
offer procedures and law, and certain rules applicable to tender offers made
into the United States, including rules promulgated under Section 14(d),
Section 14(e)(1) and Section 14(e)(2) of the U.S. Exchange Act, do not apply.
Once the Offer closes, Nioko will acquire all Hummingbird Shares that have by
that time been validly tendered (or deemed to have been validly tendered) in
acceptance of the Offer and will, in accordance with the Takeover Code, settle
the relevant consideration for all such accepted Hummingbird Shares (other
than in respect of Hummingbird Shares acquired pursuant to a Hummingbird Share
Plan, in respect of which settlement with the relevant Hummingbird
Shareholders will be effected through payroll or such other method as may be
determined by Hummingbird or Nioko) within 14 days of such date, rather than
the three trading days that U.S. investors may be accustomed to in U.S.
domestic tender offers.
To the extent permitted by the Takeover Code and applicable law, in accordance
with normal UK practice and Rule 14e-5(b) under the U.S. Exchange Act, Nioko
and its nominees or brokers (acting as agents), may from time to time make
certain purchases of, or arrangements to purchase, Hummingbird Shares, other
than pursuant to the Offer, before or during the period in which the Offer
remains open for acceptance. Also, to the extent permitted by the Takeover
Code and applicable law in accordance with normal UK practice and Rule
14e-5(b) of the U.S. Exchange Act, Stifel, Hannam & Partners and SCP
Resource will continue to act as exempt principal traders in Hummingbird
Shares on the London Stock Exchange. These purchases may occur either in the
open market at prevailing prices or in private transactions at negotiated
prices. Any information about such purchases will be disclosed as required in
the United Kingdom, will be reported to a Regulatory Information Service of
the FCA and will be available on the London Stock Exchange website:
www.londonstockexchange.com.
Neither the SEC nor any US state securities commission has approved or
disapproved of this transaction or passed upon the merits or fairness of such
transaction or passed upon the adequacy of the information contained in this
document. Any representation to the contrary is a criminal offence. Nioko is
an investment company registered in the Trade and Personal Property Credit
Register of Burkina Faso. The Nioko Directors are residents of countries other
than the United States and are not citizens of the United States. As a result,
it may be difficult for investors to effect service of process within the
United States upon the Nioko Directors or otherwise compel Nioko, Hummingbird
or their respective directors, officers and affiliates to subject themselves
to the jurisdiction and judgment of a U.S. court. It may not be possible to
sue Nioko or Hummingbird, or any of their respective directors, officers or
affiliates, in a non-U.S. court for violations of U.S. securities laws. There
is doubt as to the enforceability in the United Kingdom, in original actions
or in actions for enforcement of judgments of the U.S. courts, of civil
liabilities predicated upon U.S. federal securities laws.
Dealing disclosure requirements
Under Rule 8.3(a) of the Takeover Code, any person who is "interested" in 1
per cent. or more of any class of "relevant securities" of an offeree company
or of any securities exchange offeror (being any offeror other than an offeror
in respect of which it has been announced that its offer is, or is likely to
be, solely in cash) must make an Opening Position Disclosure following the
commencement of the "offer period" and, if later, following the announcement
in which any securities exchange offeror is first identified.
An Opening Position Disclosure must contain details of the person's interests
and short positions in, and rights to subscribe for, any "relevant securities"
of each of: (i) the offeree company; and (ii) any securities exchange
offeror(s). An Opening Position Disclosure by a person to whom Rule 8.3(a)
applies must be made by no later than 3.30 p.m. (London time) on the 10th
business day following the commencement of the offer period and, if
appropriate, by no later than 3.30 p.m. (London time) on the 10th business day
following the announcement in which any securities exchange offeror is first
identified. Relevant persons who deal in the "relevant securities" of the
offeree company or of a securities exchange offeror prior to the deadline for
making an Opening Position Disclosure must instead make a Dealing Disclosure.
Under Rule 8.3(b) of the Takeover Code, any person who is, or becomes,
interested in 1 per cent. or more of any class of relevant securities of the
offeree company or of any securities exchange offeror must make a Dealing
Disclosure if the person "deals" in any relevant securities of the offeree
company or of any securities exchange offeror. A Dealing Disclosure must
contain details of the "dealing" concerned and of the person's interests and
short positions in, and rights to subscribe for, any "relevant securities" of
each of: (i) the offeree company; and (ii) any securities exchange offeror,
save to the extent that these details have previously been disclosed under
Rule 8. A Dealing Disclosure by a person to whom Rule 8.3(b) applies must be
made by no later than 3.30 p.m. (London time) on the business day following
the date of the relevant "dealing".
If two or more persons act together pursuant to an agreement or understanding,
whether formal or informal, to acquire or control an "interest in relevant
securities" of an offeree company or a securities exchange offeror, they will
be deemed to be a single person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree company and by
any offeror and Dealing Disclosures must also be made by the offeree company,
by any offeror and by any persons "acting in concert" with any of them (see
Rules 8.1, 8.2 and 8.4).
Details of the offeree and offeror companies in respect of whose "relevant
securities" Opening Position Disclosures and Dealing Disclosures must be made
can be found in the Disclosure Table on the Panel's website at
www.thetakeoverpanel.org.uk, including details of the number of "relevant
securities" in issue, when the "offer period" commenced and when any offeror
was first identified. You should contact the Panel's Market Surveillance Unit
on +44 (0)20 7638 0129 if you are in any doubt as to whether you are required
to make an Opening Position Disclosure or a Dealing Disclosure.
Forward-looking statements
This document (including information incorporated by reference into this
document), oral statements made regarding the Offer and other information
published by Nioko, the CIG Parties and/or Hummingbird or members of the
Hummingbird Group may contain "forward-looking statements" relating to Nioko,
the CIG Parties, Hummingbird and the Hummingbird Group and the business
sectors in which they operate. Generally, the words "will", "may", "should",
"continue", "believes", "expects", "intends", "anticipates", "forecast",
"plan" and "project" or similar expressions identify forward-looking
statements. Such statements reflect the relevant company's current views with
respect to future events and are subject to risks, assumptions and
uncertainties that could cause the actual results to differ materially from
those expressed or implied in the forward-looking statements. Many of these
risks, assumptions and uncertainties relate to factors that are beyond the
companies' abilities to control or estimate precisely, such as future market
conditions, changes in general economic and business conditions and the
behaviour of other market participants. Neither Nioko, the CIG Parties,
Hummingbird or the Hummingbird Group can give any assurance that the
forward-looking statements will prove to have been correct. You should not,
therefore, place undue reliance on these forward-looking statements, which
speak only as of the date of this document. Neither Nioko, the CIG Parties,
Hummingbird nor the Hummingbird Group undertakes any obligation to update or
revise publicly any of the forward-looking statements set out herein, whether
as a result of new information, future events or otherwise, except to the
extent legally required.
Profit forecasts
No statement in this document (including any statement of estimated costs
savings or synergies) is intended as a profit forecast or estimate of the
future financial performance of Nioko or the Hummingbird Group for any period
and, in particular, no statement in this document should be interpreted to
mean that earnings or earnings per share or dividend per share for Nioko or
the Hummingbird Group, as appropriate, for the current or future financial
years would necessarily match or exceed the historical published earnings or
earnings per share or dividend per share for Hummingbird or otherwise.
Electronic communications
Please be aware that addresses, electronic addresses and certain other
information provided by Hummingbird Shareholders, persons with information
rights and other relevant persons for the receipt of communications from
Hummingbird may be provided to Nioko during the Offer Period as required under
Section 4 of Appendix 4 of the Takeover Code to comply with Rule 2.11(c) of
the Takeover Code.
Publication on website and availability of hard copies
A copy of this document is and will be available free of charge, subject to
certain restrictions relating to persons resident or located in Restricted
Jurisdictions, for inspection on Hummingbird's website at
www.hummingbirdresources.co.uk (http://www.hummingbirdresources.co.uk/) , by
no later than 12.00 p.m. (London time) on the date following publication of
this document and during the course of the Offer. For the avoidance of doubt,
unless otherwise stated, neither the contents of Hummingbird's website nor the
contents of any website accessible from hyperlinks on Hummingbird's website
(or any other websites referred to in this document) are incorporated into, or
form part of, this document.
Pursuant to Rule 30.3 of the Takeover Code, you may, subject to certain
restrictions relating to persons resident or located in Restricted
Jurisdictions, request a hard copy of this document and all information
incorporated into this document by submitting a request in writing to
Hummingbird's registrars, Link Group, on Tel: 0371 664 0321 from the United
Kingdom (UK) or +44 371 664 0321 from overseas or by post at Link Group,
Corporate Actions, Central Square, 29 Wellington Street, Leeds LS1 4DL. Calls
are charged at the standard geographic rate and will vary by provider. Calls
outside the UK will be charged at the applicable international rate. Lines are
open between 9.00 a.m. and 5.30 p.m., Monday to Friday (excluding public
holidays in England and Wales), or by email at
operationalsupportteam@linkgroup.co.uk.
All references to time in this document and in the Form of Acceptance are to
London time.
Hummingbird Shareholders may also, subject to certain restrictions relating to
persons resident or located in Restricted Jurisdictions, request that all
future documents, announcements and information sent to them in relation to
the Offer be in hard copy form. A hard copy of such document (including this
document), announcement or information will not be sent unless so requested.
Rounding
Certain figures included in this document have been subjected to rounding
adjustments. Accordingly, figures shown for the same category presented in
different tables may vary slightly and figures shown as totals in certain
tables may not be an arithmetic aggregation of the figures that precede them.
Date of publication
This document is dated 13 January 2025.
CONTENTS
Heading
IMPORTANT NOTICES (#_Toc186816912)
ACTION TO BE TAKEN (#_Toc186816913)
EXPECTED TIMETABLE OF PRINCIPAL EVENTS (#_Toc186816914)
PART 1 LETTER FROM NIOKO (#_Toc186816915)
PART 2 LETTER FROM THE CHAIR OF HUMMINGBIRD RESOURCES PLC (#_Toc186816916)
PART 3 FURTHER TERMS OF THE OFFER AND ACCEPTANCES (#_Toc186816917)
Part A FURTHER TERMS OF THE OFFER (#_Toc186816918)
Part B FORM OF ACCEPTANCE (#_Toc186816919)
Part C ELECTRONIC ACCEPTANCE (#_Toc186816920)
PART 4 ADDITIONAL INFORMATION (#_Toc186816921)
Part A ADDITIONAL INFORMATION ON THE CIG PARTIES AND HUMMINGBIRD
(#_Toc186816922)
Part B ADDITIONAL INFORMATION FOR OVERSEAS SHAREHOLDERS (#_Toc186816923)
Part C TAXATION (#_Toc186816924)
PART 5 DEFINITIONS (#_Toc186816925)
PART 6 HUMMINGBIRD'S EMPLOYEE REPRESENTATIVE AND PENSION SCHEME TRUSTEE
(#_Toc186816926)
WHERE TO FIND HELP
You will find answers to some of the questions most often asked by
shareholders about takeover offers and the procedure for accepting the Offer
in Part 1 (Letter from Nioko) of this document.
If you have further questions on the Offer more generally, there is a
Shareholder Helpline available between the hours of 9.00 a.m. and 5.30 p.m.
(London time) Monday to Friday (excluding public holidays in England and
Wales) or by email at operationalsupportteam@linkgroup.co.uk. The Shareholder
Helpline is operated by Link Group on Tel: 0371 664 0321 from the UK and +44
371 664 0321 from overseas. Calls are charged at the standard geographic rate
and will vary by provider. Calls outside the United Kingdom will be charged at
the applicable international rate. Please note that Link Group, as operator of
the Shareholder Helpline, will only be able to provide information contained
in this document and cannot provide any financial, legal or tax advice and
calls may be recorded and monitored for security and training purposes.
ACTION TO BE TAKEN
The Independent Hummingbird Directors, who have been so advised by Stifel and
Strand Hanson as to the financial terms of the Offer, consider the terms of
the Offer to be fair and reasonable as the Offer represents an opportunity for
Hummingbird Shareholders to realise some cash sum for their holding now, which
may not otherwise be available. In reaching this conclusion, the Independent
Hummingbird Directors acknowledge and accept the potential proposed changes to
employment and locations of registered and trading office locations that may
be necessary to make. In addition, the Independent Hummingbird Directors
consider the terms of the Offer to be in the best interests of Hummingbird
Shareholders as a whole and accordingly unanimously recommend that Hummingbird
Shareholders accept or procure acceptance of the Offer, as the Hummingbird
Directors who hold Hummingbird Shares have irrevocably undertaken to do in
respect of their own beneficial holdings of Hummingbird Shares.
Stifel and Strand Hanson are providing independent financial advice to the
Hummingbird Directors for the purposes of Rule 3 of the Takeover Code.
If Hummingbird Shareholders wish to accept the Offer, it is important that
they follow the instructions contained in this document and, if their
Hummingbird Shares are held in certificated form, the Form of Acceptance.
If Hummingbird Shareholders have not received all of these documents, please
contact Link Group on the relevant telephone number set out in the paragraph
under the section headed "Shareholder Helpline" below.
If you hold your Hummingbird Shares in certificated form (that is, not in
CREST), you should complete the accompanying Form of Acceptance in accordance
with the instructions printed thereon and in paragraph 20 of Part 1 (Letter
from Nioko) of this document. You may also obtain additional Forms of
Acceptance by contacting the Shareholder Helpline operated by the Receiving
Agent at Link Group, on Tel: 0371 664 0321 from the United Kingdom (UK) or +44
371 664 0321 from overseas or by post to Link Group, Corporate Action, at
Central Square, 29 Wellington Street, Leeds LS1 4DL. Calls are charged at the
standard geographic rate and will vary by provider. Calls outside the UK will
be charged at the applicable international rate. Lines are open between 9.00
a.m. and 5.30 p.m., Monday to Friday (excluding public holidays in England and
Wales), or by email at operationalsupportteam@linkgroup.co.uk. The completed
Form of Acceptance, together with your share certificate(s) and/or other
document(s) of title, should be returned as soon as possible by post using, if
posted in the United Kingdom, the enclosed reply-paid envelope to the
Receiving Agent at Link Group, Corporate Actions, Central Square, 29
Wellington Street, Leeds LS1 4DL, so as to arrive no later than 1.00 p.m.
(London time) on the Closing Date. If you are posting in the United Kingdom,
the enclosed reply-paid envelope has been provided for your convenience. It is
recommended to allow four Business Days for delivery. Any Form of Acceptance
received electronically will be rejected as an invalid acceptance of the
Offer.
The latest time for Link Group to receive your Form of Acceptance will be 1.00
p.m. (London time) on the Closing Date. You should allow sufficient time for
posting for your Form of Acceptance to be received. It is recommended to allow
four Business Days for delivery.
If you hold your Hummingbird Shares in uncertificated form (that is, in
CREST), you should follow the procedures set out in paragraph 20 of Part 1
(Letter from Nioko) of this document and ensure that an Electronic Acceptance
is made by you or on your behalf and that settlement is made no later than
1.00 p.m. (London time) on the Closing Date. If you hold your Hummingbird
Shares as a CREST sponsored member, you should refer to your CREST sponsor as
only your CREST sponsor will be able to send the necessary TTE instruction to
Euroclear.
The latest time for receipt of an Electronic Acceptance through CREST
(applicable only for Hummingbird Shareholders who hold their Hummingbird
Shares in uncertificated form) will be 1.00 p.m. (London time) on the Closing
Date.
The Offer will remain open for acceptances until Nioko confirms the Closing
Date, with shareholders receiving at least 14 days' notice prior to the
specified date (which cannot be less than 21 days after the posting of this
Offer Document). Such notice will be given to Hummingbird Shareholders via an
announcement through a Regulatory Information Service and will advise of the
final settlement date, with such announcement being made available on
Hummingbird's website at www.hummingbirdresources.co.uk
(http://www.hummingbirdresources.co.uk/) .
Further details about how to submit your Form of Acceptance and how to make
your Electronic Acceptance are set out in Part B and Part C, respectively, of
Part 3 (Further terms of the Offer and Acceptances) of this document.
Holdings of Hummingbird Shares in certificated or uncertificated form will be
treated as separate holdings for the purpose of calculating entitlements and
you are required to accept in relation to each holding separately.
This section should be read in conjunction with the rest of this document and,
in the case of Hummingbird Shares held in certificated form, the Form of
Acceptance. Hummingbird Shareholders are recommended to seek financial advice
from their stockbroker, bank manager, solicitor, accountant or other
independent financial adviser authorised under the FSMA if they are resident
in the United Kingdom or, if not, from another appropriately authorised
independent financial adviser in the relevant jurisdiction.
Settlement
Other than in respect of Hummingbird Shares acquired pursuant to the
Hummingbird Share Plans, in respect of which settlement with the relevant
Hummingbird Shareholders will be effected through payroll or such other method
as may be determined by Hummingbird or Nioko, settlement for those Hummingbird
Shareholders who have validly accepted the Offer prior to the Closing Date
will be effected within 14 days of the later of (i) 3 February 2025 (if they
have validly accepted before such date) and (ii) the date of receipt of an
acceptance complete in all respects (if they have validly accepted after such
date).
Shareholder Helpline
If you have any questions about this document or the accompanying documents,
or are in any doubt as to how to complete the Form of Acceptance (if you hold
Hummingbird Shares in certificated form) or as to how to make an Electronic
Acceptance (if you hold Hummingbird Shares in uncertificated form), or wish to
obtain an additional Form of Acceptance, please contact the Shareholder
Helpline. The Shareholder Helpline is operated by Link Group on Tel: 0371 664
0321 from the UK and +44 371 664 0321 from overseas. Calls are charged at the
standard geographic rate and will vary by provider. Calls outside the United
Kingdom will be charged at the applicable international rate. Lines are open
between 9.00 a.m. and 5.30 p.m., Monday to Friday excluding public holidays in
England and Wales, or by email at operationalsupportteam@linkgroup.co.uk.
Please note that Link Group cannot provide any financial, legal or tax advice
and calls may be recorded and monitored for security and training purposes.
Calls are charged at the standard geographic rate and will vary by provider.
Calls outside the UK will be charged at the applicable international rate.
EXPECTED TIMETABLE OF PRINCIPAL EVENTS
The dates and times below are indicative only and are based on current
expectations and may be subject to change.
If any of the dates and/or times in this expected timetable change, notice of
the revised dates and/or times will be given to Hummingbird Shareholders by
announcement through a Regulatory Information Service, with such announcement
being made available on Hummingbird's website at
www.hummingbirdresources.co.uk (http://www.hummingbirdresources.co.uk/) .
Further updates and changes to these times will be notified in the same way.
Unless otherwise stated, all times referred to in this document and timetable
below are London times.
EVENT TIME AND/OR DATE
Rule 2.7 Announcement 16 December 2024
Notice of waiver of conditions 2 January 2025
Admission of the Ordinary Shares to Nioko under the Stage 2 Conversion 7 January 2025
Publication and posting of this document and Form of Acceptance 13 January 2025
Closing of the Offer period under the Takeover Code** 3 February 2025
Latest time and date by which the Offer can be accepted for Hummingbird Shares 1.00 p.m. on the Closing Date
in certificated or uncertificated form
Cancellation of the admission to trading on AIM To be at least 20 business days after Nioko holds 75 per cent. of the ordinary
share capital of Hummingbird
**The Offer will remain open for acceptances until Nioko confirms the closing
date, with shareholders receiving at least 14 days' notice prior to the
specified date (which cannot be less than 21 days after the posting of this
Offer Document) (the "Closing Date"). Such notice will be given to Hummingbird
Shareholders via an announcement through a Regulatory Information Service and
will advise of the final settlement date, with such announcement being made
available on Hummingbird's website at www.hummingbirdresources.co.uk
(http://www.hummingbirdresources.co.uk/) .
**Except with the consent of the Panel, the Cash Consideration to Hummingbird
Shareholders who accept the Offer prior to the Closing Date must be settled
within 14 days of the later of (i) 3 February 2025 (if they have validly
accepted before such date) and (ii) the date of receipt of an acceptance
complete in all respects after such date.
PART 1
LETTER FROM NIOKO
(an investment company registered in the Trade and Personal Property Credit
Register of Burkina Faso with registered number BF OUA 2019 B 2606)
Nioko Resources Corporation,
Avenue de l'UEMOA,
01 BP 2061 Ouagadougou 01,
Burkina Faso
13 January 2025
To the holders of Hummingbird Shares and, for information only, to holders of
awards and options under the Hummingbird Share Plans and persons with
information rights.
Dear Hummingbird Shareholder,
1. INTRODUCTION
On 16 December 2024, the board of directors of each of Nioko and Hummingbird
announced in the Rule 2.7 Announcement that they had reached agreement on the
terms of a recommended cash offer pursuant to which Nioko would acquire the
entire issued and to be issued share capital of Hummingbird not otherwise
owned, or agreed to be acquired, by Nioko. The Offer is to be effected by
means of a takeover offer for the purposes of Part 28 of the Companies Act.
This document and, if you hold Hummingbird Shares in certificated form, the
accompanying Form of Acceptance, contain the formal Offer (including its terms
and conditions) for your Hummingbird Shares. Acceptances of the Offer should
be received as soon as possible and, in any event, by no later than 1.00 p.m.
(London time) on the Closing Date.
Your attention is drawn to the Letter from the Chairman of Hummingbird set out
in Part 2 (Letter from the Chairman of Hummingbird Resources plc) of this
document. That letter contains, amongst other things, the background to and
reasons for the unanimous recommendation of the Independent Hummingbird
Directors.
The Hummingbird Directors who hold Hummingbird Shares have irrevocably
undertaken to Nioko to accept, or procure acceptance of, the Offer in respect
of their entire beneficial holdings of 15,377,902 Ordinary Shares
(representing 0.92 per cent. of Hummingbird's total issued share capital) as
at the Latest Practicable Date.
Your attention is also drawn, in particular, to the further terms of the Offer
set out in Part 3 (Further terms of the Offer and Acceptances) to this
document and the information relating to Nioko and Hummingbird in paragraphs 5
and 6 of this letter, respectively.
2. THE OFFER
Under the terms of the Offer, Hummingbird Shareholders will be entitled to
receive:
for each Hummingbird Share: 2.6777 pence in cash (the
Offer Price).
Accordingly, the Offer values Hummingbird's existing issued and to be issued
Ordinary Share capital (not already owned, or agreed to be acquired, by Nioko)
at up to approximately £13,434,987.
Other terms of the Offer
As detailed in the Rule 2.7 Announcement, the Offer was to be subject to the
satisfaction of a number of conditions including, among other things, the Rule
9 Waiver Condition, the Regulatory Approvals, no Insolvency Event occurring in
respect of the Hummingbird Group and no cancellation/loss of any Core Mining
Licence (each condition as defined in the Rule 2.7 Announcement) (the Original
Conditions). The Rule 9 Waiver Condition has now been satisfied following the
passing of the resolutions at the Hummingbird's general meeting on 23 December
2024, as announced by Hummingbird on 23 December 2024.
On 2 January 2025, Nioko informed Hummingbird that it wished to waive the
outstanding Original Conditions. As such, this Offer is unconditional from the
outset and acceptances under the Offer will be final and binding with no
rights of withdrawal save as otherwise agreed in writing between Nioko and any
particular Hummingbird Shareholder or as otherwise permitted by Nioko (either
generally or for any particular Hummingbird Shareholder). There is no
acceptance condition in respect of the Offer. The Offer will remain open for
acceptances until Nioko confirms the Closing Date, with shareholders receiving
at least 14 days' notice prior to the specified date (which cannot be less
than 21 days after the posting of this Offer Document). Such notice will be
given to Hummingbird Shareholders via an announcement through a Regulatory
Information Service and will advise of the final settlement date, with such
announcement being made available on Hummingbird's website at
www.hummingbirdresources.co.uk (http://www.hummingbirdresources.co.uk/) . The
Offer will be open for acceptance until 1.00 p.m. (London time) on the Closing
Date.
If, on or after the date of this Offer, any dividend, distribution and/or
other return of capital or value, is announced, declared, made or paid in
respect of the Hummingbird Shares, Nioko reserves the right to reduce the
consideration payable under the terms of the Offer for the Hummingbird Shares
by the aggregate amount of such dividend and/or distribution and/or other
return of capital or value, in which case any reference in this document to
the consideration payable under the terms of the Offer will be deemed to be a
reference to the consideration as so reduced. Any such exercise by Nioko of
its rights shall be the subject of an announcement and, for the avoidance of
doubt, shall not be regarded as constituting any revision or variation of the
terms of the Offer or the Offer. In such circumstances, Hummingbird
Shareholders would be entitled to retain any such dividend, distribution
and/or other return of capital or value.
Hummingbird Shares will be acquired by Nioko pursuant to the Offer fully paid
and free from all liens, charges, encumbrances and other third party rights of
any nature whatsoever and together with all rights attaching to them as at
completion of the Offer, including the right to receive and retain all
dividends and distributions (if any) declared, made or paid following the
Offer closing.
3. BACKGROUND TO AND REASONS FOR THE OFFER
Rule 9 Waiver and the Debt-to-Equity Conversion
As set out in the Previous Announcements, Hummingbird faces continued
challenges around operational performance at Yanfolila, equipment
availability, working capital constraints and further delays in the ramp up of
operations at Kouroussa, which have placed significant strain on Hummingbird's
balance sheet and its ability to meet near-term debt repayment obligations. To
address Hummingbird's immediate financial obligations, Hummingbird agreed a
non-binding term sheet for the Debt-to-Equity Conversion with Nioko and CIG as
described in Hummingbird's announcement on 6 November 2024, and on 27 November
2024 entered into the CIG Subscription Agreement to implement the
Debt-to-Equity Conversion.
Under the terms of the Debt-to-Equity Conversion, the Hummingbird Board agreed
that the principal amount of US$30 million which was outstanding under the New
CIG Loan would, subject to certain conditions, be converted, in two tranches,
into Ordinary Shares in Hummingbird pursuant to the CIG Subscription
Agreement, to be issued to CIG's wholly owned subsidiary Nioko, at a
conversion price of 2.6777 pence per Ordinary Share. The Stage 1 Conversion
was conditional, inter alia, on the approval by independent shareholders of
the Rule 9 Waiver Resolution. As announced by Hummingbird on 23 December 2024,
the Rule 9 Waiver condition was satisfied following the December General
Meeting, and the Stage 1 Conversion completed on 24 December 2024, resulting
in Nioko holding approximately 49.9 per cent. of Hummingbird's then issued
share capital.
On 2 January 2025, Nioko informed Hummingbird that it wished to waive the
other outstanding conditions under the Debt-to-Equity Conversion. As such, the
Debt-to-Equity Conversion has now completed with the admission of the Ordinary
Shares to Nioko under the Stage 2 Conversion (as defined below) occurring on 7
January 2025. As a result, Nioko now holds 1,202,312,639 Ordinary Shares,
representing approximately 71.8 per cent. of Hummingbird's issued share
capital as at the date of this document.
Nioko will continue to engage with the relevant regulatory authorities in the
jurisdictions where the Hummingbird Group's assets are located in order to
secure the formal approvals and to take those assets to the next stage of
their development. Hummingbird also continues in negotiations with the Malian
Government in respect of the application of the 2023 Mining Code, which are
expected to result in additional near-term payment obligations. Hummingbird
Shareholders should be aware that the outcome of the discussions with
regulatory authorities in respect of the change of control are uncertain,
could take several months and could result in an adverse costs or impact in
respect of the mining and exploration licences.
The Offer Price under the Offer is equal to the conversion price under the CIG
Subscription Agreement.
Approach to the Offer
An independent technical, operational and financial review has confirmed the
urgent need for new equity funding to address a critical financial shortfall.
This funding is required to meet payments due to creditors, to replenish
essential spare parts, and to invest in engineering and drilling to mitigate
risks to mine plan forecasts, as well as covering overheads until the business
can demonstrate sustainable profitability.
Hummingbird will need to work with its creditors to restructure some US$140
million in debt (in addition to the US$30 million that converted into equity
as part of the Debt-to-Equity Conversion). There are ongoing risks to the
business including those arising from grade reconciliation issues at
Kouroussa, supplier availability, and the political and operating environment
in Mali, as well as specific risks to delivering Yanfolila's underground plan
which currently relies on further definition drilling which is currently
unfunded. Nioko believes that Hummingbird Shareholders face a potential zero
equity value outcome without further Nioko investment and risk going into an
administration process.
