REG - Oxford BioDynamics - Proposed Fundraising
13/03/2024 16:45
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RNS Number : 7533G Oxford BioDynamics PLC 13 March 2024
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OXFORD BIODYNAMICS PLC
Proposed Fundraising comprising:
(i) Placing
(ii) Subscriptions
(iii) Retail Offer via PrimaryBid
(iv) Posting of Circular to Shareholders
and
Notice of General Meeting
Oxford, UK - 13 March 2024 - Oxford BioDynamics PLC (AIM: OBD, "OBD", the
"Company" and, together with its subsidiaries, the "Group"), a biotechnology
company developing precision medicine tests based on the EpiSwitch® 3D
genomics platform, announces a fundraising by way of a placing (the
"Placing") and direct subscriptions (the "Subscriptions") to raise together
gross proceeds of not less than £9 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 £1.25 million (the "PrimaryBid
Offer") (all together the "Fundraising"), in each case at a price of 9 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, Baden Hill and WG Partners, and the Company. It is currently
envisaged that the result of the Bookbuild will be announced via the RNS
tomorrow, 14 March 2024 at 7.00a.m.
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
Subscriptions will similarly not proceed.
Key features of the Fundraising
· The Fundraising will provide working capital to support the
ongoing commercial development of the EpiSwitch® product line, through
continued investment in sales and marketing activities to grow adoption of
EpiSwitch® PSE and EpiSwitch® CiRT, operation of the Company's clinical,
research and reference laboratory facilities worldwide and pursuit of
partnering / out licensing opportunities for deployable pipeline assets.
· The Issue Price of 9 pence per New Ordinary Share represents a
discount of 21.1% to the closing mid-market price on 12 March 2024 of 11.40
pence per Existing Ordinary Share.
· A General Meeting of the Company's Shareholders will take place
at 10.00 a.m. on 3 April 2024.
· 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 fundraise and thankful for the
support shown to the Company by existing shareholders and new investors alike.
Building on the achievements of last year, we are focused on growing both
EpiSwitch PSE and EpiSwitch CiRT, with new leaders for each product having
bolstered our US-based commercial team at the end of 2023. Alongside this
support for our two on-market tests, the fundraise will allow us to pursue
partnering or outlicensing opportunities for our two most advanced pipeline
assets, EpiSwitch NST for colorectal/bowel cancer and EpiSwitch SCB for canine
cancer."
Extracts from the Circular
Background to and reasons for the Fundraising and Use of Proceeds
Oxford BioDynamics' goal is to advance personalised healthcare by developing
and commercialising precision medicine tests for life-changing diseases, based
on its 3D genomics platform, EpiSwitch®.
The Company has two flagship clinical diagnostic products on the market: the
EpiSwitch® CiRT (Checkpoint Inhibitor Response Test) for cancer, which was
launched in February 2022, and the EpiSwitch® PSE (Prostate Screening Test),
which was launched in September 2023. It also has a development pipeline of
tests for other indications, including EpiSwitch® NST (No Stool Test) for
colorectal/bowel cancer and EpiSwitch® SCB (Specific for Canine Blood) for
canine cancer.
EpiSwitch® CiRT is a validated, first-of-its-kind precision medicine blood
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 Current Procedural Terminology Proprietary Laboratory Analysis
("CPT-PLA") code and to private physicians in the UK and elsewhere. Since
launch, more than 800 CiRT tests have been ordered by a total of over 80
oncologists.
EpiSwitch® PSE is a validated rapid, accurate, non-invasive blood test for
prostate cancer. PSE detects prostate cancer risk from blood with high
accuracy, reducing the number of men referred for an unnecessary biopsy and
treatment. The test measures five epigenetic biomarkers and combines these
with a patient's prostate-specific antigen ("PSA") score to accurately predict
the presence or absence of prostate cancer.
PSE has high overall accuracy of 94% (sensitivity 86%, specificity 97%),
representing a huge boost in accuracy compared to a PSA test alone. Crucially,
the positive predictive value ("PPV") of PSE is 93%, compared to just 25% for
PSA. This low PPV is one of the main impediments to using PSA as a
population-wide screening test. One in four of men with a raised PSA will be
expected to go on to be diagnosed with prostate cancer. PSE's PPV of 93%,
means that 93 of every 100 men who receive a "high probability" PSE result
will be expected to go on to receive a prostate cancer diagnosis.
The Company launched PSE in the US and UK ahead of schedule in September 2023,
having successfully completed the development and validation of the commercial
test and leased, staffed and commissioned a Clinical Laboratory Improvements
Amendments ("CLIA")-registered US clinical laboratory in Frederick, MD, where
the test is performed.
A unique CPT-PLA code for PSE was assigned in September 2023 and has been
available for use by Medicare, Medicaid and private payors in the US since 1
January 2024.
