REG - Xeros Tech Grp plc - Proposed Placing, Open Offer & General Meeting
30/09/2022 13:00
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RNS Number : 3871B Xeros Technology Group plc 30 September 2022
For immediate release
THIS ANNOUNCEMENT, INCLUDING THE INFORMATION CONTAINED HEREIN, IS RESTRICTED
AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART,
DIRECTLY OR INDIRECTLY, IN, INTO OR FROM THE UNITED STATES, CANADA, JAPAN,
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JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS
OR REGULATIONS OF THAT JURISDICTION. PLEASE SEE THE IMPORTANT NOTICES AT THE
END OF THIS ANNOUNCEMENT.
THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND SHALL NOT CONSTITUTE AN
OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY, SUBSCRIBE FOR
OR OTHERWISE ACQUIRE ANY NEW ORDINARY SHARES OF XEROS TECHNOLOGY GROUP PLC IN
THE UNITED STATES, CANADA, JAPAN, AUSTRALIA, THE REPUBLIC OF SOUTH AFRICA, THE
REPUBLIC OF IRELAND OR ANY OTHER JURISDICTION IN WHICH SUCH RELEASE,
PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION AS DEFINED IN ARTICLE 7 OF THE
MARKET ABUSE REGULATION EU NO. 596/2014, AS RETAINED AND APPLICABLE IN THE UK
PURSUANT TO S3 OF THE EUROPEAN UNION (WITHDRAWAL) ACT 2018 ("MAR"). UPON THE
PUBLICATION OF THIS ANNOUNCEMENT, THIS INSIDE INFORMATION IS NOW CONSIDERED TO
BE IN THE PUBLIC DOMAIN.
Xeros Technology Group plc
("Xeros", the "Group" or the "Company")
Placing and Subscription to raise £6.0 million, Open Offer to raise up to
£1.0 million, Issue of up to 140,386,699 Warrants, Capital Reorganisation
and
Notice of General Meeting
Xeros Technology Group plc (AIM: XSG), the creator of technologies that reduce
the impact of clothing on the planet, is pleased to announce a proposed
conditional placing to raise £6.0 million (before fees and expenses) via a
placing of 120,000,000 new ordinary shares (the "Placing Shares") of 15 pence
each in the capital of the Company ("Ordinary Shares") at an issue price of 5
pence per share (the "Issue Price") (the "Placing").
In addition to the Placing the Company intends to provide all qualifying
shareholders ("Qualifying Shareholders") with the opportunity to subscribe for
up to 20,386,699 new Ordinary Shares (the "Open Offer Shares"), to raise up to
approximately £1.0 million (before expenses), on the basis of 6 Open Offer
Shares for every 7 Existing Ordinary Shares held on the Record Date, at the
Issue Price (the "Open Offer") (the Placing and Open Offer together the
"Fundraising", and the Placing Shares and the Open Offer Shares together the
"New Ordinary Shares").
The Company also proposes to issue warrants to subscribers in the Placing and
Open Offer, granting rights to subscribe for one additional Ordinary Share for
each warrant held in the ratio of one warrant for every one New Ordinary Share
issued to those subscribers (the "Warrants"). The Warrants are exercisable at
a price of 5 pence per Ordinary Share during the Warrant Exercise Period.
The Placing will be conducted by way of an accelerated bookbuild ("Bookbuild"
or "ABB") which will be launched immediately following this announcement
("Announcement"), in accordance with the terms and conditions set out in the
appendix to this Announcement.
Highlights:
· The Placing will raise gross proceeds of £6.0 million in
aggregate, with up to an additional £1.0 million being raised through the
Open Offer.
· Net proceeds of the Fundraising will be used to fund ongoing
activities pending achievement of month on month EBITDA and cash breakeven
during 2024.
· Precise timing of breakeven point during 2024 uncertain with further
clarity expected during the next year.
· Current key commercial arrangements in place capable of underpinning
shift to month on month breakeven.
· The Fundraising is conditional on, amongst other things,
shareholder approval of certain resolutions (the "Resolutions") at a general
meeting of the Company on 20 October 2022 (the "General Meeting").
· Admission of the New Ordinary Shares is expected on 21 October
2022, subject to the passing of the Resolutions at the General Meeting.
· The Company also intends to issue Warrants to investors in the
Placing and Open Offer at the 1:1 ratio described above, resulting in up to
140,386,699 Warrants exercisable at a price of 5 pence per Ordinary Share
during the Warrant Exercise Period.
· Share capital reorganisation to sub-divide the existing Ordinary
Shares into ordinary shares of 0.1 pence each and deferred shares of 14.9
pence each (the "Capital Reorganisation").