Delisting of Hummingbird
Nioko has informed Hummingbird that, once a sufficient level of acceptances
under the Offer is reached such that Nioko would hold at least 75 per cent. of
the Ordinary Shares of Hummingbird (including, for the avoidance of doubt,
those Ordinary Shares already held by Nioko), it intends to seek the
cancellation of the admission to trading on AIM of Hummingbird's Ordinary
Shares (the Cancellation). There is no acceptance condition in respect of the
Offer but Nioko currently holds 71.8 per cent. of Hummingbird's existing
issued share capital. Following the proposed Cancellation, Hummingbird Shares
would no longer remain tradeable on AIM and liquidity in, and marketability
of, the Ordinary Shares will be more limited and holdings of Ordinary Shares
could be difficult to value and to trade.
Please see paragraph 14 for further information on the proposed delisting
process for Hummingbird.
Your attention is drawn to Part 2 (Letter from the Chairman of Hummingbird
Resources plc) of this document which includes the unanimous recommendation of
the Independent Hummingbird Directors and the reasons for their
recommendation.
4. INTENTIONS FOR THE HUMMINGBIRD GROUP
Strategic Plans for the Hummingbird Group
In the first 12 months following completion of the Offer, the CIG Parties
intend to continue their due diligence on the Hummingbird Group and will
conduct an in-depth assessment of the Hummingbird Group's operational assets,
pursuant to which the CIG Parties will consider how to optimise efficiencies
and cost effectiveness, enhance the liquidity position of the Hummingbird
Group, improve productivity and ensure that all spending decisions are
thoroughly scrutinised and optimally structured (the Strategic Review). As
mentioned above, the CIG Parties anticipate seeking to procure the
Cancellation. It is the CIG Parties' view that stabilising Hummingbird's
financial and operational situation will be achieved more easily as a private
company.
Consistent with its approach to constructive, collaborative and respectful stakeholder relationships, Nioko (in co-operation with Hummingbird) has initiated discussions with each of the Malian, Guinean and Liberian Governments to emphasise Nioko's commitment to each relevant country and to maintaining Hummingbird's good working relationship with each Government.
Employees and management
Subject to the Strategic Review, the CIG Parties intend to simplify the Hummingbird Group's corporate structure and employee base to reflect the Cancellation. The CIG Parties intend to implement such changes as soon as practicable following completion of the Offer in accordance with any applicable employee information and consultation requirements, and the CIG Parties intend to reduce Hummingbird Group's overall headcount by not more than 20 per cent. This will include removing operations that are no longer necessary as a result of the Cancellation or reducing the amount of duplicative roles in the context of Nioko's newly acquired control over the Hummingbird Group. In connection with this simplification, the CIG Parties intend to change the Group's existing registered office at 49-63 Spencer Street, Hockley, Birmingham, West Midlands, B18 6DE and its operating London office at 26 Mount Row, London, W1K 3SQ to an address to be identified as part of the Strategic Review. It is intended for the new headquarters to be based in London which will provide a space for Hummingbird to manage the Group's day to day operations. It is intended that the new headquarters are able to provide the same functions as both the existing headquarters and operating office of Hummingbird. Hummingbird does not currently have a standalone research and development function and the CIG Parties also do not intend on creating one or making material changes to any ongoing research and development initiatives at Hummingbird.
In connection with streamlining the business, the CIG Parties have confirmed that, they intend to make certain changes to the Hummingbird Board and the Hummingbird's management team including that Thomas Hill, the Finance Director, Stephen Betts, the Non-Executive Director, David Straker-Smith, the Non-Executive Director, Attie Roux, the Non-Executive Director and Ernie Nutter, the Non-Executive Director, will cease to be directors of the Board on or around the date of Cancellation. At the same time, Dan Betts will cease to be Executive Chairman but is expected to remain with Hummingbird in a Non-Executive Chairman role, subject to terms to be agreed between Hummingbird and Dan Betts. It is anticipated that board changes will be implemented at the operating level of the various Hummingbird subsidiaries on or around the date of Cancellation.
Except as set out above, the CIG Parties do not intend for the completion of the Offer to result in material changes in the balance of skills and functions of employees of the Hummingbird Group.
Existing rights and pension schemes
The CIG Parties do not intend to make material changes to the existing
contractual and statutory employment rights, including in relation to pension
contributions, of existing Hummingbird employees and intend both to safeguard
fully all such contractual and statutory rights in accordance with applicable
laws, and pay any accrued but unpaid employee remuneration and benefits, and
amounts that will become due on the change of control of the Company under
pre-existing arrangements. The CIG Parties understand that in the UK the
Hummingbird Group automatically enrols employees in a pension scheme through
NEST Pensions but that a number of employees have opted out and in these
instances the Hummingbird Group instead makes separate contributions into
employees' personal pension plans. The CIG Parties do not intend to make any
changes to the Hummingbird Group's current employer pension contribution
arrangements.
Operations and Fixed Assets
As part of the Strategic Review to be undertaken following completion of the
Offer, the CIG Parties intend to determine how to maximise value and potential
from the Hummingbird Group's existing fixed assets. Subject to the outcome of
the Strategic Review, the CIG Parties believe that there is worthwhile
potential in the ramp up of operations at the Kouroussa gold mine in Guinea.
The CIG Parties intend to work proactively with Hummingbird as Kouroussa
progresses towards steady state production. The CIG Parties also intend to
review the status of the life of mine extensions at the Yanfolila Gold Mine
and to consider the opportunities for exploration and resource expansion at
the Yanfolila site before making any firm decisions on its prospects. This may
involve delays to going underground and the possible development of further
satellite resources. The CIG Parties currently intend on following the
existing mine plans in place at the operating Kouroussa and Yanfolila mines
but will continue to review this and intend to make optimisations in light of
the Strategic Review.
The Dugbe gold project is owned by Pasofino which is a non-wholly owned
subsidiary of Hummingbird and has its own separate listing on TSX-V. The
Dugbe project is not yet at the development stage and therefore its operations
and fixed assets are limited. Pasofino announced in 2024 a strategic review
process and stated in November that it was continuing in discussions for the
potential disposal of Pasofino. The CIG Parties have indicated that further
due diligence will be undertaken on the Dugbe gold project in Liberia as
necessary as part of its Strategic Review and to determine if continuing with
Pasofino's sale process is in the Hummingbird's best interests. All options
for this asset remain on the table including disposal and development and
there are no specific intentions for the operations or fixed assets at this
stage as the project requires funding to be secured to take it to the
development phase. Following completion of the Offer, the CIG Parties will
consider how best to maximise value and potential from the Hummingbird Group's
other assets.
No post-offer undertakings
None of the statements in this paragraph 4 is a "post-offer undertaking" for
the purposes of Rule 19.5 of the Takeover Code.
In Part 2 (Letter from the Chairman of Hummingbird Resources plc) of this
document, the Hummingbird Directors have given due consideration to Nioko's
intentions for Hummingbird as set out above.
5. INFORMATION ON NIOKO AND THE CIG PARTIES
Nioko
Nioko is a company incorporated in Burkina Faso and a wholly-owned subsidiary of CIG, which is also incorporated in Burkina Faso. CIG is wholly owned and controlled by Mr. Idrissa Nassa, a Burkinabe national and entrepreneur.
Nioko is the only CIG Party that holds voting rights in Hummingbird and will remain the only CIG Party to hold voting rights in Hummingbird following completion of the Offer.
As at the Latest Practicable Date, Nioko holds 1,202,312,639 Ordinary Shares,
representing approximately 71.8 per cent. of Hummingbird's existing issued
share capital.
The Nioko directors, registered office and other incorporation information
regarding Nioko is as follows:
Directors Mr. Oumar Toguyeni
Mr. Issaka Kanazoe
Mr. Yacouba Saré
Address Avenue de l'UEMOA, 2cmeetage of the building built on plot N°10 of lot 20
section 006 ZACA, 01 BP 2061 Ouagadougou 01, Burkina Faso
Place of Registration Burkina Faso
Registered Number BF OUA-01-2024-B15-04845
CIG
CIG is a private company limited by shares and is registered in the Trade and Personal Property Credit Register of Burkina Faso, incorporated on 5 April 2019. Mr. Idrissa Nassa, as sole shareholder of CIG, holds 100 per cent. of its issued share capital. In addition, Mr. Idrissa Nassa holds a 98 per cent. interest in Coris Holdings, which in turn has a 63.61 per cent. interest in Coris Bank. Mr Idrissa also holds, in his personal name, an interest of 1.29 per cent. in Coris Bank and so has an effective interest in Coris Bank of 63.6 per cent. Coris Bank is Hummingbird's primary banking partner, with details of the various facilities in place with Coris Bank set out in paragraph (a) (Banking Facility Arrangements with Coris Bank) of Part 4 of this document.
CIG's aim is to focus on innovative solutions in line with the financing needs of companies and institutions with high local added value and capable of developing a profitable and sustainable business. CIG specialises in investment, strategy and consulting focusing on the West African region. Currently, CIG has approximately US$100 million of investments and fixed assets across more than 15 investments, including a shareholding in Orezone Gold Corporation (held through Nioko), a Canadian exploration and development company which owns the Bombore gold mine project in Burkina Faso.
The CIG directors, registered office and other incorporation information of the members of the CIG are as follows:
Directors Mr. Bolo SANOU
Mr. Idrissa NASSA
Mr. Talekaye ROMBA
Mr. Diakarya OUATTARA
Mr. Ablasse ILBOUDO
Address Avenue de l'UEMOA, 2cmeetage of the building built on plot N°10 of lot 20 section 006 ZACA, 01 BP 2061 Ouagadougou 01, Burkina Faso
Place of Registration Burkina Faso
Registered Number BF OUA 2019 B 2606
The Offer is not expected to have a material effect on the CIG Parties'
earnings, assets or liabilities.
Mr. Idrissa Nassa
Mr. Nassa is an economist by training, with over 35 years' experience in the financial, insurance, international trade and industrial sectors. He is a graduate of INTEC in Paris, and also holds a higher diploma in Management from the AMP programme at the MDE/IESE Business Schoolà in Barcelona, and a diploma in Management and Strategy from the University of Paris Panthéon Sorbonne and the Hautes Finances from the IFG Executive Education INSEEC Paris.
He has received various recognitions in the countries where Coris Bank subsidiaries or branches are present, including the African CEO of the Year 2020 by Financial Afrik Awards, the rank of Grand Officer of the Order of the Stallion (Burkina Faso) in 2019, the African Entrepreneur of the Year Award 2019 by AGFRICANGELS, the Trophy of Excellence awarded by CAVIE (African Centre for Economic Intelligence and Monitoring) and the Special Award "BRVM" and "DC&BR" (Senegal) in 2022. Mr Nassa is Chairman of Coris Bank and President of Burkinabé Employers' Association. CIG's registered office address, and primary place of business is Avenue de l'UEMOA, 2cmeetage of the building built on plot N°10 of lot 20section 006 ZACA, 01 BP 2061 Ouagadougou 01, Burkina Faso.
Ratings
Neither CIG nor Nioko is required to publish financial information and there
is no financial information relating to CIG or Nioko that is publicly
available. There are no current ratings or outlooks publicly accorded to CIG
or Nioko by ratings agencies.
6. INFORMATION ON HUMMINGBIRD
Hummingbird (AIM: HUM) is a multi-asset, multi-jurisdictional gold producing
company, member of the World Gold Council and founding member of Single Mine
Origin (www.singlemineorigin.com). Hummingbird currently has two core gold
projects, the operational Yanfolila Gold Mine in Mali, and the operational
Kouroussa Gold Mine in Guinea, which is now in commercial production. Further,
Hummingbird has a controlling interest in the Dugbe Gold Project in Liberia
that is being developed by its joint venture partner, Pasofino Gold Limited.
The final feasibility results on Dugbe showcase 2.76Moz in reserves and strong
economics such as a 3.5-year capex payback period once in production, and a
14-year life of mine at a low AISC profile. Hummingbird's vision is to
continue to grow its asset base, producing profitable ounces with
environmental, social & governance policies and practices central to all
its activities.
The following sets out financial information in respect of Hummingbird as
required by Rule 24.3 of the Takeover Code. The documents referred to below
(or parts thereof), the contents of which have previously been announced
through a Regulatory Information Service, are incorporated by reference into
this document pursuant to Rule 24.15 of the Takeover Code:
· the interim results of Hummingbird for the six months
ended 30 June 2024, available on Hummingbird's website at
www.hummingbirdresources.co.uk (http://www.hummingbirdresources.co.uk/) ;
· the audited accounts of Hummingbird for the financial
year ended 31 December 2023 set out on pages 118-195 of the 2023 Hummingbird
Annual Report, available on Hummingbird's website at
www.hummingbirdresources.co.uk (http://www.hummingbirdresources.co.uk/) ;
· the audited accounts of Hummingbird for the financial
year ended 31 December 2022 set out on pages 100-168 of the 2022 Hummingbird
Annual Report, available on Hummingbird's website at
www.hummingbirdresources.co.uk (http://www.hummingbirdresources.co.uk/) ;
The above documents are available, free of charge, in "read-only" format and
can be printed from the web addresses detailed above. Further, Hummingbird
will provide, without charge to each person to whom a copy of this document
has been delivered, upon the oral or written request of such person pursuant
to the instructions as set out in the section titled 'Publication on website
and availability of hard copies' above, a hard copy of any or all of the
documents which are incorporated by reference herein as soon as possible and
in any event within two Business Days of the receipt of such request. Hard
copies of any documents or information incorporated by reference into this
document will not be provided unless such a request is made.
No Significant Change and Ratings
Save as disclosed in this document, the Previous Announcements, as announced
by Hummingbird on 23 December 2024 in the "Operational and Financial Position
Update", or when it announced its six-month results to 30 June 2024, there has
been no significant change in the financial or trading position of the Group
since 30 June 2024, being the date to which the unaudited interim financial
information for the Group was prepared. There are no current public ratings or
outlooks accorded to Hummingbird by ratings agencies.
7. THE HUMMINGBIRD DIRECTORS
The names of the Hummingbird Directors and the details of their interests in
Hummingbird Shares are set out in paragraphs 2 and 3 of Part A of Part 4
(Additional Information) of this document.
At the close of business on the Latest Practicable Date the Hummingbird
Directors were interested in, in total, 15,377,902 Hummingbird Shares,
amounting to 0.92 per cent. of the issued share capital of Hummingbird.
In common with the other participants in the Hummingbird Share Plans,
Hummingbird Directors who hold awards and/or options will be able to receive
Hummingbird Shares to the extent such awards vest and/or options become
exercisable under their relevant terms in connection with the Offer.
Particulars of the service contracts and the letters of appointment of the
Hummingbird Directors are set out in paragraph 6 of Part A of Part 4
(Additional Information) of this document. It is intended that, Thomas Hill,
the Finance Director, Stephen Betts, the Non-Executive Director, David
Straker-Smith, the Non-Executive Director, Attie Roux, the Non-Executive
Director and Ernie Nutter, the Non-Executive Director shall each resign from
his or her roles on or around the date of Cancellation. At the same time, Dan
Betts will also resign as Executive Chairman at the same time but is expected
to remain with Hummingbird in a Non-Executive Chairman role, subject to terms
to be agreed between Dan Betts and Hummingbird. It is anticipated that board
changes will be implemented at the operating level of the various Hummingbird
subsidiaries on or around the date of Cancellation.
8. IRREVOCABLE UNDERTAKINGS
Hummingbird has received irrevocable undertakings from each of Stephen Betts,
Dan Betts, Tom Hill and Ernie Nutter to accept the Offer in respect of their
own beneficial holdings amounting to, in aggregate, 15,377,902 Ordinary
Shares, representing approximately 0.92 per cent. of the existing issued
ordinary share capital of Hummingbird. The irrevocable undertakings include
undertakings to:
(a) accept the Offer;
(b) not to sell, transfer, charge, grant any option or other
right over or otherwise dispose of or deal (directly or indirectly and whether
beneficially, legally or otherwise) in the relevant Ordinary Shares or any
interest in all or any of them or permit any dealing, nor enter into any
agreement or arrangement (whether conditional or not) to deal, nor accept (or
permit to be accepted) any offer in respect of all or any of such Ordinary
Shares, save with consent of Hummingbird;
(c) continue to have full power and authority to enter into and
perform the irrevocable undertaking in accordance with its terms;
(d) if required by Hummingbird, return a duly executed Form of
Proxy in respect of the relevant Ordinary Shares (if certificated), or in the
case of uncertificated shares, to take any action that may be required by
Hummingbird to make a valid proxy appointment and give valid CREST proxy
instructions; and
(e) execute all such documents, acts and things as may be
necessary and desirable to be executed in connection with their obligations
under the irrevocable undertaking.
Further details of these irrevocable undertakings are set out in paragraph 4
of Part A of Part 4 (Additional Information) of this document.
9. OFFER RELATED ARRANGEMENTS
For details of the offer-related arrangements, see paragraph 8 (Offer Related
Arrangements) of Part 4 (Additional Information) of this document.
10. HUMMINGBIRD SHARE PLANS
Hummingbird operates the Hummingbird Share Plans to reward and retain its
employees.
Participants in the Hummingbird Share Plans will receive a separate
communication explaining the effect of the Offer on their rights under the
Hummingbird Share Plans (the Share Plan Proposals).
A summary of the effect of the Offer on the Hummingbird Share Plans is set out
below. In the event of any conflict between the summary set out below and the
rules of the relevant Hummingbird Share Plan and/or the Share Plan Proposals,
the rules of the relevant Hummingbird Share Plan, or the terms of the relevant
Share Plan Proposals (as the case may be) will prevail.
HIPPO 2016, HIPPO 2018 and HIPPO 2020 (HIPPOs)
All outstanding awards under the HIPPOs have vested prior to the date of
publication of this document. Accordingly, no more than 6,521,268 Hummingbird
Shares will be issued pursuant to the exercise of awards under the HIPPOs in
connection with the Offer.
Hummingbird LTIP 2021
Awards under the Hummingbird LTIP 2021 take the form of time-based restricted
share unit awards (RSU Awards) and performance-based awards linked to total
shareholder return (TSR Awards).
All outstanding RSU Awards granted in 2021 vested on their ordinary terms
before the publication of this document and any RSU Awards granted in 2022,
2023 and 2024 which have not yet vested will vest in full on 3 February 2025
in connection with the Offer. Accordingly, no more than 18,612,904 Hummingbird
Shares will be issued pursuant to the exercise of the RSU Awards in connection
with the Offer.
In respect of the outstanding TSR Awards which were granted in 2022, 2023 and
2024, the Hummingbird Remuneration Committee has determined that the
performance conditions are unlikely to be met in connection with the Offer.
Accordingly, the TSR Awards are not expected to vest in accordance with their
terms.
Hummingbird Deferred Share Awards
All outstanding Hummingbird Deferred Share Awards granted in 2021, 2022 and
2023 vested on their ordinary terms before the publication of this document.
All outstanding Hummingbird Deferred Share Awards granted in 2024 will vest in
full on 3 February 2025. Accordingly, no more than 3,883,072 Hummingbird
Shares will be issued under the Hummingbird Deferred Share Awards in
connection with the Offer.
11. FINANCING OF THE OFFER
The Cash Consideration necessary to satisfy the Offer in full will be funded
from Nioko's existing cash resources. Hannam & Partners, in its capacity
as financial adviser to Nioko, is satisfied that sufficient resources are
available to Nioko to satisfy in full the Cash Consideration payable by Nioko
to Shareholders pursuant to the Offer.
12. CONDITIONS TO THE OFFER
The Offer is unconditional from the outset and acceptances under the Offer are
final and binding with no rights of withdrawal save as otherwise agreed in
writing between Nioko and any particular Hummingbird Shareholder or as
otherwise permitted by Nioko (either generally or for any particular
Hummingbird Shareholder).
The Offer will remain open for acceptances until Nioko confirms the Closing
Date, with shareholders receiving at least 14 days' notice prior to the
specified date (which cannot be less than 21 days after the posting of this
Offer Document). Such notice will be given to Hummingbird Shareholders via an
announcement through a Regulatory Information Service and will advise of the
final settlement date, with such announcement being made available on
Hummingbird's website at www.hummingbirdresources.co.uk
(http://www.hummingbirdresources.co.uk/) . The Offer will be open for
acceptance until 1.00 p.m. (London time) on the Closing Date.
13. ALTERNATIVE MEANS OF IMPLEMENTING THE OFFER
Nioko reserves the right to elect (with the consent of the Panel and the
consent of Hummingbird) to implement the Offer by means of a Scheme as an
alternative to the Offer. In such event, such Scheme would be implemented on
substantially the same terms and conditions, so far as applicable, as those
which would apply to the Offer, subject to appropriate amendments to reflect
the change in method of effecting the Offer.
14. DELISTING AND SQUEEZE-OUT
If Nioko receives acceptances under the Offer in respect of, and/or otherwise
acquires, 90 per cent. or more of the Hummingbird Shares to which the Offer
relates, Nioko intends to exercise its rights pursuant to the provisions of
Chapter 3 of Part 28 of the Companies Act to acquire compulsorily any
Hummingbird Shares not acquired or agreed to be acquired by or on behalf of
Nioko pursuant to the Offer or otherwise on the same terms as the Offer.
Nioko has informed Hummingbird that, once a sufficient level of acceptances
under the Offer is reached such that Nioko would hold at least 75 per cent. of
the Ordinary Shares of Hummingbird (including, for the avoidance of doubt,
those Ordinary Shares already held by Nioko), it intends to seek the
Cancellation of the admission to trading on AIM of Hummingbird's Ordinary
Shares and Nioko shall seek to re-register Hummingbird as a private limited
company under the relevant provisions of the Companies Act. There is no
acceptance condition in respect of the Offer but Nioko currently holds 71.8
per cent. of Hummingbird's existing issued share capital. Following the
proposed Cancellation, Hummingbird Shares would no longer remain tradeable on
AIM and liquidity in, and marketability of, the Ordinary Shares will be more
limited and holdings of Ordinary Shares could be difficult to value and to
trade.
It is anticipated that, subject to any applicable requirements of the London
Stock Exchange, Cancellation of admission to trading of Hummingbird Shares on
AIM shall take effect no earlier than the date that is 20 business days (in
accordance with the AIM Rules) after the date on which Nioko has announced
that it has acquired or agreed to acquire 75 per cent. of the voting rights
attaching to the Hummingbird Shares (including, for the avoidance of doubt,
those Ordinary Shares already held by Nioko).
Nioko shall notify Hummingbird Shareholders when the required 75 per cent.
voting rights threshold has been attained and confirm that the notice period
has commenced and the anticipated date of Cancellation.
Such Cancellation of admission to trading on AIM of Hummingbird Shares and the
re-registration of Hummingbird as a private limited company shall
significantly reduce the liquidity and marketability of any Hummingbird Shares
not acquired pursuant to the Offer at that time and their value may be
affected as a consequence. Any remaining Hummingbird Shareholders (unless
their Hummingbird Shares are acquired by Nioko pursuant to the provisions of
Chapter 3 of Part 28 of the Companies Act) would become minority shareholders
in a majority controlled private limited company and may therefore be unable
to sell their Hummingbird Shares. There can be no certainty that Hummingbird
would pay any further dividends or other distributions or that such minority
Hummingbird Shareholders would again be offered an opportunity to sell their
Hummingbird Shares on terms which are equivalent to or no less advantageous
than those under the Offer.
15. PROCEDURE FOR ACCEPTANCE OF THE OFFER
Hummingbird Shareholders who hold their Hummingbird Shares in certificated
form should read this paragraph in conjunction with the Form of Acceptance and
Part B and Part C of Part 3 (Further terms of the Offer and Acceptances) of
this document. Hummingbird Shareholders who hold their shares in
uncertificated form (that is, through CREST) should read this paragraph in
conjunction with Part B and Part C of Part 3 (Further terms of the Offer and
Acceptances) of this document. The instructions on the Form of Acceptance are
deemed to form part of the terms of the Offer.
The Offer will remain open for acceptances until Nioko confirms the Closing
Date, with shareholders receiving at least 14 days' notice prior to the
specified date (which cannot be less than 21 days after the posting of this
Offer Document). Such notice will be given to Hummingbird Shareholders via an
announcement through a Regulatory Information Service and will advise of the
final settlement date, with such announcement being made available on
Hummingbird's website at www.hummingbirdresources.co.uk
(http://www.hummingbirdresources.co.uk/) . The Offer will be open for
acceptance until 1.00 p.m. (London time) on the Closing Date.
If you have any questions about this document or the accompanying documents,
or are in any doubt as to how to complete the Form of Acceptance (if you hold
Hummingbird Shares in certificated form) or as to how to make an Electronic
Acceptance (if you hold Hummingbird Shares in uncertificated form), or wish to
obtain an additional Form of Acceptance, please contact the Shareholder
Helpline. The Shareholder Helpline is operated by Link Group on Tel: 0371 664
0321 from the UK and +44 371 664 0321 from overseas. Calls are charged at the
standard geographic rate and will vary by provider. Calls outside the United
Kingdom will be charged at the applicable international rate. Lines are open
between 09:00 and 17:30, Monday to Friday excluding public holidays in England
and Wales, or by email at operationalsupportteam@linkgroup.co.uk. Please note
that Link Group cannot provide any financial, legal or tax advice and calls
may be recorded and monitored for security and training purposes. Calls are
charged at the standard geographic rate and will vary by provider. Calls
outside the UK will be charged at the applicable international rate.
15.1 Hummingbird Shares held in certificated form
(A) Completion of the Form of Acceptance
Your Form of Acceptance accompanies this document.
You may also obtain additional Forms of Acceptance, by contacting the
Shareholder Helpline operated by Link Group on Tel: 0371 664 0321 from the UK
and +44 371 664 0321 from overseas. Calls are charged at the standard
geographic rate and will vary by provider. Calls outside the United Kingdom
will be charged at the applicable international rate. Lines are open between
09:00 and 17:30, Monday to Friday excluding public holidays in England and
Wales, or by email at operationalsupportteam@linkgroup.co.uk. The Receiving
Agent will send you a Form of Acceptance within 10 Business Days, and you will
be instructed to return the Form of Acceptance in accordance with the
instructions set out below and on the Form of Acceptance.
To accept the Offer in respect of Hummingbird Shares held in certificated form
(that is, not in CREST), you must complete the Form of Acceptance in
accordance with the instructions set out below and on the Form of Acceptance.
The instructions printed on the Form of Acceptance are deemed to form part of
the terms of the Offer. You should complete a separate Form of Acceptance for
Hummingbird Shares held in certificated form but under different designations.
If you have any queries as to how to complete the Form of Acceptance, please
contact the Shareholder Helpline. The Shareholder Helpline is operated by Link
Group on Tel: 0371 664 0321 from the UK and +44 371 664 0321 from overseas.
Calls are charged at the standard geographic rate and will vary by provider.
Calls outside the United Kingdom will be charged at the applicable
international rate. Lines are open between 09:00 and 17:30, Monday to Friday
excluding public holidays in England and Wales, or by email at
operationalsupportteam@linkgroup.co.uk. Please note that the Receiving Agent
cannot provide any financial, legal or tax advice and calls may be recorded
and monitored for security and training purposes. Additional Forms of
Acceptance are available from the Receiving Agent upon request.
(i) To accept the Offer in respect of all your Hummingbird
Shares in certificated form - you must insert in Box 1 the total number of
Hummingbird Shares in respect of which you wish to accept the Offer and sign
Box 2A or 2B, as applicable, of the enclosed Form of Acceptance. In the case
of joint holders, all joint holders must sign Box 2A. In all cases, if you are
an individual, you must sign Box 2A on the Form of Acceptance in the presence
of a witness who should also sign in accordance with the instructions printed
on it. Any Hummingbird Shareholder which is a company should execute Box 2B on
the Form of Acceptance in accordance with the instructions printed on it. If
you do not insert a number in Box 1 of the Form of Acceptance, or if you
insert in Box 1 a number which is greater than the number of Hummingbird
Shares that you hold and you have signed in Box 2A or Box 2B, your acceptance
will be deemed to be in respect of all the certificated Hummingbird Shares
held by you.
(ii) To accept the Offer in respect of less than all your
Hummingbird Shares in certificated form - you must insert in Box 1 on the
enclosed Form of Acceptance such lesser number of Hummingbird Shares in
respect of which you wish to accept the Offer in accordance with the
instructions printed thereon. You should then follow the procedure set out in
paragraph (i) above in respect of such lesser number of Hummingbird Shares.
(B) Return of the Form of Acceptance
To accept the Offer in respect of Hummingbird Shares held in certificated
form, the completed, signed and (if applicable) witnessed Form of Acceptance
should be returned by post to the Receiving Agent, Link Group, Corporate
Actions, at Central Square, 29 Wellington Street, Leeds LS1 4DL together
(subject to paragraph 15.1(C) below) with the relevant share certificate(s)
and/or other document(s) of title, as soon as possible and, in any event, so
as to be received not later than 1.00 p.m. on the Closing Date. A reply-paid
envelope for use in the United Kingdom only is enclosed for your convenience.
