REG - Oxford BioDynamics - Proposed Fundraising
01/08/2023 17:00
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RNS Number : 9667H Oxford BioDynamics PLC 01 August 2023
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OXFORD BIODYNAMICS PLC
Proposed Fundraising comprising:
(i) Placing
(ii) Subscription
(iii) Retail Offer via PrimaryBid
Posting of Circular to Shareholders
and
Notice of General Meeting
Oxford, UK - 1 AUGUST 2023 - Oxford BioDynamics PLC (AIM: OBD, "OBD", the
"Company" and, together with its subsidiaries, the "Group"), a biotechnology
company developing targeted clinical diagnostic tests for immune health based
on the EpiSwitch® 3D genomics platform, announces a fundraising by way of a
placing of a minimum of 43,000,000 new Ordinary Shares of 1p each in the
Company (the "Placing") and direct subscriptions for up to 2,528,636 new
Ordinary Shares of 1p each in the Company (the "Subscription Shares") to raise
together gross proceeds of not less than £5 million and an offer of new
Ordinary Shares of 1p each in the Company (the "PrimaryBid Shares") to retail
investors via the PrimaryBid platform to raise up to £2 million (the
"PrimaryBid Offer") (all together the "Fundraising"), in each case at a price
of 11 pence per share (the "Issue Price"). Further announcements will be made
shortly in connection with the PrimaryBid Offer. The Placing will be effected
through the issue of new Ordinary Shares (the "Placing Shares") to new and
existing investors. The Placing Shares, the Subscription Shares and the
PrimaryBid Shares are all together the "New Ordinary Shares".
The Placing will be conducted through an accelerated bookbuilding process (the
"Bookbuild" or the "Bookbuilding Process"), which will be launched immediately
following this announcement. The timing of the closing of the Bookbuild and
allocations are at the absolute discretion of the Joint Brokers, Shore Capital
and Baden Hill, and the Company. It is currently envisaged that the result of
the Bookbuild will be announced via the RNS tomorrow, 2 August 2023 at
7.00a.m. (the "Bookbuild Results Announcement").
The Fundraising is conditional upon, amongst other things, the approval by the
Shareholders of the Resolutions to be proposed at the General Meeting. The
Fundraising has not been underwritten. The Resolutions must be passed by
Shareholders at the General Meeting in order for the Fundraising to proceed.
If the conditions relating to the issue of the Placing Shares are not
satisfied or the Placing Agreement is terminated in accordance with its terms,
the Placing Shares will not be issued and the Company will not receive the
associated placing monies. In this scenario, the PrimaryBid Offer and the
Subscription will similarly not proceed.
Key features of the Fundraising
· The Fundraising will provide working capital to support the
commercial development, through continued investment in sales and marketing
activities to grow adoption of EpiSwitch® CiRT and spending to complete the
validation, launch and initial sales and marketing support of PSE.
· The Issue Price of 11 pence per New Ordinary Share represents a
premium of 2.3% to the closing mid-market price on 31 July 2023 of 10.75 pence
per Existing Ordinary Share.
· A General Meeting of the Company's Shareholders will take place
at 10.00 a.m. on 18 August 2023.
· A copy of the Circular will shortly be available on the Company's
website.
Dr Jon Burrows, CEO of Oxford BioDynamics plc, said:
We are pleased to announce the proposed Fundraising today, securing the
Group's runway through and beyond the launch of our eagerly awaited Prostate
Screening EpiSwitch (PSE) test later in 2023. Both existing and new
shareholders intend to participate in the Fundraising, alongside directors and
senior management from across the Group. We are also pleased that the
PrimaryBid offer will enable new and existing retail shareholders to invest in
this next exciting phase of OBD's development, on the same terms as
institutional investors. I would like to thank all those participating in the
Fundraising for their support of the Group. With the whole OBD team, I look
forward to supporting the continued growth of our flagship EpiSwitch CiRT test
in the US and UK and working towards a successful commercial launch of the
important PSE test to the market.
Background to and reasons for the Fundraising and Use of Proceeds
The Company's strategy is centred on the development and commercialisation of
proprietary precision medicine tests for cancer and other life-changing
diseases, alongside work with pharma and other partners supporting biomarker
discovery and clinical development.
The Company launched its flagship product, the EpiSwitch® CiRT (Checkpoint
Inhibitor Response Test) for cancer, in February 2022. Its next commercial
product, the Prostate Screening EpiSwitch ("PSE") Test, is expected to be
launched in Q4 2023.
EpiSwitch® CiRT is a first-of-its-kind precision medicine test that predicts
a cancer patient's likely response to Immune Checkpoint Inhibitors ("ICIs"),
including anti-PD-L1 and anti-PD-1 therapies. The test has demonstrated
best-in-class performance in the prediction of cancer patient response to
ICIs, with high sensitivity (93%), specificity (82%), and accuracy (85%)
across the most widely used ICIs from multiple pharmaceutical companies, in 15
key oncological indications.
EpiSwitch® CiRT is currently available for clinical utilisation in the US
under a unique CPT-PLA code and to private physicians in the UK and elsewhere.
Since launch, more than 480 CiRT tests have been ordered by a total of over 50
oncologists.
In March 2023, the Company announced its intention to expedite the final
development, validation and commercial launch of its PSE blood test. PSE is a
simple blood test that combines the widely used prostate specific antigen
("PSA") test with an EpiSwitch prostate cancer classifier developed by the
Company.
The Company's PSE test will offer a rapid, minimally invasive, accurate (94%
overall accuracy) test with significant potential as a screening diagnostic
and large addressable markets. In the UK there are approximately 10 million
men between the ages of 50 and 74, while in the US the number is closer to 50
million.
The Company intends to launch PSE in the US and UK by the end of 2023 and
remains on track to do so following the successful completion of all planned
activity to date, including the lease, set-up and registration of a Clinical
Laboratory Improvements Act (CLIA)-registered clinical laboratory in
Frederick, MD, recruitment of key personnel and technology transfer.
The Company will use the net proceeds of the Fundraising as working capital to
support the continued commercial development of the EpiSwitch® product line.
Further details of the intended use of proceeds are set out below under the
heading "Use of proceeds".
The Directors believe that the Group's strategy, centred on the EpiSwitch CiRT
and PSE blood tests, will lead to the creation of material Shareholder value
over the longer term. The funds raised in the Fundraising are expected to
provide additional resources for the short-term pursuit of this strategy.
In the Group's interim results, published on 30 May 2023, the Board
highlighted the possibility that additional funding would be sought during the
remainder of the 2023 calendar year. If the Resolutions to approve the Placing
were not to be passed, then the Company would be required to seek alternative
funding arrangements in order to meet its short-term working capital
requirements.
Information on Oxford BioDynamics PLC
The Company is a global biotechnology company advancing personalised
healthcare by developing and commercialising precision medicine tests for
life-changing diseases. The Company is headquartered in Oxford, UK, where it
has its main research laboratory and product development facility. In the US,
the Company has a commercial team and office based in Gaithersburg, MD and a
CLIA-registered clinical laboratory in Frederick, MD. It has a reference
laboratory in Penang, Malaysia. The Company's Ordinary Shares are admitted to
trading on AIM.
Founded in 2007 as a spin-out from the University of Oxford, the Company is a
global leader in 3D genomics, with over 16 years' work invested into
developing its proprietary automated fast turn-around blood testing technology
platform, EpiSwitch®.
The Company's flagship product is EpiSwitch® CiRT (Checkpoint Inhibitor
Response Test) for cancer, a predictive immune response classifier for
immuno-oncology (IO) checkpoint inhibitor treatments, launched in February
2022.
The Company's next commercial product, the Prostate Screening EpiSwitch®
(PSE) blood test, is expected to be launched in Q4 2023.
In March 2021, the Company launched its first commercial prognostic test,
EpiSwitch® CST (Covid Severity Test) and the first commercially available
microarray kit for high-resolution 3D genome profiling and biomarker
discovery, EpiSwitch® Explorer Array Kit, which is available for purchase by
the life science research community.
The Company has developed a proprietary 3D genomic biomarker platform,
EpiSwitch®, which can build molecular diagnostic classifiers for prediction
of response to therapy, patient prognosis, disease diagnosis and subtyping,
and residual disease monitoring in a wide range of indications. The Company's
EpiSwitch® platform has proven highly accurate and demonstrated robust
stratification of clinical outcome and prognosis.
The Company has participated in more than 40 partnerships with big pharma and
leading institutions including Pfizer, EMD Serono, Genentech, Roche, Biogen,
Mayo Clinic, Massachusetts General Hospital and Mitsubishi Tanabe Pharma. The
Group's pharma partnerships have demonstrated its ability to reduce its
technology to practice for clinical applications.
In the US, the Company is a member of four Foundation of the National
Institutes of Health ("FNIH") Biomarker Steering Committees, in oncology,
immunology and inflammation, neuroscience and metabolics.
The Company has created a valuable technology portfolio, including biomarker
arrays, a pipeline of molecular diagnostic tests, bioinformatic tools for 3D
genomics and an expertly curated 3D genome knowledgebase comprising over 800
million data points from over 15,000 samples in more than 30 human diseases.
The 3D configuration of the genome plays a crucial role in gene regulation. By
mapping this architecture and identifying abnormal configurations, EpiSwitch®
can be used to diagnose patients or determine how individuals might respond to
a disease or treatment.
Built on over 16 years of research, EpiSwitch® is the Company's
award-winning, proprietary platform that enables screening, evaluation,
validation and monitoring of 3D genomic biomarkers. The technology is fully
developed, protected by a broad intellectual property portfolio comprising 18
patent families as well as extensive proprietary know-how, and is reduced to
practice.
In addition to stratifying patients with respect to anticipated clinical
outcome, EpiSwitch® data offer insights into systems biology and the
physiological manifestation of disease that are beyond the scope of other
molecular modalities. The technology has performed well in academic medical
research settings and has been validated through its integration in biomarker
discovery and clinical development with big pharma.
For more information on the Group's EpiSwitch® platform, view the video "What
is EpiSwitch® Technology?" at http://obdx.co/what-is-episwitch
(https://url.avanan.click/v2/___http:/obdx.co/what-is-episwitch___.YXAxZTpzaG9yZWNhcDphOm86YTZjNGYzZWZiYzIxOWYwOGE0MzczODU1ZGJjNmQ1M2M6Njo5MDRlOjhkOWUxOGQxYTdhZGY4ZjdkYTNjZmUzZTc1YjAyMzgyNDBkMGJkOTNlNzI2YWM1ZmU2ZjJhMDk2ODY3NzMzNDA6cDpU)
.
Current Trading and Prospects
During the current financial year (ending 30 September 2023), the Group has
focused on:
• clinical operations, sales and market access and
marketing work to support and grow adoption and utilization of EpiSwitch®
CiRT by oncologists following its launch last year and the availability of a
unique CPT-PLA code from 1 October 2022;
• expedited product development work on the PSE blood
test;
• set-up and staffing of a company-owned CLIA-registered
clinical laboratory in Frederick, MD, USA, from where the PSE test will be
offered to the US market once launched;
• work with pharma customers in biomarker discovery and
clinical development; and
• research, both on internal proprietary projects and with
academic and other partners.
EpiSwitch® CiRT
EpiSwitch® CiRT is a first-of-its-kind blood test that predicts a patient's
likely response to immune checkpoint inhibitor (ICI) therapies, offering
valuable insight for oncologists, their patients and healthcare systems alike.
ICIs work by releasing the brakes holding the immune system back so that it is
stimulated to attack a patient's cancer cells. However, on average fewer than
one third of patients are likely to benefit from ICI treatment. A significant
proportion will experience an adverse reaction to the therapy, although some
of these will go on to see a clinical benefit if they continue after being
treated for the reaction. Doctors therefore face particular challenges when
deciding on whether and for how long to use ICIs in the treatment pathways
they develop for patients. Knowing the likelihood of response can assist
doctors in deciding on the appropriate course of treatment, including for
patients who show significant adverse reactions but who should be treated and
encouraged to continue with ICI therapies.