Oxford Biodynamics has a pipeline of 3D genomic tests and has recently
initiated confidential discussions with third parties regarding the two most
advanced of these assets, EpiSwitch® NST for colorectal/bowel cancer and
EpiSwitch® SCB for canine cancer. The Company expects to assess and explore
opportunities for monetising these and other programs from its pipeline.
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 annual report and accounts for the year ended 30 September
2023, published on 22 February 2024, the Board highlighted the possibility
that additional funding would be sought during the first half of the 2024
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
Oxford Biodynamics 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 and is in
the process of setting up a UK clinical laboratory compliant with the
requirements of ISO 15189:2012 (Medical Laboratories). 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, Oxford
Biodynamics is an early pioneer of 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 products are the EpiSwitch® CiRT (Checkpoint Inhibitor
Response Test) and EpiSwitch® PSE (Prostate Screening Test) blood tests. CiRT
is a predictive immune response profile for immuno-oncology (IO) checkpoint
inhibitor treatments, launched in February 2022. PSE is a blood test that
boosts the predictive accuracy of a PSA test from 55% to 94% when testing the
presence or absence of prostate cancer, launched in the US and UK in September
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.
Each of the Group's on-market products and development pipeline assets is
based on its proprietary 3D genomic biomarker platform, EpiSwitch®, which can
build molecular diagnostic classifiers for the prediction of response to
therapy, patient prognosis, disease diagnosis and subtyping, and residual
disease monitoring in a wide range of indications.
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 been
granted two prestigious awards by the Partnership for Accelerating Cancer
Therapies ("PACT"), a five-year public-private research collaboration 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 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.
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 19 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___.YXAxZTpzaG9yZWNhcDphOm86NjFhNWRlYjY0YWI2MjEzNjkwM2UzYjEwYjVkOTRkNzE6Njo2MGJjOmU5MzNlZGJjMDQ3MzNhYzI1MjQwMjYyM2EzNThjYjI5Yzg1NjBlZjhjMTEzYmM0ODkzOTE3N2M1MmVlZmZmYmM6cDpU)
.
Current Trading and Prospects
During the most recent financial year (ended 30 September 2023), the Group
focused on two main objectives:
· continuing to grow orders of EpiSwitch® CiRT; and
· accelerating the development and launch of EpiSwitch® PSE,
including setting up its CLIA-registered US clinical laboratory.
These main activities were pursued alongside:
· work with pharma customers in biomarker discovery and clinical
development; and
· research, both on internal proprietary projects and with academic
and other partners.
By the end of the 2023 calendar year, the Company had established a baseline
of orders of EpiSwitch CiRT and generated actionable sales insights from over
750 tests processed up to that date. The Company launched the 94% accurate PSE
test ahead of schedule in September 2023 following the build-out of the
Company's CLIA-registered laboratory in Frederick, MD, in five months.
The Company continues to have an active pipeline of products in development
and the two most advanced pipeline assets, the EpiSwitch NST and EpiSwitch SCB
blood tests for colorectal/bowel cancer and canine cancer respectively, were
ready for partnering or out-licensing by the end of 2023. In addition, at the
end of 2023, the Company bolstered its US-based commercial team through the
appointment of two experienced sales leaders, Dr Steven Arrivo and Ryan
Mathis, M.D., to lead its PSE and CiRT product verticals respectively.
Going forward, the Company remains focused on the continued commercialization
of the EpiSwitch® product line. In line with this the Company has identified
several key areas of focus for each product over the current financial year.
· EpiSwitch® CiRT:
· continuing to drive adoption and increase orders of EpiSwitch
CiRT. Having identified a strong re-user base among doctors ordering in 2023,
the Company has re-established clinical advisory boards with those doctors
identified as re-users of the test. The Company is also engaging with Chief
Medical Officers and physician administrators of US regional/national
healthcare systems where doctors are already using the test;
· having identified cancer indications for which the test has been
most frequently used, the Company will focus on driving increased utilisation
in these indications; and
· continuing to analyse physician-generated utility data and real
world case studies in order to understand barriers to routine volume ordering,
establish support from key opinion leaders ("KOLs"), capture health economics
data related to the test and petition for its adoption into the National
Comprehensive Cancer Network ("NCCN") Guidelines and Compendia;
· EpiSwitch® PSE:
· driving significant awareness and adoption of EpiSwitch PSE by
targeting large organisation accounts including concierge medicine cash pay
accounts;
· seeking national distribution partners to open a further sales
channel for test volume and utilisation of the Company's US clinical
laboratory capacity;
· supporting the test through a program of KOL presentations,
clinician breakout groups, ongoing smart marketing, developing the health
economics story for the test and applying for its inclusion in the NCCN
Guidelines and Compendia;
· bringing PSE online in the Company's UK clinical laboratory by
the end of March 2024;
· continuing recently initiated confidential discussions with third
parties regarding the Company's two most advanced pipeline assets, EpiSwitch
NST for colorectal/bowel cancer and EpiSwitch SCB for canine cancer, and
assessing and exploring opportunities for monetising these and other programs
from the Company's portfolio of deployable 3D genomic tests; and
· working on internal and grant- and award-funded research and
development and on projects for commercial partners.