It is recommended to allow four Business Days for delivery. No acknowledgement
of receipt of documents will be given.
Any Form of Acceptance received electronically in respect of Hummingbird
Shares held in certificated form will be rejected as an invalid acceptance of
the Offer.
Any Form of Acceptance received in an envelope post-marked in a Restricted
Jurisdiction or otherwise appearing to Nioko or its agents to have been sent
from any of these jurisdictions may be rejected as an invalid acceptance of
the Offer. The attention of Hummingbird Shareholders holding Hummingbird
Shares and who are citizens or residents of jurisdictions outside the United
Kingdom is drawn to paragraph 7 of Part C of Part 3 (Further terms of the
Offer and Acceptances) of this document.
(C) Share certificates not readily available or lost
If your Hummingbird Shares are in certificated form, a completed, signed and
witnessed Form of Acceptance should be accompanied by the relevant share
certificate(s) and/or other document(s) of title. If for any reason the
relevant share certificate(s) and/or other document(s) of title is/are not
readily available or is/are lost, you should nevertheless complete, sign and
lodge the Form of Acceptance as stated above so as to be received by the
Receiving Agent by post to Link Group, Corporate Actions, at Central Square,
29 Wellington Street, Leeds LS1 4DL, not later than 1.00 p.m. on the Closing
Date. You should send with the Form of Acceptance any share certificate(s)
and/or other document(s) of title which you may have available, accompanied by
a letter stating that the remaining documents will follow as soon as possible
or that you have lost one or more of your share certificate(s) and/or other
document(s) of title. You should then arrange for the relevant share
certificate(s) and/or other document(s) of title to be forwarded as soon as
possible thereafter but in any event so as to arrive by no later than 1.00
p.m. on the Closing Date. It is recommended to allow four Business Days for
delivery.
If you have lost your share certificate(s) and/or other document(s) of title,
and you hold 1,000,000 or fewer Hummingbird Shares, please tick Box 1A at the
time of submission of the Form of Acceptance, by accepting the Offer and
signing Box 2A or 2B on the Form of Acceptance you confirm your agreement to
the Declaration and Undertaking for Lost Share Certificate(s) shown in Note 6
on page 1 of the Form of Acceptance. You do not need to provide a separate
letter of indemnity for the lost share certificate(s) and/or other document(s)
of title.
If you have lost your share certificate(s) and/or other document(s) of title
and hold more than 1,000,000 Hummingbird Shares at the time of submission of
the Form of Acceptance, you should separately write as soon as possible to the
Receiving Agent, Link Group Corporate Actions, at Central Square, 29
Wellington Street, Leeds LS1 4DL, requesting a letter of indemnity for the
lost share certificate(s) and/or other document(s) of title. When completed in
accordance with the instructions given, you should return the letter of
indemnity by post to the Receiving Agent, Link Group, Corporate Actions, at
Central Square, 29 Wellington Street, Leeds LS1 4DL, so as to arrive by no
later than 1.00 p.m. on the Closing Date. It is recommended to allow four
Business Days for delivery.
If, following the submission of a Form of Acceptance and prior to the Closing
Date, you acquire further Hummingbird Shares which bring your total holding of
Hummingbird Shares in certificated form to more than 1,000,000, but you have
not provided a letter of indemnity relating to your lost share certificate(s)
and/or other document(s) of title, your Form of Acceptance may be rejected.
(D) Validity of Acceptances
Without prejudice to Part B and Part C of Part 3 (Further terms of the Offer
and Acceptances) of this document, subject to the provisions of the Takeover
Code, Nioko reserves the right to treat as valid in whole or in part any
acceptance of the Offer which is not entirely in order or which is not
accompanied by the relevant share certificate(s) and/or other document(s) of
title. In that event, subject to the provisions of the Takeover Code, no
payment of the Cash Consideration under the Offer will be made until after the
relevant share certificate(s) and/or other document(s) of title or indemnities
reasonably satisfactory to Nioko have been received.
15.2 Hummingbird Shares held in uncertificated form (that is, in
CREST)
(A) General
If your Hummingbird Shares are in uncertificated form, to accept the Offer you
should take (or procure the taking of) the action set out below to transfer
the Hummingbird Shares in respect of which you wish to accept the Offer to the
appropriate escrow balance(s), specifying the Receiving Agent (in its capacity
as a CREST participant under the Receiving Agent's participant ID referred to
below) as the escrow agent, as soon as possible and in any event so that the
TTE instruction settles not later than 1.00 p.m. on the Closing Date. Note
that settlement cannot take place on weekends or public holidays (or other
times at which the CREST system is non-operational). You should therefore
ensure you time the input of any TTE instructions accordingly.
The input and settlement of a TTE instruction in accordance with this
paragraph 15.2(A) will (subject to satisfying the requirements set out in
Part B and Part C of Part 3 (Further terms of the Offer and Acceptances) of
this document) constitute an acceptance of the Offer in respect of the number
of Hummingbird Shares so transferred to escrow.
If you are a CREST sponsored member, you should refer to your CREST sponsor
before taking any action. Only your CREST sponsor will be able to send the TTE
instruction(s) to Euroclear in relation to your Hummingbird Shares.
After settlement of a TTE instruction, you will not be able to access the
Hummingbird Shares concerned in CREST for any transaction or charging
purposes. The Receiving Agent will transfer the Hummingbird Shares concerned
in accordance with paragraph (d) of Part C of Part 3 (Further terms of the
Offer and Acceptances) of this document.
You are recommended to refer to the CREST Manual for further information on
the CREST procedure outlined below.
You should note that Euroclear does not make available special procedures, in
CREST, for any particular corporate action. Normal system timings and
limitations will therefore apply in connection with a TTE instruction and its
settlement. You should therefore ensure that all necessary action is taken by
you (or by your CREST sponsor) to enable a TTE instruction relating to your
Hummingbird Shares to settle prior to 1.00 p.m. on the Closing Date. In this
connection, you are referred in particular to those sections of the CREST
Manual concerning the practical limitations of the CREST system and timings.
The latest time for receipt of an Electronic Acceptance through CREST will be
1.00 p.m. (London time) on the Closing Date. The latest time and date by which
the Offer can be accepted will be 1.00 p.m. (London time) on the Closing Date.
A separate announcement will be made in due course confirming the timetable
and the relevant deadline for accepting the Offer, including on CREST. The
Offer will remain open for acceptances until Nioko confirms the Closing Date,
with shareholders receiving at least 14 days' notice prior to the specified
date (which cannot be less than 21 days after the posting of this Offer
Document). Such notice will be given to Hummingbird Shareholders via an
announcement through a Regulatory Information Service and will advise of the
final settlement date, with such announcement being made available on
Hummingbird's website at www.hummingbirdresources.co.uk
(http://www.hummingbirdresources.co.uk/) .
(B) To accept the Offer
To accept the Offer in respect of Hummingbird Shares held in uncertificated
form, you should send (or, if you are a CREST sponsored member, procure that
your CREST sponsor sends) to Euroclear a TTE instruction in relation to such
shares. A TTE instruction to Euroclear must be properly authenticated in
accordance with Euroclear's specifications for transfers to escrow and must
contain the following details (being an Electronic Acceptance):
(i) the number of Hummingbird Shares in respect of which you
wish to accept the Offer (i.e. the number of Hummingbird Shares to be
transferred to escrow);
(ii) your member account ID;
(iii) your participant ID;
(iv) the participant ID of the escrow agent, Link Group, in its
capacity as a CREST receiving agent, being RA10;
(v) the member account ID(s) of the escrow agent, Link Group, in
its capacity as a CREST receiving agent, being NIOHUM01;
(vi) the ISIN of the relevant Hummingbird Shares (this is
"GB00B60BWY28");
(vii) the intended settlement date. This should be as soon as
possible and, in any event, not later than 1.00 p.m. on the Closing Date;
(viii) the corporate action number for the transaction; this is
allocated by Euroclear and can be found by viewing the relevant corporate
action details on screen in CREST;
(ix) CREST standard delivery instructions priority of 80; and
(x) a contact name and telephone number (inserted in the shared
note field).
(C) Validity of Acceptances
Holders of Hummingbird Shares in uncertificated form who wish to accept the
Offer should note that a TTE instruction will only be a valid acceptance of
that Offer as at the relevant closing date if it has settled at or before 1.00
p.m. on that date. A Form of Acceptance which is received in respect of
Hummingbird Shares held in uncertificated form may be treated as an invalid
acceptance and may be disregarded.
Without prejudice to Part B and Part C of Part 3 (Further terms of the Offer
and Acceptances) of this document, subject to the provisions of the Takeover
Code, Nioko reserves the right to treat as valid in whole or in part any
acceptance of the Offer which is not entirely in order or which is not
accompanied by the relevant TTE instruction. In that event, subject to the
provisions of the Takeover Code, no payment of the Cash Consideration under
the Offer will be made until after the relevant TTE instruction reasonably
satisfactory to Nioko has been received.
Nioko will make an appropriate announcement if any of the details contained in
this paragraph 15.2 alter for any reason.
(D) Overseas Shareholders
The attention of Hummingbird Shareholders holding Hummingbird Shares in
uncertificated form and who are citizens or residents of jurisdictions outside
the United Kingdom is drawn to paragraph 7 of Part C, paragraph (b) of
Part C of Part 3 (Further terms of the Offer and Acceptances) and Part B of
Part 4 (Additional Information) of this document.
(E) General
Normal CREST procedures (including timings) apply in relation to any
Hummingbird Shares that are, or are to be, converted from uncertificated to
certificated form, or from certificated to uncertificated form, during the
course of the Offer (whether any such conversion arises as a result of a
transfer of Hummingbird Shares or otherwise). Holders of Hummingbird Shares
who are proposing so to convert any such shares are recommended to ensure that
the conversion procedures are implemented in sufficient time to enable the
person holding or acquiring the shares as a result of the conversion to take
all necessary steps in connection with an acceptance of the Offer (in
particular, as regards delivery of share certificate(s) and/or other
document(s) of title or transfers to an escrow balance as described above)
prior to 1.00 p.m. on the Closing Date.
16. SETTLEMENT
Settlement of the consideration to which any Hummingbird Shareholder is
entitled under the Offer will be effected (other than in respect of
Hummingbird Shares acquired pursuant to the Hummingbird Share Plans, in
respect of which settlement with the relevant Hummingbird Shareholders will be
effected through payroll or such other method as may be determined by
Hummingbird or Nioko) within 14 days of the later of (i) 3 February (if they
have validly accepted before such date) and (ii) the date of receipt of an
acceptance complete in all respects after such date.
Payment of the Cash Consideration
16.1 Where Hummingbird Shares are held in uncertificated form (that
is, in CREST)
Where a valid acceptance relates to Hummingbird Shares in uncertificated form,
the payment of Cash Consideration to which the accepting Hummingbird
Shareholder is entitled shall be effected through CREST by Nioko instructing
(or procuring the instruction of) Euroclear to create a CREST assured payment
obligation in accordance with the CREST assured payment arrangements in favour
of the appropriate CREST account through which the relevant Hummingbird
Shareholder holds such uncertificated Hummingbird Shares in respect of the
Cash Consideration due to that Hummingbird Shareholder.
The instruction by (or on behalf of) Nioko to create an assured payment
arrangement shall be a complete discharge of Nioko's obligations under the
Offer with reference to payments through CREST.
The CREST payment obligations set out above will be created: (i) in the case
of valid acceptances received, complete in all respects, by 3 February 2025,
within 14 days of such date; and (ii) in the case of acceptances received,
complete in all respects, after such date but while the Offer remains open for
acceptance, within 14 days of such receipt, and each applicable holding of
Hummingbird Shares credited to any stock account in CREST in respect of which
Cash Consideration has been paid will be disabled and all applicable
Hummingbird Shares in respect of which Cash Consideration has been paid will
be removed from CREST in due course thereafter.
Nioko reserves the right to pay Cash Consideration to all or any relevant
CREST shareholders by cheque if for any reason it wishes to do so.
16.2 Where Hummingbird Shares are held in certificated form
Where a valid acceptance relates to Hummingbird Shares in certificated form,
settlement of the Cash Consideration shall be despatched by cheque or by such
other method as may be approved by the Panel. Your attention is drawn in
particular to paragraphs 15.1(C) and 15.1(D) above which set out the steps to
be taken if your Form of Acceptance is not accompanied by the relevant share
certificate(s) and/or other document(s) of title and the consequences thereof.
Subject to the above, all deliveries of cheques required to be made pursuant
to the Offer shall be effected by posting them, (i) in the case of valid
acceptances received, complete in all respects, by 3 February 2025, within 14
days of such date; and (ii) in the case of acceptances received, complete in
all respects, after such date but while the Offer remains open for acceptance,
within 14 days of such receipt, by first class post or by such other method as
may be approved by the Panel, addressed to the persons entitled to them at
their respective addresses as appearing in the Register at the Closing Date
(or, in the case of joint holders, at the address of that one of the joint
holders whose name stands first in the Register in respect of such joint
holding at such time) and neither Hummingbird nor Nioko (nor any of their
respective nominees or agents) shall be responsible for any loss or delay in
the transmission of cheques sent in this way.
All Cash Consideration due to Hummingbird Shareholders shall be paid in
sterling and, in the case of a cheque, drawn on a UK clearing bank.
All cheques shall be made payable to the Hummingbird Shareholder(s) (except
that, in the case of joint holders, Nioko reserves the right to make cheques
payable to the joint holder whose name stands first in the Register in respect
of such joint holding at the Closing Date) and the encashment of any such
cheque shall be a complete discharge by Nioko for the obligation to pay the
monies represented thereby.
Payment terms
Cheques will not be mailed to any Hummingbird Shareholder who holds their
Hummingbird Shares in certificated form where Hummingbird and/or the Receiving
Agent has identified a verification issue with the information provided for
that Hummingbird Shareholder or any underlying beneficial holders, where the
information is required for the purpose of payment of the relevant
consideration to the Hummingbird Shareholder, which needs to be addressed
before payment of the relevant consideration to such Hummingbird Shareholder
can be made. In these circumstances, the Receiving Agent will, hold the
relevant consideration for such Hummingbird Shareholders and engage with each
of them to verify their identity and payment details before payment of such
consideration is made to them.
In addition, and without prejudice to the foregoing, no electronic payment
shall be made to any Hummingbird Shareholder where Hummingbird and/or the
Receiving Agent has been unable to validate the electronic payment details to
the satisfaction of Hummingbird and/or the Receiving Agent. The Receiving
Agent shall also have the power to withhold any consideration payable to any
Hummingbird Shareholder where either Hummingbird and/or the Receiving Agent
believes that there is a verification issue with the information provided for
that Hummingbird Shareholder or any underlying beneficial holders, where the
information is required for the purpose of payment of the relevant
consideration to the Hummingbird Shareholder.
16.3 General
All documents and remittances sent to Hummingbird Shareholders will be sent at
the risk of the person(s) entitled thereto.
Except with the consent of the Panel, settlement of the consideration to which
any accepting Hummingbird Shareholder is entitled under the Offer will be
implemented in full in accordance with the terms of the Offer free of any
lien, right of set-off, counterclaim or other analogous right to which any
person may otherwise be, or claim to be, entitled against such Hummingbird
Shareholder, and will be effected in the manner described in this document.
17. OVERSEAS SHAREHOLDERS
Overseas Shareholders should refer to Part B of Part 4 (Additional
Information) of this document which contains important information relevant to
such Overseas Shareholders.
The implications of the Offer for Overseas Shareholders may be affected by the
laws of their relevant jurisdictions. Overseas Shareholders should inform
themselves about and observe any applicable legal requirements. It is the
responsibility of each Overseas Shareholder to satisfy themselves as to the
full observance of the laws of the relevant jurisdiction in connection with
the Offer, including the obtaining of any governmental, exchange control or
other consents which may be required, or the compliance with other necessary
formalities which are required to be observed and the payment of any issue,
transfer or other taxes due in such jurisdiction. If you remain in doubt, you
should consult your professional adviser in the relevant jurisdiction without
delay.
This document does not constitute an offer to sell or issue or the
solicitation of an offer to buy or subscribe for shares in any jurisdiction in
which such offer or solicitation is unlawful.
This document and the accompanying Form of Acceptance have been prepared for
the purposes of complying with English law, the applicable requirements of the
Companies Act, the Takeover Code, the Panel, the FCA and the London Stock
Exchange and applicable securities law and the information disclosed may not
be the same as that which would have been disclosed if this document had been
prepared in accordance with the laws of any other jurisdiction.
18. UNITED KINGDOM TAXATION
A summary of relevant UK taxation, which is intended as a general guide only,
is set out in Part C of Part 4 (Additional Information) of this document. If
you are in any doubt as to your tax position, or you are subject to taxation
in a jurisdiction other than the United Kingdom, you are strongly advised to
consult an appropriate independent professional adviser.
19. FURTHER INFORMATION
The terms and conditions of the Offer are set out in Part C (Further terms of
the Offer and Acceptances) of this document. Your attention is drawn in
particular to the letter from the Chair of Hummingbird set out in Part 2
(Letter from the Chairman of Hummingbird) of this document, and the further
information contained in this document and, if your Hummingbird Shares held in
certificated form, to the accompanying Form of Acceptance which should be read
in conjunction with this document.
20. ACTION TO BE TAKEN
To accept the Offer:
(a) If your Hummingbird Shares are in uncertificated form (that
is, in CREST), you should NOT return the Form of Acceptance but instead ensure
that an Electronic Acceptance is made by you or on your behalf and that
settlement is no later than 1.00 p.m. on the Closing Date.
(b) If your Hummingbird Shares are in certificated form, the
Form of Acceptance must be completed, signed and returned as soon as possible
(together with your share certificate(s) and/or other document(s) of title),
and in any event so as to be received by the Receiving Agent to Link Group,
Corporate Actions, at Central Square, 29 Wellington Street, Leeds LS1 4DL,
United Kingdom no later than 1.00 p.m. on the Closing Date.
The Offer will remain open for acceptances until Nioko confirms the Closing
Date, with shareholders receiving at least 14 days' notice prior to the
specified date (which cannot be less than 21 days after the posting of this
Offer Document). Such notice will be given to Hummingbird Shareholders via an
announcement through a Regulatory Information Service and will advise of the
final settlement date, with such announcement being made available on
Hummingbird's website at www.hummingbirdresources.co.uk
(http://www.hummingbirdresources.co.uk/) .
If you have any questions relating to acceptance of the Offer, please contact
the Shareholder Helpline operated by Link Group on Tel: 0371 664 0321 from the
UK and +44 371 664 0321 from overseas. Calls are charged at the standard
geographic rate and will vary by provider. Calls outside the United Kingdom
will be charged at the applicable international rate. Lines are open between
09:00 and 17:30, Monday to Friday excluding public holidays in England and
Wales, or by email at operationalsupportteam@linkgroup.co.uk. Please note that
Link Group cannot provide any financial, legal or tax advice and calls may be
recorded and monitored for security and training purposes.
Yours faithfully
Nioko Resources Corporation
PART 2
LETTER FROM THE CHAIR OF HUMMINGBIRD RESOURCES PLC
Directors:
Registered Office:
Dan Betts (Executive Chairman) 49-63 Spencer Street
Geoff Eyre (Interim Chief Executive Officer) Hockley
Thomas Hill (Finance Director) Birmingham
Stephen Betts (Non-Executive Director) West Midlands
David Straker-Smith (Non-Executive Director) B18 6DE
Attie Roux (Non-Executive Director)
Ernie Nutter (Non-Executive Director)
Oumar Toguyeni (Non- Executive Director)
Incorporated in England and Wales with registration number 05467327
13 January 2025
To the holders of Hummingbird Shares and, for information only, to holders of
awards and/or options under the Hummingbird Share Plans and persons with
information rights
Dear Hummingbird Shareholder,
Unconditional Recommended Cash Offer for Hummingbird Resources plc
("Hummingbird" or the "Company") by Nioko Resources Corporation ("Nioko")
1. INTRODUCTION
On 16 December 2024, the board of directors of each of Nioko and Hummingbird
announced in the Rule 2.7 Announcement that they had reached agreement on the
terms of a recommended cash offer pursuant to which Nioko would acquire the
entire issued and to be issued share capital of Hummingbird not already owned,
or agreed to be acquired, by Nioko. The Offer is to be effected by means of a
takeover offer for the purposes of Part 28 of the Companies Act.
I am writing to you today, on behalf of the Hummingbird Directors to set out
the background to the Offer, the reasons why the Independent Hummingbird
Directors unanimously consider the terms of the Offer to be fair and
reasonable, and why the Independent Hummingbird Directors are unanimously
recommending that Hummingbird Shareholders accept or procure the acceptance of
the Offer (as the Hummingbird Directors who hold Hummingbird Shares have
irrevocably undertaken to do in respect of their own beneficial holdings, as
set out in paragraph 6 of this letter below).
The formal Offer, together with details of the procedure for acceptance, is
contained in the letter from Nioko, which is set out in Part 1 (Letter from
Nioko) of this document.
2. THE OFFER
Nioko is offering to acquire, subject to the further terms set out in Part C
(Further terms of the Offer and Acceptances) of this document and, in respect
of Hummingbird Shares held in certificated form, the accompanying Form of
Acceptance, all Hummingbird Shares on the following basis:
for each Hummingbird Share: 2.6777 pence in cash (the
Offer Price)
Accordingly, the Offer values Hummingbird's existing issued and to be issued
Ordinary Share capital (not already owned, or agreed to be acquired, by Nioko)
at up to approximately £13,434,987.
Other terms
As detailed in the Rule 2.7 Announcement, the Offer was to be subject to the
satisfaction of a number of conditions including, among other things, the
passing of the Rule 9 Waiver Resolution, the Regulatory Approvals, no
Insolvency Event occurring in respect of the Hummingbird Group and no
cancellation/loss of any Core Mining Licence (each condition as defined in the
Rule 2.7 Announcement) (the Original Conditions). The Rule 9 Waiver condition
has now been satisfied following the passing of the Rule 9 Waiver Resolution
at the Hummingbird's general meeting on 23 December 2024, as announced by
Hummingbird on 23 December 2024.
On 2 January 2025, Nioko informed Hummingbird that it wished to waive the
other outstanding conditions under the Debt-to-Equity Conversion. As such, the
Debt-to-Equity Conversion has now completed with the admission of the Ordinary
Shares to Nioko under the Stage 2 Conversion (as defined below) occurring on 7
January. As a result, Nioko now holds 1,202,312,639 Ordinary Shares,
representing approximately 71.8 per cent. of Hummingbird's existing issued
share capital. Nioko is making the required applications in respect of the
Regulatory Approvals (as defined in the announcement by Hummingbird on 5
December 2024) relating to the change of control of Hummingbird. Whilst the
formal responses to such applications remain outstanding, Nioko believes that
the best interests of Hummingbird's stakeholders would be served by proceeding
with the Offer of control in order the stabilise the Hummingbird Group's
operations, accelerate the process of securing additional external financing
and work towards putting the Hummingbird Group on a sustainable footing.
This approach will also enable the Hummingbird Group to extend its existing
debt facilities and secure the additional funding required, in order to
alleviate the Hummingbird Group's immediate financial pressures as it moves to
restructure its operations.
Nioko have indicated that they will continue to engage with the relevant
regulatory authorities in the jurisdictions where the Hummingbird Group's
assets are located in order to secure the formal approvals and to take those
assets to the next stage of their development. Hummingbird also continues in
negotiations with the Malian Government in respect of the application of the
2023 Mining Code, which are expected to result in additional near-term payment
obligations. Hummingbird Shareholders should be aware that the outcome of
the discussions with regulatory authorities in respect of the change of
control are uncertain and could result in an adverse costs or impact in
respect of the mining and exploration licences.
Given the waiver of the Original Conditions, this Offer is unconditional from
the outset and acceptances under the Offer will be final and binding with no
rights of withdrawal save as otherwise agreed in writing between Nioko and any
particular Hummingbird Shareholder or as otherwise permitted by Nioko (either
generally or for any particular Hummingbird Shareholder). There is no
acceptance condition in respect of the Offer. The Offer will remain open for
acceptances until Nioko confirms the Closing Date, with shareholders receiving
at least 14 days' notice prior to the specified date (which cannot be less
than 21 days after the posting of this Offer Document). Such notice will be
given to Hummingbird Shareholders via an announcement through a Regulatory
Information Service and will advise of the final settlement date, with such
announcement being made available on Hummingbird's website at
www.hummingbirdresources.co.uk (http://www.hummingbirdresources.co.uk/) . The
Offer will be open for acceptance until 1.00 p.m. (London time) on the Closing
Date.
If, on or after the date of this Offer, any dividend, distribution and/or
other return of capital or value, is announced, declared, made or paid in
respect of the Hummingbird Shares, Nioko reserves the right to reduce the
consideration payable under the terms of the Offer for the Hummingbird Shares
by the aggregate amount of such dividend and/or distribution and/or other
return of capital or value, in which case any reference in this document to
the consideration payable under the terms of the Offer will be deemed to be a
reference to the consideration as so reduced. Any such exercise by Nioko of
its rights shall be the subject of an announcement and, for the avoidance of
doubt, shall not be regarded as constituting any revision or variation of the
terms of the Offer or the Offer. In such circumstances, Hummingbird
Shareholders would be entitled to retain any such dividend, distribution
and/or other return of capital or value.
Hummingbird Shares will be acquired by Nioko pursuant to the Offer fully paid
and free from all liens, charges, encumbrances and other third party rights of
any nature whatsoever and together with all rights attaching to them as at
completion of the Offer, including the right to receive and retain all
dividends and distributions (if any) declared, made or paid following the
Offer closing.
3. INDEPENDENT HUMMINGBIRD DIRECTORS' VIEWS ON THE TERMS OF
THE OFFER AND NIOKO'S INTENTIONS FOR HUMMINGBIRD
The Independent Directors, who have been so advised by Stifel and Strand
Hanson as to the financial terms of the Offer, consider the terms of the Offer
to be fair and reasonable as the Offer represents an opportunity for
Hummingbird Shareholders to realise some cash sum for their holding now, which
may not otherwise be available.
Your attention is also drawn to the statement of Nioko's intentions for the
Hummingbird Group on completion of the Offer as set out in paragraph 4 of
Part 1 (Letter from Nioko) of this document. The Independent Directors have
considered the CIG Parties' intentions in respect of the ongoing strategy and
operation of Hummingbird, including the potential proposed changes to
employment and locations of registered and trading office locations that may
be necessary to make. In addition, the Independent Directors consider the
terms of the Offer to be in the best interests of Hummingbird Shareholders as
a whole.
Mr. Oumar Toguyeni and Mr. Geoff Eyre, who are Hummingbird Directors, are not
considered to be independent for the purposes of the Offer by virtue of their
relationships with Nioko. Mr. Toguyeni, a non-executive director, has been
appointed to the Hummingbird Board as a representative of Nioko. Mr. Geoff
Eyre, an executive director, was appointed to the Board as Interim CEO on 6
November 2024, at the request of Nioko and with the agreement of
the Hummingbird Board, to drive a transformation plan focused on improving
operational performance. The non-independent Hummingbird Directors support
the Offer and its terms but have not participated in the consideration of the
Offer by the Independent Hummingbird Directors or the decision to recommend
the Offer as set out above.
4. BACKGROUND TO AND REASONS FOR THE RECOMMENDATION
As set out in the Previous Announcements, Hummingbird faces continued
challenges around operational performance at Yanfolila, equipment
availability, working capital constraints and further delays in the ramp up of
operations at Kouroussa, which have placed significant strain on Hummingbird's
balance sheet and its ability to meet near-term debt repayment obligations. An
independent technical, operational and financial review has confirmed the
urgent need for new equity funding to address this critical financial
shortfall. This funding is required to meet payments due to creditors, to
replenish essential spare parts, and to invest in engineering and drilling to
mitigate risks to mine plan forecasts, as well as covering overheads until the
business can demonstrate sustainable profitability.
Hummingbird will need to work with its creditors to restructure some US$140
million in debt. There are ongoing risks to the business including those
arising from grade reconciliation issues at Kouroussa supplier availability,
and the political and operating environment in Mali, as well as specific risks
to delivering Yanfolila's underground plan which currently relies on further
definition drilling which is currently unfunded.