The ability to predict whether patients are likely to respond to ICI therapy
also offers significant potential benefits to healthcare payors and systems.
Ten ICIs are currently approved for use in the US, for a wide variety of
cancer indications. Almost $40 billion was spent on these drugs worldwide in
2022 and it is estimated that over $10 billion is spent annually on
ineffective ICI therapy in the US alone.
Growth in orders of the CiRT test has been positive: it took around nine
months from launch in February 2022 for the first 100 tests to be ordered.
Since then, the run rate of orders has steadily increased, from an average of
around one test per day in November 2022 to an average of over four per day in
June 2023 (the last complete month as at the date of this announcement).
More than 400 tests had been ordered in aggregate by the end of June 2023 and
over 45 US doctors have so far ordered tests since the beginning of 2023.
The Company's sales and market access team has benefited from focusing on
learning from oncologists how they are using CiRT. Recently, the Group has
facilitated several local advisory boards at which doctors hear not only from
the Company's team, but also fellow oncologists about their experiences of
using the test. Early evidence suggests that this "peer-to-peer" approach to
introducing doctors to the benefits of the test has provided a successful
complement to direct selling by the Company's team.
A unique CPT-PLA code for EpiSwitch CiRT has been available for use in the US
since October 2022, allowing for reimbursement from US insurers. The
reimbursement claims process is a complex one that is carefully managed by the
Group's clinical operations team, alongside staff from our partner laboratory.
This includes, for example, delaying submission of claims for certain groups
of patients until appropriate coverage policies are in place, in order to
avoid rejection of claims by payors wherever possible.
Reimbursements have been in the range anticipated by the Group: the average
amount paid for the tests reimbursed under the unique code to date is in
excess of $2,400, against a list price of $4,950. Revenue for these tests is
recognized only on receipt and is therefore delayed relative to test
processing. However, some payors are now providing reimbursement within as
little as 2-3 weeks of claims being submitted.
Immediate priorities for CiRT include 1) supporting growth in orders through
direct contact with doctors and facilitated peer group events; 2) seeking
coverage policies or ensuring the test is added to existing policies with
payors; 3) establishing a reimbursement value with the Medicare Administrative
Contractors (MAC) and processing claims; and 4) introducing the test to new
healthcare systems (for example US integrated delivery networks (IDNs) or UK
private medical providers or insurers). The Company is currently in
discussions with two UK-based private medical groups for the use of CiRT,
including one at an advanced stage of negotiation. It is not expected that the
successful conclusion of such discussions would have a material impact on the
Company's financial performance in the short term. The Company will announce
any agreement in due course.
Visit https://obdx.co/what-is-cirt
(https://url.avanan.click/v2/___https:/obdx.co/what-is-cirt___.YXAxZTpzaG9yZWNhcDphOm86YTZjNGYzZWZiYzIxOWYwOGE0MzczODU1ZGJjNmQ1M2M6NjoyYzk3OjY1ZTBhMzYwMjg4NDQyZmZkZDRkZjMwMmU5YzQ5YzIzM2E0MzJiZDQxNmI0MjhjNjM0MThjODRiMWFhNTcxZDg6cDpU)
to view a video providing more information on EpiSwitch® CiRT.
Prostate Screening EpiSwitch® (PSE)
PSE is a simple blood test that combines the widely used prostate specific
antigen (PSA) test with an EpiSwitch prostate cancer classifier developed by
the Company. Positive results from PSA tests are known to be unreliable, with
a positive predictive value of 14-25% (meaning 3 in 4 men with a raised PSA
level will not have cancer). This results in many men without prostate cancer
being referred for expensive follow-on screening, including invasive biopsies
that often lead to complications.
Data from the PROSTAGRAM NHS study, published in Cancers, a high-impact,
peer-reviewed journal in February 2023, showed that PSE demonstrated
compelling results of 93% positive predictive value, 95% negative predictive
value and overall accuracy of 94%. The Company experienced an unprecedented
level of interest in the test following the announcement of the publication of
these results, both from doctors and in the mainstream media. In response, the
Company has moved quickly to expedite development and commercial launch of the
test.
The Company's PSE test will offer a rapid, minimally invasive, accurate test
with significant potential as a screening diagnostic and large addressable
markets. In the US there are approximately 47 million men aged between 50 and
74, with 25 million PSA tests performed annually (2021 figures). There are
approximately 10 million men in the same age bracket in the UK.
The Company will offer the PSE test from its own clinical laboratories in the
US and UK. To that end, the Group's US subsidiary leased and moved into 7,800
square feet of laboratory space in Frederick, MD, USA in April 2023. This lab
has already been successfully registered under the Clinical Laboratory
Improvements Act (CLIA) (registration # 21D2284653). Staff necessary for
offering the test in the US have been recruited and trained and an application
for a CPT-PLA code for the test has been filed, in early July 2023. Tech
transfer has been completed and clinical validation of the PSE test in the US
lab is currently underway.
The test will also be offered from a UK clinical lab meeting the requirements
of ISO 15189 (the international quality standard for medical laboratories),
which is under development in the Group's existing UK HQ.
The Company expects to launch the PSE test in Q4 2023.
EpiSwitch® Explorer Array Kit
The Company's EpiSwitch® Explorer Array Kits enable members of the life
science research community to generate valuable insights using the Group's 3D
genomics technology. The Explorer Array Kit allows interrogation of just under
1 million of the most critical interactions between 3D anchor sites (the
Company's proprietary "EpiSwitch loci") on the human genome, offering powerful
new information to researchers, including confirmation or clarification of
their hypotheses.
The kits contain EpiSwitch whole genome microarray slides custom-made by
Agilent Technologies (NYSE:A) as well as the Company's proprietary reagents
for sample preparation. Purchasers also have access to first tier analysis
software developed in-house by the Company's team. Alternatively, the
Company's scientists can analyse researchers' samples of interest using the
Kit as a paid-for service.
Explorer Array Kits have been purchased by scientists from several prestigious
academic research institutions, including The Francis Crick Institute and the
University of Oxford Department of Biochemistry. Results from academic
life-science research based on EpiSwitch Explorer Arrays have already been
presented at national and international scientific peer group meetings.
Award and grant income
In May 2023, the Company was granted a second Partnership for Accelerating
Cancer Therapies ("PACT") Award. The prestigious award comes from PACT, a
five-year public-private research collaboration totalling $220 million between
the National Institutes of Health (NIH), the US Food and Drug Administration
(FDA) and 12 leading pharma companies, all managed by the FNIH. The Award
is worth $963,000 over one year and will help fund the reduction to practice
of an EpiSwitch prognostic blood test for cancer patients with
Hyper-Progressive Disease (HPD). HPD is critical condition observed in a
subset of cancer patients, who react adversely to treatment with immune
checkpoint inhibitors (ICIs) such as Keytruda, Pembrolizumab, Nivolumab, etc.
Despite their high efficacy in treatment of cancer, in HPD patients ICI
treatment triggers an unwanted opposite effect - accelerated tumour growth,
with reduced survival. The work enabled by the PACT Award will help to
complete the development of the Hyper-ICI Response Test (HiRT), a blood test
to identify patients at risk of HPD prior to ICI therapy. With broad adoption
of ICI treatments in cancer patients, the lack of prognostic biomarkers for
HPD (which has average prevalence of 12%), has become an urgent issue for
practicing clinicians, drug developers, payers and regulators.
The Company is one of 26 participants in the EU-funded HIPPOCRATES (Health
initiatives in psoriasis and psoriatic arthritis consortium European states)
consortium. The consortium was awarded a total of €21 million over five
years in July 2021 to promote early identification and improved outcomes in
psoriatic arthritis (PsA). OBD has completed and reported to partners the
first screening stage in the development of EpiSwitch biomarkers to
successfully meet the objectives of the consortium.
Product pipeline
OBD is three years into its journey to commercialize over a decade of research
and development. The Company has developed both the world's largest 3D
genomics knowledgebase (containing hundreds of millions of datapoints relating
to over 30 diseases) and a deep pipeline of deployable blood tests that could
be applied to clinical testing in diverse indications with large addressable
markets.
As previously announced, after the planned launch of PSE later in 2023, the
Company expects the next most likely candidates for commercial development
will be a diagnostic for early detection and staging of colorectal cancer and,
in veterinary medicine and a diagnostic/prognostic test for various canine
cancers.
The Fundraising
The Company is proposing to raise gross proceeds of not less than £5 million
by way of a Placing of a minimum of 43,000,000 Placing Shares, direct
subscriptions for up to 2,528,636 Subscription Shares. In addition, an offer
of up to 18,181,818 new Ordinary Shares will be made to retail investors via
the PrimaryBid platform the ("PrimaryBid Shares") to raise up to £2 million.
Participation of Directors and Substantial Shareholders
Certain Directors and PDMRs of the Company intend to participate in the
Fundraising, in aggregate, for a total of approximately £129,900. In
addition, Vulpes Investment Management (which is controlled by Non-Executive
Director Stephen Diggle), has indicated an intention to materially participate
in the Fundraising. As Related Parties of the Company, such participations are
expected to constitute Related Party Transactions under Rule 13 of the AIM
Rules for Companies. Further information will be set out as required in future
announcements.
General Placing and VCT/EIS Placing
The General Placing (which is not being underwritten) is conditional, amongst
other things, upon: (a) the Resolutions set out in the Notice of General
Meeting being approved by the Shareholders; (b) the VCT/EIS Shares being
unconditionally allotted and issued to Placees and the VCT/EIS Admission
having taken place; (c) the Company having complied with its obligations under
the Placing Agreement to the extent the same fall to be performed prior to
General Admission; and (d) Admission of the General Placing Shares becoming
effective on or before 8.00 a.m. on 22 August 2023, or such later date as the
Company and the Joint Brokers may agree (being no later than 8.00 a.m. on 29
September 2023). The Placing Shares are not subject to clawback.
The VCT/EIS Placing is conditional, amongst other things, upon: (a) the
passing of the Resolutions at the General Meeting; and (b) the VCT/EIS
Admission occurring on or before 21 August 2023 (or such later date as the
Joint Brokers and the Company may agree, not being later than 29 September
2023).
Shareholders should note that it is possible that VCT/EIS Admission occurs but
General Admission does not occur. General Admission is conditional on VCT/EIS
Admission occurring. If VCT/EIS Admission and General Admission do not occur
then the Company will not receive the relevant net proceeds in respect of
VCT/EIS Admission and General Admission and the Company may not be able to
finance the activities referred to in this announcement.
The Company received advance assurance on 27 July 2023 from HMRC that it is a
qualifying company for the purposes of the Enterprise Investment Scheme ("EIS
Advance Assurance"). Accordingly, whilst the Company currently expects to
satisfy the relevant conditions for the issue of the VCT/EIS Shares to be
eligible for EIS Relief and should be regarded as a qualifying holding for a
VCT, and the Directors are not aware of any subsequent change in the
qualifying conditions or the Company's circumstances that would prevent the
VCT/EIS Shares from being eligible for EIS and VCT investments on VCT/EIS
Admission, neither the Directors nor the Company give any representation,
warranty or undertaking that relief will be available in respect of the
VCT/EIS Shares nor is any representation, warranty or undertaking given that
the Company will continue to conduct its activities in a way that qualifies
for, or preserves, its eligibility status. HMRC does not consider VCT advance
assurance applications where the details of the potential qualifying holding
are not given.