EpiSwitch® CiRT
EpiSwitch® CiRT is a first-of-its-kind routine 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, across all cancers,
only approximately 20% of patients see an objective response 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 for their reaction 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.
Nine anti-PD-(L)1 ICIs are currently approved for use in the US, for a wide
variety of cancer indications. Treatment costs range from approximately
$100,000 to $1 million per patient, depending on how many cycles of treatment
a patient receives. Approximately $44 billion was spent on these drugs
worldwide in 2023 and it is estimated that c.$19 billion is spent annually on
ineffective ICI therapy in the US alone. Insurers and payors therefore want a
reliable test to justify approving therapy and to know when to stop these
expensive treatments.
The CiRT sales vertical at the Company is led by VP of Business Development
and Market Access, Ryan Mathis MD, appointed in December 2023. Dr Mathis is a
physician who, along with clinical expertise, has an impressive background in
business development and running sales teams for innovative healthcare
products.
819 CiRT tests have been ordered by 80 oncologists (to 9 February 2024), since
the test was launched in February 2022. A unique CPT-PLA code, allowing
reimbursement for CiRT tests from US insurers, has been available from October
2022. Building on early progress in a single territory following launch, the
Company expanded its sales and market access team and initiated a series of
peer group clinical advisory boards, at which doctors who routinely order CiRT
tests shared their experience of the test with colleagues. The Company expects
to continue with this peer-to-peer approach to growing demand for CiRT through
the current financial year, as part of its comprehensive strategy for the
test. Clinical advisory boards have resumed in 2024, with doctors who have
used the test multiple times. In addition, Dr Mathis is engaging with the
Chief Medical Officers and physician administrators of regional healthcare
systems from which doctors have ordered the test, to seek to drive system-wide
adoption of the test. The Company understands that the test is currently being
incorporated into the physician guidelines of two healthcare systems and
expects that it will be incorporated into the physician guidelines of further
healthcare systems during the coming year.
To date, CiRT has been sold primarily to innovator and early adopter
oncologists, who are specialists in providing expert care to cancer patients.
The Company has analysed progress and success in selling bottom-up into this
segment of oncologists, to understand how these doctors are applying CiRT with
respect to the algorithms they have been trained to use to treat their
patients and to understand (and address) barriers to routine volume ordering
of the test. Four cancer indications (lung, liver, pancreatic and renal
cancer) have been identified as those showing the strongest evidence of the
clinical utility of the test. Dr Mathis and the team intend to use this
evidence to refine the Company's speaker programs and clinical advisory boards
to continue to take advantage of and grow peer-to-peer sales.
Health Economics and Outcomes Research ("HEOR") data is critical for payors
seeking to use their resources as effectively and efficiently as possible and
informs their decisions on coverage and payment / reimbursement for the test
and IO treatments. The Company is using the clinical data from the real-world
cases gathered so far from oncologists to present CiRT's usage and clinical
utility. Building the HEOR case for CiRT with this real-world evidence, the
Company also plans to prepare data to support an assertive campaign for CiRT
to be added to the NCCN Guidelines and Compendia, published resources from
independent professional organisations which are the recognised standard for
clinical direction and policy in cancer care and which drive physician
behaviour. Inclusion in the NCCN Guidelines is vital for bringing the test
into the orbit of as many oncologists as possible and addressing the barriers
to routine volume ordering of the test. Dr Mathis will also implement a
rigorous clinical sales training program, along with a national conference
strategy.
In October 2023, the Company announced an agreement with the UK's leading
health insurer, Bupa UK, to give Bupa patients who are being considered for or
already on ICI therapy access to EpiSwitch CiRT. This was the first direct
agreement with a private medical insurer for the reimbursement of CiRT and the
first agreement with a major customer outside of the US. As well as agreeing
to reimburse EpiSwitch CiRT, the partnership represents the first time that
Bupa will be actively marketing a genomic test to their network of healthcare
providers. Bupa is advocating for CiRT's adoption by facilitating a series of
roadshows by the Company in some of the UK's largest private cancer care
clinics throughout the first half of 2024.
Gaining reimbursement from the UK's leading health insurer was a milestone for
the Company and the Company is targeting similar agreements with other
insurers and healthcare networks, in all its markets, during 2024.
EpiSwitch® PSE Prostate Screening Test
EpiSwitch® PSE is a non-invasive blood test that accurately detects prostate
cancer risk, reducing the number of men referred for an unnecessary and
potentially destructive biopsy. The PSE test measures five epigenetic
biomarkers and combines these with a patient's PSA (prostate-specific antigen)
score to accurately predict the presence or absence of prostate cancer.