Despite the provision of approximately US$35.6 million by Coris Bank under
the terms of a new loan agreement refinancing part of the current Coris debt
with SMK which was repayable on 31 December 2024 and is now repayable on 31
December 2025, Hummingbird will be unable to continue trading as a going
concern without further external funding being provided. The Offer represents
an opportunity for Hummingbird Shareholders to realise some cash sum for their
holding now, which may not otherwise be available, should the Company go into
an administration process.
Independent Hummingbird Directors' Conclusion and Recommendation
The Independent Directors, who have been so advised by Stifel and Strand
Hanson as to the financial terms of the Offer, consider the terms of the Offer
to be fair and reasonable as the Offer represents an opportunity for
Hummingbird Shareholders to realise some cash sum for their holding now, which
may not otherwise be available. Your attention is also drawn to the statement
of Nioko's intentions for the Hummingbird Group on completion of the Offer as
set out in paragraph 6 of Part 1 (Letter from Nioko) of this document. The
Independent Hummingbird Directors have considered the CIG Parties' intentions
in respect of the ongoing strategy and operation of Hummingbird, including the
potential proposed changes to employment and locations of registered and
trading office locations that may be necessary to make. In addition, the
Independent Hummingbird Directors consider the terms of the Offer to be in the
best interests of Hummingbird Shareholders as a whole and is recommending
unanimously the Offer to Hummingbird Shareholders.
5. HUMMINGBIRD CURRENT TRADING AND PROSPECTS
Hummingbird currently operates two gold mines: the Yanfolila Gold Mine in Mali
and the Kouroussa Gold Mine in Guinea. Through Q4-2024 Hummingbird produced a
total of 28,441 oz of gold from both mines, resulting in full-year production
of 97,539 oz, subject to final assays and reconciliations, below its revised
production guidance of 100,000-115,000 oz. All-In Sustaining Cost (AISC) is
expected to be provided at a later date once consolidated, however Hummingbird
expect this to be at or above the $2,100/oz revised guidance, due to
operational and cost challenges.
At the Yanfolila Mine in Mali, Q4-2024 production amounted to 10,648 oz, with
FY-2024 production reaching 53,703 oz. Yanfolila has experienced challenges
due to declining grades and aging infrastructure. Investments in fleet
replacement, exploration, and extending the mine's life are required to
improve operational performance.
At the Kouroussa Mine in Guinea, Q4-2024 production was 17,794 oz, with
full-year production of 43,835 oz. Kouroussa achieved commercial production in
November 2024, but operational performance has been affected by
lower-than-expected mill feed grades and other challenges. Efforts are ongoing
to address mining practices, processing performance, and infrastructure to
optimise the mine's output.
Additionally, Hummingbird also owns a 50.8 per cent. stake in Pasofino Gold
Limited (TSXV: VEIN), a Canadian-listed entity developing the Dugbe Gold
Project in Liberia. A completed feasibility study for Dugbe outlines reserves
of 2.76 million oz and attractive economic metrics at a gold price of US$1,750
per ounce. These include a 3.5-year capital payback period once in production
and a 14-year mine life with a low AISC profile. Pasofino has reported
significant progress in its strategic review, as detailed in press releases
dated 26 August 2024 and 14 November 2024, which may result in the sale of all
or part of the company to a third party. Pasofino is currently in active
discussions with several interested parties, with two having submitted
non-binding expressions of interest to acquire the company.
In 2022, the Malian Government initiated an audit of the country's mining
sector, focusing on existing mining conventions. A new Mining Code (the 2023
Mining Code) was introduced in August 2023, followed by the issuance of the
Implementation Decree in July 2024, which outlined key economic parameters. A
commission (the Commission), comprising of Malian Government advisors and
representatives, was also established to negotiate certain aspects of existing
mining agreements and to clarify the application of the 2023 Mining Code to
both existing and new mining projects. Since late 2023, Hummingbird and its
Malian subsidiary, Société des Mines De Komana SA (SMK), have been engaging
in constructive discussions with the Commission to address outstanding audit
findings and clarify the application of the 2023 Mining Code to the Yanfolila
Gold Mine. These discussions are progressing, and Hummingbird expects to
finalise an agreement in due course, which is highly likely to lead to
near-term payment obligations.
As announced by Hummingbird on 31 December 2024, Hummingbird have agreed a new
loan agreement with the CIG Parties which refinanced part of the current Coris
debt with SMK for the amount of approximately US$35.6 million with a new
repayment date of 31 December 2025.
Moreover, and as previously announced, despite achieving commercial production
at Kouroussa, the Group as a whole is not projected to generate sufficient
near-term cash flows to alleviate its ongoing liquidity pressures. These
challenges are compounded by the current loss-making operations at Yanfolila,
and upcoming payments related to ongoing negotiations with the Government of
Mali. The Hummingbird Group, as of 30 November 2024, had in excess of US$153.6
million of trade and other creditors that are overdue for payment and which
have been carefully managed in negotiation with suppliers and service
providers.
To address these financial pressures outlined above, as announced on 31
December 2024, the CIG Parties agreed to extend existing debt arrangements
with the Hummingbird Group until 31 December 2025 to enable Hummingbird to
continue trading as a going concern.
Nioko has informed Hummingbird that, following completion of the Offer, it
will seek to procure the Cancellation of the admission to trading of
Hummingbird's Ordinary Shares on AIM as it believes that Hummingbird's
financial and operational situation could be stabilised more easily as a
private company. Nioko have also indicated that they will explore securing
additional debt and equity funding for Hummingbird to put it on a more
sustainable long-term footing.
Save as disclosed in this document or the Previous Announcements, or as
announced by Hummingbird since 24 September 2024 when it announced its
six-month results to 30 June 2024, there has been no significant change in the
financial or trading position of the Group since 30 June 2024, being the date
to which the unaudited interim financial information for the Group was
prepared. There are no current public ratings or outlooks accorded to
Hummingbird by ratings agencies.
Financial information relating to the Hummingbird Group is set out in
paragraph 6 of Part 1 (Letter from Nioko) and Part 4 (Additional Information)
of this document.
6. IRREVOCABLE UNDERTAKINGS
Hummingbird has received irrevocable undertakings from each of Stephen Betts,
Dan Betts, Tom Hill and Ernie Nutter to accept the Offer in respect of their
own beneficial holdings amounting to, in aggregate, 15,377,902 Ordinary
Shares, representing approximately 0.92 per cent. of the existing issued
ordinary share capital of Hummingbird. The irrevocable undertakings include
undertakings to:
(a) accept the Offer;
(b) not to sell, transfer, charge, grant any option or other
right over or otherwise dispose of or deal (directly or indirectly and whether
beneficially, legally or otherwise) in the relevant Ordinary Shares or any
interest in all or any of them or permit any dealing, nor enter into any
agreement or arrangement (whether conditional or not) to deal, nor accept (or
permit to be accepted) any offer in respect of all or any of such Ordinary
Shares, save with consent of Hummingbird;
(c) continue to have full power and authority to enter into and
perform the irrevocable undertaking in accordance with its terms;
(d) if required by Hummingbird, return a duly executed Form of
Proxy in respect of the relevant Ordinary Shares (if certificated), or in the
case of uncertificated shares, to take any action that may be required by
Hummingbird to make a valid proxy appointment and give valid CREST proxy
instructions; and
(e) execute all such documents, acts and things as may be
necessary and desirable to be executed in connection with their obligations
under the irrevocable undertaking.
Further details of these irrevocable undertakings are set out in paragraph 4
of Part A of Part 4 (Additional Information) of this document.
7. CANCELLATION OF TRADING OF HUMMINGBIRD SHARES AND
COMPULSORY OFFER
Your attention is drawn to paragraph 14 of the letter from Nioko in Part 1
(Letter from Nioko) of this document in relation to Nioko's intentions with
regard to the delisting of, and Cancellation of trading in, Hummingbird Shares
from the London Stock Exchange, and the possible compulsory Offer of
Hummingbird Shares by Nioko. Following the proposed Cancellation, Hummingbird
Shares would no longer remain tradeable on AIM and liquidity in, and
marketability of, the Ordinary Shares will be more limited and holdings of
Ordinary Shares could be difficult to value and to trade.
8. HUMMINGBIRD BOARD CHANGES
Your attention is drawn to the information in this document, and in particular
Nioko's intention for the employees and management of Hummingbird as set out
in paragraph 4 of the letter from Nioko in Part 1 (Letter from Nioko) of this
document.
9. UNITED KINGDOM TAXATION
A summary of relevant UK taxation, which is intended as a general guide only,
is set out in Part C of Part 4 (Additional Information) of this document. If
you are in any doubt as to your tax position, or you are subject to taxation
in any jurisdiction other than the United Kingdom, you are strongly advised to
consult an appropriate independent professional adviser.
10. ACTION TO BE TAKEN
Your attention is drawn to the information in this document, and in particular
the letter from Nioko in Part 1 (Letter from Nioko) of this document, and the
accompanying Form of Acceptance. The procedure for acceptance of the Offer is
set out in paragraph 20 of Part 1 (Letter from Nioko) of this document and,
if you hold your shares in certificated form, in the Form of Acceptance.
Your decision as to whether to accept the Offer will depend upon your
individual circumstances. If you are in any doubt as to the action you should
take, you should seek your own independent financial advice.
If you wish to accept the Offer in respect of Hummingbird Shares held in
uncertificated form (that is, shares held in CREST) your acceptance should be
made electronically through CREST by following the procedure set out in
paragraph 15.2 of Part 1 (Letter from Nioko) of this document, so that the
TTE instruction settles as soon as possible and, in any event, no later than
1.00 p.m. (London time) on the Closing Date.
If you wish to accept the Offer in respect of Hummingbird Shares held in
certificated form, you should complete, sign and return the Form of Acceptance
in accordance with the instructions printed on it and set out in paragraph
15.1 of Part 1 (Letter from Nioko) of this document, together with any
appropriate document(s) of title, so as to be received by post to the
Receiving Agent, Link Group, Corporate Actions, at Central Square, 29
Wellington Street, Leeds LS1 4DL as soon as possible and in any event so as to
be received by no later than 1.00 p.m. (London time) on the Closing Date. A
reply-paid envelope for use in the United Kingdom only is enclosed for your
convenience. It is recommended to allow four Business Days for delivery.
11. OVERSEAS SHAREHOLDERS
The attention of Overseas Shareholders is drawn to paragraph 17 of Part 1
(Letter from Nioko), paragraph 6 of Part A of Part 3 (Further terms of the
Offer and Acceptances) and Part B of Part 4 (Additional Information) of this
document, and to the relevant provisions of the Form of Acceptance, which they
should read before taking any action.
12. FURTHER INFORMATION
Please note that the information contained in this letter is not a substitute
for reading the remainder of this document.
The attention of Hummingbird Shareholders is drawn to the letter from Nioko
set out in Part 1 (Letter from Nioko) of this document. Your attention is
also drawn to the further information contained in this document and, in
particular, to the further terms in Part 3 (Further terms of the Offer and
Acceptances), the information on Nioko and the Hummingbird Group in Part 4
(Additional Information) (including the information on United Kingdom taxation
in Part C of Part 4 (Additional Information)) of this document.
13. RECOMMENDATION
The Independent Hummingbird Directors, who have been so advised by Stifel and
Strand Hanson as to the financial terms of the Offer, consider the terms of
the Offer to be fair and reasonable and that the Offer represents an
opportunity for Hummingbird Shareholders to realise some cash sum for their
holding now, which may not otherwise be available. In reaching this
conclusion, the Independent Hummingbird Directors acknowledge and accept the
potential proposed changes to employment and locations of registered and
trading office locations that may be necessary to make. In addition, the
Independent Hummingbird Directors consider the terms of the Offer to be in the
best interests of Hummingbird Shareholders as a whole and accordingly
unanimously recommend that Hummingbird Shareholders accept or procure
acceptance of the Offer. Stifel and Strand Hanson are providing independent
financial advice to the Hummingbird Directors for the purposes of Rule 3 of
the Takeover Code.
For the reasons set out above, the Independent Hummingbird Directors recommend
unanimously that Hummingbird Shareholders accept or procure acceptance of the
Offer, as the Hummingbird Directors who hold Hummingbird Shares have
irrevocably undertaken to do so in respect of their own beneficial holdings
totalling in aggregate 15,377,902 Hummingbird Shares, representing
approximately 0.92 per cent. of the issued share capital of Hummingbird as at
the Latest Practicable Date.
Yours faithfully
Dan Betts
Executive Chairman
PART 3
FURTHER TERMS OF THE OFFER AND ACCEPTANCES
Part A
FURTHER TERMS OF THE OFFER
The following further terms apply to the Offer, unless the contrary is
expressed or the context requires otherwise.
Unless the context requires otherwise, any reference in this Part A to
Part 3 (Further terms of the Offer and Acceptances) and in the Form of
Acceptance:
(a) to "acceptances of the Offer" includes deemed acceptances of
the Offer;
(b) to "acting in concert with Nioko" means any such person
acting or deemed to be acting in concert with Nioko for the purposes of the
Takeover Code and the Offer;
(c) to "as may be required by the Takeover Code" includes as may
be required by the Panel;
(d) to the "Offer" includes any revision, variation, renewal or
extension of the Offer and includes any election available in connection with
the Offer; and
(e) to a "material official authorisation or regulatory
clearance" shall be to that term as referred to in the Takeover Code.
1. Offer timetable and acceptance period
(a) The Offer will be open for acceptance until 1.00 p.m.
(London time) on the Closing Date. The Offer is unconditional from the outset
and acceptances under the Offer are final and binding with no rights of
withdrawal save as otherwise agreed in writing between Nioko and any
particular Hummingbird Shareholder or as otherwise permitted by Nioko (either
generally or for any particular Hummingbird Shareholder). The Offer will
remain open for acceptances until Nioko confirms the Closing Date, with
shareholders receiving at least 14 days' notice prior to the specified date
(which cannot be less than 21 days after the posting of this Offer Document).
Such notice will be given to Hummingbird Shareholders via an announcement
through a Regulatory Information Service and will advise of the final
settlement date, with such announcement being made available on Hummingbird's
website at www.hummingbirdresources.co.uk
(http://www.hummingbirdresources.co.uk/) . The Offer will be open for
acceptance until 1.00 p.m. (London time) on the Closing Date.
(b) If a competitive situation (as determined by the Panel)
arises or further develops after Nioko has made a "no increase" statement (as
referred to in the Takeover Code), in relation to the Offer, Nioko may, if it
specifically reserved the right to do so at the time such statement was made
(or otherwise with the consent of the Panel) choose not to be bound by the
terms of and set aside that statement, and revise the Offer, provided that
Nioko complies with the requirements of the Takeover Code and, in particular,
it announces that the statement is set aside and that it is free to revise the
Offer as soon as possible (and in any event within four Business Days of the
firm announcement of the competing offer or other competitive situation).
(c) If, as a result of a Takeover Code matter remaining
outstanding on the Closing Date, Nioko may, with the consent of the Panel,
extend the latest time at which the Offer may close pending the final
determination of that outstanding Takeover Code matter.
(d) The Offer will remain open for acceptance for not less than
21 days from the date of this document. Nioko will give not less than 14 days'
notice to those Hummingbird Shareholders who have not accepted the Offer (and
to persons with information rights) of the Closing Date.
2. Announcements
(a) Except with the Panel's consent, Nioko shall, during the
Offer Period, make an announcement by 8.00 a.m. on the Business Day following
any amendment to the Closing Date (or such other time(s) or date(s) as the
Panel may require or consent to).
(b) In this Part A (Further terms of the Offer and
Acceptances), references to the making of an announcement or the giving of
notice by or on behalf of Nioko include the release of an announcement to the
press and/or the transmission by whatever means of an announcement to a
Regulatory Information Service.
(c) Unless otherwise consented to by the Panel: (i) an
announcement made otherwise than to a Regulatory Information Service shall be
notified simultaneously to a Regulatory Information Service; and (ii) an
announcement which is published at a time when the relevant Regulatory
Information Service is not open for business shall be distributed to not less
than two newswire services operating in the United Kingdom and submitted for
publication as soon as the relevant Regulatory Information Service re-opens.
(d) A copy of any announcement made by Nioko in accordance with
this paragraph 2 of this Part A will be available, subject to certain
restrictions relating to persons outside the United Kingdom, for inspection on
Hummingbird's website at www.hummingbirdresources.co.uk
(http://www.hummingbirdresources.co.uk/) promptly after the making of such
announcement and in any event by no later than 12.00 p.m. (London time) on
the Business Day following the announcement.
(e) Without limiting the manner in which Nioko may choose to
make any public statement and subject to Nioko's obligations under applicable
law and regulation and paragraph 2(d) of this Part A, Nioko will have no
obligation to publish, advertise or otherwise communicate any such public
announcement other than by making a release to a Regulatory Information
Service.
3. Rights of withdrawal
As the Offer is unconditional from the outset, acceptances under the Offer are
final and binding with no rights of withdrawal save as otherwise agreed in
writing between Nioko and any particular Hummingbird Shareholder or as
otherwise permitted by Nioko (either generally or for any particular
Hummingbird Shareholder).
4. Revisions of the Offer
(a) Although no revision of the Offer is envisaged, if the Offer
(in its original or any previously revised form(s)) is revised (either in its
terms and conditions or in the value or nature of the consideration offered or
otherwise) and such revision represents on the date on which it is announced
an improvement or no diminution in the value of the revised Offer compared
with the consideration or terms previously offered or in the overall value
received and/or retained by an Hummingbird Shareholder (under the Offer or
otherwise) the benefit of the revised Offer will, subject to paragraphs 4(c),
4(d) and 7, of this Part A, be made available to any Hummingbird Shareholder
who has accepted the Offer in its original or any previously revised form(s)
(Previous Acceptor). The acceptance of the Offer by or on behalf of a Previous
Acceptor in its original or any previously revised form(s) shall, subject as
provided in paragraphs 4(c), 4(d) and 7 of this Part A, be treated as an
acceptance of the Offer as so revised and shall also constitute the
irrevocable and separate appointment of Nioko, the Receiving Agent, Hannam
& Partners and SCP Resource and each of their directors as such Previous
Acceptor's attorney and/or agent with authority:
(i) to accept any such revised Offer on behalf of such
Previous Acceptor;
(ii) if such revised Offer includes alternative forms of
consideration, to make on behalf of such Previous Acceptor such elections for
and/or accept such alternative forms of consideration in the proportions such
attorney and/or agent in their absolute discretion thinks fit; and
(iii) to execute on behalf of and in the name of such Previous
Acceptor all such further documents (if any) and to do all such further things
(if any) as may be required to give effect to such acceptances and/or
elections.
In making any such election and/or acceptance, such attorney and/or agent
shall be able to take into account the nature of any previous acceptances made
by or on behalf of the Previous Acceptor and such other facts or matters as
the attorney and/or agent may reasonably consider relevant. The attorney
and/or agent shall not be liable to any Hummingbird Shareholder or any other
person in making such election and/or acceptance or in making any
determination in respect thereof.
(b) Subject to paragraphs 4(c) and 4(d) of this Part A, the
powers of attorney and authorities conferred by this paragraph 4 of this
Part A, and any acceptance of a revised Offer and/or any election pursuant
thereto shall be irrevocable.
(c) The deemed acceptance referred to in paragraph 4(a) of this
Part A shall not apply, and the authorities conferred by that paragraph shall
not be exercised, to the extent that a Previous Acceptor:
(i) in respect of Hummingbird Shares in certificated form,
lodges with the Receiving Agent Link Group, Corporate Actions, at Central
Square, 29 Wellington Street, Leeds LS1 4DL, within 14 days of the posting of
the document containing the revised offer, a Form of Acceptance (or other form
validly issued by or on behalf of Nioko) in which the Previous Acceptor
validly elects to receive the consideration receivable by them under such
revised Offer in some other manner than that set out in their original or any
previous acceptance; or
(ii) in respect of Hummingbird Shares in uncertificated form,
sends (or, if a CREST sponsored member, procures that their CREST sponsor
sends) an ESA instruction to settle in CREST in relation to each Electronic
Acceptance in respect of which an election is to be varied. Each ESA
instruction must, in order for it to be valid and settle, include the
following details:
· the number of Hummingbird Shares in respect of which
the changed election is made, together with their ISIN number (this is "
GB00B60BWY28");
· the member account ID of the Previous Acceptor,
together with their participant ID;
· the member account ID(s) of the escrow agent, Link
Group, in its capacity as a CREST receiving agent, being NIOHUM01;
· the Receiving Agent's participant ID, being RA10;
· the CREST transaction ID of the Electronic Acceptance
in respect of which the election is to be changed to be inserted at the
beginning of the shared note field;
· the intended settlement date for the changed election;
· the corporate action number for the Offer allocated by
Euroclear which can be found by viewing the relevant corporate action details
in CREST,
and, in order that the desired change of election can be effected, must
include:
· the member account ID of the Receiving Agent relevant
to the new election; and
· input with a standard delivery instruction priority of
80.
Any such change of election will be conditional upon the Receiving Agent
verifying that the request is validly made. Accordingly the Receiving Agent
will on behalf of Nioko reject or accept the requested change of election by
transmitting in CREST a Receiving Agent reject (AEAD) or Receiving Agent
accept (AEAN) message as appropriate.
(d) The deemed acceptance referred to in paragraph 4(a) of this
Part A shall not apply, and the authorities conferred by that paragraph shall
not be exercised if, as a result thereof, the Previous Acceptor would thereby
receive and/or retain (as appropriate) less in aggregate in consideration
under the revised Offer than they would have received and/or retained (as
appropriate) in aggregate as a result of acceptance of the Offer in the form
in which it was previously accepted by them or on their behalf (unless the
Previous Acceptor has previously agreed in writing to receive and/or retain
(as appropriate) less in aggregate consideration). The authorities conferred
by paragraph 4(a) of this Part A shall not be exercised in respect of any
election available under the revised Offer save in accordance with this
paragraph 4(d).
(e) Nioko and the Receiving Agent reserve the right to treat an
executed Form of Acceptance, Electronic Acceptance or TTE instruction (in
respect of the Offer in its original or any previously revised form(s)) which
is received (or dated) on or after the announcement of any revised Offer as a
valid acceptance of the revised Offer and/or, where applicable, a valid
election for or acceptance of any of the alternative forms of consideration
made available pursuant thereto. Such acceptances shall constitute an
authority in the terms of paragraph 4(a) of this Part A, mutatis mutandis,
on behalf of the relevant Hummingbird Shareholder.
(f) Nioko may (with the consent of the Panel) extend or revise
the Offer provided it complies with the requirements of the Takeover Code.
5. Acceptances and purchases
(a) It is intended that the Offer will be implemented by way of
a takeover offer for the purposes of Chapter 3 of Part 28 of the Companies
Act. However, Nioko reserves the right to elect, with the consent of the Panel
and the consent of Hummingbird, to implement the Offer by way of a
Court-sanctioned Scheme in accordance with Part 26 of the Companies Act. If
the Offer is implemented by way of a Scheme, such Scheme will be implemented
on the same terms, so far as applicable, as those that would apply to the
Offer, subject to appropriate amendments to reflect the change in method of
effecting the Offer, including (without limitation and subject to the consent
of the Panel) such amendments as may be required by law or regulation. In
particular: the Closing Date may cease to apply (and Nioko may, in accordance
with the Takeover Code, specify a new closing date by which the Scheme must
become effective and specific dates by which the Meetings and the Sanction
Hearing must be held); and instead the Scheme would become effective and
binding following:
(i) its approval by a majority in number representing 75 per
cent. or more in value of the relevant Hummingbird Shareholders (or the
relevant class or classes thereof, if applicable) present and voting, either
in person or by proxy, at the Court Meeting and at any separate class meeting
which may be required by the Court or at any adjournment of any such meeting;
(ii) the Resolutions necessary to approve and implement the
Scheme being duly passed by the requisite majority or majorities at the
General Meeting or at any adjournment of that meeting; and
(iii) the sanction of the Scheme by the Court with or without
modification (but subject to any such modification being acceptable to Nioko)
and the delivery of a copy of the Scheme Court Order to the Registrar of
Companies.
(b) In addition, if the Offer is implemented by way of a Scheme,
the Scheme will be subject to the terms set out in Part A of this Part 3
(Further terms of the Offer and Acceptances).
(c) Hummingbird Shares will be acquired by Nioko pursuant to the
Offer fully paid and free from all liens, charges, encumbrances and other
third party rights of any nature whatsoever and together with all rights
attaching to them as at completion of the Offer, including the right to
receive and retain all dividends and distributions (if any) declared, made or
paid following the Closing Date.
(d) If, on or after the date of this Offer, any dividend,
distribution or other return of value is declared, paid or made or becomes
payable by Hummingbird in respect of the Hummingbird Shares, Nioko reserves
the right to reduce the Cash Consideration payable under the terms of the
Offer for the Hummingbird Shares by an amount up to the amount of such
dividend, distribution or return of value. If (but only to the extent) Nioko
exercises that right to make such a reduction in respect of a dividend,
distribution or return of value, Hummingbird Shareholders will be entitled to
receive and retain such dividend, distribution or return of value and
references in this document to the Cash Consideration payable under the terms
of the Offer will be deemed to be references to the Cash Consideration as so
reduced. If and to the extent that any such dividend or distribution or return
of value has been announced or declared, made or paid or is payable (i)
transferred pursuant to the Offer on a basis which entitles Nioko to receive
the dividend or distribution and to retain it; or (ii) cancelled before
payment, the Cash Consideration payable under the terms of the Offer shall not
be subject to change in accordance with this paragraph (d). Any exercise by
Nioko of its rights referred to in this paragraph (d) shall not be regarded as
constituting any revision or variation of the Offer.
(e) Except with the consent of the Panel, settlement of the
consideration to which any accepting Hummingbird Shareholder is entitled under
the Offer will be implemented in full in accordance with the terms of the
Offer free of any lien, right of set-off, counterclaim or other analogous
right to which any person may otherwise be, or claim to be, entitled against
such Hummingbird Shareholder, and will be effected in the manner described in
this document.
(f) The Offer is made on 13 January 2025 and is capable of
acceptance from that date. Copies of this document, a specimen Form of
Acceptance, and any related documents are available (subject to certain
restrictions relating to persons outside the United Kingdom) for inspection on
Hummingbird's website at www.hummingbirdresources.co.uk
(http://www.hummingbirdresources.co.uk/) and from the Receiving Agent at the
address set out in paragraph 4(c)(i) of this Part A.
(g) In respect of Hummingbird Shares in certificated form, the
terms, provisions, instructions and authorities contained in or deemed to be
incorporated in the Form of Acceptance constitute part of the terms of the
Offer. The provisions of this Part A (Further terms of the Offer and
Acceptances) shall be deemed to be incorporated in and form part of each Form
of Acceptance. Words and expressions defined in this document have the same
meanings when used in the Form of Acceptance, unless the context otherwise
requires.
(h) The Offer, all acceptances of it and all elections pursuant
to it, the Form of Acceptance and Electronic Acceptances, all contracts made
pursuant to the Offer, all action taken or made or deemed to be taken or made
pursuant to any of these terms and the relationship between an Hummingbird
Shareholder and Nioko, Stifel, Strand Hanson, Hannam & Partners and SCP
Resource or the Receiving Agent shall be governed by and interpreted in
accordance with English law.
(i) Subject to paragraph 5(j) of this Part A, the Courts of
England have exclusive jurisdiction to decide any dispute which may arise in
connection with the creation, validity, effect, interpretation or performance
of, or the legal relationships established by the Offer and the Form of
Acceptance or the Electronic Acceptance or otherwise arising in connection
with the Offer and the Form of Acceptance or the Electronic Acceptance. The
execution of a Form of Acceptance or making of an Electronic Acceptance by or
on behalf of a Hummingbird Shareholder constitutes such Hummingbird
Shareholder's irrevocable submission to the jurisdiction of the Courts of
England.
(j) The agreement in paragraph 5(i) of this Part A is
included for the benefit of Nioko, Hannam & Partners, SCP Resource and the
Receiving Agent and accordingly, Nioko, Hannam & Partners, SCP Resource
and the Receiving Agent shall each retain the right to, and may in its
absolute discretion, bring proceedings in the courts of any other country
which may have jurisdiction. The execution of a Form of Acceptance or making
of an Electronic Acceptance by or on behalf of a Hummingbird Shareholder
constitutes such Hummingbird Shareholder's irrevocable submission to the
jurisdiction of the courts of any such country.