Subject to, inter alia, the passing of the Resolutions, application will be
made for the VCT/EIS Shares, the General Placing Shares, the Subscription
Shares and the PrimaryBid Shares to be admitted to trading on AIM. VCT/EIS
Admission is expected to occur and dealing are expected to commence in the
VCT/EIS Shares at 8.00 a.m. on 21 August 2023. General Admission is expected
to occur and dealings are expected to commence in the General Placing Shares,
the Subscription Shares and the PrimaryBid Shares at 8.00 a.m. on 22 August
2023. Shareholders and potential investors should be aware of the possibility
that VCT/EIS Admission may occur but General Admission may not occur.
The PrimaryBid Offer
The Directors value the Company's private investor base and believe that it is
appropriate to provide private and other investors with an opportunity to
participate in the Fundraising alongside institutional investors. The Company
therefore intends to open this opportunity to individual investors through
PrimaryBid.com and further announcements will be made shortly in connection
with the PrimaryBid Offer. For the avoidance of doubt, the PrimaryBid Offer is
not part of the Placing and is the sole responsibility of the Company.
The PrimaryBid Shares, when issued, will be fully paid and will rank "pari
passu" in all respects with each other and with the existing Ordinary Shares,
including, without limitation, as regards the right to receive all dividends
and other distributions declared, made or paid after the date of issue.
The PrimaryBid Offer remains conditional on the Placing being or becoming wholly unconditional, including the passing of the Resolutions and Admission. The Company is relying on an available exemption against the need to publish a prospectus approved by the FCA (acting in its capacity as the UK Listing Authority) in respect of the PrimaryBid Offer. Further details on the PrimaryBid Offer will be announced shortly following this announcement.
Subscription
The Subscribers intend to subscribe for the Subscription Shares at the Issue
Price. The Subscription is conditional, among other things, upon (a) the
Resolutions and set out in the Notice of General Meeting being approved by the
Shareholders and (b) General Admission becoming effective by no later than
8.00 a.m. on 22 August 2023 (or such later date as the Joint Brokers and the
Company may agree, not being later than 29 September 2023). The Subscription
is not being underwritten and the Subscription Shares are not subject to
clawback.
The Placing Agreement
Pursuant to the terms of the Placing Agreement, the Joint Brokers have
conditionally agreed to use their reasonable endeavours, as agents for the
Company, to procure subscribers for the Placing Shares at the Issue Price. The
Placing Agreement contains customary warranties from the Company in favour of
the Joint Brokers in relation to, amongst other things, the accuracy of the
information in this announcement and other matters relating to the Group and
its business. In addition, the Company has agreed to indemnify the Joint
Brokers in relation to certain liabilities they may incur in respect of the
Fundraising. The Joint Brokers have the right to terminate the Placing
Agreement in certain circumstances prior to VCT/EIS Admission or General
Admission, in particular, in the event of a material breach of the warranties
given in the Placing Agreement, breach by the Company of any of its material
obligations under the Placing Agreement, the occurrence of a force majeure
event, or a material adverse change affecting, amongst other things, the
Placing or dealings in the New Ordinary Shares in the secondary market.
Settlement and dealings
An application will be made to the London Stock Exchange for the New Ordinary
Shares to be admitted to trading on AIM. It is expected that Admission will
become effective and dealings in the VCT/EIS Placing Shares will commence on
21 August 2023 and dealings in the General Placing Shares, the Subscription
Shares and the PrimaryBid Shares will commence on 22 August 2023, subject to
the passing of the Resolutions at the General Meeting. The Placing Shares
being issued pursuant to the Placing, the Subscription Shares being issued
pursuant to the Subscription and the PrimaryBid Shares being issued pursuant
to the PrimaryBid Offer will, on Admission, rank in full for all dividends and
other distributions declared, made or paid on the Ordinary Shares after
Admission and will otherwise rank pari passu in all respects with the Existing
Ordinary Shares.
Working Capital
The Directors are of the opinion, having made due and careful enquiry, that,
taking into account the net proceeds of the Placing and the Subscription and
the revenue and other operating income that the Company expects to generate
over the period, the working capital available to the Company is sufficient
for its requirements until at least the end of June 2024. In the absence of
higher product or project revenue or grant award funding, it would be
necessary for the Company to raise additional funds, most likely in Q2 of
2024.
Use of proceeds
The Company will use the net proceeds of the Fundraising as working capital to
support its commercial development, specifically through continued investment
in sales and marketing activities to grow adoption of EpiSwitch® CiRT and
spending to complete the validation, launch and initial sales and marketing
support of PSE. As well as supporting EpiSwitch CiRT and PSE, the Company will
work on biomarker discovery and clinical development programmes for pharma
customers, development of products from its pipeline of deployable molecular
tests, and on grant-funded research. The Company will also continue to provide
the life science research community with access to its 3D genomics technology
through the EpiSwitch® Explorer Array Kit.
Posting of Shareholder Circular and Notice of General Meeting
The Fundraising is conditional upon, amongst other things, the approval by the
Shareholders of the Resolutions to be proposed at the General Meeting. The
Resolutions must be passed by Shareholders at the General Meeting in order for
the Fundraising to proceed.
A circular to Shareholders ("Circular") will be posted on 2 August 2023
convening a general meeting of the Company to be held at 3140 Rowan Place,
Oxford Business Park South, Oxford, OX4 2WB on 18 August 2023 and will be
available to download on the Company's website at
www.oxfordbiodynamics.com/investors
(https://url.avanan.click/v2/___http:/www.oxfordbiodynamics.com/investors___.YXAxZTpzaG9yZWNhcDphOm86ZmQwNmJiMzM5ZWRmYWEyOGE1NjJkZTI4YmUzYTZiNDU6NjoxMjkyOmU5ZDliOTM4NDViYjAxM2Q5MmI3MDBiYmU2YWUyNzczYmUyMzFiYzQxYzYwN2IwMzQ2NmU5NTg3YjgzZmY1MGQ6cDpU)
.
Should Shareholders wish to ask any questions in relation to the Resolutions,
they are encouraged to contact the Company prior to the General Meeting by
email to the Company Secretary at investorrelations@oxfordbiodynamics.com
(mailto:investorrelations@oxfordbiodynamics.com) with the subject line "GM
Question".
Related Party Transactions
As disclosed on his appointment in December 2020, Non-Executive Chairman of
the Company, Matthew Wakefield, is a partner and shareholder in Baden Hill,
which has previously raised capital for the Company and is acting as joint
broker in connection with the Placing. As Non-Executive Chairman of the
Company, Matthew Wakefield is a related party as defined in the AIM Rules.
Accordingly, the transaction between the Company and Baden Hill is a related
party transaction (the "Baden Hill Transaction") pursuant to Rule 13 of the
AIM Rules. It is anticipated that Baden Hill will receive commission of 2.5%
of funds raised in the Placing (excluding any funds raised from directors,
persons discharging managerial responsibilities ("PDMRs") or staff of the
Company, or entities controlled by them or the Vulpes Life Sciences Fund or
Vulpes Testudo Fund (as managed by Vulpes Investment Management).
The directors of the Company independent of the Baden Hill Transaction (being
Dr Alexandre Akoulitchev, Dr Jon Burrows, Stephen Diggle, Dr David Holbrook
and Paul Stockdale), having consulted with the Company's nominated adviser,
Shore Capital, consider the terms of the Baden Hill Transaction to be fair and
reasonable insofar as the Company's Shareholders are concerned.
Recommendation
The Directors consider the Fundraising to be in the best interests of the
Company and its Shareholders as a whole and, accordingly, unanimously
recommend Shareholders to vote in favour of the Resolutions to be proposed at
the General Meeting as those Directors who hold Ordinary Shares will do in
respect of their beneficial holdings amounting, in aggregate, to 26,760,929
Ordinary Shares as at 1 August 2023 (being the last practicable date prior to
the date of this announcement), representing 18.2% of the Company's issued
share capital prior to the issue of the New Ordinary Shares.
The Fundraising is conditional, amongst other things, upon the passing of the
Resolutions at the General Meeting. Shareholders should be aware that, if the
Resolutions are not passed at the General Meeting, then the Fundraising will
not proceed.
-Ends-
For more information:
Oxford BioDynamics Plc Tel: +44 (0)1865 518910
Jon Burrows, CEO
Paul Stockdale, CFO
Shore Capital - Nominated Adviser and Broker Tel: +44 (0)20 7408 4090
Advisory: Stephane Auton / Iain Sexton
Broking: Fiona Conroy
Instinctif Partners - Financial PR Tel: +44 (0)20 7457 2020
Melanie Toyne-Sewell / Rozi Morris / Adam Loudon
OxfordBioDynamics@instinctif.com
EXPECTED TIMETABLE OF PRINCIPAL EVENTS
Publication of the Circular 2 August 2023
Latest time and date for receipt of Forms of Proxy 10.00 a.m. on 16 August 2023
General Meeting 10.00 a.m. on 18 August 2023
Announcement of results of General Meeting 18 August 2023
Admission and dealings in the VCT/EIS Shares to commence on AIM 8.00 a.m. on 21 August 2023
Crediting of the VCT/EIS Shares to CREST accounts 21 August 2023
Admission and commencement of dealings in the General Placing Shares, the 8.00 a.m. on 22 August 2023
Subscription Shares and the PrimaryBid Shares
Crediting of the General Placing Shares, the Subscription Shares and the 22 August 2023
PrimaryBid Shares in uncertificated form
to CREST stock accounts
Dispatch of share certificates in respect of the New Ordinary Shares within 10 business days of Admission
(if applicable)
Notes:
1. All references to times in this announcement are to London
time.
2. The dates and times set out in the above timetable and in
the rest of this announcement are indicative only and may be subject to
change. If any such dates and times should change, the revised times and/or
dates will be notified by announcement via RNS.
3. All events in the above timetable scheduled to take place
after the General Meeting are conditional on the approval by the Shareholders
of the Resolutions.