PSE has high overall accuracy of 94% (sensitivity 86%, specificity 97%),
representing a huge boost in accuracy compared to a PSA test alone. The
positive predictive value ("PPV") of PSE is 93%, compared to just 25% for PSA
(its low PPV is one of the main impediments to using the PSA test in
population-wide screening). Only about a quarter of men with a raised PSA will
be expected to go on to be diagnosed with prostate cancer. PSE's PPV of 93%
means that the false positive rate of the test is only 7% compared to a false
positive rate of 75% for the PSA test, therefore sparing many men from an
unnecessary and potentially destructive biopsy.
Data from the PROSTAGRAM NHS study, published in Cancers, a high-impact,
peer-reviewed journal in February 2023, showed that PSE demonstrated
compelling results including overall accuracy of 94%. Following publication of
the groundbreaking results, the Company completed the development and
validation of the commercial test, launching it ahead of schedule in September
2023.
The Company also leased, staffed and commissioned a CLIA-registered US
clinical laboratory in Frederick, MD, where the test is performed. An
application for a unique CPT-PLA code for PSE was submitted in early July 2023
and the code, 0433U, was assigned in September 2023 and has been available for
use by Medicare, Medicaid and private payors since 1 January 2024. The Company
is developing a UK clinical laboratory, compliant with the requirements of ISO
15189: 2012 (Medical Laboratories), in its existing Oxford HQ, with processing
of PSE clinical samples expected to begin there by the end of March 2024.
The PSE vertical is led by Dr Steve Arrivo, who joined the Company in November
2023 as Senior Vice President of Business and Corporate Development. Through
the remainder of 2024 and beyond, the Company's commercial team will have a
focus on large accounts, particularly including concierge medicine cash-pay
customers, as the quickest way both to increase sales volumes and positively
impact cash flow (the test has a price of $950 and the team is seeking to
increase orders to a level of 1,000 tests per month). In addition, the Company
will seek national distribution partners to make the test more readily
accessible across the whole of the US and utilise available capacity at the
Company's CLIA-registered lab.
Initial marketing for PSE has primarily been focused on building awareness of
the test, through online content targeting general physicians and urologists
and men in specific groups such as age brackets or geographies and their
families. The team will focus on analysing and evolving this
direct-to-customer marketing approach in 2024.
Dr Arrivo will also lead initiatives to craft and distil the HEOR story for
PSE, drive awareness and utilisation of the test with KOLs, attend and present
at strategic conferences, collaborate with advocacy groups and petition for
inclusion of PSE into the NCCN Guidelines.
More than 180 PSE tests had been ordered to 9 February 2024.
Product pipeline
The Company is just over three years into a process of commercialising over a
decade of research and development since its spin out from the University of
Oxford. In that time, 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.
Two of the programs in the Company's pipeline are now ready to deploy. These
tests are EpiSwitch® NST, a screening blood test for colorectal/bowel cancer
and EpiSwitch® SCB, a multi-profile whole-genome cancer test for dogs.
EpiSwitch® NST addresses a large market opportunity for a blood test for
colorectal cancer: there are 100 million people over the age of 40 in the US
who are recommended to be screened regularly for this disease. EpiSwitch® NST
detects the presence of polyps in the colon (which can be precursors to
cancer) with an accuracy of 83%, almost double the accuracy of the
market-leading screening test in detecting large precancerous polyps. In
addition, the Company's test has 96% sensitivity, 90% specificity and is 93%
accurate in determining the presence or absence of stage 1 or stage 2 cancer.
The Company expects that early monetisation and commercialisation of each of
these two programs is more likely to occur with, and would benefit from, the
involvement of a partner organisation with significant presence in the
relevant market. To this end, confidential discussions with third parties
commenced in early 2024 to explore possible options for these two most
advanced pipeline assets. As well as expediting the launch and availability of
these high-performing tests, this approach could potentially lead to
significant non-dilutive funding for the Company.
The Company's research and development and product development teams continue
to work on internal, grant-funded and contractual projects in a wide range of
indications and therapy areas. As well as colorectal/bowel cancer, and canine
oncology (animal health), progress has recently been made on projects in
amyotrophic lateral sclerosis (ALS, or motor neurone disease), rheumatoid
arthritis, psoriasis/psoriatic arthritis, immuno-oncology and non-alcoholic
steatohepatitis ("NASH").
EpiSwitch® Explorer Array Kit
The Company's EpiSwitch® Explorer Array Kits ("EAKs") enable members of the
life science research community to generate valuable insights using the
Group's 3D genomics technology. The EAK 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.
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
EAK as a paid-for service.