(k) Any omission or failure to despatch this document or (where
relevant) the Form of Acceptance or any other document relating to the Offer
or any notice required to be despatched under the terms of the Offer to, or
any failure to receive the same by, any person to whom the Offer is made, or
should be made, shall not invalidate the Offer in any way or create any
implication that the Offer has not been made to any such person. Subject to
paragraph 6 of this Part A, the Offer extends to any such person and to all
Hummingbird Shareholders to whom this document, (where relevant) the Form of
Acceptance and any related documents may not be despatched and who may not
receive such documents, and such persons may (subject to certain restrictions
relating to persons outside the United Kingdom) collect copies of those
documents from the Receiving Agent at the address set out in paragraph 4(c)(i)
of this Part A or inspect this document on Hummingbird's website at
www.hummingbirdresources.co.uk (http://www.hummingbirdresources.co.uk/) while
the Offer remains open for acceptances.
(l) All powers of attorney, appointments as agent and
authorities on the terms conferred by or referred to in this Part A (Further
terms of the Offer and Acceptances) or (where relevant) in the Form of
Acceptance are given by way of security for the performance of the obligations
of the Hummingbird Shareholder concerned and are irrevocable (in respect of
powers of attorney in accordance with Section 4 of the Powers of Attorney Act
1971).
(m) Without prejudice to any other provisions of this Part A and
subject to the requirements of the Takeover Code, Nioko, Hannam &
Partners, SCP Resource and the Receiving Agent reserve the right to treat
acceptances of the Offer as valid (in whole or in part) if not entirely in
order or not accompanied by the relevant TTE instruction or (as applicable)
relevant share certificate(s) and/or other document(s) of title or if received
by or on behalf of any of them at any place or places or in any manner
determined by any of them or otherwise than as set out in this document or, in
respect of Hummingbird Shares held in certificated form, in the Form of
Acceptance. In that event, subject to the provisions of the Takeover Code, no
settlement of consideration of the Offer will be made until after the
acceptance is entirely in order and (as applicable) the relevant transfer to
escrow has settled or the relevant share certificate(s) and/or other
document(s) of title or indemnities satisfactory to Nioko have been received
by the Receiving Agent.
(n) All communications, notices, certificates, document(s) of
title and remittances to be delivered by or sent to or from any Hummingbird
Shareholders will be delivered by or sent to or from them (or their designated
agents) at their risk. No acknowledgement of receipt of any Form of
Acceptance, transfer by means of CREST, communication, notice, share
certificate(s) and/or other document(s) of title will be given by or on behalf
of Nioko.
(o) If Nioko receives acceptances under the Offer in respect of,
and/or otherwise acquires, 90 per cent. or more in value of the Hummingbird
Shares to which the Offer relates and 90 per cent. or more of the voting
rights carried by those shares, Nioko intends to exercise its rights in
accordance with Chapter 3 of Part 28 of the Companies Act to acquire
compulsorily the remaining Hummingbird Shares on the same terms as the Offer.
(p) If Nioko receives acceptances under the Offer in respect of,
and/or otherwise acquires, 75 per cent. or more of the voting rights carried
by the Hummingbird Shares (including, for the avoidance of doubt, those
Ordinary Shares already held by Nioko) or the appropriate special resolutions
are otherwise passed, and subject to any applicable requirements of the London
Stock Exchange, it is intended that Nioko will procure that Hummingbird makes
applications to cancel the listing of Hummingbird Shares and cancel trading in
Hummingbird Shares on AIM and to re-register Hummingbird as a private limited
company. A notice period of not less than 20 business days (in accordance with
the AIM Rules) before the Cancellation will commence on the date on which
Nioko has announced that it has acquired or agreed to acquire 75 per cent. of
the voting rights attaching to the Hummingbird Shares (including, for the
avoidance of doubt, those Ordinary Shares already held by Nioko).
(q) Any reference in this Part A (Further terms of the Offer and
Acceptances) to any law or regulation of any jurisdiction includes: (i) any
subordinate legislation or regulation made under it; (ii) any law or
regulation which it has amended, supplemented or replaced; and (iii) any law
or regulation amending, supplementing or replacing it (whether before or after
the date of this document).
(r) In relation to any acceptance of the Offer in respect of a
holding of Hummingbird Shares which are in uncertificated form, Nioko reserves
the right to make such alterations, additions or modifications to the terms of
the Offer as may be necessary or desirable to give effect to any purported
acceptance of the Offer, whether in order to comply with the facilities or
requirements of CREST or otherwise, provided such alterations, additions or
modifications are consistent with the requirements of the Takeover Code or are
otherwise made with the Panel's consent.
(s) For the purposes of this document, the time of receipt of a
TTE instruction, an ESA instruction or an Electronic Acceptance shall be the
time at which the relevant instruction settles in CREST.
(t) Neither Nioko, nor any person acting on behalf of Nioko,
shall have any liability to any person for any loss or alleged loss arising
from any decision as to the treatment of acceptances of the Offer or otherwise
in connection therewith.
(u) The Offer is subject to applicable requirements of the FCA,
the London Stock Exchange, the AIM Rules and the Takeover Code. In the event
of any conflict or inconsistency between the terms and Conditions of the Offer
and the Takeover Code, the provisions of the Takeover Code shall prevail, and
Nioko reserves the right to (and shall if required by the Panel) make such
alterations, additions or modifications to the terms and Conditions of the
Offer so that any such conflict or inconsistency is removed.
(v) Any question as to the validity (including time of receipt)
of any acceptance of the Offer and any question as to, or the acceptance of,
any words or markings on a Form of Acceptance will be determined by Nioko,
whose determination (save as the Panel otherwise determines) will be final and
binding. None of Nioko, Hannam & Partners, SCP Resource, the Receiving
Agent or any other person will be under any duty to give notification of any
defect or irregularity in any purported acceptance of the Offer or will incur
any liability for failure to do so or for any determination under this
paragraph 5(v) of this Part A.
6. Overseas Shareholders
(a) The making and availability of the Offer outside the United
Kingdom and/or to Overseas Shareholders (or to nominees, custodians or
trustees of such persons) may be prohibited or affected by the laws of the
relevant jurisdictions. Such Overseas Shareholders should inform themselves
about and observe any applicable legal requirements. No person receiving a
copy of this document and/or a Form of Acceptance in any jurisdiction other
than the United Kingdom may treat the same as constituting an invitation or
offer to them, nor should they in any event use such Form of Acceptance if, in
the relevant jurisdiction, such invitation or offer cannot lawfully be made to
them or such Form of Acceptance cannot lawfully be used without contravention
of any relevant or other legal requirements. In such circumstances, this
document and/or the Form of Acceptance are sent for information only. It is
the responsibility of such Overseas Shareholder receiving a copy of this
document and/or the Form of Acceptance and wishing to accept the Offer to
satisfy themselves as to the full observance of the laws and regulatory
requirements of the relevant jurisdiction in connection with the Offer,
including obtaining any governmental, exchange control or other consents which
may be required, or compliance with other necessary formalities needing to be
observed and payment of any issue, transfer or other taxes or duties due in
such jurisdiction. Any such Overseas Shareholder will be responsible for any
such issue, transfer or other taxes or other payments by whomsoever payable
and Nioko, Hannam & Partners and SCP Resource (and any person acting on
behalf of either of them) shall be fully indemnified and held harmless by such
Overseas Shareholder for any such issue, transfer or other taxes or duties as
Nioko or Hannam & Partners and SCP Resource (and any person acting on
behalf of either of them) may be required to pay.
If you are an Overseas Shareholder and you are in doubt about your position,
you should consult your independent professional adviser in the relevant
jurisdiction.
(b) In particular, unless otherwise determined by Nioko or
required by the Takeover Code, and permitted by applicable law and regulation,
the Offer will not be made available, directly or indirectly, in, into or from
a Restricted Jurisdiction where to do so would violate the laws in that
jurisdiction and the Offer may not be made directly or indirectly, in or into,
or by the use of any means (including, but not limited to, facsimile, e-mail
or other electronic transmission, telex or telephone) of interstate or foreign
commerce of, or of any facility of a national, state or other securities
exchange of any Restricted Jurisdiction and the Offer may not be capable of
acceptance by any such use or means. Accordingly, copies of this document and
any formal documentation relating to the Offer are not being, and must not be,
directly or indirectly, mailed or otherwise forwarded, distributed or sent in
or into or from any Restricted Jurisdiction.
Persons receiving such documents (including without limitation, custodians,
trustees and nominees) must not mail or otherwise forward, distribute or send
them, directly or indirectly, in, into or from any Restricted Jurisdiction or
use Restricted Jurisdiction mails or any such means for any purpose, directly
or indirectly, in connection with the Offer. Doing so may invalidate any
purported acceptance of the Offer. Persons wishing to accept the Offer must
not use such mails or any such means, directly or indirectly, for any purpose,
directly or indirectly, related to acceptance of the Offer.
Envelopes containing a Form of Acceptance, evidence of title or any other
document relating to the Offer should not be postmarked in a Restricted
Jurisdiction or otherwise despatched from a Restricted Jurisdiction and all
accepting Hummingbird Shareholders must provide addresses outside a Restricted
Jurisdiction for the remittance of consideration or for the return of the Form
of Acceptance, share certificates and/or other document(s) of title.
(c) A Hummingbird Shareholder may be deemed not to have validly
accepted the Offer if:
(i) such Hummingbird Shareholder puts "NO" in Box 5 of the
Form of Acceptance and thereby does not give the representations and
warranties set out in paragraph (b) of Part C of this Part 3 (Further terms
of the Offer and Acceptances), having inserted in or having completed Box 4 of
the Form of Acceptance with a registered address in a Restricted Jurisdiction,
such Hummingbird Shareholder does not insert in Box 4 of the Form of
Acceptance the name and address of a person or agent outside a Restricted
Jurisdiction to whom such Hummingbird Shareholder wishes the consideration to
which they are entitled under the Offer and/or any documents to be sent;
(ii) such Hummingbird Shareholder inserts in Box 4 of the Form
of Acceptance the name and address of a person or agent in a Restricted
Jurisdiction to whom such Hummingbird Shareholder wishes the consideration to
which they are entitled under the Offer and/or any documents to be sent;
(iii) in any case, the Form of Acceptance is received in an
envelope postmarked in, or which otherwise appears to Nioko or its agent to
have been sent from, a Restricted Jurisdiction;
(iv) such Hummingbird Shareholder inserts in the Form of
Acceptance a telephone number in a Restricted Jurisdiction; or
(v) such Hummingbird Shareholder makes a Restricted Escrow
Transfer (as defined in paragraph 6(g)(i) of this Part A) pursuant to
paragraph 6(g) of this Part A unless they also make a related Restricted ESA
instruction (as defined in paragraph 6(g)(ii) of this Part A) which is
accepted by the Receiving Agent.
Nioko reserves the right, in its sole discretion, to investigate, in relation
to any acceptance, whether the representations and warranties set out in
paragraph (b) of Part C of this Part 3 (Further terms of the Offer and
Acceptances),) could have been truthfully given by the relevant Hummingbird
Shareholder and, if such investigation is made and, as a result, Nioko cannot
satisfy itself that such representation and warranty was true and correct, the
acceptance shall not be valid.
(d) If, in connection with the making of the Offer,
notwithstanding the restrictions described above, any person (including,
without limitation, custodians, nominees and trustees), whether pursuant to a
contractual or legal obligation or otherwise, forwards this document, the Form
of Acceptance or any related offering documents, in, into or from a Restricted
Jurisdiction or uses any means (including without limitation, electronic mail,
facsimile transmission, telex, telephone, internet or other forms of
electronic communication) of interstate or foreign commerce of, or any
facility of a national securities exchange of any Restricted Jurisdiction in
connection with such forwarding, such person should:
(i) inform the recipient of such fact;
(ii) explain to the recipient that such action may invalidate
any purported acceptance by the recipient; and
(iii) draw the attention of the recipient to this paragraph 6 of
this Part A.
(e) Any acceptance of the Offer by Hummingbird Shareholders who
are unable to give the representations and warranties set out in paragraph (b)
of Part B of this Part 3 (Further terms of the Offer and Acceptances) or (as
the case may be) paragraph (b) of Part C of this Part 3 (Further terms of
the Offer and Acceptances) is liable to be disregarded.
(f) Nioko reserves the right, in its absolute discretion, to
treat any acceptance as invalid if it believes that such acceptance may
violate applicable legal or regulatory requirements.
(g) If an Hummingbird Shareholder holding Hummingbird Shares in
uncertificated form cannot give the representations and warranties set out in
paragraph (b) of Part C of this Part 3 (Further terms of the Offer and
Acceptances), but nevertheless can provide evidence satisfactory to Nioko that
they can accept the Offer in compliance with all relevant legal and regulatory
requirements, such Hummingbird Shareholder may only purport to accept the
Offer by sending (or if a CREST sponsored member, procuring that their CREST
sponsor sends) both:
(i) a TTE instruction to a designated escrow balance detailed
below (a "Restricted Escrow Transfer"); and
(ii) one or more valid ESA instructions (a "Restricted ESA
instruction") which specify the form of consideration which such Hummingbird
Shareholder wishes to receive (consistent with the alternatives offered under
the Offer).
Such purported acceptance will not be treated as a valid acceptance unless
both the Restricted Escrow Transfer and the Restricted ESA instruction(s)
settle in CREST and Nioko decides, in its absolute discretion, to exercise its
right described in paragraph 7(h) of this Part A to waive, vary or modify the
terms of the Offer relating to Overseas Shareholders, to the extent required
to permit such acceptance to be made, in each case during the period for which
the Offer is open for acceptance. If Nioko accordingly decides to permit such
acceptance to be made, the Receiving Agent will, on behalf of Nioko, accept
the purported acceptance as an Electronic Acceptance on the terms of this
document (as so waived, varied or modified) by transmitting in CREST a
Receiving Agent accept (AEAN) message. Otherwise, the Receiving Agent will, on
behalf of Nioko, reject the purported acceptance by transmitting in CREST a
Receiving Agent reject (AEAD) message. Each Restricted Escrow Transfer must,
in order for it to be valid and settle, include the following details:
· the ISIN number for the Hummingbird Shares (this is
"GB00B60BWY28");
· the number of Hummingbird Shares in uncertificated form
in respect of which you wish to accept the Offer (i.e. the number of
Hummingbird Shares to be transferred to escrow);
· the member account ID and participant ID of the accepting
Hummingbird Shareholder;
· the participant ID of the Receiving Agent specific to a
Restricted Escrow Transfer, being RA10;
· the member account ID of the Receiving Agent for the
Offer, being RESTRICT;
· the intended settlement date. This should be as soon as
possible and, in any event, not later than 1.00 p.m. (London time) on the
Closing Date;
· the corporate action reference of the Offer. This is
allocated by Euroclear and will be available on screen from Euroclear;
· input with a standard delivery instruction priority of
80; and
· a contact name and telephone number in the shared note
field.
Each Restricted ESA instruction must, in order for it to be valid and settle,
include the following details:
· the ISIN number for the Hummingbird Shares (this is
"GB00B60BWY28");
· the number of Hummingbird Shares relevant to that
Restricted ESA instruction;
· the member account ID and participant ID of the accepting
Hummingbird Shareholder;
· the member account ID and participant ID of the Receiving
Agent set out in the Restricted Escrow Transfer;
· the participant ID (being RA10) and the member account ID
(being RESTRICT) of the Receiving Agent relevant to the form of consideration
required;
· the CREST transaction ID of the Restricted Escrow
Transfer to which the Restricted ESA instruction relates to be inserted at the
beginning of the shared note field;
· the intended settlement date. This should be as soon as
possible and in any event not later than 1.00 p.m. (London time) on the
Closing Date;
· the corporate action reference of the Offer. This is
allocated by Euroclear and will be available on screen from Euroclear;
· input with a standard delivery instruction priority of
80; and
· the contact name and telephone number inserted in the
shared note field.
(h) These provisions and any other terms of the Offer relating
to Overseas Shareholders may be waived, varied or modified as regards specific
Hummingbird Shareholders or on a general basis by Nioko in its absolute
discretion. Subject thereto, the provisions of this paragraph 6 of this Part A
supersede any terms of the Offer inconsistent with them. References in this
paragraph 6 of this Part A to an Hummingbird Shareholder include references to
the person or persons executing a Form of Acceptance and, if more than one
person executes the Form of Acceptance, the provisions of this paragraph 6 of
this Part A shall apply to them jointly and severally.
(i) Nioko reserves the right to notify any matter, including
the making of the Offer, to all or any Hummingbird Shareholders:
(i) with a registered address outside the United Kingdom; or
(ii) whom Nioko knows to be a custodian, trustee or nominee
holding Hummingbird Shares for persons who are citizens, residents or
nationals of jurisdictions outside the United Kingdom,
by announcement in the United Kingdom through a Regulatory Information Service
or in any other appropriate manner or by notice in the London Gazette or paid
advertisement in one or more newspapers published and circulated in the United
Kingdom. Such notice shall be deemed to have been sufficiently given, despite
any failure by any such Hummingbird Shareholder to receive or see that notice.
(j) A reference in this document to a notice or the provision
of information in writing by or on behalf of Nioko is to be construed
accordingly. No such document shall be sent to an address in a Restricted
Jurisdiction.
Part B
FORM OF ACCEPTANCE
This Part B applies only to Hummingbird Shares held in certificated form. If
you hold all of your Hummingbird Shares in uncertificated form, you should
ignore this Part B and instead read Part C of this PART 3 (Further terms of
the Offer and Acceptances).
For the purposes of Part B of this PART 3 (Further terms of the Offer and
Acceptances) and the Form of Acceptance, the phrase "Hummingbird Shares in
certificated form comprised in the acceptance" shall mean the number of
Hummingbird Shares inserted in Box 1 of the Form of Acceptance or, if no
number is inserted (or a number greater than the relevant Hummingbird
Shareholder's holding of Hummingbird Shares), the greater of:
· the relevant Hummingbird Shareholder's entire holding
of Hummingbird Shares in certificated form as disclosed by details of the
Register made available to the Receiving Agent prior to the time the relevant
Form of Acceptance is processed by them;
· the relevant Hummingbird Shareholder's entire holding
of Hummingbird Shares in certificated form as disclosed by details of the
Register made available to the Receiving Agent prior to the latest time for
receipt of Form(s) of Acceptance on the Closing Date; and
· the number of Hummingbird Shares in certificated form
in respect of which certificates or an indemnity in lieu thereof is received.
Each Hummingbird Shareholder by whom, or on whose behalf, a Form of Acceptance
is executed and delivered to the Receiving Agent irrevocably undertakes,
represents, warrants and agrees to and with Nioko, Hannam & Partners, SCP
Resource and the Receiving Agent (so as to bind such Hummingbird Shareholder
and such Hummingbird Shareholder's personal or legal representatives, heirs,
successors and assigns) to the following effect:
(a) that the execution of the Form of Acceptance (whether or not
any Boxes are completed and whether or not the Form of Acceptance is validly
executed as a deed) shall constitute:
(i) an acceptance of the Offer in respect of the number of
Hummingbird Shares in certificated form inserted or deemed to be inserted in
Box 1 of the Form of Acceptance; and
(ii) an undertaking to execute any further documents, take any
further action and give any further assurances which may be required to enable
Nioko to obtain the full benefit of this Part B of this Part 3 (Further
terms of the Offer and Acceptances) and/or to perfect any of the authorities
expressed to be given hereunder and otherwise in connection with such
Hummingbird Shareholder's acceptance of the Offer,
in each case on and subject to the terms and conditions set out or referred to
in this document and in the Form of Acceptance and that each such acceptance
shall be irrevocable provided that if:
(A) Box 1 or any other Box is not completed; or
(B) the total number of Hummingbird Shares inserted in Box 1 is
greater than the relevant Hummingbird Shareholder's holding of Hummingbird
Shares; or
(C) the acceptance is otherwise completed incorrectly or the
number included is illegible,
but the Form of Acceptance is signed, it will be deemed to be an acceptance of
the Offer in respect of all of the Hummingbird Shares in certificated form
comprised in the acceptance;
(b) unless "NO" is put in Box 5 of the Form of Acceptance, that
such Hummingbird Shareholder:
(i) has not, directly or indirectly, received or sent copies
or originals of this document, the Form of Acceptance or any related offering
documents in, into or from a Restricted Jurisdiction;
(ii) has not, in connection with the Offer or the execution or
delivery of the Form of Acceptance, used, directly or indirectly, any means
(including, without limitation, facsimile transmission email, telephone,
internet or otherwise) of interstate or foreign commerce of, or any facility
of a national securities exchange of any Restricted Jurisdiction;
(iii) is accepting the Offer from outside any Restricted
Jurisdiction and was outside such jurisdictions when the Form of Acceptance
was executed, mailed, sent or delivered;
(iv) is not an agent or fiduciary acting on a non-discretionary
basis for a principal, unless such agent or fiduciary is an authorised
employee of such principal or such principal has given all instructions with
respect to the Offer from outside a Restricted Jurisdiction; and
(v) if an Overseas Shareholder, has observed the laws of the
relevant jurisdiction in connection with the Offer, obtained all requisite
governmental, exchange control and other required consents, complied with all
necessary formalities and paid any issue, transfer or other taxes or other
requisite payments due in any such jurisdiction in connection with such
acceptance and has not taken or omitted to take any action that will or may
result in Nioko, Hannam & Partners and SCP Resource or any other person
acting on behalf of them being in breach of the legal or regulatory
requirements of, or be liable for any issue, transfer or other taxes or duties
or other payments in, any such jurisdiction in connection with the Offer or
such Hummingbird Shareholder's acceptance thereof;
(c) that, in relation to Hummingbird Shares in certificated
form, the execution of the Form of Acceptance and its delivery to the
Receiving Agent constitutes the irrevocable and separate appointment of each
of Nioko, Hannam & Partners, SCP Resource and any director of, or any
person authorised by, any of them as such shareholder's attorney and/or agent
(the "attorney") and an irrevocable instruction and authorisation to the
attorney to:
(i) complete and execute all or any form(s) of transfer and/or
other document(s) at the discretion of the attorney in relation to the
Hummingbird Shares in certificated form comprised in the acceptance in favour
of Nioko or such other person or persons as Nioko or its agent may direct in
connection with the acceptance of the Offer;
(ii) deliver such form(s) of transfer, renunciation and/or
other document(s) in the attorney's discretion and/or the certificate(s)
and/or other document(s) of title relating to such Hummingbird Shares for
registration within six months of the Closing Date; and
(iii) execute all such other documents and do all such other
acts and things as may, in the attorney's opinion, be necessary or expedient
for the purpose of, or in connection with, the acceptance of the Offer and to
vest in Nioko (or its nominee) the Hummingbird Shares in certificated form
comprised in the acceptance;
(d) that, in relation to Hummingbird Shares in certificated
form, the execution of the Form of Acceptance and its delivery to the
Receiving Agent constitutes an irrevocable authority and request, subject to
the provisions of paragraph 7 of Part A of this Part 3 (Further terms of
the Offer and Acceptances):
(i) to Hummingbird and/or its agents to procure the
registration of the transfer of the Hummingbird Shares in certificated form
comprised in the acceptance and the delivery of the share certificate(s)
and/or other document(s) of title, or satisfactory indemnities, in respect of
the Hummingbird Shares to Nioko or as it may direct; and
(ii) to Nioko, Hannam & Partners, SCP Resource and the
Receiving Agent or their respective agents to procure the despatch by post (or
by such other method as the Panel may approve) of the cheque for the Cash
Consideration to which an accepting Hummingbird Shareholder is entitled to
under the Offer, at the risk of such shareholder, to the person or agent whose
name and address is set out in Box 3 or Box 4 of the Form of Acceptance
(outside a Restricted Jurisdiction), or if none is set out, to the first-named
or sole holder at such holder's registered address (outside a Restricted
Jurisdiction);
(e) that the execution of the Form of Acceptance and its
delivery to the Receiving Agent constitutes the giving of a separate authority
to each of Nioko, Hannam & Partners, SCP Resource and the Receiving Agent
and any director or agent of, or any person authorised by, any of them as
their agent and/or attorney within the terms set out in paragraph 4 of Part A
of this Part 3 (Further terms of the Offer and Acceptances) in respect of the
Hummingbird Shares in certificated form comprised in the acceptance;
(f) that, unless the Panel otherwise consents, in respect of
Hummingbird Shares in relation to which the Offer has been accepted or deemed
to be accepted and pending registration in the name of Nioko or as it may
direct:
(i) Nioko and its agent shall be authorised to direct the
exercise of any votes and any or all other rights and privileges (including
the right to requisition the convening of a general meeting of Hummingbird or
of any class of its shareholders) attaching to the Hummingbird Shares in
certificated form comprised or deemed to be comprised in such acceptance; and
(ii) the execution of a Form of Acceptance by a Hummingbird
Shareholder shall constitute with regard to such Hummingbird Shares in
certificated form comprised in the acceptance:
(A) an authority to Hummingbird and its agents to send any
notice, circular, warrant, document or other communication which may be
required to be sent to such Hummingbird Shareholder as a member of Hummingbird
(including any share certificate(s) or other document(s) of title) to Nioko at
its registered office;
(B) an irrevocable authority to Nioko and the directors of and
any other person authorised by Nioko, to sign any document and to do such
things as may, in the opinion of that agent and/or attorney, seem necessary or
desirable in connection with the exercise of any votes or other rights or
privileges attaching to the Hummingbird Shares held by such Hummingbird
Shareholder in certificated form (including, without limitation, signing any
consent to short notice of a general or separate class meeting as such
Hummingbird Shareholder's attorney and/or agent and on such Hummingbird
Shareholder's behalf and/or to attend and/or execute a form of proxy in
respect of such Hummingbird Shares appointing any person nominated by Nioko to
attend general and separate class meetings of Hummingbird (and any
adjournments thereof) and to exercise the votes attaching to such shares on
such Hummingbird Shareholder's behalf, where relevant; and
(C) the agreement of such Hummingbird Shareholder not to
exercise any of such rights without the consent of Nioko and the irrevocable
undertaking of such Hummingbird Shareholder not to appoint a proxy to attend
any such general meeting or separate class meeting of Hummingbird,
(g) that such Hummingbird Shareholder will deliver to the
Receiving Agent, or procure the delivery to the Receiving Agent at the address
referred to in paragraph 4(c)(i) of Part A of this Part 3 (Further terms of
the Offer and Acceptances) of, share certificate(s) or other document(s) of
title in respect of those Hummingbird Shares in certificated form comprised in
the acceptance, or an indemnity acceptable to Nioko in lieu thereof, as soon
as possible, and in any event so as to arrive by no later than the latest
permissible time on the Closing Date;
(h) that such Hummingbird Shareholder is the sole legal and
beneficial owner of the Hummingbird Shares comprised or deemed to be comprised
in such acceptance or is the legal owner of such Hummingbird Shares and has
the necessary capacity and authority to execute the Form of Acceptance;
(i) that such Hummingbird Shareholder is irrevocably and
unconditionally entitled to sell and transfer the beneficial ownership of the
Hummingbird Shares comprised or deemed to be comprised in such acceptance and
that such shares are sold fully paid up and free from all liens, charges,
equities, encumbrances, rights of pre-emption and any other interests of any
nature whatsoever and together with all rights now or hereafter attaching
thereto, including without limitation voting rights and the right to receive
and retain in full all dividends and other distributions (if any) announced,
declared, made or paid or any other return of value on the Closing Date;
(j) that the terms and conditions of the Offer contained in
this document shall be deemed to be incorporated in, and form part of, the
Form of Acceptance which shall be read and construed accordingly;
(k) that, if such Hummingbird Shareholder accepts the Offer,
they will do all such acts and things as shall be necessary or expedient to
vest the Hummingbird Shares in certificated form comprised in the acceptance
in Nioko or its nominee(s) or such other persons as Nioko may decide;
(l) that such Hummingbird Shareholder agrees to ratify each
and every act or thing which may be done or effected by Nioko, Hannam &
Partners, SCP Resource or the Receiving Agent or any of their respective
directors or agents or persons authorised by them, as the case may be, in the
exercise of any of any such person's powers and/or authorities under this
document;
(m) that the execution of the Form of Acceptance constitutes such
Hummingbird Shareholder's agreement to the terms of paragraphs 6(i) and 6(j)
of Part A of this Part 3 (Further terms of the Offer and Acceptances);
(n) that the Form of Acceptance shall be deemed to be delivered
on its date of execution and shall take effect as a deed on such date;
(o) that if any provision of Part A or Part B of this Part 3
(Further terms of the Offer and Acceptances) shall be unenforceable or invalid
or shall not operate so as to afford Nioko, Hannam & Partners, SCP
Resource or the Receiving Agent or any of their respective directors, agents
or persons authorised by them, the benefit or authority expressed to be given
therein, such Hummingbird Shareholder shall, with all practicable speed, do
all such acts and things and execute all such documents as may be required to
enable Nioko, Hannam & Partners, SCP Resource and/or the Receiving Agent
and any of their respective directors, agents or persons authorised by them to
secure the full benefits of Part A or Part B of this Part 3 (Further terms
of the Offer and Acceptances); and
(p) that such Hummingbird Shareholder is not a customer (as
defined by the FCA Handbook) of Hannam & Partners and SCP Resource in
connection with the Offer.