DEFINITIONS
The following definitions apply throughout this announcement (unless the
context otherwise requires):
"Act" the Companies Act 2006 (as amended from time to time);
"Admission" VCT/EIS Admission in the context of the VCT/EIS Shares and General Admission
in the context of the Placing Shares, the Subscription Shares and the
PrimaryBid Shares;
"AIM" AIM, the market of that name 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);
"Baden Hill" Northland Capital Partners Limited, trading as Baden Hill, the Company's joint
broker;
"Chief Executive Officer" or "CEO" Dr Jon Burrows;
"Company" Oxford BioDynamics PLC, a company incorporated and registered in England and
Wales with registered number 06227084;
"CREST" the relevant system (as defined in the CREST Regulations) in respect of which
Euroclear is the operator (as defined in those regulations) which facilitates
the transfer of title to shares in uncertificated form;
"CREST Manual" the CREST reference manual as published by Euroclear;
"CREST Member" a person who has been admitted to Euroclear as a system- member (as defined in
the CREST Regulations);
"CREST sponsor" a CREST participant admitted to CREST as a CREST sponsor;
"CREST sponsored member" a CREST Member admitted to CREST as a sponsored member;
"CREST Regulations" the Uncertificated Securities Regulations 2001 (S.I. 2001 No. 3755) (as
amended from time to time);
"Directors" or "Board" the directors of the Company, or any duly authorised committee thereof;
"EIS" the Enterprise Investment Scheme under part 5 of the Income Tax Act 2007 (as
amended);
"EIS Relief" the relief claimed by any holder of the VCT/EIS Shares under Part 5 of the ITA
2007 or exemption or relief available under sections 150A, 150C and Schedule
5B Taxation of Chargeable Gains Act 1992;
"Enlarged Share Capital" the issued share capital of the Company following Admission (including the New
Ordinary Shares and assuming full take-up under the PrimaryBid Offer);
"Euroclear" Euroclear UK & International Limited, the operator of CREST;
"Existing Ordinary Shares" 146,712,380 ordinary shares of £0.01 (1 penny) each in the capital of the
Company in issue at the date of this announcement;
"FCA" the UK Financial Conduct Authority;
"Form of Proxy" the form of proxy which will accompany the Circular for use by Shareholders in
connection with the General Meeting;
"FSMA" the Financial Services and Markets Act 2000 (as amended from time to time);
"Fundraising" the Placing, the Subscription and the PrimaryBid Offer;
"General Admission" admission of the General Placing Shares, the Subscription Shares and the
PrimaryBid Shares to trading on AIM becoming effective in accordance with Rule
6 of the AIM Rules;
"General Meeting" the general meeting of the Company to be held at 10.00 a.m. on 18 August 2023;
"General Placing" the conditional placing of the General Placing Shares to Placees;
"General Placing Shares" New Ordinary Shares which are to be issued under the General Placing;
"Group" the Company and its subsidiaries (as defined in the Act) as at the date of
this announcement;
"Issue Price" 11 pence per New Ordinary Share;
"Joint Brokers" Shore Capital and Baden Hill;
"London Stock Exchange" London Stock Exchange plc;
"MAR" the Market Abuse Regulation (596/2014/EU) as it forms part of UK domestic law
by virtue of the European Union (Withdrawal) Act 2018, as amended;
"New Ordinary Shares" together, the Placing Shares, the PrimaryBid Shares and the Subscription
Shares;
"Notice of General Meeting" the notice convening the General Meeting which will be set out at the end of
the Circular;
"Ordinary Shares" the Company's ordinary shares of £0.01 (1 penny) each;
"Placee" any person who has agreed to subscribe for Placing Shares pursuant to the
Placing;
"Placing" the VCT/EIS Placing and the General Placing;
"Placing Agreement" the agreement dated 1 August 2023 between the Company (1) and the Joint
Brokers (2) relating to the Placing, further details of which are set out in
this announcement;
"Placing Shares" New Ordinary Shares which are to be issued under the Placing;
"PrimaryBid Offer" the offer of New Ordinary Shares made to investors through the PrimaryBid
platform;
"PrimaryBid Shares" up to 18,181,818 New Ordinary Shares which are to be issued pursuant to the
PrimaryBid Offer at the Issue Price;
"Prospectus Regulation" Regulation (EU) № 2017/1129 as it forms part of domestic law by virtue of
the European Union (Withdrawal) Act 2018;
"Prospectus Rules" the rules made for the purposes of Part VI of the FSMA in relation to offers
of securities to the public and admission of securities to trading on a
regulated market;
"Registrar" Neville Registrars Limited;
"Resolutions" the resolutions set out in the Notice of General Meeting;
"RNS" a regulatory information service operated by the London Stock Exchange as
defined in the AIM Rules;
"SCC" Shore Capital and Corporate Limited, the Company's nominated adviser for the
purposes of the AIM Rules;
"SCS" Shore Capital Stockbrokers Limited, the Company's joint broker;
"Securities Act" the United States Securities Act of 1933, as amended;
"Shareholders" holders of the Ordinary Shares of the Company from time to time;
"Shore Capital" SCC and/or SCS as the case may be;
"Subscribers" those persons who intend to subscribe for Subscription Shares pursuant to the
Subscription;
"Subscription" the subscription for the Subscription Shares by the Subscribers;
"Subscription Shares" up to 2,528,636 New Ordinary Shares proposed to be issued to Subscribers
pursuant to the Subscription;
"UK" the United Kingdom of Great Britain and Northern Ireland;
"uncertificated form" Ordinary Shares recorded on the share register as being held in uncertificated
form in CREST and title to which, by virtue of the CREST Regulations, may be
transferred within the CREST settlement system;
"US" or "USA" the United States of America, each State thereof (including the District of
Columbia), its territories, possessions and all areas subject to its
jurisdiction;
"VCT" a venture capital trust under part 6 of the Income Tax Act 2007;
"VCT/EIS Admission" admission of the VCT/EIS Shares to trading on AIM becoming effective in
accordance with Rule 6 of the AIM Rules;
"VCT/EIS Placing" the conditional placing of the VCT/EIS Shares to Placees;
"VCT/EIS Shares" New Ordinary Shares to be issued, conditional on VCT/EIS Admission, in
connection with the VCT/EIS Placing; and
"Vulpes Investment Management" Vulpes Investment Management Pte. Ltd.
APPENDIX
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES ONLY. MEMBERS OF THE
PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT DOES
NOT ITSELF CONSTITUTE AN OFFER FOR THE SALE OR SUBSCRIPTION OF ANY SECURITIES
IN THE COMPANY.
THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) (THE "ANNOUNCEMENT") IS RESTRICTED
AND IS NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY,
IN WHOLE OR IN PART, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN,
THE REPUBLIC OF IRELAND THE REPUBLIC OF SOUTH AFRICA OR ANY OTHER JURISDICTION
IN WHICH SUCH PUBLICATION, RELEASE OR DISTRIBUTION WOULD BE UNLAWFUL.
The price of shares and any income expected from them may go down as well as
up and investors may not get back the full amount invested upon disposal of
the shares. Past performance is no guide to future performance and persons
needing advice should consult an independent financial adviser.
Capitalised terms not otherwise defined in this Appendix are as defined in the
section headed 'Definitions' in this Announcement of which this Appendix forms
a part. References in these Terms and Conditions to "Shore Capital" refer to
Shore Capital Stockbrokers Limited and/or Shore Capital and Corporate Limited
as the context admits. References to the "Joint Brokers" refer to Shore
Capital Stockbrokers Limited and Northland Capital Partners Limited, trading
as Baden Hill.
These Terms and Conditions do not constitute an offer or invitation to
acquire, underwrite or dispose of, or any solicitation of any offer or
invitation to acquire, underwrite or dispose of, any Placing Shares or other
securities of the Company to any person in any jurisdiction to whom it is
unlawful to make such offer, invitation or solicitation in such jurisdiction.
Persons who seek to participate in the Placing ("Placees") must inform
themselves about and observe any such restrictions and must be persons who are
able to lawfully receive this Announcement in their jurisdiction. In
particular, these Terms and Conditions do not constitute an offer or
invitation (or a solicitation of any offer or invitation) to acquire,
underwrite or dispose of or otherwise deal in any Placing Shares or other
securities of the Company in the United States of America, its territories and
possessions ("United States"), Canada, Australia, Japan, Republic of Ireland
or the Republic of South Africa or in any other jurisdiction in which any such
offer, invitation or solicitation is or would be unlawful ("Restricted
Jurisdiction").
The Placing Shares have not been, and will not be, registered under the United
States Securities Act of 1933, as amended (the "Securities Act") or under the
securities laws or with any securities regulatory authority of any state or
other jurisdiction of the United States and may not be offered, sold, taken
up, renounced, delivered or transferred, directly or indirectly, in the United
States or to or by a person resident in or for the account of any person in
the United States absent registration under the Securities Act or pursuant to
an available exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and in compliance with any
applicable securities laws of any state or other jurisdiction of the United
States.
No public offering of the Placing Shares is being made in the United Kingdom
or elsewhere. Members of the public are not eligible to take part in the
placing and no public offering of Placing Shares is being or will be made.
This Announcement and the terms and conditions set out and referred to in it
are directed only at persons selected by the Joint Brokers who are (a) persons
in member states of the European Economic Area (other than the United Kingdom)
who are 'qualified investors' falling within the meaning of article 2(e) of
Regulation (EU) 2017/1129 (as amended) (the "EU Prospectus Regulation"); (b)
if in the United Kingdom, to persons who (i) have professional experience in
matters relating to investments falling within article 19(1) of The Financial
Services and Markets Act (Financial Promotion) Order 2005, as amended ("FPO")
and who fall within the definition of 'investment professionals' in article
19(5) of the FPO or fall within the definition of 'high net worth companies,
unincorporated associations etc.' in article 49(2)(a) to (d) of the FPO and
(ii) are 'qualified investors' within the meaning of article 2(e) of
Regulation (EU) 2017/1129 as amended, as it forms part of UK Law as retained
EU Law as defined in, and by virtue of, the European Union (Withdrawal) Act
2018 (as amended) (the "UK Prospectus Regulation"); or (c) persons to whom it
may otherwise lawfully be communicated (all such persons together being
referred to as "Relevant Persons").
No action has been taken by the Company, the Joint Brokers, or any of their
respective directors, officers, partners, agents, employees or affiliates that
would permit an offer of the Placing Shares or possession or distribution of
this Announcement or any other publicity material relating to such Placing
Shares in any jurisdiction where action for that purpose is required. Persons
receiving this Announcement are required to inform themselves about and to
observe any restrictions contained in this Announcement.
This Announcement does not itself constitute an offer for sale or subscription
of any securities in the Company. This Announcement and the terms and
conditions set out herein must not be acted on or relied on by persons who are
not Relevant Persons. Any investment or investment activity to which this
Announcement relates is available only to Relevant Persons and will be engaged
in only with Relevant Persons. Distribution of this Announcement in certain
jurisdictions may be restricted or prohibited by law. Persons distributing
this announcement must satisfy themselves that it is lawful to do so.
These Terms and Conditions apply to Placees, each of whom confirms his or its
agreement, whether by telephone or otherwise, with the Joint Brokers to
subscribe and pay for Placing Shares in the Placing, and hereby agrees with
each of the Joint Brokers and the Company to be legally and irrevocably bound
by these Terms and Conditions which will be the Terms and Conditions on which
the Placing Shares will be acquired in the Placing and each such Placee is
deemed to have read and understood this Announcement in its entirety
(including this Appendix) and to be providing the representations, warranties,
undertakings, agreements and acknowledgements contained in this Appendix.
These Terms and Conditions must not be acted on or relied on by persons who
are not Relevant Persons. Any investment or investment activity to which the
Terms and Conditions set out herein relates is available only to Relevant
Persons and will be engaged in only with Relevant Persons. A Placee may not
assign, transfer, or in any manner, deal with its rights or obligations under
the agreement arising from the acceptance of the Placing, without the prior
written agreement of the Joint Brokers or in accordance with all relevant
requirements.
All times and dates in this Appendix are references to times and dates in
London (United Kingdom).
Any indication in this Announcement of the price at which the Company's shares
have been bought or sold in the past cannot be relied upon as a guide to
future performance. Persons needing advice should consult an independent
financial adviser. No statement in this Announcement is intended to be a
profit forecast and no statement in this Announcement should be interpreted to
mean that earnings per share of the Company for the current or future
financial years would necessarily match or exceed the historical published
earnings per share of the Company.
Shore Capital and Corporate Limited, which is authorised and regulated by the
FCA in the United Kingdom, acts as nominated adviser to the Company for the
purposes of the AIM Rules. Shore Capital Stockbrokers Limited is a member of
the London Stock Exchange and is authorised and regulated by the FCA in the
United Kingdom. Shore Capital and Corporate Limited and Shore Capital
Stockbrokers Limited are acting exclusively for the Company and for no one
else in connection with the Placing and will not be responsible to anyone
other than the Company for providing the protections afforded to clients of
Shore Capital or for providing advice in relation to the Placing, or any other
matters referred to in this Announcement.
Save for the responsibilities and liabilities, if any, of Shore Capital under
FSMA or the regulatory regime established thereunder or in respect of
fraudulent misrepresentation, no representation or warranty, express or
implied, is or will be made as to, or in relation to, and no responsibility or
liability is or will be accepted by or on behalf of Shore Capital or by its
affiliates, agents, directors, officers and employees as to, or in relation
to, the accuracy or completeness of this Announcement or any other written or
oral information made available to or publicly available to any interested
party or its advisers, and any liability therefor is expressly disclaimed.
Northland Capital Partners Limited, trading as Baden Hill ("Baden Hill"),
which is a member of the London Stock Exchange and is authorised and regulated
by the FCA in the United Kingdom, is acting exclusively for the Company and
for no one else in connection with the Placing and will not be responsible to
anyone other than the Company for providing the protections afforded to
clients of Baden Hill or for providing advice in relation to the Placing, or
any other matters referred to in this Announcement.