EAKs have been purchased and used by scientists from several prestigious
academic research institutions. Sales are expected to grow as use of
EpiSwitch® is written into increasing numbers of academic proposals.
Award and grant income
In May 2023, the Company was granted a second PACT award. The prestigious
award comes from PACT, a five-year public-private research collaboration
totalling $220 million between the NIH, the FDA and 12 leading pharma
companies, all managed by the FNIH. The award is worth $963,000 over one year
and is helping 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 ICIs such as Keytruda, Pembrolizumab, Nivolumab,
etc. 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 13%), has
become an urgent issue for practicing clinicians, drug developers, payors and
regulators.
The Company is one of 27 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"). The Company has completed and reported to
partners the first screening stage in the development of EpiSwitch biomarkers
to successfully meet the objectives of the consortium.
The Fundraising
The Company is proposing to raise gross proceeds of not less than £9 million
by way of the Placing and the Subscriptions. In addition, an offer of up to
13,888,888 new Ordinary Shares will be made to retail investors via the
PrimaryBid platform the ("PrimaryBid Shares") to raise up to £1.25 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 £133,300. In
addition, Vulpes Investment Management (which is controlled by Non-Executive
Director Stephen Diggle), has indicated an intention to 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. 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 Shareholders; (b) the VCT/EIS Placing 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) General Admission in respect of the General Placing
Shares becoming effective on or before 8.00 a.m. on 8 April 2024, or such
later date as the Company and the Joint Brokers may agree (being no later than
8.00 a.m. on 30 April 2024). 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 5 April 2024 (or such later date as the Joint
Brokers and the Company may agree, not being later than 30 April 2024).
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 having occurred. 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 has been advised that the VCT/EIS Placing Shares will rank as a
qualifying holding for the purposes of investment by VCTs. However, no
assurance has been obtained from HMRC or any other person that a subscription
for VCT/EIS Placing Shares is a 'qualifying holding' for the purpose of
investment by VCTs.
The Company has been advised that the VCT/EIS Placing Shares will constitute
'eligible shares' and that the Company will be regarded as a 'qualifying
company' for the purposes of the EIS rules. However, no assurance has been
obtained from HMRC or any other person that a subscription for VCT/EIS Placing
Shares will meet the requirements for EIS Relief.
None of the Directors nor the Company give any representation, warranty or
undertaking that any VCT investment in the Company is a qualifying holding, or
that a subscription for VCT/EIS Placing Shares will meet the requirements for
EIS Relief, or that VCT or EIS qualifying status or eligibility will not be
withdrawn, nor do they warrant or undertake that the Company will conduct its
activities in a way that qualifies for or preserves its status or the status
of any investment in Ordinary Shares. Investors considering taking advantage
of any of the reliefs available to VCTs or EIS Relief should seek their own
professional advice in order that they may fully understand how the rules
apply in their individual circumstances and what they are required to do in
order to claim any reliefs (if available). The rules governing VCT and EIS
reliefs are complex. Any prospective investors who are considering investing
in VCT/EIS Placing Shares in order to obtain VCT or EIS reliefs are
recommended to take independent tax advice from a professional tax adviser.
Subject to, inter alia, the passing of the Resolutions, application will be
made for the VCT/EIS Placing 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 dealings are expected to
commence in the VCT/EIS Placing Shares on AIM at 8.00 a.m. 5 April 2024.
General Admission is expected to occur and dealings are expected to commence
on AIM in the General Placing Shares, the Subscription Shares and the
PrimaryBid Shares at 8.00 a.m. on 8 April 2024. 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 General 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.
Subscriptions
The Subscribers intend to subscribe for the Subscription Shares at the Issue
Price. The Subscriptions are conditional, among other things, upon (a) the
Resolutions as set out in the Notice of General Meeting being approved by
Shareholders and (b) General Admission becoming effective by no later than
8.00 a.m. on 8 April 2024 (or such later date as the Subscribers and the
Company may agree, not being later than 30 April 2024). The Subscriptions are
not being underwritten and the Subscription Shares are not subject to
clawback.
Settlement and dealings
Applications will be made to the London Stock Exchange for the VCT/EIS Placing
Shares and for the New Ordinary Shares (other than the VCT/EIS Placing Shares)
to be admitted to trading on AIM. It is expected that VCT/EIS Admission will
become effective and dealings in the VCT/EIS Placing Shares will commence on
AIM at 8.00 a.m. on 5 April 2024 and that General Admission will become
effective and dealings in the General Placing Shares, the Subscription Shares
and the PrimaryBid Shares will commence on AIM at 8.00 a.m. on 8 April 2024,
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 Subscriptions and the PrimaryBid Shares being issued
pursuant to the PrimaryBid Offer will, on the relevant Admission, rank pari
passu in all respects with the Existing Ordinary Shares, including the right
to receive all dividends and other distributions declared, made or paid after
the date of the relevant Admission.