References in this Part B to an Hummingbird Shareholder shall include
references to the person or persons executing a Form of Acceptance, and in the
event of more than one person executing a Form of Acceptance, the provisions
of this Part B shall apply to them jointly and to each of them.
Part C
ELECTRONIC ACCEPTANCE
This Part C applies only to Hummingbird Shares held in uncertificated form,
that is in CREST. If you hold all of your Hummingbird Shares in certificated
form, you should ignore this Part C and instead read Part B of this Part 3
(Further terms of the Offer and Acceptances).
For the purposes of this Part C of this Part 3 (Further terms of the Offer
and Acceptances), the phrase "Hummingbird Shares in uncertificated form
comprised in the acceptance" shall mean the number of Hummingbird Shares which
are transferred by the relevant Hummingbird Shareholder by Electronic
Acceptance to an escrow account by means of a TTE instruction.
Each Hummingbird Shareholder by whom, or on whose behalf, an Electronic
Acceptance is made irrevocably undertakes, represents, warrants and agrees to
and with Nioko, Hannam & Partners, SCP Resource and the Receiving Agent
(so as to bind such Hummingbird Shareholder and such Hummingbird Shareholder's
personal or legal representatives, heirs, successors and assigns) to the
following effect:
(a) that the Electronic Acceptance shall constitute:
(i) an acceptance of the Offer in respect of the number of
Hummingbird Shares in uncertificated form to which a TTE instruction relates;
and
(ii) an undertaking to execute any documents, take any further
action and give any further assurances which may be required to enable Nioko
to obtain the full benefit of this Part C of this Part 3 (Further terms of
the Offer and Acceptances) and/or to perfect any of the authorities expressed
to be given hereunder and otherwise in connection with his acceptance of the
Offer,
in each case on and subject to the terms and conditions set out or referred to
in this document and that each such acceptance and election shall be
irrevocable;
(b) that such Hummingbird Shareholder:
(i) has not, directly or indirectly, received or sent copies
or originals of this document, the Form of Acceptance or any related offering
documents, in, into or from a Restricted Jurisdiction;
(ii) has not otherwise used in connection with the Offer,
directly or indirectly, any means (including, without limitation, facsimile
transmission email, TTE instruction, telephone, internet or otherwise) of
interstate or foreign commerce of, or any facility of a national securities
exchange of any Restricted Jurisdiction;
(iii) is accepting the offer from outside any Restricted
Jurisdiction and was outside those jurisdictions at the time of the input and
settlement of the relevant TTE instruction(s);
(iv) in respect of the Hummingbird Shares to which an Electronic
Acceptance relates, is not an agent or fiduciary acting on a non-discretionary
basis for a principal, unless such agent or fiduciary is an authorised
employee of such principal or such principal has given all instructions with
respect to the Offer from outside a Restricted Jurisdiction; and
(v) if an Overseas Shareholder, has observed the laws of the
relevant jurisdiction, obtained all requisite governmental, exchange control
and other required consents, complied with all necessary formalities and paid
any issue, transfer or other taxes or other requisite payments due in any such
jurisdiction in connection with such acceptance and has not taken or omitted
to take any action that will or may result in Nioko, Hannam & Partners and
SCP Resource or any other person acting on behalf of them being in breach of
the legal or regulatory requirements of any such jurisdiction in connection
with the Offer or such Hummingbird Shareholder's acceptance thereof;
(c) that the Electronic Acceptance constitutes the irrevocable
appointment of each of Nioko, Hannam & Partners and SCP Resource and any
director of, or any person authorised by, any of them as such shareholder's
attorney and/or agent and an irrevocable instruction and authorisation to the
attorney to execute all such documents and do all such acts and things as may
in the attorney's opinion be necessary or expedient for the purpose of, or in
connection with, the acceptance of the Offer and to vest in Nioko (or its
nominee) the full legal title and beneficial ownership of Hummingbird Shares
in uncertificated form comprised in the acceptance;
(d) that the Electronic Acceptance constitutes the irrevocable
appointment of the Receiving Agent as escrow agent for the purposes of the
Offer and an irrevocable instruction and authorisation.
(e) that the Electronic Acceptance constitutes an irrevocable
authority and request to Nioko, the Receiving Agent or their respective agents
to procure the making of a CREST payment obligation in favour of the
Hummingbird Shareholder's payment bank in accordance with the CREST payment
arrangements in respect of any Cash Consideration to which such shareholder is
entitled, provided that:
(i) Nioko may (if, for reasons, outside its reasonable
control, it is not able to effect settlement through CREST) determine that all
or any part of any such Cash Consideration shall be paid by cheque despatched
by post; and
(ii) if the Hummingbird Shareholder concerned is a CREST
member whose registered address is in a Restricted Jurisdiction, any Cash
Consideration to which such shareholder is entitled may be paid by cheque
despatched by post,
in any case at the risk of such shareholder, and such cheque shall be
despatched to the first named holder at such holder's registered address
outside a Restricted Jurisdiction or as otherwise determined by Nioko;
(f) that the Electronic Acceptance constitutes the giving of a
separate authority to each of Nioko, Hannam & Partners, SCP Resource and
the Receiving Agent and their respective directors, agents and authorised
persons within the terms of paragraph 4 of Part A of this Part 3 (Further
terms of the Offer and Acceptances) in respect of the Hummingbird Shares in
uncertificated form comprised in the acceptance;
(g) that, unless the Panel otherwise consents, in respect of
Hummingbird Shares in relation to which the Offer has been accepted or deemed
to be accepted and pending registration in the name of Nioko or as it may
direct:
(i) Nioko and its agent shall be authorised to direct the
exercise of any votes and any or all other rights and privileges (including
the right to requisition the convening of a general meeting of Hummingbird or
of any class of its shareholders) attaching to the Hummingbird Shares in
uncertificated form comprised or deemed to be comprised in the acceptance; and
(ii) an Electronic Acceptance by a Hummingbird Shareholder
shall constitute with regard to such Hummingbird Shares in uncertificated form
comprised in the acceptance:
(A) an authority to Hummingbird and its agents to send any
notice, circular, warrant, document or other communication which may be
required to be sent to such Hummingbird Shareholder as a member of Hummingbird
(including any share certificate(s) or other document(s) of title issued as a
result of a conversion of such Hummingbird Shares into certificated form) to
Nioko at its registered office;
(B) an irrevocable authority to each of Nioko and the directors
of and any other person authorised by Nioko to sign any document and to do
such things as may, in the opinion of that agent and/or attorney, seem
necessary or desirable in connection with the exercise of any votes or other
rights or privileges attaching to the Hummingbird Shares held by such
Hummingbird Shareholder in uncertificated form (including, without limitation,
signing any consent to short notice of a general or separate class meeting as
such Hummingbird Shareholder's attorney and/or agent and on such Hummingbird
Shareholder's behalf and/or to attend and/or execute a form of proxy in
respect of such Hummingbird Shares appointing any person nominated by Nioko to
attend general and separate class meetings of Hummingbird (and any
adjournments thereof) and to exercise the votes attaching to such shares on
such Hummingbird Shareholder's behalf); and
(C) the agreement of such Hummingbird Shareholder not to
exercise any of such rights without the consent of Nioko and the irrevocable
undertaking of such Hummingbird Shareholder not to appoint a proxy to attend
any such general meeting or separate class meeting;
(h) that such Hummingbird Shareholder is irrevocably and
unconditionally entitled to sell and transfer the beneficial ownership of the
Hummingbird Shares comprised or deemed to be comprised in such acceptance and
that such shares are sold fully paid up and free from all liens, charges,
equities, encumbrances, rights of pre-emption and any other interests of any
nature whatsoever and together with all rights now or hereafter attaching
thereto, including without limitation voting rights and the right to receive
and retain in full all dividends and other distributions (if any) announced,
declared, made or paid or any other return of value on the Closing Date;
(i) that such Hummingbird Shareholder is the sole legal and
beneficial owner of the Hummingbird Shares in uncertificated form in respect
of which the Offer is accepted or deemed to be accepted or is the legal owner
of such Hummingbird Shares and has the necessary capacity and authority to
effect an Electronic Acceptance;
(j) that such Hummingbird Shareholder will do all such acts
and things as shall, in the opinion of Nioko, be necessary or expedient to
vest in Nioko (or its nominee(s)) the Hummingbird Shares in uncertificated
form comprised or deemed to be comprised in the acceptance and to enable the
Receiving Agent to perform its function as escrow agent for the purposes of
the Offer;
(k) that such Hummingbird Shareholder agrees to ratify each and
every act or thing which may be done or effected by Nioko, Hannam &
Partners, SCP Resource or the Receiving Agent or any of their respective
directors, agents or persons authorised by them, as the case may be, in the
exercise of any of such person's powers and/or authorities under this
document;
(l) that if, for any reason, any Hummingbird Shares in respect
of which a TTE instruction has been effected in accordance with paragraph 17.2
of Part 1 (Letter from Nioko) of this document are converted to certificated
form, such Hummingbird Shareholder will (without prejudice to paragraph
(g)(ii)(A) of this Part C) immediately deliver, or procure the immediate
delivery of, the share certificate(s) or other document(s) of title in respect
of all such Hummingbird Shares as so converted to the Receiving Agent at the
address referred to in paragraph 3(b) of Part A of this Part 3 (Further
terms of the Offer and Acceptances) or to Nioko at its registered office or as
Nioko or its agents may direct; and such Hummingbird Shareholder shall be
deemed upon conversion to undertake, represent, warrant and agree in the terms
set out in Part B of this Part 3 (Further terms of the Offer and
Acceptances) in relation to such Hummingbird Shares without prejudice to the
application of this Part 3 as far as Nioko deems appropriate;
(m) that the creation of a CREST payment obligation in favour of
such Hummingbird Shareholder's payment bank in accordance with the CREST
payment arrangements referred to in paragraph ((e)) of this Part C shall, to
the extent of the obligation so created, discharge in full any obligation of
Nioko, Hannam & Partners, SCP Resource or the Receiving Agent to pay such
Hummingbird Shareholder the Cash Consideration to which they are entitled
pursuant to the Offer;
(n) that the making of an Electronic Acceptance constitutes such
Hummingbird Shareholder's agreement to the terms of paragraphs 6(i) and 6(j)
of Part A of this Part 3 (Further terms of the Offer and Acceptances);
(o) that, by virtue of the Regulations, the making of an
Electronic Acceptance constitutes an irrevocable power of attorney by the
relevant Hummingbird Shareholder in the terms of all the powers and
authorities expressed to be given by Part A, Part B (where applicable by
virtue of paragraph (l) of this Part C) and this Part C of this Part 3
(Further terms of the Offer and Acceptances) to Nioko, the Receiving Agent,
Hannam & Partners and SCP Resource and any of their respective directors
or agents;
(p) that if any provision of Part A or this Part C of this
Part 3 (Further terms of the Offer and Acceptances) shall be unenforceable or
invalid or shall not operate so as to afford Nioko, Hannam & Partners, SCP
Resource or the Receiving Agent or any of their respective directors, agents
or persons authorised by them, the benefit or authority expressed to be given
therein, such Hummingbird Shareholder shall, with all practicable speed, do
all such acts and things and execute all such documents that may be required
to enable Nioko, Hannam & Partners, SCP Resource or the Receiving Agent or
any of their respective directors, agents or persons authorised by them to
secure the full benefits of Part A or this Part C of this Part 3 (Further
terms of the Offer and Acceptances); and
(q) that such Hummingbird Shareholder is not a customer (as
defined by the FCA Handbook) of Hannam & Partners and SCP Resource in
connection with the Offer.
References in this Part C to an Hummingbird Shareholder shall include
references to the person or persons making an Electronic Acceptance and, if
more than one makes an Electronic Acceptance, the provisions of this Part C
shall apply to them jointly and to each of them.
PART 4
ADDITIONAL INFORMATION
Part A
ADDITIONAL INFORMATION ON THE CIG PARTIES AND HUMMINGBIRD
1. RESPONSIBILITY
(a) The Nioko Directors, whose names are set out in paragraph 2
of this Part A of Part 4 (Additional Information), accept responsibility for
all the information contained in this document (including any expressions of
opinion) in relation to Nioko including, without limitation, information
relating to Nioko's future intentions for Hummingbird, except for that
information for which the Hummingbird Directors accept responsibility under
paragraph 1(b) below. To the best of the knowledge and belief of the Nioko
Directors (who have taken all reasonable care to ensure that such is the
case), the information contained in this document (including any expressions
of opinion) for which they accept responsibility is in accordance with the
facts and does not omit anything likely to affect the import of that
information.
(b) The Hummingbird Directors, whose names are set out in
paragraph 2 of this Part A of Part 4 (Additional Information), accept
responsibility for all the information contained in this document (including
any expressions of opinion) in relation to Hummingbird, except for that
information for which the Nioko Directors accept responsibility under
paragraph 1(a)above. To the best of the knowledge and belief of the
Hummingbird Directors (who have taken all reasonable care to ensure that such
is the case), the information contained in this document (including any
expressions of opinion) for which they accept responsibility is in accordance
with the facts and does not omit anything likely to affect the import of that
information.
2. NIOKO DIRECTORS AND HUMMINGBIRD DIRECTORS
(a) The Nioko Directors and their respective positions are set
out below:
Mr. Oumar Toguyeni Director of Nioko
Mr. Issaka Kanazoe Director of Nioko
Mr. Yacouba Saré Director of Nioko
The registered office of Nioko and the business address of the Nioko Directors
is Avenue de l'UEMOA, 2cmeetage of the building built on plot N°10 of lot 20
section 006 ZACA, 01 BP 2061 Ouagadougou 01, Burkina Faso.
(b) The Hummingbird Directors and their respective functions
are:
Dan Betts
Executive Chairman
Geoff Eyre
Interim Chief Executive Officer
Thomas Hill Finance
Director
Stephen Betts Non-Executive
Director
David Straker-Smith Non-Executive Director
Attie Roux
Non-Executive Director
Ernie Nutter
Non-Executive Director
Oumar Toguyeni Non-Executive
Director
The registered office of Hummingbird, which is also the business address of
each of the Hummingbird Directors, is 49-63 Spencer Street, Hockley,
Birmingham, West Midlands, B18 6DE.
3. DISCLOSURE OF INTERESTS AND DEALINGS
For the purposes of this paragraph 3:
"acting in concert" has the meaning given to it in the Takeover Code;
"arrangement" has the meaning given to it in Note 11 to the definition of "acting in
concert" set out in the Takeover Code;
"Nioko Disclosure Period" means the period commencing on 6 November 2023, being the date 12 months
before the commencement of the Offer Period, and ending on the Latest
Practicable Date;
"close relatives" has the meaning given to it in the Takeover Code;
"dealing" has the meaning given to it in the Takeover Code;
"derivative" has the meaning given to it in the Takeover Code;
"Hummingbird Disclosure Period" means the period commencing on 6 November 2024, being the date of commencement
of the Offer Period, and ending on the Latest Practicable Date;
"Interested Persons" means, in relation to a director, other persons (including, without
limitation, bodies corporate) whose interests that director is taken as having
by virtue of the application of Part 22 of the Companies Act and related
regulations;
"relevant securities" means: (i) the Hummingbird Shares, (ii) the equity share capital of Nioko and
(iii) securities convertible into, rights to subscribe for, options (including
traded options) in respect of and derivatives referenced to the Hummingbird
Shares and the equity share capital of Nioko (as appropriate); and "relevant
Hummingbird securities" and "relevant Nioko securities" shall be construed
accordingly; and
"short positions" means short positions, whether conditional or absolute and whether in the
money or otherwise, including any short position under a derivative, any
agreement to sell or any delivery obligation or right to require another
person to purchase or take delivery.
Interests in relevant Hummingbird securities
(a) Further to the approvals granted at the December General
Meeting, Nioko subscribed for 130,958,159 new Ordinary Shares in Hummingbird
under the Stage 1 Conversion, which were admitted on 24 December 2024. The
Debt-to-Equity Conversion completed on 7 January 2025 with Nioko subscribing
for an additional 732,121,332 newly issued Ordinary Shares in Hummingbird
under the Stage 2 Conversion. As such, as at the close of business on the
Latest Practicable Date Nioko holds 1,202,312,639 Ordinary Shares,
representing approximately 71.8 per cent. of Hummingbird's existing issued
share capital.
(b) As at the close of business on the Latest Practicable Date,
save as disclosed in (a) above, none of Nioko, any persons acting in concert
with Nioko, the Nioko Directors, their immediate families, close relatives or
related trusts or other Interested Persons of the Nioko Directors have any
interests in, or rights to subscribe in, the share capital of Hummingbird, nor
has any such person dealt in any relevant Hummingbird securities during the
Nioko Disclosure Period.
(c) Save as announced by Hummingbird in its announcement of 27
December 2024 relating to Nioko's subscription for an additional 130,958,159
Ordinary Shares of Hummingbird under the Subscription Agreement, no person
with whom Nioko or any person acting in concert with Nioko has dealt in any
relevant Hummingbird securities during the Nioko Disclosure Period.
(d) As at the close of business on the Latest Practicable Date,
none of Hummingbird, the Hummingbird Directors, their immediate families or
persons connected with them, or acting in concert with them have any interests
in, or rights to subscribe in, the share capital of Nioko.
(e) As at the close of business on the Latest Practicable Date,
the interests, rights to subscribe and short positions of the Hummingbird
Directors, their immediate families and persons connected with them in the
share capital of Hummingbird, together with any options in respect of such
share capital (all of which holdings are beneficially held unless otherwise
stated), required to be notified to Hummingbird or which are required to be
entered into Hummingbird's Shareholder register, are as set out below):
Director Number of Ordinary Shares Percentage of voting rights (%)
Dan Betts(1,) 5,239,048 0.31
Thomas Hill 641,574 0.04
Stephen Betts(1, 2) 2,503,500 0.15
David Straker-Smith - -
Attie Roux - -
Ernie Nutter 6,993,780 0.42
Geoff Eyre - -
Oumar Toguyeni - -
1 In addition, Dan and Stephen Betts are indirectly interested in a further
495,101 Ordinary Shares held by Stephen Betts & Sons Limited ("SBSL") and
a self-administered pension scheme. SBSL is a private company that is wholly
owned and controlled by Dan and Stephen Betts, certain other close family
members and a family trust.
2 Includes 800,000 shares held by Caroline Betts, the wife of Stephen Betts.
(f) As at the close of business on the Latest Practicable
Date, the Hummingbird Directors held the following options under the
Hummingbird Share Plans:
Director No of vested Options held No of unvested Options held** Percentage of voting rights represented by options, assuming full exercise (%)
Dan Betts 4,370,521 12,580,526 0.99
Thomas Hill 3,003,934 8,133,072 0.65
Stephen Betts* 698,747 272,021 0.06
David Straker-Smith* 698,747 272,021 0.06
Attie Roux* 698,747 272,021 0.06
Ernie Nutter* 698,747 272,021 0.06
Geoff Eyre N/A N/A N/A
Oumar Toguyeni N/A N/A N/A
* The total of vested and unvested Options includes 970,768 Hummingbird Shares
under the Hummingbird Deferred Share Awards as referred to below.
** Options which have been granted but only vest subject to certain
milestones.
(g) In recognition of the significant experience and the high
level of personal commitment of the Hummingbird Non-Executive Directors, each
Hummingbird Non-Executive Director (other than Oumar Toguyeni) receives an
annual Hummingbird Deferred Share Award. The aggregate value of the award in
2024 was £26,250, vesting one year from award date. Hummingbird Shares will
not be issued in respect of these awards until the earlier of an individual
ceasing to hold office or a change of control. Each of the Non-Executive
Directors hold Hummingbird Deferred Share Awards in respect of 970,768
Hummingbird Shares. For details on arrangements proposed to be implemented in
respect of the Hummingbird Deferred Share Awards, see paragraph 10
(Hummingbird Share Plans) of Part 1 (Letter from Nioko) of this document.
(h) As at the close of business on the Latest Practicable Date
and save as disclosed at (d) above, none of (i) Hummingbird, (ii) the
Hummingbird Directors; (iii) any of the Hummingbird Directors' immediate
families or related trusts; (iv) the pension funds of Hummingbird or its
subsidiary undertakings; (v) any employee benefit trust of Hummingbird or its
subsidiary undertakings; (vi) any connected adviser to Hummingbird or its
subsidiary undertakings or any person acting in concert with the Hummingbird
Directors; (vii) any person controlling, controlled by or under the same
control as any connected adviser falling within (vi) above (except for an
exempt principal trader or an exempt fund manager); nor (viii) any other
person acting in concert with Hummingbird; owns or controls, has a short
position, or has borrowed or lent, or is interested in, or has any right to
subscribe for, or any arrangement concerning, directly or indirectly, any
relevant securities of Hummingbird or Nioko.
(i) Save as announced by Hummingbird on 10 January 2024 or the
terms of the Irrevocable Undertakings referred to in paragraph 4 of this
Part A of Part 4 below, none of the Hummingbird Directors, nor any member of
their immediate families or related trusts (so far as the Hummingbird
Directors are aware having made due enquiry), dealt in relevant securities of
Hummingbird during the 12 months prior to the Latest Practicable Date.
(j) Neither Hummingbird nor any of the Hummingbird Directors
nor any member of their immediate families or related trusts, owns or controls
or is interested, directly or indirectly in or has any short position in Nioko
or any securities convertible into, or exchangeable for, rights to subscribe
for and options (including traded options) in respect of, and derivatives
referenced to, any of the foregoing.
(k) No management incentivisation arrangements have been
discussed between members of the Hummingbird's management and Nioko.
(l) Other than Nioko there are no shareholders with a direct
or indirect interest or potential interest in more than 5 per cent. voting
rights in Hummingbird.
4. IRREVOCABLE UNDERTAKINGS
(a) Nioko has procured irrevocable undertakings from the
Hummingbird Directors who hold Hummingbird Shares to accept (or procure the
acceptance of, as applicable) the Offer. Such irrevocable undertakings are in
respect of the following relevant Hummingbird securities:*
Name of Hummingbird Director Number of Hummingbird Shares in respect of which undertaking is given Percentage of Hummingbird issued share capital (excluding treasury shares) in
respect of which undertaking is given as at the Latest Practicable Date (%)
Dan Betts(1,) 5,239,048 0.31
Thomas Hill 641,574 0.04
Stephen Betts(1, 2) 2,503,500 0.15
Ernie Nutter 6,993,780 0.42
Total 15,377,902 0.92
*These irrevocable undertakings extend to any Hummingbird Shares acquired by
the Hummingbird Director as a result of the vesting of awards and/or the
exercise of options under any Hummingbird share plans.
1 In addition, Dan and Stephen Betts are indirectly interested in a further
495,101 Ordinary Shares held by Stephen Betts & Sons Limited (SBSL) and a
self-administered pension scheme. SBSL is a private company that is wholly
owned and controlled by Dan and Stephen Betts, certain other close family
members and a family trust.
2 Includes 800,000 shares held by Caroline Betts, the wife of Stephen Betts.
(b) These irrevocable undertakings concern 15,377,902 Hummingbird
Shares representing approximately 0.92 per cent. of the issued share capital
of Hummingbird (excluding treasury shares) at close of business on 10 January
2025 (being the Latest Practicable Date).
(c) These irrevocable undertakings include undertaking to:
(i) accept the Offer;
(ii) not to sell, transfer, charge, grant any option or other
right over or otherwise dispose of or deal (directly or indirectly and whether
beneficially, legally or otherwise) in the relevant Ordinary Shares or any
interest in all or any of them or permit any dealing, nor enter into any
agreement or arrangement (whether conditional or not) to deal, nor accept (or
permit to be accepted) any offer in respect of all or any of such Ordinary
Shares, save with consent of Hummingbird;
(iii) continue to have full power and authority to enter into
and perform the irrevocable undertaking in accordance with its terms;
(iv) if required by Hummingbird, return a duly executed Form of
Proxy in respect of the relevant Ordinary Shares (if certificated), or in the
case of uncertificated shares, to take any action that may be required by
Hummingbird to make a valid proxy appointment and give valid CREST proxy
instructions;
(v) execute all such documents, acts and things as may be
necessary and desirable to be executed in connection with their obligations
under the irrevocable undertaking.
The undertakings described in this paragraph 4 are in addition to the
irrevocable undertakings relating to the Rule 9 Waiver Resolutions as
described in the Circular.
5. MARKET QUOTATIONS
The following table sets out the middle market quotations for Hummingbird
Shares derived from Bloomberg, for: (i) the first Business Day in each of the
six months before the date of this document, (ii) 5 November 2024 (the last
Business Day before the commencement of the Offer Period), and (iii) the
Latest Practicable Date:
Relevant date Hummingbird Share price (£)
1 July 2024 0.0850
1 August 2024 0.0865
2 September 2024 0.0860
1 October 2024 0.0665
1 November 2024 0.0640
5 November 2024 0.0635
2 December 2024 0.0180
2 January 2025 0.0250
Latest Practicable Date 0.0260
6. SERVICE CONTRACTS AND LETTERS OF APPOINTMENT OF HUMMINGBIRD
DIRECTORS
Certain details of the Hummingbird Directors' service contracts, letters of
appointment and the terms of their appointment with a member of the
Hummingbird Group are set out below.
(a) Executive Chairman
Dan Betts is currently employed as Executive Chairman of Hummingbird. His
employment is governed by the terms of a service agreement with Hummingbird
dated 01 January 2023. The notice period required to terminate his employment
is 12 months' written notice by Hummingbird or 12 months' written notice by
Dan Betts. Hummingbird reserves the right under the service agreement,
exercisable in its absolute discretion, to terminate Dan Betts employment and
make a payment in lieu of the notice required by the agreement or any
unexpired part of such notice. If Dan Betts commits any fundamental breach of
the service agreement, such as failing, after due and proper warning, to
perform his duties competently, Hummingbird may terminate the agreement
without any notice or payment in lieu thereof. In addition to basic salary of
£407,400, pursuant to a salary change letter dated 23 February 2024, he is
also entitled to benefits, which include (i) pension contributions equivalent
to 10 per cent. of gross salary; (ii) medical and life insurance policy
providing cover of at least £1,000,000 and includes international medical
insurance for Mr Betts and his immediate family, and critical illness cover;
(iii) an attendance fee of 1 ounce gold coin (post tax) for the physical
attendance at each of the quarterly Board meetings, and one Board meeting held
on the same day as the Annual General Meeting; and (iii) a discretionary bonus
of such amount as may be determined by the Board at its absolute discretion.
Dan Betts is also entitled to out-of-pocket expenses reasonably incurred by
him in the proper performance of his duties.
In the event of a change in control of Hummingbird and either Mr Betts or
Hummingbird terminate the employment of Mr Betts (in the case of Hummingbird,
other than for cause) then Hummingbird shall pay to Mr Betts, within one month
of such termination an amount equivalent to the gross value of two years basic
salary, including pension contributions, together with the cash equivalent of
medical and life insurance benefits for 2 years (unless that cover remains in
place) (less any statutory deductions).
(b) Interim Chief Executive Officer
Geoff Eyre is currently employed as Interim Chief Executive Officer of
Hummingbird since 6 November 2024. His employment is governed by the terms of
a service agreement with Hummingbird dated 25 November 2024 (Service
Agreement).
The first 6 months of Geoff Eyre's employment is a probationary period. During
the first 3 month of the probationary period Hummingbird may terminate
employment by giving one weeks' notice or payment in lieu of notice.
Thereafter during the last 3 months of the probationary period, Geoff will be
entitled to receive a termination payment comprising 6 months of salary and
benefits (unless Hummingbird offers Geoff Eyre a new Executive Committee
position directly reporting to the replacement CEO).
After the probationary period, the notice period required to terminate Geoff
Eyre's employment is three months' written notice by Hummingbird or three
months' written notice by Geoff. Hummingbird reserves the right under the
Service Agreement, exercisable in its absolute discretion, to terminate Geoff
Eyre's employment and make a payment in lieu of his notice or any unexpired
part of such notice.
Hummingbird may terminate the employment without any notice or payment in lieu
thereof in certain circumstances set out in clause 16 of the Service
Agreement. Such circumstances include a failure on Geoff's part (in the
reasonable opinion of the Board) to perform his duties to a satisfactory
standard or if Geoff commits any serious breach of the Service Agreement or is
guilty of any gross misconduct or any wilful neglect in the discharge of his
duties.