Save for the responsibilities and liabilities, if any, of Baden Hill under
FSMA or the regulatory regime established thereunder or in respect of
fraudulent misrepresentation, no representation or warranty, express or
implied, is or will be made as to, or in relation to, and no responsibility or
liability is or will be accepted by or on behalf of Baden Hill or by its
affiliates, agents, directors, officers and employees as to, or in relation
to, the accuracy or completeness of this Announcement or any other written or
oral information made available to or publicly available to any interested
party or its advisers, and any liability therefor is expressly disclaimed.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, REGULATORY, TAX,
BUSINESS AND RELATED ASPECTS OF AN ACQUISITION OF PLACING SHARES.
Persons who are invited to and who choose to participate in the Placing, by
making an oral or written offer to acquire Placing Shares, including any
individuals, funds or others on whose behalf a commitment to acquire Placing
Shares is given, will be deemed to have read and understood this Announcement
in its entirety and to be making such offer on these Terms and Conditions, and
to be providing the representations, warranties, acknowledgements and
undertakings, contained in this Appendix. In particular each such Placee
represents, warrants and acknowledges that:
i. it is a Relevant Person (as defined above) and undertakes that it
will acquire, hold, manage or dispose of any Placing Shares that are allocated
to it for the purposes of its business;
ii. it is acquiring the Placing Shares for its own account or for an
account with respect to which it exercises sole investment discretion; and
iii. if it is in a member state of the EEA and/or if it is a financial
intermediary, as that term is used in Article 3(2) of the Prospectus
Directive, that any Placing Shares acquired by it in the Placing will not be
acquired on a non-discretionary basis on behalf of, nor will they be acquired
with a view to their offer or resale to, persons in any member state of the
EEA in circumstances which may give rise to an offer of securities to the
public other than an offer or resale in a member state of the EEA which has
implemented the Prospectus Directive to Qualified Investors, or in
circumstances in which the prior consent of the Joint Brokers has been given
to each such proposed offer or resale.
Neither of the Joint Brokers makes any representation to any Placees regarding
an investment in the Placing Shares.
In this Appendix, unless the context otherwise requires, "Placee" means a
Relevant Person (including individuals, funds or others) by whom or on whose
behalf a commitment to take up Placing Shares has been given and who has been
invited to participate in the Placing by the Joint Brokers (or either of
them).
All obligations of the Joint Brokers under the Placing will be subject to
fulfilment of the conditions referred to in this Announcement, including
(without limitation) those referred to below under 'Conditions of the
Placing'.
Information to Distributors
Solely for the purposes of the product governance requirements contained
within the FCA Handbook Product Intervention and Product Governance Sourcebook
(the "UK Product Governance Rules"), and disclaiming all and any liability,
whether arising in tort, contract or otherwise, which any 'manufacturer' (for
the purposes of the UK Product Governance Rules) may otherwise have with
respect thereto, the Placing Shares have been subject to a product approval
process, which has determined that the Placing Shares are: (i) compatible with
an end target market of (a) retail clients, as defined in point (8) of Article
2 of the UK Prospectus Regulation (EU) No 2017/565 as it forms part of
domestic law by virtue of the European Union (Withdrawal) Act 2018 (as
amended) ("EUWA"), (b) investors who meet the criteria of professional clients
as defined in Regulation (EU) No 600/2014 as it forms part of domestic law by
virtue of the EUWA and (c) eligible counterparties as defined in the FCA
Handbook Conduct of Business Sourcebook ("COBS"); and (ii) eligible for
distribution through all distribution channels as are permitted by EU
Directive 2014/65/EU on markets in financial instruments, as amended ("MiFID
II") (the "UK Target Market Assessment").
Solely for the purposes of the product governance requirements contained
within: (a) MiFID II; (b) Articles 9 and 10 of Commission Delegated Directive
EU 2017/593 supplementing MiFID II; and (c) local implementing measures
(together, the "MiFID II Product Governance Requirements"), and disclaiming
all and any liability, whether arising in tort, contract or otherwise, which
any 'manufacturer' (for the purposes of the MiFID II Product Governance
Requirements) may otherwise have with respect thereto, the Placing Shares have
been subject to a product approval process, which has determined that the
Placing Shares are: (i) compatible with an end target market of (a) retail
investors, (b) investors who meet the criteria of professional clients and (c)
eligible counterparties, each as defined in MiFID II; and (ii) eligible for
distribution through all distribution channels as are permitted by MiFID II
(the "EU Target Market Assessment" and, together with the UK Target Market
Assessment, the "Target Market Assessments").
Notwithstanding the Target Market Assessments, distributors should note that:
the price of the Placing Shares may decline and investors could lose all or
part of their investment; the Placing Shares offer no guaranteed income and no
capital protection; and an investment in the Placing Shares is compatible only
with investors who do not need a guaranteed income or capital protection, who
(either alone or in conjunction with an appropriate financial or other
adviser) are capable of evaluating the merits and risks of such an investment
and who have sufficient resources to be able to bear any losses that may
result therefrom. The Target Market Assessments are without prejudice to the
requirements of any contractual, legal or regulatory selling restrictions to
the Placing. Furthermore, it is noted that, notwithstanding the Target Market
Assessments, the Joint Brokers will only procure investors who meet the
criteria of professional clients or eligible counterparties.
For the avoidance of doubt, the Target Market Assessments do not constitute:
(a) an assessment of suitability or appropriateness for the purposes of COBS
(for the purposes of the UK Target Market Assessment) or MiFID II (for the
purposes of the EU Target Market Assessment); or (b) a recommendation to any
investor or group of investors to invest in, or purchase, or take any other
action whatsoever with respect to the Placing Shares.
Each distributor is responsible for undertaking its own target market
assessment in respect of the Placing Shares and determining appropriate
distribution channels.
Timetable for the Placing
Various dates referred to in this Announcement are stated on the basis of the
expected timetable for the Placing. It is possible that some of these dates
may be changed. To facilitate the application for VCT relief in respect of the
VCT/EIS Shares, such shares will be allotted on 18 August 2023 conditional
upon Admission of such shares becoming effective on 21 August 2023 ("VCT/EIS
Admission"). The General Placing Shares will be allotted on 21 August 2023,
conditional upon Admission of such shares becoming effective on 22 August 2023
("General Admission").
Terms of the Placing
The Joint Brokers have, prior to the notification of this Announcement to the
RNS, entered into the Placing Agreement with the Company under which the Joint
Brokers have undertaken, on the terms and subject to the conditions set out
therein, to use their respective reasonable endeavours in each case as agent
of the Company, to procure Placees for the Placing Shares. This Appendix gives
details of the terms and conditions of, and the mechanics for participation
in, the Placing.
Each Placee's commitment to subscribe for Placing Shares under the Placing and
to participate in the Bookbuild (as defined below) will be agreed (by email,
orally or otherwise) with the Joint Brokers and such agreement will constitute
a binding irrevocable commitment by a Placee, subject to the Terms and
Conditions set out in this Appendix, to subscribe for and pay for Placing
Shares ("Placing Participation") at the Issue Price of 11 pence per Placing
Share ("Placing Price"). Such commitment is not capable of variation,
termination or rescission by the Placee in any circumstances except fraud.
Upon making this oral offer, each Placee has an immediate, separate,
irrevocable and binding obligation owed to the Joint Brokers, in each case as
agent for the Company, to pay the relevant Joint Broker (or as it may direct)
in cleared funds an amount equal to the product of the Placing Price and the
total number of Placing Shares such Placee has agreed to subscribe for in the
Placing. All such obligations are entered into by the Placee with the Joint
Brokers, in each case acting in its capacity as agent of the Company, and are
therefore directly enforceable by the Company.
Each Placee's allocation of Placing Shares has been agreed between the Joint
Brokers and the Company and will be confirmed by email or orally to each
Placee by the relevant Joint Broker (as agent for the Company). A contract
note confirming this allocation, the aggregate amount owed by such Placee to
the relevant Joint Brokers and settlement instructions ("Contract Note") will
be despatched shortly. The oral confirmation to such Placee by the relevant
Joint Broker (as agent for the Company) constitutes an irrevocable legally
binding commitment upon that person (who will at that point become a Placee)
in favour of the Joint Brokers and the Company to subscribe for the number of
Placing Shares allocated to it at the Placing Price on the terms and
conditions set out in this Appendix and in accordance with the Company's
articles of association. All obligations under the Placing will be subject to
fulfilment of the conditions referred to below under 'Conditions of the
Placing' and to the Placing not being terminated on the basis referred to
below under 'Right to terminate the Placing Agreement'. By participating in
Placing, each Placee agrees that its rights and obligations in respect of the
Placing will terminate only in the circumstances described below and will not
be capable of rescission or termination by the Placee.
Each of the Joint Brokers and its respective affiliates are entitled to enter
bids as principal in the Placing.
Irrespective of the time at which a Placee's allocation pursuant to the
Placing is confirmed, settlement for all Placing Shares to be subscribed for
pursuant to the Placing will be required to be made at the same time, on the
basis explained below under 'Registration and Settlement'.
The Company confirms that the Placing Shares will when issued, subject to the
constitution of the Company, rank pari passu in all respects and form one
class with the existing Ordinary Shares of the Company in issue on Admission,
including the right to receive dividends or other distributions after the date
of issue of the Placing Shares, if any. The Placing Shares are or will be
issued free of any encumbrance, lien or other security interest.
Applications for Admission
Applications will be made to the London Stock Exchange for VCT/EIS Admission
in respect of the VCT/EIS Shares and General Admission in respect of the
General Placing Shares, in each case to trading on the AIM, the market of that
name operated by the London Stock Exchange ("AIM"). Subject to the resolutions
being passed at the general meeting of shareholders, the details of which are
set out in the Circular, it is anticipated that VCT/EIS Admission in respect
of the VCT/EIS Shares to trading on AIM will become effective at 8.00am on 21
August 2023 and dealings in the VCT/EIS Shares will commence at that time.
Settlement of the General Placing Shares and General Admission is anticipated
to become effective at 8.00am on 22 August 2023 and dealings in the General
Placing Shares to commence at that time and date for normal account
settlement.
Bookbuild
The Placing will be conducted through an accelerated bookbuilding process (the
"Bookbuild" or the "Bookbuilding Process"), which will be launched immediately
following this Announcement. The timing of the closing of the Bookbuild and
allocations are at the absolute discretion of the Joint Brokers and the
Company. It is currently envisaged that the result of the Bookbuilding Process
will be announced via the RNS tomorrow, 2 August 2023 at 7.00 a.m. (the
"Bookbuild Results Announcement").
EIS and VCT
The Company received advance assurance on 27 July 2023 from HMRC that it is a
qualifying company for the purposes of the Enterprise Investment Scheme ("EIS
Advance Assurance"). Accordingly, whilst the Company currently expects to
satisfy the relevant conditions for the issue of the VCT/EIS Shares to be
eligible for EIS Relief and should be regarded as a qualifying holding for a
VCT, and the Directors are not aware of any subsequent change in the
qualifying conditions or the Company's circumstances that would prevent the
VCT/EIS Shares from being eligible for EIS and VCT investments on VCT/EIS
Admission, neither the Directors nor the Company give any representation,
warranty or undertaking that relief will be available in respect of the
VCT/EIS Shares nor is any representation, warranty or undertaking given that
the Company will continue to conduct its activities in a way that qualifies
for, or preserves, its eligibility status. HMRC does not consider VCT advance
assurance applications where the details of the potential qualifying holding
are not given.
The rules governing VCT and reliefs are complex. Any prospective investors
who are considering investing in VCT/EIS Shares in order to obtain VCT or EIS
reliefs are recommended to take independent tax advice from a professional tax
adviser.