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 Subscriptions 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 for 12 months from the date of this announcement.
Use of proceeds
The Company will use the net proceeds of the Fundraising as working capital to
support its ongoing commercial development including:
• investment in marketing, business development and sales
& market access activity to continue to grow orders and adoption of the
Company's two on-market laboratory developed tests, EpiSwitch PSE and
EpiSwitch CiRT;
• operation of the Company's clinical, research and
reference laboratory facilities worldwide; and
• pursuit of partnering / out-licensing opportunities for
its two readily deployable pipeline assets, EpiSwitch NST and EpiSwitch SCB.
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 14 March 2024
convening a general meeting of the Company to be held at 3140 Rowan Place,
Oxford Business Park South, Oxford, OX4 2WB on 3 April 2024 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
between 2.5% and 4% of funds raised by Baden Hill in the Placing (excluding
any funds raised from directors, persons discharging managerial
responsibilities ("PDMRs") or staff of the Group, 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,
SCC, 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 36,089,383
Ordinary Shares as at 13 March 2024 (being the last practicable date prior to
the date of this announcement), representing 17.8% 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 Joint Broker Tel: +44 (0)20 7408 4090
Advisory: Stephane Auton / Iain Sexton
Broking: Fiona Conroy
Baden Hill (a trading name for Northland Capital Partners Limited) - Joint Tel: +44 (0)20 3951 8907
Broker
Alex Schlich
WG Partners - Joint Broker Tel: +44 (0)20 3705 9330
David Wilson / Claes Spang / Sathesh Nadarajah / Erland Sternby
Instinctif Partners - Financial PR Tel: +44 (0)20 7457 2020
Melanie Toyne-Sewell / Jack Kincade
OxfordBioDynamics@instinctif.com
EXPECTED TIMETABLE OF PRINCIPAL EVENTS
Publication of the Circular 14 March 2024
Latest time and date for receipt of Forms of Proxy 10.00 a.m. on 28 March 2024
General Meeting 10.00 a.m. on 3 April 2024
Announcement of results of General Meeting 3 April 2024
VCT/EIS Admission and commencement of dealings in the VCT/EIS Placing Shares 8.00 a.m. on 5 April 2024
on AIM
Crediting of the VCT/EIS Placing Shares in uncertificated form to CREST 5 April 2024
accounts
General Admission and commencement of dealings in the General Placing Shares, 8.00 a.m. on 8 April 2024
the Subscription Shares and the PrimaryBid Shares on AIM
Crediting of the General Placing Shares, the Subscription Shares and the 8 April 2024
PrimaryBid Shares in uncertificated form to CREST accounts
Dispatch of share certificates in respect of the New Ordinary Shares within 10 business days of General 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 Placing Shares and General
Admission in the context of the General 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;
"CLIA"
Clinical Laboratory Improvements Amendments;
"CPT-PLA"
Current Procedural Terminology Proprietary Laboratory Analysis;
"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
Regulations"
the Uncertificated Securities Regulations 2001 (S.I. 2001 No. 3755) (as
amended from time to time);
"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;
"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 Placing 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 General 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"
202,303,415 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 Subscriptions 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 3 April 2024;
"General
Placing"
the conditional placing of the General Placing Shares to Placees;
"General Placing
Shares"
New Ordinary Shares (other than VCT/EIS Placing Shares) to be issued,
conditional on General Admission, under the General Placing;
"Group"
the Company and its subsidiaries (as defined in the Act) as at the date of
this announcement;
"Issue
Price"
9 pence per New Ordinary Share;
"Joint
Brokers"
SCS, Baden Hill and WG Partners;
"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 13
March 2024 between SCC (1) SCS (2) Baden Hill (3) WG Partners (4) and the
Company (5) 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"
the 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
Subscriptions;
"Subscriptions"
the subscriptions for the Subscription Shares by the Subscribers;
"Subscription
Shares"
the New Ordinary Shares proposed to be issued to Subscribers pursuant to the
Subscriptions;
"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 Placing 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 Placing Shares to Placees;
"VCT/EIS Placing
Shares"
New Ordinary Shares to be issued, conditional on VCT/EIS Admission, under the
VCT/EIS Placing;
"Vulpes Investment Management"
Vulpes Investment Management Pte. Ltd; and
"WG
Partners"
WG Partners LLP, the Company's joint broker.
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.
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) if in
the United Kingdom, 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' ("UK Qualified Investors") being persons within
the meaning of article 2(e) of Regulation (EU) 2017/1129 (as amended) as it
forms part of UK domestic law by virtue of, the European Union (Withdrawal)
Act 2018 (as amended) (the "UK Prospectus Regulation"); (b) if in a member
state of the European Economic Area ("EEA"), persons who are 'qualified
investors' ("EEA Qualified Investors") being persons falling within the
meaning of article 2(e) of Regulation (EU) 2017/1129 (as amended) (the "EU
Prospectus Regulation"); or (c) persons to whom it may otherwise lawfully be
communicated (all such persons referred to in (a), (b) and (c) 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.