In addition to a basic salary of £318,833 per annum, Geoff is also entitled
to receive employer pension contributions at a rate of 10 per cent. of his
basic salary, certain insured benefits, namely medical insurance, life
insurance and critical illness cover and may be eligible for a discretionary
annual bonus on such terms and of such amount as may be determined by the
Board at its absolute discretion. Geoff Eyre is entitled to be reimbursed for
all authorised out-of-pocket expenses reasonably incurred by him in the proper
performance of his duties. Geoff Eyre is also entitled to receive his full
salary for any period of sickness absence totalling 6 months in any
consecutive period of 24 months.
Geoff Eyre is permitted during the employment to continue acting as a director
of those companies of which he is a director as at the date of his Service
Agreement and to take on new non-executive director roles subject to complying
with his duty to avoid a conflict of interest and providing written notice to
Hummingbird and, in each case, provided he can continue to comply with his
duty to devote such time and attention to the business and interests of the
Group and as are necessary for the proper performance of his duties.
Geoff Eyre is subject to 6 month restrictive covenants seeking to prevent him
from carrying out certain competitive activity post termination of his
employment.
(c) Finance Director
Tom Hill is currently employed as Finance Director of Hummingbird. His
employment is governed by the terms of a service agreement with Hummingbird
dated 2 August 2010, as amended with effect from time to time, and, most
recently, on 30 July 2019, and 1 February 2023, respectively. The notice
period required to terminate his employment is 12 months' written notice by
Hummingbird or 12 months' written notice by Tom Hill. If Tom Hill commits any
fundamental breach of the service agreement, such as failing, after due and
proper warning, to perform his duties competently, Hummingbird may terminate
the agreement without any notice or payment in lieu thereof. In addition to
basic salary of £270,000 per annum, he is also entitled to benefits, which
include (i) pension contributions; (ii) medical and life insurance policy;
(iii) payment of professional subscriptions; (iv) a discretionary bonus,
option or other incentive scheme of such amount as may be determined by a
remuneration committee or the Board; (v) the right to subscribe for up to
1,000 Ordinary Shares of £0.01 each in Hummingbird, at the price of US$35.00
per share, notwithstanding that notice must have been given within seven (7)
days of signing the employment contract; (vi) the right to participate in any
future fundraisings; (vii) discretionary sick leave at the normal rate of pay,
up to a period of three (3) consecutive months of absence; and (viii) an
attendance fee of 1 ounce gold coin (post tax) for the physical attendance at
each of the quarterly Board meetings, and one Board meeting held on the same
day as the Annual General Meeting. Tom Hill is also entitled to out-of-pocket
expenses reasonably incurred by him in the proper performance of his duties.
Pursuant to the amendment letter dated 30 July 2019, Tom Hill's service
agreement was amended to include provisions relating to a change of control.
Where a change of control of Hummingbird occurs, and within 12 months of the
change of control Tom Hill or Hummingbird terminates, or serves notice to
terminate, Tom Hill's employment, Hummingbird shall pay to Tom Hill the
equivalent of two (2) years' gross salary and pension contributions, and shall
continue to provide the same level of medical and life insurance, as
particularised in the service agreement, for a period of two (2) years.
Tom Hill's service agreement was also amended with effect from 1 February 2023
such that his annual salary was increased to £270,000.00 per annum, and with
effect from 1 November 2023 such that his notice period was amended to 12
months
(d) Founders Equity Alignment Plan (FEAP)
On 1 July 2014, the shareholders approved the adoption of a long-term
incentive plan for the purpose of retaining and motivating the executive
Directors to deliver the proposed new strategy, which was rebased on 21 June
2016 as part of the fundraise to recapitalise Hummingbird.
In accordance with the terms of the FEAP, the initial management incentive
pool vested on 1 February 2023 with no value accruing to participants, and a
new management incentive pool with a life of up to ten years was created on a
consistent basis.
Participants in the FEAP are limited to executive Directors. Allocations of
the FEAP are proposed by the "Principal Director" (currently the Mr Dan Betts)
and ratified by the board. As at 31 December 2023 no allocation had been
proposed. The FEAP will issue shares to the participants for adding material
long term shareholder value and therefore align the interest of the executives
with the shareholders by providing a strong incentive for the executives to
drive shareholder value.
Under the FEAP, shares may be distributed to participants depending upon the
value that has been added to shareholders over the vesting period. No value
will accrue to the FEAP if the growth in shareholder value is less than 50 per
cent. from 1 February 2023. If the growth in shareholder value is over 50 per
cent., a proportion of value added to shareholders will accrue to the FEAP,
increasing progressively, starting at 5 per cent. of the value added to
shareholders up to a maximum of 15 per cent. of the value added to
shareholders above 150 per cent.. Shares with a value equal to the value
accrued in the FEAP will be issued on vesting or the value can be settled in
cash at Hummingbird's option. There is also the flexibility to allow early
payments under the FEAP where assets or companies are disposed of and value
has been added exceeding 50 per cent. on the same principles.
No allocations to date have been made under the FEAP and at the Latest
Practicable Date there is no value accruing to the FEAP.
(e) Bonus Arrangements
As noted above, Tom Hill and Dan Betts are entitled to a short-term incentive
discretionary bonus, where they can earn up to 125 per cent. of their base
salaries, based on the achievements of Hummingbird, and subject to any
personal targets. Any bonus is usually declared at the end of a financial year
and paid in three tranches. As at the Latest Practicable Date, in relation to
the bonuses declared in respect of the financial year ended 2022, a remaining
amount of £65,136 was to be paid to Dan Betts and Tom Hill collectively in
December 2024, but remains unpaid. Further, as at the date of this document,
in relation to the bonuses declared in respect of the financial year ended
2023, a remaining amount of £92,731 was to be paid to Dan Betts and Tom Hill
collectively in December 2024 but remains unpaid, and £92,731 is due to be
paid to them collectively in December 2025.
On 1 June 2014, contingent on the successful acquisition by Hummingbird (or
any member of the Group) of the Yanfolila project Hummingbird awarded Daniel
Betts a deferred bonus in the form of a cash settled share-based payment
equivalent to the cash value on the date of payment of 1,785,714 shares
(subject to a maximum share price of £2.016). This bonus was deferred and
except in the event of a change of control, only became payable after a
vesting period of 2 years and at the earlier of Daniel Betts ceasing to be a
director of Hummingbird or 10 years. The Yanfolila project was acquired on 2
July 2014. Accordingly, this cash settled share-based payment was granted on
that date and then vested on 2 July 2024 with a value of £148,214.29 which
was due for payment on 2 July 2024 but has not yet been paid.
(f) Other service contracts
Other than as described in this paragraph 5, no service contracts have been
entered into or amended within 6 months of the date of this document.
(g) Non-Executive Directors
All of the other Directors are Non-Executive and do not have service contracts
with Hummingbird. Instead, the Directors were appointed pursuant to letters of
appointment.
All Non-Executive Directors remunerations arrangements comprise base
remuneration of £52,500. Non-Executive Directors (other than Oumar Toguyeni)
will also receive an additional £5,250 fee for each Board Committee they
serve on and an additional £2,625 for chairing any of these committees (other
than the Technical Advisory Committee). Members of the Technical Advisory
Committee receive and additional annual payment of US$30,000. In addition
all Non-Executive directors (other than Oumar Toguyeni) are entitled by Board
resolution to receive an attendance fee of a 1 ounce gold coin (post tax) for
the physical attendance at each of the quarterly Board meetings, and one Board
meeting held on the same day as the Annual General Meeting.
Each of the Non-Executive Director appointments can be terminated in
accordance with the Articles and without compensation. The Articles provide
that the office of Director shall be terminated by, among other things:
written resignation, unauthorised absences from board meetings for six
consecutive months or more; or written request of all of the other Directors.
All Non-Executive Directors are subject to a one month notice period, except
for Oumar Toguyeni, who has been appointed as a Board representative of Nioko
and so his appointment is not subject to termination by Hummingbird but is
subject to the requirement to retire in accordance with the Articles.
The dates of the appointment letters for each of the Non-Executive Directors
and the Committees on which they serve, are set out in the table below:
Name Contract date Committee position(s)
Stephen Betts 23 November 2010 Transaction
David Straker-Smith 24 May 2017 Audit*, Remuneration*, ESG* and Transaction
Attie Roux 30 April 2018 Technical Advisory*, ESG and Transaction
Ernie Nutter 30 April 2018 Audit, Remuneration, Technical Advisory and Transaction*
Oumar Toguyeni 19 November 2024 Technical Advisory and ESG
*being the chairman of the
relevant committee.
The Transaction Committee, referred to above, was formed pursuant to a board
meeting held on 6 November 2024, and Ernie Nutter was appointed as chairman of
the Transaction Committee. The purpose of the Transaction Committee is to
discuss and consider matters relating to, and ancillary to, the transactions
discussed herein and any alternative transactions.
(h) Other Letters of Appointment
Other than as described above, no letters of appointment have been entered
into or amended within 6 months of the date of this document.
7. HUMMINGBIRD MATERIAL CONTRACTS
Save as set out below, neither Hummingbird nor any of its subsidiaries has,
during the period beginning on 6 November 2022 (being two years before the
commencement of the Offer Period) and ending on the Latest Practicable Date,
entered into any material contract otherwise than in the ordinary course of
business. The following contracts, not being contracts entered into in the
ordinary course of business, and which are or may be material, have been
entered into by Hummingbird or its subsidiaries in the period beginning on 6
November 2022 and ending on the Latest Practicable Date.
CIG Agreements
(a) By way of an original subscription agreement between CIG and
Hummingbird dated 6 February 2023, CIG subscribed for, in aggregate
157,084,808 Ordinary Shares (February Shares) in two tranches for a total
consideration of US$15 million (representing a price of 7.79 pence per
Ordinary Share). The terms of the original subscription agreement include:
(i) an undertaking by CIG that it will not (save in limited
circumstances) dispose of the February Shares for a period of 12 months from
the date on which they were admitted to AIM; and
(ii) the grant to CIG of a pre-emption right in relation to
further equity issued by Hummingbird while it holds 20 per cent or more of the
Ordinary Shares.
(b) By way of a relationship agreement between CIG, Hummingbird
and Strand Hanson dated 7 February 2023, CIG gave certain undertakings which
imposes certain obligations on CIG in its position as a substantial
shareholder (as defined under the AIM Rules) in Hummingbird to ensure that
Hummingbird will at all times be capable of carrying on its business
independently of CIG and the members of its group. The relationship agreement
remains in force for so long as CIG's holding remains at 10 per cent. or above
of Hummingbird's issued share capital. The Independent Directors (as defined
in the Relationship agreement) have unanimously resolved to waive or consent
(as applicable) to such matters under the Relationship Agreement necessary to
ensure that the terms contemplated under the Subscription Agreement are
permissible and do not conflict with the Relationship Agreement.
(c) On 16 May 2024, CIG entered into a short-term loan of US$10
million. The loan was unsecured, attracted interest at a rate of 14 per cent
per annum and had a maturity date of 30 September 2024. The loan was advanced
by CIG on 25 June 2024.
(d) On 26 September 2024, Hummingbird entered into a short-term
loan facility of US$30 million with CIG (the CIG Loan Agreement). The CIG Loan
Agreement consisted of a new US$20 million loan, to be provided in tranches,
and consolidated the previous US$10 million short-term loan from CIG. The CIG
Loan Agreement was unsecured, carried an interest rate of 14 per cent per
annum and had an initial maturity date of 31 December 2024.
(e) On 30 September 2024, CIG advanced US$10 million, bringing
the total amount advanced by CIG under the CIG Loan Agreement to US$20million.
(f) On 6 November 2024, Hummingbird and CIG entered into a new
loan agreement (the New CIG Loan) to document the terms upon which CIG would
advance the remaining US$10 million.
(g) Under the terms of the New CIG Loan, the interest payable in
respect of any advances was 14 per cent. per annum and the final repayment
date was 31 December 2024. The New CIG Loan contains customary representations
and undertakings for a loan facility of this nature, including a cross-default
event of default which would be triggered by any default by Hummingbird or the
local holding companies in Guinea and Mali under the facilities in place with
Coris Bank. Furthermore, it contains an event of default that would be
triggered in the event that an offer from an offeror (other than CIG or its
concert parties) for the entire issued share capital of Hummingbird that it
does not already own becomes unconditional (as such terms are defined in the
Takeover Code).
(h) Details of the CIG Subscription Agreement are set out in
paragraph 3 of Part 1 and paragraph 8 (Offer Related Arrangements) of this
Part 4 of this document.
(i) On 31 December 2024, Hummingbird's Malian subsidiary SMK
and Coris Bank's Malian subsidiary Coris Bank International Mali entered into
a new loan agreement in the amount of approximately US$35.6 million
consolidating unpaid instalments of Hummingbird's Malian subsidiary SMK and
extending out the repayment dates.
(j) On 24 December 2024, Hummingbird, CIG and Nioko entered
into a tripartite agreement (the Tripartite Agreement) documenting the terms
on which CIG assigned the rights and benefits of certain debt arrangements to
Nioko.
Agreement with Pasofino Gold Limited
(a) By way of a share exchange agreement dated 8 December 2023
(SEA) between Hummingbird, Pasofino Gold Limited (Pasofino) and ARX Resources
Limited, a wholly owned subsidiary of Pasofino (ARX), Hummingbird has
converted its 51 per cent. interest in the Dugbe Gold Project, Liberia (the
Project), into a 51 per cent. controlling shareholding interest in TSX-V
listed Pasofino, resulting in Pasofino (through ARX) becoming the sole owner
of the Project, subject to the 10 per cent. carried interest of the Government
of Liberia. In consideration for the ownership conversion, Pasofino has issued
54,027,783 new common shares to Hummingbird, resulting in Hummingbird holding
a 51 per cent. shareholding interest in Pasofino, and Pasofino being
classified as a subsidiary of Hummingbird.
Banking Facility Arrangements with Coris Bank
(a) Confirmation of loan (notification d'accord de financement)
entered into between Coris Bank International and Kourou's Gold Mine S.A.
("KGM") dated 9 November 2021;
(b) Loan agreement (ouverture de credit) entered into between
Coris Bank International Guinée and KGM dated 28 February 2022;
(c) Loan agreement (convention de compte courant) between Coris
Bank International (Mali, Burkina, Togo, Benin, Niger, Senegal) and Société
des Mines de Komana S.A. ("SMK") dated 31 December 2021;
(d) Loan agreement (convention de prêt) between Coris Bank
International Burkina (with the sub-participation of Coris Bank International
Benin, Togo, Senegal, and Côte d'Ivoire) and SMK dated April 14, 2023;
(e) Loan agreement (convention de prêt) between Coris Bank
International Burkina and SMK dated September 27, 2023;
(f) Loan agreement (convention de crédit) between Coris Bank
International Mali (with the sub-participation of Coris Bank International
Burkina, Benin, Togo, Senegal, and Côte d'Ivoire) and SMK dated December 4,
2023;
(g) Loan agreement (convention de crédit) between Coris Bank
International Mali and SMK dated December 29, 2023;
(h) Loan agreement (convention de crédit) between Coris Bank
International Benin and SMK dated September 4, 2024 (disbursed earlier in 15
April 2024); and
(i) Loan agreement (convention de crédit) between Coris Bank
International (Mali, Burkina, Benin, Togo, Senegal, Niger, and Côte d'Ivoire)
and SMK dated August 19, 2024; and
(j) Loan agreement between Coris Bank International Coris Bank
International (Mali, Burkina, Benin, Togo, Senegal, Niger, and Côte d'Ivoire)
and SMK dated 30 December 2024.
Confidentiality Agreement
(a) See paragraph 8 (Offer Related Arrangements) of this Part 4
for details of the Confidentiality Agreement.
CIG Subscription Agreement
(b) See paragraph 8 (Offer Related Arrangements) of this Part 4
for details of the CIG Subscription Agreement.
Nioko and the CIG Parties
Save as set out below, neither Nioko nor any other member of the CIG Parties
has, during the period beginning on 6 November 2022 (being two years before
the commencement of the Offer Period) and ending on the Latest Practicable
Date, entered into any material contract otherwise than in the ordinary course
of business.
The following contracts, not being contracts entered into in the ordinary
course of business, and which are or may be material, have been entered into
by Nioko or members of the CIG Parties in the period beginning on 6 November
2022 and ending on the Latest Practicable Date.
(i) Confidentiality Agreement
See paragraph 8 (Offer Related Arrangements) of this Part 4 for details of the
Confidentiality Agreement.
(ii) CIG Subscription Agreement
See paragraph 8 (Offer Related Arrangements) of this Part 4 for details of the
CIG Subscription Agreement.
(iii) Tripartite Agreement
See paragraph (iii) of this Part 4 above for details of the Tripartite
Agreement.
8. Offer Related Arrangements
(a) Confidentiality Agreement
CIG, Coris Holdings and Hummingbird have entered into a mutual confidentiality
agreement dated 28 October 2024 (the Confidentiality Agreement) pursuant to
which the CIG Parties and Hummingbird has undertaken, amongst other things,
to: (i) keep confidential information relating to the Offer and the other
party and not to disclose it to third parties (other than certain permitted
parties) unless required by law or regulation; and (ii) use the confidential
information for the sole purpose of discussing a potential transaction between
the parties thereto.
(b) CIG Subscription Agreement
The CIG Subscription Agreement documented the terms of the Debt-to-Equity
Conversion and detailed the conditions on which the US$30 million principal
amount under the New CIG Loan converted into new Ordinary Shares in
Hummingbird. The Debt-to-Equity Conversion comprised of (i) the Stage 1
Conversion and (ii) the conversion of the remainder of the principal amount of
the New CIG Loan in the Stage 2 Conversion.
The Admission of the Ordinary Shares under the Stage 1 Conversion contemplated
in the CIG Subscription Agreement occurred on 24 December 2024. On 2 January
2025, Nioko informed Hummingbird that it wished to waive the other outstanding
conditions under the Debt-to-Equity Conversion. As such, the Debt-to-Equity
Conversion under the CIG Subscription Agreement has now completed with the
admission of the Ordinary Shares to Nioko under the Stage 2 Conversion
occurring on 7 January. As a result, Nioko now holds 1,202,312,639 Ordinary
Shares, representing approximately 71.8 per cent. of Hummingbird's existing
issued share capital.
The CIG Subscription Agreement also contained provisions around the parties
agreeing to cooperate, engage in good faith and provide the other party and
its respective professional advisers all reasonable assistance and access that
they may reasonably require in connection with the CIG Subscription Agreement.
This included, unless prohibited by applicable law, the collaboration and
sharing of information between the parties in relation to engagement that each
party has with the Takeover Panel in connection with any of the proposals
contemplated under the CIG Subscription Agreement.
(c) Waiver of Conditions
As announced by Hummingbird via RNS on 2 January 2025, Nioko informed
Hummingbird that it wished to waive the outstanding conditions identified in
the Rule 2.7 Announcement which was released on 16 December 2024.
9. CONCERT PARTIES
In addition to the Nioko Directors (together with their close relatives and
related trusts) and members of the CIG Parties, the persons who, for the
purposes of the Takeover Code, are acting, or deemed to be acting, in concert
with Nioko in respect of the Offer are:
Name Registered office Relationship with Nioko
Hannam & Partners 7-10 Chandos Street, London, W1G 9DQ Connected Adviser
SCP Resource Finance Harbour Yard, Chelsea, Unit 211, London, SW10 0XD Connected Adviser
In addition to the Hummingbird Directors (together with their close relatives
and related trusts) and members of the Hummingbird Group, the persons who, for
the purposes of the Takeover Code, are acting, or are deemed to be acting, in
concert with Hummingbird in respect of the Offer are:
Name Registered or principal office Relationship with
Hummingbird
Stifel 150 Cheapside, City of London, EC2V 6ET Financial adviser; Rule 3 adviser
Strand Hanson 26 Mount Row, London, W1K 3SQ Financial adviser; Rule 3 adviser
10. GOVERNING LAW
The Offer shall be governed by and construed in accordance with English law.
The Court shall have exclusive jurisdiction for determining any matter which
may arise under or in connection with the Offer.
11. POST-OFFER UNDERTAKINGS
No statements in this document constitute "post-offer undertakings" for the
purposes of Rule 19.5 of the Takeover Code.
12. SOURCES AND BASES
In this document, unless otherwise stated or the context otherwise requires,
the following bases and sources have been used:
a. all references to Hummingbird Ordinary Shares are to ordinary shares of
£0.01 each;
b. unless otherwise stated, all prices for Hummingbird Shares are closing
middle market quotations derived from data provided by Bloomberg for the
particular date(s) concerned;
c. as at the close of business on the Latest Practicable Date, Hummingbird
had in issue 1,674,388,481 Ordinary Shares;
d. the fully diluted share capital of Hummingbird (being 1,703,405,725
Ordinary Shares) has been calculated on the basis of:
i) the number of issued Hummingbird Ordinary Shares referred to in c
above; plus
ii) any further Hummingbird Ordinary Shares which may be issued on or
after the date of this Offer on the vesting and/or exercise of awards under
the Hummingbird Share Plans that were outstanding as at the Latest Practicable
Date or which will vest or be exercisable on or before the Cancellation,
amounting in aggregate up to a maximum of 29,017,244 Hummingbird Ordinary
Shares;
e. unless otherwise stated, the financial information of Hummingbird is
extracted (without material adjustment) from (i) the annual report and audited
accounts of the Hummingbird Group for the 12 months ended 31 December 2023; or
(ii) the unaudited interim results of the Hummingbird Group for the six-month
period ended 30 June 2024;
f. all information relating to Nioko and Hummingbird has been provided
by persons duly authorised by the Nioko Board and the Hummingbird Board
respectively; and
g. certain figures included in this document have been subject to rounding
adjustments. Accordingly, figures shown for the same category presented in
different tables may vary slightly and figures shown as totals in certain
tables may not be an arithmetic aggregation of the figures that precede them.
13. GENERAL
(a) Save as otherwise disclosed elsewhere in this document, no
agreement, arrangement or understanding (including any compensation
arrangement) exists between Nioko or any party acting in concert with Nioko
and any of the directors, recent directors, shareholders or recent
shareholders of Hummingbird or any person interested or recently interested in
shares of Hummingbird, having any connection with or dependence on the Offer.
(b) There is no agreement, arrangement or understanding under
which any securities acquired pursuant to the Offer will be transferred to any
other person, save that Nioko reserves the right to transfer any such
securities to any other member of the Nioko group.
(c) Save for the irrevocable undertakings described in paragraph
4 of Part A of Part 4 (Additional Information) of this document neither:
(i) Nioko, nor any person acting in concert with Nioko; nor
(ii) Hummingbird, nor any person acting in concert with
Hummingbird,
has any arrangement (including any indemnity or option arrangement), agreement
or understanding, formal or informal, of whatever nature relating to relevant
Hummingbird securities, which may be an inducement to deal or refrain from
dealing, with any other person.
(d) Save as disclosed in this document, there is no agreement to
which Nioko is a party which relates to the circumstances in which it may, or
may not, invoke a condition to the Offer.
(e) The financial information on Nioko and the Hummingbird Group
contained in this document does not constitute statutory accounts within the
meaning of section 434 of the Companies Act.
14. FEES AND EXPENSES
(a) The aggregate fees and expenses expected to be incurred by
Nioko in connection with the Offer are estimated to amount to approximately
£1.93 million (plus applicable VAT and other taxes). The following are
estimates expected to comprise the aggregate figure (in each case exclusive of
VAT):
(i) Financial and corporate broking
advice( ) £0.94 million
(ii) Legal
advice((1))( )
£0.89 million
(iii) Public relations
advice £0.07
million
(iv) Other costs and
expenses £0.03 million
(1) These services include services charged by reference
to hourly or daily rates. The amounts included here reflect the services
incurred up to the Latest Practicable Date and an estimate of the residual
amount of time required until the completion of the Offer.
(b) The aggregate fees and expenses expected to be incurred by
Hummingbird in connection with the Offer are estimated to amount to
approximately £3.35 million (plus applicable VAT and other taxes). The
following are estimates expected to comprise the aggregate figure (in each
case exclusive of VAT):
(i) Financial and corporate broking
advice( ) £2.29
million
(ii) Legal
advice((1) )
£0.55 million
(iii) Accounting
advice
£0.08 million
(iv) Public relations
advice
£0.07 million
(v) Other costs and
expenses
£0.36 million
(1) These services include services charged by reference
to hourly or daily rates. The amounts included here reflect the services
incurred up to the Latest Practicable Date and an estimate of the residual
amount of time required until the completion of the Offer.
15. FINANCING OF THE OFFER
The Cash Consideration necessary to satisfy the Offer in full will be funded
from Nioko's existing cash resources. Hannam & Partners, in its capacity
as financial adviser to Nioko, is satisfied that sufficient resources are
available to Nioko to satisfy in full the Cash Consideration payable by Nioko
to Hummingbird Shareholders pursuant to the Offer.
16. NO SIGNIFICANT CHANGE AND RATINGS
Save as disclosed in the Previous Announcements or in this document, or as
announced by Hummingbird since 24 September 2024 when it announced its
six-month results to 30 June 2024, the Hummingbird Directors are not aware of
any significant change in the financial or trading position of Hummingbird
since 30 June 2024, being the date to which the unaudited interim financial
information for the Group were prepared. There are no current public ratings
or outlooks accorded to Hummingbird by ratings agencies.
17. CONSENT
Each of Hannam & Partners and SCP Resource Finance (as financial advisers
to Nioko) have given and not withdrawn their written consent to the issue of
this document with the inclusion of their respective names and the references
to them in the form and context in which they are included.
Each of Stifel and Strand Hanson (as financial advisers to Hummingbird) have
given and not withdrawn their written consent to the issue of this document
with the inclusion herein of the references to their respective names and the
advice it has given to Hummingbird in the form and context in which they
appear.
18. DOCUMENTS AVAILABLE ON WEBSITE
Copies of the following documents will be made available on Hummingbird's
website at www.hummingbirdresources.co.uk
(http://www.hummingbirdresources.co.uk/) during the period from the date on
which this document is published up to and including the completion of the
Offer:
(a) this document;
(b) the Form of Acceptance and other documents in relation to
the Offer sent to the Hummingbird Shareholders, persons with information
rights and other relevant persons;
(c) any announcements issued by Hummingbird in connection with
the Offer;
(d) the memorandum and articles of association of Hummingbird;
(e) the memorandum and articles of association of Nioko;
(f) the financial information relating to Hummingbird referred
to in paragraph 5 of Part 1 (Letter from Nioko) of this document;
(g) the letters of consent referred to in paragraph 17 of Part A
of Part 4 (Additional Information) of this document;
(h) the Confidentiality Agreement;
(i) the CIG Subscription Agreement;
(j) any 2.11 Letters;
(k) the irrevocable undertakings referred to in paragraph 4 of
Part A of Part 4 (Additional Information) of this document; and
(l) copies of the documents setting out the Hummingbird Share
Plan Proposals that have been made to participants holding outstanding awards
in the Hummingbird Shares Plans referred to at paragraph 10 (Hummingbird Share
Plans) of Part 1 (Letter from Nioko) of this document.
Except as otherwise expressly referred to in this document, neither the
contents of these websites nor any website accessible from hyperlinks is
incorporated into or forms part of this document.
19. INFORMATION INCORPORATED BY REFERENCE
The following Hummingbird documents (or parts thereof, where specified) are
incorporated by reference in, and form part of, this document:
Source document from which information is incorporated into this document by Information incorporated by reference Page number(s) in source document
reference
Audited financial statements for the year ended 31 December 2021 Independent Auditor's Report 80
Consolidated Statement of Comprehensive Income 86
Consolidated Statement of Financial Position 87
Consolidated Statement of Changes in Equity 139
Consolidated Statement of Cash Flows 88
Notes to the Financial Statements 140
Audited financial statements for the year ended 31 December 2022 Independent Auditor's Report 100
Consolidated Statement of Comprehensive Income 105
Consolidated Statement of Financial Position 157
Consolidated Statement of Changes in Equity 159
Consolidated Statement of Cash Flows 107
Notes to Financial Statements 160
Audited financial statements for the year ended 31 December 2023 Independent Auditor's Report 118
Consolidated Statement of Comprehensive Income 126
Consolidated Statement of Financial Position 127
Consolidated Statement of Changes in Equity 129
Consolidated Statement of Cash Flows 128
Notes to the Financial Statements 187
Unaudited interim financial statements for the six months to 30 June 2024 Consolidated Statement of Comprehensive Income 3
Consolidated Statement of Financial Position 4
Consolidated Statement of Changes in Equity 6
Consolidated Statement of Cash Flows 5
Notes to the condensed Group interim financial statements 9
A person who has received this document may request a copy of the documents
incorporated by reference and referred to in the table above. A copy of any
such documents or information incorporated by reference will not be sent to
such persons unless requested of Hummingbird at its registered office at 49-63
Spencer Street, Hockley, Birmingham, West Midlands, B18 6DE, or by telephone
at +44 (0)20 7409 6660 or requested of the Receiving Agent, Link Group. Link
Group can be contacted on Tel: 0371 664 0321 from the United Kingdom (UK) or
+44 371 664 0321 from overseas or by post to Link Group at Central Square, 29
Wellington Street, Leeds LS1 4DL. Calls are charged at the standard geographic
rate and will vary by provider. Calls outside the UK will be charged at the
applicable international rate. Lines are open between 9.00 a.m. and 5.30 p.m.,
Monday to Friday (excluding public holidays in England and Wales), or by email
at operationalsupportteam@linkgroup.co.uk. Please note that Link Group cannot
provide any financial, legal or tax advice and that calls may be recorded and
monitored for security and training purposes.