Scaling back
The Joint Brokers (after consulting with the Company) reserve the right to
scale back the number of Placing Shares to be subscribed by any Placee or the
number of Placing Shares to be subscribed for by all Placees in aggregate. The
Joint Brokers also reserve the right not to offer allocations of Placing
Shares to any person and not to accept offers to subscribe for Placing Shares
or to accept such offers in part rather than in whole. The Joint Brokers
shall be entitled to effect the Placing by such alternative method to the
Bookbuild as they shall in their sole discretion lawfully determine in the
exercise of their appointment and the powers, authority and discretion
conferred on them as the Joint Brokers.
To the fullest extent permissible by law, neither of the Joint Brokers nor any
holding company of either of them, nor any subsidiary, branch or affiliate of
either of the Joint Brokers (each an "Affiliate") nor any person acting on
behalf of any of the foregoing shall have any liability to Placees (or to any
other person whether acting on behalf of a Placee or otherwise). In
particular, neither of the Joint Brokers, nor any of their respective
Affiliates nor any person acting on behalf of any such person shall have any
liability to Placees in respect of its conduct of the Placing.
Placing Agreement
Pursuant to the Placing Agreement, the Joint Brokers have agreed on behalf of
and in each case as agent of the Company to use their respective reasonable
endeavours to procure persons to subscribe for the Placing Shares at the
Placing Price, subject to these Terms and Conditions. The Placing will not be
underwritten.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional
and not having been terminated in accordance with its terms.
The obligations of the Joint Brokers under the Placing Agreement (which are
several and not joint, or joint and several) in respect of the VCT/EIS Shares
are conditional, inter alia, on:
· the publication and dispatch of the Circular by the
Company by first class post on 2 August (or as soon as possible thereafter but
no later than 3 August);
· the passing of the Resolutions set out in the notice of
general meeting set out at the end of the Circular, without amendment;
· the Company allotting, subject only to VCT/EIS
Admission, the VCT/EIS Shares in accordance with the Placing Agreement;
· the Company having complied with its obligations under
the Placing Agreement; and
· VCT/EIS Admission taking place not later than 8.00am on
21 August 2023 or such later time or date as the Company and the Joint Brokers
may otherwise agree (but not being later than 8.00am on the Long Stop Date).
The obligations of the Joint Brokers under the Placing Agreement (which are
several and not joint, or joint and several) in respect of the General Placing
Shares are conditional, inter alia, on:
· the VCT/EIS Shares being unconditionally allotted and
issued to the relevant Placees on VCT/EIS Admission and VCT/EIS Admission
having occurred;
· the Company allotting, subject only to General
Admission, the General Placing Shares in accordance with the Placing
Agreement;
· the Company having complied with its obligations under
the Placing Agreement; and
· General Admission taking place not later than 8.00am on
22 August 2023 or such later time or date as the Company and the Joint Brokers
may otherwise agree (but not being later than 8.00am on the Long Stop Date).
The Placing Agreement contains, inter alia, certain warranties and indemnities
from the Company for the benefit of the Joint Brokers.
If any of the conditions contained in the Placing Agreement ("Conditions") are
not fulfilled (or, where appropriate, waived in whole or part by the Joint
Brokers) by the times and dates stated (or such later dates as the Joint
Brokers and the Company may agree, being not later than 29 September 2023) the
Placing Agreement shall cease and determine and no party to the Placing
Agreement will have any claim against any other party for costs, damages,
charges, compensation or otherwise except that, amongst other things, the
Joint Brokers shall return to prospective Placees, in accordance with the
Terms and Conditions, any monies received from them.
The Joint Brokers may, in their absolute discretion and upon such terms as
they think fit, waive or extend the time for fulfilment of all or any part of
any of the Conditions which are capable of waiver or extension by them but
provided that the latest time for fulfilment of any Condition shall not be
later than 8.00 a.m. on 29 September 2023. Any such waiver or extension will
not affect Placees' commitments as set out in this Announcement.
Right to terminate the Placing Agreement
Either of the Joint Brokers may, in its absolute discretion, terminate the
Placing Agreement, inter alia, if:
(i) the sum of the aggregate number of Placing
Shares set out in the notice given by the Joint Brokers to the Company of,
inter alia, the numbers of the Placing Shares resulting from the Bookbuild
multiplied by the Placing Price is less than £4,730,000 million (and the
Joint Brokers and the Company do not agree such lesser sum);
(ii) the Company is in breach of any of its material
obligations under the Placing Agreement or cannot comply with any such
material obligation;
(iii) any of the Warranties is, or as repeated
immediately prior to and on VCT/EIS Admission and General Admission (by
reference to the facts, circumstances and knowledge, opinions, intentions and
expectations of the Company) would cause it to be untrue or inaccurate or
misleading in any material respect; or
(iv) there occurs or arises prior to VCT/EIS Admission
and General Admission any significant change or new material matter which
would require to be notified to shareholders of the Company or potential
Placees (except to the extent that a supplementary Circular is published by
the Company); or
(v) the Company fails to accept the reasonable
advice of the Joint Brokers on a material matter concerning action to be taken
in respect of or in relation to the Placing, VCT/EIS Admission, General
Admission or any other material matter contained in the Circular; or
(vi) the Company is in material breach of the
Companies Act, the AIM Rules for Companies, MAR, the DTRs, the FSMA or any
other laws or regulations to which the Company or any Group Company and/or the
Directors are subject from time to time and, to the extent it can be remedied,
such breach has not been remedied within five (5) Business Days;
(vii) either of the Joint Brokers (acting reasonably, in
good faith and at its sole discretion) is not satisfied that it can proceed
with the Placing, VCT/EIS Admission or General Admission without defaulting on
its responsibilities under the FSMA, MAR or any other material regulatory
requirement; or
(viiii) any event of Force Majeure (as defined in the
Placing Agreement) occurs prior to VCT/EIS Admission or General Admission
which prevents any party not seeking to terminate from performing its
obligations under this Agreement; or
(ix) at any time prior to VCT/EIS Admission or General
Admission, either of the Joint Brokers becomes aware of any substantial change
in any national or international political, military, diplomatic, economic,
financial or market conditions (including disruption to trading on any
relevant stock exchange) or currency exchange rates or exchange controls or
any statutory or regulatory matter which, in the opinion of such Joint Broker
(acting reasonably, in good faith and after such consultation with the Company
and the other Joint Broker as shall be practicable in the circumstances),
would have or be likely to have a material and adverse effect on the Placing
or dealings in the New Ordinary Shares in the secondary market or is of such
magnitude to render the Placing or the creation of a market in the New
Ordinary Shares temporarily or permanently impracticable or inadvisable;
(x) it shall come to the notice of the Joint Brokers
or either of them) that any statement contained in this Announcement or the
Circular (or any amendment or supplement thereto) is or has become untrue,
inaccurate or misleading in any material respect, or matters have arisen which
would, if the Circular were issued at that time, constitute a material
omission therefrom (except to the extent that a supplementary announcement or
a supplementary Circular is published by the Company); or
(xi) Shore Capital believes (in its sole and absolute
discretion and acting in good faith) that termination is necessary in order to
preserve its reputation (without liability or continuing obligations on the
part of Shore Capital to the Company).
Following VCT/EIS Admission, the Placing Agreement is not capable of
termination to the extent that it relates to the Placing of VCT/EIS Shares.
Following General Admission, the Placing Agreement is not capable of
termination to the extent it relates to the Placing of any of the General
Placing Shares. For the avoidance of doubt, VCT/EIS Admission is not
conditional on General Admission taking place.
The exercise by either of the Joint Brokers of a right of termination (or any
right of waiver exercisable by the Joint Brokers (acting together) contained
in the Placing Agreement or the exercise of any discretion under the Terms and
Conditions set out herein is within the absolute discretion of the Joint
Brokers and neither of the Joint Brokers will have any liability to Placees
whatsoever in connection with any decision to exercise or not exercise any
such rights.
By accepting the Placing Shares referred to in the Announcement to which this
Appendix is annexed, each Placee agrees that, without having any liability to
such Placee, the Joint Brokers may exercise the right: (i) to extend the time
for fulfilment of any of the conditions in the Placing Agreement (provided
that Placees' commitments are not extended beyond the Long Stop Date); (ii)
to, in their absolute discretion, waive, in whole or in part, fulfilment of
certain of the conditions (but not including Admission); or (iii) to terminate
the Placing Agreement, in each case without consulting Placees (or any of
them).
If any of the conditions in the Placing Agreement are not satisfied (or, where
relevant, waived), the Placing Agreement is terminated or the Placing
Agreement does not otherwise become unconditional in all respects, the Placing
will not proceed and all funds delivered by Placees to the Joint Brokers
pursuant to the Placing and this Appendix will be returned to Placees at their
risk without interest, and Placees' rights and obligations under the Placing
shall cease and determine at such time and no claim shall be made by Placees
in respect thereof.
Registration and settlement
Irrespective of the time at which the Placee's allocation(s) pursuant to the
Placing is/are confirmed, settlement for all Placing Shares to be acquired
pursuant to the Placing will be required to be made on the basis explained
below.
Settlement of transactions in the Placing Shares following Admission will take
place on a delivery versus payment basis in accordance with the instructions
set out in the trade confirmation within the CREST system ("CREST") (subject
to certain exceptions). The Joint Brokers reserve the right to require
settlement for, and delivery of, the Placing Shares (or a portion thereof) to
Placees by such other means that it may deem necessary if delivery or
settlement is not possible or practicable within CREST within the timetable
set out in the Announcement or would not be consistent with the regulatory
requirements in the jurisdiction of any Placee.
Subject to the resolutions being passed at the general meeting of
shareholders, the details of which are set out in the Circular, it is expected
that settlement for the VCT/EIS Shares will take place at 8.00 a.m. on 21
August 2023 and settlement for the General Placing Shares will take place at
8.00 a.m. on 22 August 2023 unless otherwise notified by the Joint Brokers.
Interest is chargeable daily on payments not received from Placees on the due
date in accordance with the arrangements set out above at the rate of 2
percentage points above the base rate of Barclays Bank Plc as determined by
the Joint Brokers, with interest compounded on a daily basis.
Each Placee is deemed to agree that, if it does not comply with these
obligations, the Joint Brokers may sell any or all of the Placing Shares
allocated to that Placee on such Placee's behalf and retain from the proceeds,
for its account and benefit (as agent for the Company), an amount equal to the
aggregate amount owed by the Placee plus any interest due. The relevant Placee
will, however, remain liable for any shortfall below the aggregate amount owed
by it and may be required to bear any stamp duty or stamp duty reserve tax or
securities transfer tax (together with any interest or penalties) which may
arise in any jurisdiction upon the sale of such Placing Shares on such
Placee's behalf. By communicating a bid for Placing Shares, each Placee
confers on each of the Joint Brokers all such authorities and powers necessary
or desirable to carry out any such sale and agrees to ratify and confirm all
actions which the Joint Brokers lawfully takes in pursuance of such sale.
If Placing Shares are to be delivered to a custodian or settlement agent,
Placees should ensure that the Contract Note is copied and delivered
immediately to the relevant person within that organisation.
The Company confirms that, insofar as Placing Shares are registered in a
Placee's name or that of its nominee or in the name of any person for whom a
Placee is contracting as agent or that of a nominee for such person, such
Placing Shares should, subject as provided below, be so registered free from
any liability to UK stamp duty or stamp duty reserve tax or securities
transfer tax.
Placees will not be entitled to receive any fee or commission in connection
with the Placing.