WG Partners LLP ("WG Partners"), 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 WG Partners 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 WG Partners 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 WG Partners 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;
iii. if it is in the United Kingdom and/or if it is a financial
intermediary, as that term is used in Article 5(1) of the UK Prospectus
Regulation, any Placing Shares acquired by it in the Placing will not be
acquired or subscribed for on a non-discretionary basis on behalf of, nor will
they be acquired or subscribed for with a view to their offer or resale to
persons in the United Kingdom other than to UK Qualified Investors or in
circumstances which may give rise to an offer of securities to the public
other than an offer or resale in the United Kingdom to UK Qualified Investors,
or in circumstances in which the prior consent of the Joint Brokers has been
given to each such proposed offer or resale; and
iv. 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 5(1) of the EU
Prospectus Regulation, any Placing Shares acquired or subscribed for by it in
the Placing will not be acquired on a non-discretionary basis on behalf of,
nor will they be acquired or subscribed for with a view to their offer or
resale to persons in any member state of the EEA other than to EEA Qualified
Investors or 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 to EEA
Qualified Investors, or in circumstances in which the prior consent of the
Joint Brokers has been given to each such proposed offer or resale.
None 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 any 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 of Chapter 3 of
the FCA Handbook Product Intervention and Product Governance Sourcebook (the
"UK Product Governance Requirements"), and disclaiming all and any liability,
whether arising in tort, contract or otherwise, which any 'manufacturer' (for
the purposes of the UK Product Governance Requirements) may otherwise have
with respect thereto, the Placing Shares have been subject to a product
approval process, which has determined that the Placing Shares are: (i)
compatible with an end target market of 'retail investors' and investors who
meet the criteria of 'professional clients' and 'eligible counterparties',
each as defined in the FCA Conduct of Business Sourcebook; and (ii) eligible
for distribution through all permitted distribution channels (the "UK Target
Market Assessment").
Solely for the purposes of the product governance requirements contained
within: (a) EU Directive 2014/65/EU on markets in financial instruments, as
amended ("MiFID II"); (b) Articles 9 and 10 of Commission Delegated Directive
(EU) 2017/593 supplementing MiFID II; and (c) local implementing measures
(together, the "MiFID II Product Governance Requirements") and/or any
equivalent requirements elsewhere to the extent determined to be applicable,
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
'retail investors' and investors who meet the criteria of 'professional
clients' and '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 in
relation 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
Chapters 9A or 10A, respectively of the FCA Handbook Conduct of Business
Sourcebook (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 Placing Shares, such shares will be allotted on 4 April 2024
conditional upon Admission of such shares becoming effective on 5 April 2024
("VCT/EIS Admission"). The General Placing Shares will be allotted on 4 April
2024, conditional upon Admission of such shares becoming effective on 8 April
2024 ("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 9 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 Placing 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 Placing Shares to trading on AIM will become
effective at 8.00am on 5 April 2024 and dealings in the VCT/EIS Placing Shares
will commence at that time. Settlement of the General Placing Shares and
General Admission is anticipated to become effective at 8.00am on 8 April 2024
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, 14 March 2024 at 7.00 a.m.
EIS and VCT
The VCT/EIS Placing Shares to be issued pursuant to the VCT Placing are
intended to rank as 'eligible shares' for the purposes of EIS and VCT
investors and a 'qualifying holding' for the purposes of an investment by
VCTs, each pursuant to the relevant respective sections of the Income Tax Act
2007 ("ITA 2007"). The Company has not applied for, nor has it received, an
advanced assurance from HM Revenue & Customs ("HMRC") in respect of EIS
qualification, but the Company has obtained a written opinion from specialist
tax advisers confirming that the Company would, subject to the relevant limits
on such issuances, be able to issue the VCT/EIS Placing Shares as 'eligible
shares' under the relevant sections of the ITA 2007. Neither the Company nor
the Directors give any warranties or undertakings that EIS Reliefs or VCT
reliefs will be granted in respect of the VCT/EIS Placing Shares and neither
the Company nor the Directors give any warranties or undertakings that EIS
Reliefs or VCT reliefs, if granted, will not be withdrawn at a later date. If
the Company carries on activities beyond those disclosed to HMRC, then
shareholders may cease to qualify for the tax benefits. Placees must take
their own advice and rely on it.