Part B
ADDITIONAL INFORMATION FOR OVERSEAS SHAREHOLDERS
1. GENERAL
(a) This document and the accompanying Form of Acceptance have
been prepared for the purposes of complying with English law, the applicable
requirements of the Companies Act, the Takeover Code, the Panel, the FCA and
the London Stock Exchange and applicable securities law and the information
disclosed may not be the same as that which would have been disclosed if this
document had been prepared in accordance with the laws of any other
jurisdiction.
(b) The release, publication or distribution of this document
and any accompanying documents (in whole or in part) in or into jurisdictions
other than the United Kingdom may be restricted by law and therefore any
persons who are subject to the law of any jurisdiction other than the United
Kingdom should inform themselves of, and observe, any applicable legal or
regulatory requirements. The availability of the Offer to Hummingbird
Shareholders who are not resident in and citizens of the United Kingdom may be
affected by the laws of the relevant jurisdictions in which they are located
or of which they are citizens and therefore persons who are not resident in
the United Kingdom should inform themselves of, and observe, any applicable
legal or regulatory requirements of their jurisdictions. Any failure to comply
with such requirements may constitute a violation of the securities laws of
any such jurisdiction. To the fullest extent permitted by applicable law, the
companies and persons involved in the Offer disclaim any responsibility or
liability for the violation of such restrictions by any person.
(c) Unless otherwise determined by Nioko or required by the
Takeover Code and permitted by applicable law and regulation, the Offer is not
being, and will not be, made available, in whole or in part, directly or
indirectly, in or into or from a Restricted Jurisdiction where to do so would
violate the laws in that jurisdiction and no person may accept the Offer by
any such use, means, instrumentality or from within a Restricted Jurisdiction
or any other jurisdiction if to do so would constitute a violation of the laws
of that jurisdiction. Copies of this document and any formal documentation
relating to the Offer are not being, and must not be, directly or indirectly,
mailed or otherwise forwarded, distributed or sent in or into or from any
Restricted Jurisdiction and persons receiving such documents (including,
without limitation, agents, custodians, nominees and trustees) must not mail,
or otherwise forward, distribute or send it in or into or from any Restricted
Jurisdiction. Doing so may render invalid any related purported acceptance of
the Offer. Unless otherwise permitted by applicable law and regulation, the
Offer may not be made directly or indirectly, in or into, or by the use of
mails or any means or instrumentality (including, but not limited to,
facsimile, e-mail or other electronic transmission, telex or telephone) of
interstate or foreign commerce of, or of any facility of a national, state or
other securities exchange of any Restricted Jurisdiction and the Offer may not
be capable of acceptance by any such use, means, instrumentality or
facilities.
(d) This document does not constitute an offer or invitation to
purchase or subscribe for any securities or a solicitation of an offer to buy
any securities pursuant to this document or otherwise in any jurisdiction in
which such offer or solicitation is unlawful.
(e) The Offer shall be subject to the applicable requirements of
the Takeover Code, the Panel, the London Stock Exchange, the FCA and the AIM
Rules.
(f) Overseas Shareholders should consult their own legal and
tax advisers with respect to the legal and tax consequences of the Offer.
2. NOTICE TO U.S. HOLDERS OF HUMMINGBIRD SHARES
(a) The Offer is being made for the securities of an English
company that is listed on the London Stock Exchange by means of a contractual
takeover offer under the Takeover Code and English law and is subject to
disclosure requirements and practices that are different, in some cases
materially, from the tender offer rules of the United States. The financial
information included in this document has been prepared in accordance with
accounting standards applicable in the United Kingdom and thus may not be
comparable to financial information of U.S. companies or companies whose
financial statements are prepared in accordance with generally accepted
accounting principles in the United States.
(b) For U.S. holders of Hummingbird Shares, the receipt of cash
pursuant to the terms of the Offer as consideration for the transfer of their
Hummingbird Shares, may be treated as a taxable transaction for U.S. federal
income tax purposes and under applicable U.S. state and local, as well as
foreign and other, tax laws. Each holder of Hummingbird Shares is urged to
consult with its own legal, tax and financial advisers in connection with
making a decision regarding this transaction and as to the U.S. federal, and
applicable U.S. state, local, and foreign, tax consequences to it of the
transaction contemplated hereby in light of such holders' specific
circumstances.
(c) For purposes of the U.S. Exchange Act, it is intended that
the Offer be made pursuant to Section 14(e) and Regulation 14E under the U.S.
Exchange Act and benefitting from exemptions available to "Tier I"
cross-border tender offers. Accordingly, the Offer will be subject to
disclosure and other procedural requirements under the applicable laws of the
United Kingdom, including with respect to offer timetable, settlement
procedures and timing of payments that may be materially different from those
applicable under U.S. domestic tender offer procedures and law, and certain
rules applicable to tender offers made into the United States, including rules
promulgated under Section 14(d), Section 14(e)(1) and Section 14(e)(2) of the
U.S. Exchange Act, do not apply.
(d) Nioko will acquire all Hummingbird Shares that have by that
time been validly tendered (or deemed to have been validly tendered) in
acceptance of the Offer and will, in accordance with the Takeover Code, settle
the relevant consideration for all such accepted Hummingbird Shares (other
than in respect of Hummingbird Shares acquired pursuant to the Hummingbird
Share Plans, in respect of which settlement with the relevant Hummingbird
Shareholders will be effected through payroll or such other method as may be
determined by Hummingbird or Nioko), within 14 days of the later of (i) 3
February 2025 (for valid acceptances received prior to such date) and (ii) the
date of receipt of an acceptance complete in all respects (for valid
acceptances received after such date), rather than the three trading days that
U.S. investors may be accustomed to in U.S. domestic tender offers.
(e) To the extent permitted by the Takeover Code and applicable
law, in accordance with normal UK practice and Rule 14e-5(b) under the U.S.
Exchange Act, Nioko and its nominees or brokers (acting as agents), may from
time to time make certain purchases of, or arrangements to purchase,
Hummingbird Shares, other than pursuant to the Offer, before or during the
period in which the Offer remains open for acceptance. Also, to the extent
permitted by the Takeover Code and applicable law in accordance with normal UK
practice and Rule 14e-5(b) of the U.S. Exchange Act, Stifel, Strand Hanson,
Hannam & Partners and SCP Resource will continue to act as exempt
principal traders in Hummingbird Shares on the London Stock Exchange. These
purchases may occur either in the open market at prevailing prices or in
private transactions at negotiated prices. Any information about such
purchases will be disclosed as required in the United Kingdom, will be
reported to a Regulatory Information Service of the FCA and will be available
on the London Stock Exchange website: www.londonstockexchange.com.
(f) Neither the SEC nor any US state securities commission has
approved or disapproved of this transaction or passed upon the merits or
fairness of such transaction or passed upon the adequacy of the information
contained in this document. Any representation to the contrary is a criminal
offence.
(g) Nioko is an investment company registered in the Trade and
Personal Property Credit Register of Burkina Faso. The Nioko Directors are
residents of countries other than the United States and are not citizens of
the United States. As a result, it may be difficult for investors to effect
service of process within the United States upon the Nioko Directors or
otherwise compel Nioko, Hummingbird or their respective directors, officers
and affiliates to subject themselves to the jurisdiction and judgment of a
U.S. court. It may not be possible to sue Nioko or Hummingbird, or any of
their respective directors, officers or affiliates, in a non-U.S. court for
violations of U.S. securities laws. There is doubt as to the enforceability in
the United Kingdom, in original actions or in actions for enforcement of
judgments of the U.S. courts, of civil liabilities predicated upon U.S.
federal securities laws.
Part C
TAXATION
The following paragraphs provide summary information on taxation as a guide
only and are not a substitute for professional tax advice. Any tax
consequences of the Offer for a Hummingbird Shareholder will depend on their
particular circumstances. Any Hummingbird Shareholders who are in any doubt
about their tax position, or who are resident for tax purposes outside the UK,
should contact an appropriate tax adviser.
1. UK TAXATION
The comments set out below summarise certain limited aspects of the UK
taxation treatment of certain Hummingbird Shareholders under the Offer and do
not purport to be a complete analysis of all tax considerations relating to
the Offer. They are based on current UK legislation as applied in England and
Wales and what is understood to be current HM Revenue and Customs ("HMRC")
practice (which may not be binding on HMRC), both of which are subject to
change, possibly with retrospective effect. They are not, and should not be
taken as being, advice.
The comments are intended as a general guide and do not deal with certain
categories of Hummingbird Shareholder such as: persons subject to special tax
regimes (such as collective investment schemes and persons subject to UK tax
on the remittance basis) or able to benefit from specific reliefs or
exemptions (such as charities); brokers, dealers in securities,
intermediaries, insurance companies, trustees of certain trusts; persons
holding their Hummingbird Shares as part of hedging or commercial
transactions; persons who have or could be treated for tax purposes as having
acquired their Hummingbird Shares in connection with a trade, profession or
vocation carried out in the UK (whether through a branch or agency or
otherwise), who are connected with Hummingbird or who have or could be treated
for tax purposes as having acquired their Hummingbird Shares by reason of
employment or as holding their Hummingbird Shares as carried interest. Nothing
in these paragraphs should be taken as providing personal tax advice. In
particular, the following paragraphs do not refer to UK inheritance tax. They
also assume that the changes announced (on 30 October 2024) by the UK
Government in the Budget proposals are implemented in full.
References in this paragraph 1 to "UK Holders" are to Hummingbird
Shareholders who: (a) are resident for tax purposes in, and only in, the UK at
all relevant times and, in the case of individuals, to whom "split year"
treatment does not apply, and who are domiciled, or deemed domiciled, for tax
purposes only in the UK; (b) hold their Hummingbird Shares as an investment
(other than under a self-invested personal pension plan or individual savings
account); and (c) are the absolute beneficial owners of their Hummingbird
Shares.
1.1 UK tax on chargeable gains
The transfer of Hummingbird Shares to Nioko in exchange for Cash Consideration
under the Offer should be treated as a disposal of a UK Holder's Hummingbird
Shares for the purposes of UK taxation of chargeable gains. Depending on a UK
Holder's specific circumstances (including the UK Holder's base cost and the
availability of any exemptions, reliefs and/or allowable losses), the disposal
of the UK Holder's Hummingbird Shares may give rise to a liability to UK
taxation on chargeable gains or an allowable capital loss.
(a) Subject to any available exemption, relief or allowance,
chargeable gains made by a UK Holder who is an individual will generally be
charged to capital gains tax at a rate of either 18 per cent. or 24 per cent.,
depending on the total amount of the individual's taxable income and
chargeable gains for the tax year. The chargeable gains annual exempt amount
(which for individuals, is £3,000 for the tax year running from 6 April 2024
to 5 April 2025) may be available to any individual UK Holder to offset any
chargeable gain (to the extent it is not otherwise utilised).
(b) Subject to any available exemption, relief or allowance,
chargeable gains of a UK Holder within the charge to UK corporation tax will
be charged to corporation tax on chargeable gains at the applicable
corporation tax rate. In respect of the financial year running from 1 April
2024 to 31 March 2025: (i) for companies whose profits are under £50,000, the
applicable rate is the small profits rate of 19 per cent.; (ii) for companies
whose profits are in excess of £250,0000, the applicable rate is the main
rate of 25 per cent.; and (iii) for companies whose profits fall between
£50,000 and £250,000, they can claim marginal relief which gives them an
effective rate between 19 per cent. and 25 per cent.. For a UK Holder within
the charge to UK corporation tax who acquired their Hummingbird Shares before
31 December 2017, an indexation allowance may be available to reduce the
amount of the chargeable gain realised (but not to create or increase any
allowable loss) on a disposal of those Hummingbird Shares.
1.2 UK stamp duty and stamp duty reserve tax ("SDRT")
No UK stamp duty or SDRT should be payable by any Hummingbird Shareholder on
the transfer of their Hummingbird Shares to Nioko.
PART 5
DEFINITIONS
The following definitions apply throughout this document (other than in those
parts of this document containing separate definitions) unless the context
otherwise requires.
"2022-2023 Hummingbird Annual Report" the annual report and audited accounts of the Hummingbird Group for the year
ended 31 December 2023;
"2023-2024 Hummingbird Annual Report" the annual report and audited accounts of the Hummingbird Group for the
Financial Year ended 31 December 2024;
"AIM" the AIM market operated by the London Stock Exchange;
" AIM Rules" the AIM Rules for Companies published by the London Stock Exchange (as amended
from time to time);
"associated undertaking" shall be construed in accordance with paragraph 19 of Schedule 6 to The Large
and Medium sized Companies and Groups (Accounts and Reports) Regulations 2008
(SI 2008/410) but for this purpose ignoring paragraph 19(1)(b) of Schedule 6
to those regulations;
"Business Day" a day, not being a public holiday in the UK, a Saturday or Sunday, on which
clearing banks in London are open for normal business;
"Cash Consideration" the cash consideration of 2.6777 pence per Hummingbird Share payable to
Hummingbird Shareholders by Nioko under the Offer in respect of each
Hummingbird Share, as may be adjusted in accordance with the terms of the
Offer as set out in this document;
"certificated" or "in certificated form" in relation to a share or other security, a share or other security title to
which is recorded in the relevant register of the share or other security as
being held in certificated form (that is, not in CREST);
"CIG" CIG SA, an investment company registered in the Trade and Personal Property
Credit Register of Burkina Faso with registered number BF OUA 2019 B 2606, and
which is controlled by the same principal as Hummingbird's primary lending
bank;
"CIG Parties" together CIG, Nioko and Coris Bank;
"CIG Subscription Agreement" the agreement dated 27 November 2024 between (1) Hummingbird (2) CIG and (3)
Nioko pursuant to which the Debt-to-Equity Conversion has been implemented;
"Circular" the circular distributed to the Ordinary Shareholders on 5 December 2024 in
relation to the General Meeting to be held on 23 December 2024;
"Closing Date" the closing date as will be specified by Nioko through a Regulatory
Information Service, with shareholders receiving at least 14 days' notice
prior to the specified date, falling at least 21 days after the posting of
this Offer Document;
"Closing Price" the closing middle market quotations of a share derived from Bloomberg;
"Companies Act" the Companies Act 2006, as amended from time to time;
"Confidentiality Agreement" the confidentiality agreement between CIG and Coris Holdings and Hummingbird
dated 28 October 2024;
"Coris Bank" company registered in the Trade and Personal Property Credit Register Burkina
Faso with a registered address at Bd de L'Insurrection Populaire des 30 et 31
Octobre 2014, 01 Bp 6092 Ouagadougou, Burkina Faso. Coris and its wholly-owned
subsidiaries (together (but excluding CIG)),
"Coris Holdings" Coris Holdings SA, a 63.61 per cent. shareholder in Coris Bank;
"Court" the High Court of Justice in England and Wales;
"Court Meeting" if the Offer is to be implemented by means of a Scheme, the meeting of
Hummingbird Shareholders (or the relevant classes thereof) to be convened at
the direction of the Court pursuant to Part 26 of the Companies Act at which a
resolution will be proposed to approve the Scheme (with or without amendment),
including any adjournment, postponement or reconvening thereof;
"CREST" the relevant system (as defined in the Regulations) in respect of which
Euroclear is the operator (as defined in the CREST Manual);
"CREST Manual" the CREST Manual published by Euroclear, as amended from time to time;
"Dealing Disclosure" a dealing disclosure in accordance with Rule 8 of the Takeover Code;
"Debt-to-Equity Conversion" the conversion at the Offer Price of the US$30 million principal amount under
the New CIG Loan into the new Ordinary Shares on the terms set out in the CIG
Subscription Agreement, with such conversion having taken place in two stages,
the Stage 1 Conversion and the Stage 2 Conversion;
"December General Meeting" the general meeting of Hummingbird held on 23 December 2024;
"Disclosure Guidance and Transparency Rules" the Disclosure Guidance and Transparency Rules sourcebook issued by the FCA;
"Electronic Acceptance" the inputting and settling of a TTE instruction which constitutes or is deemed
to constitute an acceptance of the Offer on the terms set out in this
document;
"ESA instruction" an Escrow Account Adjustment Input (AESN), transaction type "ESA" (as
described in the CREST Manual);
"Euroclear" Euroclear UK & International Limited;
"European Union" the economic and political confederation of European nations which share a
common foreign and security policy and co-operate on justice and home affairs
known as the European Union;
"FCA" or "Financial Conduct Authority" the Financial Conduct Authority or its successor from time to time;
"FCA Handbook" the FCA's Handbook of rules and guidance as amended from time to time;
"Form of Acceptance" the form of acceptance and authority relating to the Offer for use by
Hummingbird Shareholders who hold Hummingbird Shares in certificated form;
"FSMA" the Financial Services and Markets Act 2000, as amended from time to time;
"General Meeting" if the Offer is to be implemented by means of a Scheme, the general meeting of
Hummingbird Shareholders to be convened to consider and if thought fit pass,
inter alia, the resolutions (with or without amendment) in relation to the
Scheme including any adjournments, postponement or reconvening thereof;
"HIPPO 2016" the Hummingbird Incentive Plan - Performance Orientated adopted by the
Hummingbird Board on 9 September 2016;
"HIPPO 2018" the Hummingbird Incentive Plan - Performance Orientated 2018 adopted by the
Hummingbird Board on 12 April 2018 and amended by the Hummingbird Board on 24
January 2019;
"HIPPO 2020" the Hummingbird Incentive Plan - Performance Orientated adopted by the
Hummingbird Board on 27 February 2020;
"holder" a registered holder, including any person entitled by transmission;
"Hummingbird" Hummingbird Resources plc, a company registered in England and Wales with
company number 05467327;
"Hummingbird Board" or "Hummingbird Directors" the directors of Hummingbird;
"Hummingbird Deferred Share Awards" the Hummingbird Non-executive Director Deferred Share Award agreements;
" FEAP" the Hummingbird Founders Equity Alignment Plan established by the Hummingbird
Board on 29 May 2014, approved by the Hummingbird Shareholders on 1 July 2014
and amended by the Hummingbird Board on 29 November 2023;
"Hummingbird Group" together Hummingbird and its subsidiary undertakings and where the context
permits, each of them;
"Hummingbird LTIP 2021" the Hummingbird Incentive Plan - Long Term Incentive Plan 2021 adopted by the
Hummingbird Board on 3 November 2021 and amended by the Hummingbird Board on
17 October 2023;
"Hummingbird Remuneration Committee" the remuneration committee of the board of directors of Hummingbird;
"Hummingbird Share Plans" the HIPPO 2016, the HIPPO 2018, the HIPPO 2020, the Hummingbird LTIP 2021 and
the Hummingbird Deferred Share Awards;
"Hummingbird Shareholders" the holders of Hummingbird Shares, but the term shall, where the context
requires, exclude Nioko;
"Hummingbird Shares" the existing unconditionally allotted or issued and fully paid ordinary shares
of 1p each in the capital of Hummingbird and any further shares which are
unconditionally allotted or issued before the Offer closes (or before such
earlier date as Nioko, subject to the Takeover Code, may determine);
"Independent Hummingbird Directors" all of the Hummingbird Directors, with the exception of Geoff Eyre and Oumar
Toguyen;
"ISIN" International Securities Identification Number;
"Latest Practicable Date" 10 January 2025 (being the latest practicable date prior to the publication of
this document);
"London Stock Exchange" London Stock Exchange plc or its successor;
"Meetings" if the Offer is to be implemented by means of a Scheme, the Court Meeting and
the General Meeting;
"New CIG Loan" the consolidated loan for approximately US$30 million under a loan agreement
dated 6 November 2024 between CIG and Hummingbird;
"Nioko" Nioko Resources Corporation an investment company registered in the Trade and
Personal Property Credit Register of Burkina Faso with registered number BF
OUA 2019 B 2606 whose registered office is at Avenue de l'UEMOA, 2cmeetage of
the building built on plot N°10 of lot 20section 006 ZACA, 01 BP 2061
Ouagadougou 01, Burkina Faso, a wholly owned subsidiary of CIG;
"Nioko Board" or "Nioko Directors" the directors of Nioko;
"Offer" the recommended all cash offer by Nioko for the entire issued, and to be
issued, share capital of Hummingbird not already owned, or agreed to be
acquired by Nioko by means of a takeover offer for the purposes of Part 28 of
the Companies Act, or should Nioko so elect with the consent of the Panel and
the consent of Hummingbird, by means of a Scheme and, where the context
admits, any subsequent revision, variation, extension or renewal thereof;
"Offer Document" this documented dated 13 January 2025;
"Offer Period" the offer period (as defined in the Takeover Code) relating to Hummingbird
which commenced on 6 November 2024 until the time and date of an announcement
that the Offer has closed;
"Offer Price" for each Ordinary Share 2.6777 pence in cash;
"Official List" the Official List of the FCA;
"Opening Position Disclosure" an announcement pursuant to Rule 8 of the Takeover Code containing details of
interests or short positions in, or rights to subscribe for, any relevant
securities of a party to the Offer;
"Operational and Financial Position Update" The announcement via RNS on 23 December 2024 whereby Hummingbird provided an
update regarding its operations and financial position;
"Ordinary Shares" ordinary shares of £0.01 each in the capital of Hummingbird;
"Overseas Shareholders" holders of Hummingbird Shares who are resident in, ordinarily resident in, or
citizens of, jurisdictions outside the United Kingdom;
"Panel" the UK Panel on Takeovers and Mergers;
Previous Announcements (i) dated 6 November 2024 as required by Rule 2.4 of the Takeover Code, (ii)
dated 28 November 2024 in respect of the Debt to Equity Conversion, (iii)
dated 5 December 2024 in relation to the Circular, and (iv) dated 23 December
2024 in relation to the operational and financial position of Hummingbird;
"Previous Acceptor" has the meaning given to it in paragraph 4(a) of Part A of Part 3 (Further
terms of the Offer and Acceptances) of this document;
"Receiving Agent" or "Link Group" or "Registrar" Link Group, Central Square, 29 Wellington Street, Leeds, LS1 4DL;
"Register" the register of members of Hummingbird kept and maintained on behalf of
Hummingbird by the Registrar;
"Registrar of Companies" the Registrar of Companies in England and Wales;
"Regulations" the Uncertified Securities Regulations 2001;
"Regulatory Information Service" a regulatory information service as defined in the FCA Handbook;
"relevant securities" "relevant securities" as defined in the Takeover Code;
"Resolutions" if the Offer is to be implemented by means of a Scheme, the resolution(s) to
be proposed at the General Meeting necessary to implement the Scheme,
including, amongst other things, a special resolution proposed in connection
with, inter alia, implementation of the Scheme and certain amendments to be
made to the articles of association of Hummingbird;
"Restricted Jurisdiction" each of Australia, New Zealand, the Republic of South Africa and Japan and any
other jurisdiction where local laws or regulations may result in a significant
risk of civil, regulatory or criminal exposure if information concerning the
Offer is sent or made available to Hummingbird Shareholders in that
jurisdiction;
"Rule 2.7 Announcement" the announcement made under Rule 2.7 of the Takeover Code on 16 December 2024
regarding the Offer;
"Rule 9 Panel Waiver" the waiver granted by the Takeover Panel, subject to approval of the
independent shareholders, of any obligation on Nioko (both individually and
collectively with those parties deemed to be acting in concert with it) to
make a mandatory offer to Shareholders for the Ordinary Shares not owned by
Nioko following any increase in the percentage of Ordinary Shares carrying
voting rights that Nioko are interested in as a result of the Debt-to-Equity
Conversion;
"Rule 9 Waiver Resolution" Resolution 3 as set out in the Notice of General Meeting circulated by
Hummingbird on 5 December 2024;
"Sanction Hearing" if the Offer is to be implemented by means of a Scheme, the Court hearing to
sanction the Scheme;
"Scheme" or "Scheme of Arrangement" subject to the consent of the Panel and the consent of Hummingbird, should the
Offer be implemented by means of a scheme of arrangement under Part 26 of the
Companies Act between Hummingbird and the holders of the Hummingbird Shares to
which the Scheme applies, with or subject to any modification, addition or
condition approved or imposed by the Court and agreed by Hummingbird and
Nioko;
"Scheme Court Order" should the Offer be implemented by means of a Scheme, the order of the Court
sanctioning the Scheme;
"SEC" the United States Securities and Exchange Commission;
"Shareholder Helpline" the shareholder telephone helpline operated by Link Group on Tel: 0371 664
0321 from the UK and +44 371 664 0321 from overseas;
"Stage 1 Conversion" the increase of Nioko's voting rights from 41.81 per cent. to approximately
49.9 per cent. in Hummingbird as per the terms of the CIG Subscription
Agreement;
"Stage 2 Conversion" the increase of Nioko's voting rights from 49.9 per cent. to 71.8 per cent. of
Hummingbird's enlarged share capital as per the terms of the CIG Subscription
Agreement;
"subsidiary", "subsidiary undertaking" and "undertaking" shall be construed in accordance with the Companies Act;
"Takeover Code" the City Code on Takeovers and Mergers issued by the Panel on Takeovers and
Mergers, as amended from time to time;
"TFE instruction" Transfer from Escrow (as defined in the CREST Manual);
"TTE instruction" Transfer to Escrow (as defined in the CREST Manual);
"UK" or "United Kingdom" United Kingdom of Great Britain and Northern Ireland.
"uncertificated" or in "uncertificated form" a share or other security title to which is recorded in the relevant register
of the share or security as being held in uncertificated form, in CREST, and
title to which, by virtue of the Regulations may be transferred by means of
CREST;
"U.S." or "United States" United States of America;
"U.S. Exchange Act" the United States Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder;
In this document, the following terms have the meaning given to them in the
Takeover Code: "acting in concert", "connected adviser", "dealing" (and
"dealt" shall be construed accordingly), "derivative",
"exempt fund manager", "exempt principal trader", "interests in securities"
(and reference to a person having an interest in securities shall be construed
accordingly).
Unless otherwise indicated, all references in this document to "sterling",
"pounds sterling", "£", "pence", "penny" or "p" are to the lawful currency of
the United Kingdom.
Words importing the singular shall include the plural and vice versa. Words
importing the masculine gender shall include the feminine or neutral gender
and vice versa.
The terms "parent undertaking", "subsidiary undertaking" and "associated
undertaking" shall have the same meanings as defined in section 1162 of the
Companies Act and references to "parent" and "subsidiary" shall be interpreted
accordingly.
All references to an "adjournment" of a meeting or to a meeting being
"adjourned" shall be deemed to include a postponement of that meeting or that
meeting being postponed,
All references to a statutory provision or law or to any order or regulation
shall be construed as a reference to that provision, law, order or regulation
as extended, modified, replaced or re-enacted from time to time and all
statutory instruments, regulations and orders from time to time made
thereunder or deriving validity therefrom.
A reference to "includes" shall mean "includes without limitation", and
references to "including" and any other similar term shall be construed
accordingly.
All the times referred to in this document are London (UK) times unless
otherwise stated.
PART 6
HUMMINGBIRD'S EMPLOYEE REPRESENTATIVE AND PENSION
SCHEME TRUSTEE
As required under Rule 2.11(d) of the Takeover Code, Hummingbird has informed
its employee representatives of their right under Rule 25.9 to have a separate
opinion on the effects of the offer on employment or the pension scheme, as
applicable, appended to this document and that Hummingbird would be
responsible for the costs reasonably incurred by the employee representatives
in obtaining advice for the verification of the information contained in their
opinion.
If Hummingbird receives a request for and obtains any such opinion following
the publication of this document, Hummingbird will publish it on its website
and make an announcement in accordance with Rule 25.9(b) of the Takeover Code.
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