Further Terms, Confirmations and Warranties
By participating in the Placing, each Placee (and any person acting on such
Placee's behalf) irrevocably makes the following confirmations,
acknowledgements, representations, warranties and/or undertakings (as the case
may be) to each of the Joint Brokers (in their respective capacities as Joint
Brokers and as agent of the Company) and the Company and their respective
directors, agents and advisers, in each case as a fundamental term of its
offer to acquire and subscribe for Placing Shares:
1 each Placee confirms, represents and warrants that
it has read and understood the Announcement (including this Appendix) in its
entirety and acknowledges that its Placing Participation will be governed by
the terms, conditions, representations, warranties, acknowledgements,
agreements and undertakings in this Appendix;
2 each Placee acknowledges and agrees that its Placing
Participation on the Terms and Conditions set out in this Appendix is legally
binding, irrevocable and is not capable of termination or rescission by such
Placee in any circumstances and that it has the funds available to pay the
Placing Price in respect of the Placing Shares for which it has given a
commitment under the Placing;
3 each Placee confirms, represents and warrants that
it has not relied on, received or requested nor does it have any need to
receive, any prospectus, offering memorandum, listing particulars or any other
document (other than the Announcement), any information given or any
representations, warranties, agreements or undertakings (express or implied),
written or oral, or statements made at any time by the Company or either of
the Joint Brokers or by any subsidiary, holding company, branch or associate
of the Company or either of the Joint Brokers or any of their respective
officers, directors, agents, employees or advisers, or any other person in
connection with the Placing, the Company and its subsidiaries or the Placing
Shares and that in making its application under the Placing it is relying
solely on the information contained in the Announcement and this Appendix and
it will not be relying on any agreements by the Company and its subsidiaries
or either of the Joint Brokers, or any director, employee or agent of the
Company or of either of the Joint Brokers other than as expressly set out in
this Appendix, for which neither of the Joint Brokers nor any of their
respective directors and/or employees and/or person(s) acting on their behalf
shall to the maximum extent permitted under law have any liability except in
the case of fraud;
4 each Placee acknowledges that the content of this
Announcement and any information publicly announced to a Regulatory
Information Service by or on behalf of the Company on or prior to the date of
this Announcement is exclusively the responsibility of the Company and that
neither of the Joint Brokers, any of its Affiliates, directors, officers,
employees or agents, or any person acting on behalf of either of them has or
shall have any responsibility or liability for any information, representation
or statement contained in this Announcement or any information previously or
subsequently published by or on behalf of the Company and will not be liable
for any Placee's decision to participate in the Placing based on any
information, representation or statement contained in this Announcement, any
information previously published by or on behalf of the Company or otherwise.
Each Placee further represents, warrants and agrees that the only information
on which it is entitled to rely and on which such Placee has relied in
committing itself to subscribe for the Placing Shares is contained in this
Announcement, any information publicly announced to a Regulatory Information
Service by or on behalf of the Company on or prior to the date of this
Announcement, such information being all that it deems necessary to make an
investment decision in respect of the Placing Shares, and that it has neither
received nor relied on any other information given or investigations,
representations, warranties or statements made by either of the Joint Brokers
or the Company, or any of their respective affiliates or any person acting on
behalf of any of them (including in any research report prepared by any of
them) and none of the foregoing persons will be liable for any Placee's
decision to accept an invitation to participate in the Placing based on any
such other information, representation, warranty or statement. Each Placee
further acknowledges and agrees that it has relied on its own investigation of
the business, financial or other position of the Company in deciding to
participate in the Placing and that neither of the Joint Brokers nor any of
their respective Affiliates have made any representations to it, express or
implied, with respect to the Company, the Placing and the Placing Shares or
the truth, accuracy, completeness or adequacy of any publicly available
information about the Company or any other information that has otherwise been
made available to Placees concerning the Company, whether at the date of
publication, the date of this Announcement or otherwise, and each of them
expressly disclaims any liability in respect thereof. Nothing in this
paragraph or otherwise in this Announcement excludes the liability of any
person for fraudulent misrepresentation made by that person;
5 each Placee confirms, represents and warrants that
it is sufficiently knowledgeable to understand and be aware of the risks
associated with, and other characteristics of, the Placing Shares and, among
others, of the fact that it may not be able to resell the Placing Shares
except in accordance with certain limited exemptions under applicable
securities legislation and regulatory instruments;
6 each Placee confirms, represents and warrants, if a
company or partnership, that it is a valid and subsisting company or
partnership and has all the necessary capacity and authority to execute its
obligations in connection with the Placing Participation and confirms,
represents and warrants that any person who confirms to either of the Joint
Brokers on behalf of a Placee an agreement to subscribe for Placing Shares is
duly authorised to provide such confirmation to such Joint Broker;
7 each Placee agrees that the entry into the Placing
Agreement or the exercise by the Joint Brokers of any right of termination or
any right of waiver exercisable by the Joint Brokers contained in the Placing
Agreement or the exercise of any discretion is within the absolute discretion
of the Joint Brokers, and neither of the Joint Brokers will have any liability
to any Placee whatsoever in connection with any decision to exercise or not
exercise any such rights. Each Placee acknowledges that if: (i) any of the
conditions in the Placing Agreement are not satisfied (or, where relevant,
waived); (ii) the Placing Agreement is terminated; or (iii) the Placing
Agreement does not otherwise become unconditional in all respects; the Placing
will lapse and such Placee's rights and obligations in relation to the Placing
shall cease and determine at such time and no claim shall be made by any
Placee in respect thereof;
8 each Placee acknowledges and agrees that neither of
the Joint Brokers acts for, and that it does not expect either of the Joint
Brokers to have any duties or responsibilities towards, such Placee,
including, without limitation, for providing protections afforded to customers
or clients of either of the Joint Brokers under the FCA's Conduct of Business
Sourcebook or advising such Placee with regard to its Placing Participation
and that such Placee is not, and will not be, a customer or client of either
of the Joint Brokers as defined by the FCA's Conduct of Business Sourcebook in
connection with the Placing. Likewise, neither of the Joint Brokers will
treat any payment by such Placee pursuant to its Placing Participation as
client money and governed by the FCA's Client Assets Sourcebook;
9 each Placee undertakes and agrees that it will be
responsible for any stamp duty or stamp duty reserve tax or securities
transfer tax in relation to the Placing Shares comprised in its Placing
Participation and that neither of the Joint Brokers nor the Company will be
responsible for any liability to stamp duty or stamp duty reserve tax or
securities transfer tax in relation to the Placing Shares comprised in such
Placee's Placing Participation;
10 each Placee acknowledges and agrees that the Placing
Participation confirmed in writing by email or orally by each Placee to either
of the Joint Brokers (in each case as agent for the Company) and further
confirmed by the Contract Note is a legally binding contract between it and
such Joint Broker and the Company subject to any scaling back, as described
above, in the Joint Brokers' absolute discretion and the Terms and Conditions
of such Placee's Placing Participation will be governed by, and construed in
accordance with, the laws of England and Wales, to the exclusive jurisdiction
of whose courts such Placee irrevocably agrees to submit;
11 each Placee agrees that it will ensure delivery and
payment is completed in accordance with the settlement instructions set out in
the Contract Note and acknowledges and agrees that time shall be of the
essence as regards such Placee's obligations pursuant to its Placing
Participation;
12 each Placee acknowledges and agrees that it is the
responsibility of such Placee (if it is outside of the United Kingdom) to
satisfy itself that, in doing so, such Placee complies with the laws and
regulations of any relevant territory in connection with its Placing
Participation and that it obtains any requisite governmental or other consents
and observes any other applicable formalities;
13 each Placee acknowledges and agrees that the
Announcement does not constitute an offer to sell, or the solicitation of an
offer to subscribe for or buy, Placing Shares in any jurisdiction in which
such an offer or solicitation is unlawful. Accordingly, such Placee
acknowledges and agrees that the Placing Shares may not, subject to certain
limited exceptions, be offered or sold, directly or indirectly, in or into the
United States, any province of Canada or Australia, Japan, Republic of Ireland
or the Republic of South Africa or offered or sold to, or for the account or
benefit of, a national, citizen or resident of the United States, any province
of Canada or Australia, Japan, Republic of Ireland or the Republic of South
Africa, in each case subject to limited exemptions, or any other jurisdiction
where to do so would constitute a violation of the relevant laws of such
jurisdiction;
14 each Placee acknowledges and agrees that the Placing
Shares have not been and will not be registered under the Securities Act or
with any securities regulatory authority of any state or jurisdiction of the
United States, or the relevant Canadian, Japan, Republic of Ireland ese,
Australian or South African securities legislation and therefore the Placing
Shares may not be offered, sold, transferred or delivered directly or
indirectly into the United States, Canada, Japan, Republic of Ireland,
Australia or the Republic of South Africa or their respective territories and
possessions, subject to limited exemptions, and in the case of the United
States, pursuant to an exemption from, or in a transaction not subject to the
registration requirements of the Securities Act and in compliance with United
States securities laws;
15 each Placee confirms, represents and warrants that it
has complied with all relevant laws of all relevant territories, obtained all
requisite governmental or other consents which may be required, in connection
with its Placing Participation and complied with all requisite formalities and
paid any issue, transfer or other taxes due in connection with its offer
commitment in any territory and that it has not taken any action or omitted to
take any action which will or may result in either of the Joint Brokers, the
Company or any of their respective directors, officers, agents, employees or
advisers acting in breach of the legal or regulatory requirements of any
territory in connection with the Placing or such Placee's Placing
Participation;
16 each Placee confirms, represents and warrants if it is
receiving the Placing in circumstances under which the laws or regulations of
a jurisdiction other than the United Kingdom would apply, that it is a person
to whom the Placing Shares may be lawfully offered under that other
jurisdiction's laws and regulations;
17 each Placee confirms, represents and warrants if it is
a resident in any EEA state (other than the United Kingdom), it is (i) a
'qualified investor' within the meaning of article 2(e) of the EU Prospectus
Regulation; and (ii) a 'professional client' or an 'eligible counterparty'
within the meaning of Article 4(1)(11) and Article 24(2), (3) and (4),
respectively, of Directive 2004/39/EC as implemented into national law of the
relevant EEA state;
18 each Placee confirms, represents and warrants if it is
outside the United Kingdom, neither this Announcement nor any other offering,
marketing or other material in connection with the Placing constitutes an
invitation, offer or promotion to, or arrangement with, it or any person whom
it is procuring to subscribe for Placing Shares pursuant to the Placing
unless, in the relevant territory, such offer, invitation or other course of
conduct could lawfully be made to it or such person and such documents or
materials could lawfully be provided to it or such person and Placing Shares
could lawfully be distributed to and subscribed and held by it or such person
without compliance with any unfulfilled approval, registration or other
regulatory or legal requirements;
19 each Placee confirms, represents and warrants if it is
a resident in the UK: (i) it is a 'qualified investor' within the meaning of
article 2(e) of the UK Prospectus Regulation and (ii) it is a person of a kind
described in Article 19 and/or Article 49 of the FPO and it understands that
the information contained in this Appendix is only directed at any of the
following: (A) persons falling within Article 19 of the FPO having
professional experience in matters relating to investments; (B) persons
falling within Article 49 of the FPO (including companies and unincorporated
associations of high net worth and trusts of high value); (C) persons falling
within Article 43(2) of the FPO or (D) persons to whom it would otherwise be
lawful to distribute it; and that, accordingly, any investment or investment
activity to which this Appendix relates is available to it as such a person or
will be engaged in only with it as such a person;
20 each Placee confirms, represents and warrants that it
does not have a registered address in and is not a citizen, resident or
national of, any jurisdiction in which it is unlawful to make or accept an
offer of the Placing Shares and it is not acting on a non-discretionary basis
for any such person;
21 each Placee confirms, represents and warrants that its