The rules governing VCT and EIS reliefs are complex. Any prospective
investors who are considering investing in VCT/EIS Placing 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, none of the Joint Brokers nor any
holding company of any of them, nor any subsidiary, branch or affiliate of any
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, none
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 Placing
Shares are conditional, inter alia, on:-
· the publication of the Circular on the Company's
website and its despatch by the Company by first class post to shareholders of
the Company (save as set out in the Placing Agreement) on 14 March 2024 (or as
soon as possible thereafter but no later than 15 March 2024);
· 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 Placing 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
5 April 2024 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 Placing 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
8 April 2024 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 30 April 2024) 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 30 April 2024. Any such waiver or extension will not
affect Placees' commitments as set out in this Announcement.
Right to terminate the Placing Agreement
Any 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, together with the sum of the aggregate final
confirmed number of Subscription Shares multiplied by the Issue Price, is less
than £9 million in aggregate (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 announcement or a
supplementary Circular is published by the Company); or
(v) the Company fails to accept the reasonable
advice of Shore Capital, Baden Hill and/or WG Partners 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
this Announcement or the Circular; or
(vi) the Company is in material breach of the Act, the
AIM Rules for Companies, MAR, the Disclosure Guidance and Transparency Rules
("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) any 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
(viii) 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, any 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 Brokers as shall be practicable in the circumstances),
would have or be likely to have a material and adverse effect on the Placing,
the PrimaryBid Offer 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 any of the Joint
Brokers 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
this Announcement and/or 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);
save that if any of the Joint Brokers gives notice to terminate the Placing
Agreement (the "Terminating Joint Broker"), whichever of the Joint Brokers are
not the Terminating Joint Broker (each a "Continuing Joint Broker") may elect
by notice in writing to the Company to continue with the Placing Agreement
(subject, if the Terminating Joint Broker is SCS, to (a) alternative
settlement procedures, including a CREST account, to those stated in the
Placing Agreement being agreed by the Continuing Joint Brokers in adequate
time for the purpose and (b) the prior written consent of SCC to the Placing
continuing) and where such election is made, the Placing Agreement shall
continue between the Continuing Joint Brokers and the Company and the
termination shall only apply to the Terminating Joint Broker (subject to the
extent specified in such circumstances in the Placing Agreement). For the
avoidance of any doubt, no consents or approvals in respect of the Placing
shall be required of the Terminating Joint Broker following any such
termination.
Following VCT/EIS Admission, the Placing Agreement is not capable of
termination to the extent that it relates to the Placing of VCT/EIS Placing
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 any 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 none 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
of the Company, the details of which are set out in the Circular, it is
expected that settlement for the VCT/EIS Placing Shares will take place at
8.00 a.m. on 5 April 2024 and settlement for the General Placing Shares will
take place at 8.00 a.m. on 8 April 2024 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 agents 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 any of the Joint Brokers or
by any subsidiary, holding company, branch or associate of the Company or any
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 any of the Joint
Brokers, or any director, employee or agent of the Company or of any of the
Joint Brokers other than as expressly set out in this Appendix, for which none
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
none of the Joint Brokers, any of its Affiliates, directors, officers,
employees or agents, or any person acting on behalf of any 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 any 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 none 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 any 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 none 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 none of the Joint
Brokers acts for, and that it does not expect any 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 any
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 any of the Joint
Brokers as defined by the FCA's Conduct of Business Sourcebook in connection
with the Placing. Likewise, none 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 none 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 any 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 any 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, it is (i) an EEA Qualified Investor; 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 UK Qualified Investor 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 any 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 any 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 Placing
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 any 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' in the United Kingdom, as
that term is used in Article 5(1) of the UK Prospectus Regulation, 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 the United Kingdom other than to UK
Qualified Investors, or in circumstances in which the prior consent of the
Joint Brokers has been given to the offer or resale;
36.6 if it is a 'financial intermediary' in a member state of the EEA,
as that term is used in Article 5(1) of the EU Prospectus Regulation, the
Placing Shares purchased by it in the Placing will not be acquired on a
non-discretionary basis on behalf of, nor will they be acquired with a view to
their offer or resale to, persons in a member state of the EEA other than to
EEA Qualified Investors, or in circumstances in which the prior consent of the
Joint Brokers has been given to the offer or resale; and
36.7 it has not offered or sold and will not offer or sell any Placing
Shares to the public in the United Kingdom or any member state of the EEA
except in circumstances falling within Article 5(1) of the UK Prospectus
Regulation or the EU Prospectus Regulation which do not result in any
requirement for the publication of a prospectus pursuant to the UK Prospectus
Regulation or the EU Prospectus Regulation;
37 each Placee acknowledges and agrees that none 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 any of the Joint Brokers in connection with the Placing and that
none 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 none 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 any 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, any
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. None 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 none of the Company,
the Directors or any of the Company's advisers give any warranty or
undertaking that the VCT/EIS Placing Shares will be eligible for EIS Relief or
be regarded as a 'qualifying holding' for VCT relief purposes or that any such
reliefs (if available) will not be 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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