subscription for Placing Shares does not trigger, in the jurisdiction in which
such Placee is resident or located: (i) any obligation to prepare or file a
prospectus or similar document or any other report with respect to such
subscription; (ii) any disclosure or reporting obligation of the Company; or
(iii) any registration or other obligation on the part of either of the Joint
Brokers or the Company;
22 that it and any person acting on its behalf is entitled
to acquire the Placing Shares under the laws of all relevant jurisdictions
which apply to it and that it has fully observed such laws and obtained all
such governmental and other guarantees, permits, authorisations, approvals and
consents which may be required thereunder and complied with all necessary
formalities and that it has not taken any action or omitted to take any action
which will or may result in either of the Joint Brokers, the Company or any of
their respective affiliates acting in breach of the legal or regulatory
requirements of any jurisdiction in connection with the Placing;
23 each Placee confirms, represents and warrants that if
it indicates to a Joint Broker that it wishes to subscribe for VCT/EIS Placing
Shares and is investing with a view to obtaining VCT relief in relation to
such subscription that (i) it is a VCT, subscribing for such VCT/EIS Shares
pursuant to the Placing using VCT funds and (ii) the date on which it raised
funds was on or after 6 April 2012;
24 each Placee confirms, represents and warrants that if
it indicates to a Joint Broker that it wishes to subscribe for VCT/EIS Placing
Shares and is investing with a view to obtaining EIS relief in relation to
such subscription that the beneficial owner of such shares will be a
'qualifying investor' within the meaning of section 162 Income Tax Act 2007;
25 each Placee confirms, represents and warrants it is
acting as principal and for no other person and that its Placing Participation
will not give any other person a contractual right to require the issue or
sale by the Company of any Placing Shares;
26 each Placee confirms, represents and warrants that in
accepting its Placing Participation it is not applying for registration as, or
as a nominee or agent for, a person who is or may be a person mentioned in
sections 67 to 72 inclusive and sections 93 to 97 inclusive of the UK Finance
Act 1986;
27 each Placee confirms, represents and warrants that, to
the extent applicable to it, it is aware of its obligations in connection with
MAR, UK Criminal Justice Act 1993, Terrorism Act 2006, Anti-Terrorism Crime
and Security Act 2001, Money Laundering Regulations, the Proceeds of Crime Act
2002 and the Financial Services and Markets Act 2000 (each as amended), it has
identified its clients in accordance with the Money Laundering, Terrorist
Financing and Transfer of Funds (Information on the Payer) Regulations 2017
and it has complied fully with its obligations pursuant to those Regulations;
28 each Placee acknowledges and agrees that all times and
dates in the Announcement and the Terms and Conditions set out in this
Appendix may be subject to amendment and that the Joint Brokers will notify it
of any such amendments;
29 where it is acquiring the Placing Shares for one or
more managed accounts, it represents, warrants and undertakes that it is
authorised in writing by each managed account to acquire the Placing Shares
for each managed account and it has full power to make the acknowledgements,
representations and agreements herein on behalf of each such account;
30 that if it is a pension fund or investment company, it
represents, warrants and undertakes that its acquisition of Placing Shares is
in full compliance with applicable laws and regulations;
31 each Placee acknowledges and agrees that no term of the
agreement confirmed by the Contract Note shall be enforceable under the
Contracts (Rights of Third Parties) Act 1999 by any person other than the
Company or the Joint Brokers or any affiliate of the Joint Brokers or any
Indemnified Persons (as hereinafter defined);
32 each Placee acknowledges that any of its monies held or
received by either of the Joint Brokers will not be subject to the protections
conferred by the Client Money Rules of the Financial Conduct Authority
("FCA");
33 each Placee confirms and agrees that, in connection
with any permitted transfer, the Company or the Joint Brokers will have the
right to obtain, as a condition to such transfer, a legal opinion of counsel,
in form and by counsel satisfactory to the Company or the Joint Brokers, that
no Securities Act registration is or will be required along with appropriate
certifications by the transferee as to the 'Accredited Investor' status and/or
other appropriate matters;
34 each Placee confirms, represents and warrants that it
has not distributed, forwarded, transferred or otherwise transmitted the
Announcement or any other presentation or offering materials concerning the
Placing Shares within the United States, nor will it do any of the
foregoing. Such Placee further confirms that it understands that the
information in the Announcement, including financial information, may be
materially different from any disclosure that would be provided in a United
States offering;
35 each Placee confirms, represents and warrants that if
it has received any confidential price sensitive information about the Company
in advance of the Placing, it has received such information within the market
soundings regime provided for in article 11 of MAR and associated delegated
regulations and has not: (a) dealt in the securities of the Company; (b)
encouraged or required another person to deal in the securities of the
Company; or (c) disclosed such information to any person, prior to the
information being made publicly available;
36 each Placee confirms, represents and warrants that, in
making its investment decision with respect to the Placing Shares:
36.1 it has not relied on the Company or any of its respective
affiliates or on any document published by any of them (other than the
Announcement);
36.2 it has the ability to bear the economic risk of its
investment in the Placing Shares and has no need for liquidity with respect to
its investment in the Placing Shares;
36.3 it has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits, risks and
suitability of investing in the Placing Shares, and is able to sustain a
complete loss of any investment in the Placing Shares;
36.4 it has investigated independently and made its own
assessment and satisfied itself concerning the relevant tax, legal, currency
and other economic considerations relevant to its investment in the Placing
Shares, including any federal, state and local tax consequences, affecting it
in connection with its subscription for and any subsequent disposal of the
Placing Shares;
36.5 if it is a financial intermediary, as that term is used in
Article 3(2) of the Prospectus Directive, the Placing Shares purchased by it
in the Placing will not be acquired on a non-discretionary basis on behalf of,
nor will they be acquired with a view to their offer or resale to, persons in
a member state of the European Economic Area which has implemented the
Prospectus Directive other than 'qualified investors' as defined in Article
2.1(e) of the Prospectus Directive, or in circumstances in which the prior
consent of the Joint Brokers has been given to the offer or resale; and
36.6 it has not offered or sold and will not offer or sell any
Placing Shares to the public in any member state of the European Economic Area
except in circumstances falling within Article 3(2) of the Prospectus
Directive which do not result in any requirement for the publication of a
prospectus pursuant to Article 3 of the Prospectus Directive;
37 each Placee acknowledges and agrees that neither of the
Joint Brokers, nor any of their respective Affiliates or any person acting on
behalf of any of them, is making any recommendations to it, or advising it
regarding the suitability or merits of any transactions it may enter into in
connection with the Placing and that it is not entitled to the protections
afforded to clients of either of the Joint Brokers in connection with the
Placing and that neither of the Joint Brokers nor any of their respective
Affiliates nor any of their respective officers, directors, employees or
advisers shall be liable for any losses (including, without limitation, loss
of profit, loss of business or opportunity and special interest or
consequential losses), damages or costs of the Placee save as a result of
fraud or for death or personal injury;
38 each Placee acknowledges and agrees the Placing does
not constitute a recommendation or financial product advice and neither of the
Joint Brokers has had regard to its particular objectives, financial situation
and needs;
39 each Placee acknowledges that the Company, the Joint
Brokers, CREST, the Registrar, any transfer agent, any distributors or dealers
and their respective affiliates and others will rely on the truth and accuracy
of the foregoing warranties, acknowledgements, representations, undertakings
and agreements, and agrees to notify the Company and the Joint Brokers
promptly in writing if any of its warranties, acknowledgements,
representations, undertakings or agreements set out above cease to be accurate
and complete and to indemnify and hold harmless on an after-tax basis the
Company, the Joint Brokers and any of their respective officers, directors,
agents, employees or advisers ("Indemnified Persons") from and against any and
all loss, damage, liability or expense, including reasonable costs and
attorneys' fees and disbursements, which an Indemnified Person may incur by
reason of, or in connection with, any representation or warranty made by such
Placee as set out above not having been true when made, any misrepresentation
made or any failure by such Placee to fulfil any of its undertakings or
agreements set out above or any other document such Placee provides to the
Company or the Joint Brokers. Such Placee irrevocably authorises each of the
Company and each of the Joint Brokers to produce a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby;
40 acknowledges that it irrevocably appoints any member or
officer of either of the Joint Brokers as its agent for the purposes of
executing and delivering to the Company and/or the Registrar any documents on
its behalf necessary to enable it to be registered as the holder of any of the
Placing Shares agreed to be taken up by it under the Placing; each Placee
acknowledges that the rights and remedies of each of the Joint Brokers and the
Company under these Terms and Conditions are in addition to any rights and
remedies which would otherwise be available to each of them and the exercise
or partial exercise of one right or remedy will not prevent the exercise of
the other rights and/or remedies;
41 each Placee acknowledges and agrees that its commitment
to subscribe for Placing Shares on the terms set out herein and in the trade
confirmation will continue notwithstanding any amendment that may in future be
made to the Terms and Conditions of the Placing and that Placees will have no
right to be consulted or require that their consent be obtained with respect
to the Company's or the Joint Brokers' conduct of the Placing;
42 each Placee acknowledges and agrees that in connection
with the Placing, the Joint Brokers and any of their respective Affiliates
acting as an investor for its own account may take up shares in the Company
and in that capacity may retain, purchase or sell for its own account such
shares in the Company and any securities of the Company or related investments
and may offer or sell such securities or other investments otherwise than in
connection with the Placing. Accordingly, references in this Announcement to
shares being issued, offered or placed should be read as including any issue,
offering or placement of such shares in the Company to the Joint Brokers and
any of their respective Affiliates acting in such capacity. In addition,
either of the Joint Brokers may enter into financing arrangements and swaps
with investors in connection with which such Joint Broker may from time to
time acquire, hold or dispose of such securities of the Company, including the
Placing Shares. Neither of the Joint Brokers nor any of their respective
Affiliates intends to disclose the extent of any such investment or
transactions otherwise than in accordance with any legal or regulatory
obligation to do so;
43 each Placee acknowledges and agrees that whilst the
Company has applied for and received Advance Assurance from HMRC that the
Company is a 'qualifying company' for EIS purposes and the Company currently
expects to satisfy the relevant conditions for the issue of the VCT/EIS Shares
to be eligible for EIS Relief and should be regard as a qualifying holding for
VCT purposes, none of the Company, the Directors or any of the Company's
advisers give any warranty or undertaking that reliefs will be available and
not withdrawn at a later date;
44 each Placee authorises and instructs each of the Joint
Brokers, the Company and their respective agents to receive and hold any
personal data and information of or belonging to the Placee which is received
in relation to the Placing, and it consents to the lawful use by each of the
Joint Brokers, the Company and their respective agents of such data and
information for the purposes of the Placing; and
45 each Placee undertakes that it (and any person acting
on its behalf) will make payment for the Placing Shares allocated to it in
accordance with the Announcement and these Terms and Conditions on the due
time and date set out herein, failing which the relevant Placing Shares may be
placed with other subscribers or sold as the Joint Brokers may in their sole
discretion determine and without liability to such Placee and such Placee will
remain liable for any shortfall below the net proceeds of such sale and the
placing proceeds of such Placing Shares and may be required to bear the
liability for any stamp duty or stamp duty reserve tax (together with any
interest or penalties due pursuant to or referred to in these Terms and
Conditions) which may arise upon the placing or sale of such Placee's Placing
Shares on its behalf.
The foregoing acknowledgements, agreements, undertakings, representations,
warranties and confirmations are given for the benefit of the Company and the
Joint Brokers (for their own benefit and, where relevant, the benefit of their
respective officers and affiliates and any person acting on their behalf) and
are irrevocable. Each Placee, and any person acting on behalf of a Placee,
acknowledges that the neither the Company nor the Joint Brokers owes any
fiduciary or other duties to any Placee in respect of any representations,
warranties, undertakings or indemnities in the Placing Agreement.
Responsibility
The Terms and Conditions set out in this Appendix and the Announcement of
which it forms part have been issued by the Company and are the sole
responsibility of the Company.
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