· The Company expects to send a circular to Shareholders (the
"Circular") in connection with the Fundraising following the successful
closure of the Bookbuild, in order to convene the General Meeting. Full
details of the Open Offer, a proxy form and Open Offer application form will
also be included within, or sent with, the Circular.
The timing for the close of the Bookbuild and allocation of the Placing Shares
shall be at the absolute discretion of finnCap Ltd, in consultation with the
Company. The final number of Placing Shares to be issued pursuant to the
Placing will be agreed by finnCap and the Company at the close of the
Bookbuild. The result of the Placing will be announced as soon as practicable
thereafter. The Placing is not underwritten.
The Fundraising is conditional upon admission to trading on AIM becoming
effective ("Admission") and the placing agreement between the Company and
finnCap (the "Placing Agreement") not being terminated in accordance with its
terms.
It is anticipated the New Ordinary Shares will represent approximately 85.5
per cent. of the Company's issued ordinary share capital following Admission
(assuming full take up under the Open Offer). The Issue Price of 5 pence per
New Ordinary Share represents a discount of approximately 72.6 per cent. to
the closing mid-market price of 18.25 pence per Ordinary Share on 29 September
2022, being the last trading day immediately preceding the date of this
announcement. The New Ordinary Shares, when issued, will be fully paid and
will 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 in respect of such New Ordinary Shares after the date of their
admission to trading on AIM.
finnCap Ltd ("finnCap") acted as nominated adviser, broker and bookrunner in
connection with the Placing. No part of the Placing or the Open Offer is
underwritten.
The appendix to this Announcement (which forms part of this Announcement)
contains the detailed terms and conditions of the Placing.
Commenting on the Fundraising, Neil Austin, CEO of Xeros, said:
"We are delighted to secure this support from existing and new shareholders.
Xeros has a vital role to play in helping the garment and appliance industry
become more sustainable. The Group has made strong progress on our three
product categories of filtration, care and finish. This funding will be
applied to winning additional contracts in those areas and amplifying our
investment in marketing to accelerate new licence agreements. We look forward
to updating investors on our progress in due course."
General Meeting and Shareholder Approval
For the New Ordinary Shares to be admitted to trading on AIM, Shareholder
approval is required:
a) by way of ordinary resolution to give the Directors authority to
allot the New Ordinary Shares and issue the Warrants;
b) by way of special resolution to approve the Capital Reorganisation;
c) by way of special resolution to adopt New Articles, required in
connection with the Capital Reorganisation; and
d) by way of a special resolution to dis-apply statutory pre-emption
rights in respect of the New Ordinary Shares and the Warrants.
The authorities referred to above are in addition to the Company's existing
general shareholder authorities to allot Ordinary Shares for cash on a
non-pre-emptive basis.
In order to obtain the necessary shareholder approval, a General Meeting is to
be held at the offices of Squire Patton Boggs (UK) LLP at Premier Place,
2 & A Half Devonshire Square, London EC2M 4UJ at 10.00 a.m. on 20
October 2022 at which the Resolutions will be proposed. A Circular containing
a notice of General Meeting is expected to be sent to shareholders on 3
October 2022. The shareholder Circular and notice of General Meeting will be
made available on the Company's website at www.xerostech.com
(http://www.xerostech.com) .
EXPECTED TIMETABLE OF PRINCIPAL EVENTS
2022
Record Date for entitlements under the Open Offer Close of business on 29 Sep
Announce Launch of the Fundraising 30 Sep
Announce Close of the Fundraising 30 Sep
Ex-entitlement date for the Open Offer 8:00 a.m. 3 Oct
Publication and posting of the Circular, the Form of Proxy and, to Qualifying 3 Oct
Non-CREST Shareholders only, Application Forms
Basic Entitlements and Excess Entitlements credited to stock accounts of 4 Oct
qualifying CREST Shareholders
Recommended latest time for requesting withdrawal of Basic Entitlements and 4:30 p.m. 13 Oct
Excess Entitlements from CREST
Latest time and date for depositing Basic Entitlements and Excess Entitlements 3:00 p.m. 14 Oct
into CREST
Latest time and date for splitting of Application Forms (to satisfy bona fide 3:00 p.m. 17 Oct
market claims only)
Latest time and date for receipt of Forms of Proxy or electronic proxy 10:00 a.m. 18 Oct
appointments for use at the General Meeting
Latest time and date for receipt of completed Application Forms from 11:00 a.m. 19 Oct
Qualifying Non-CREST Shareholders and payment in full under the Open Offer or
settlement of relevant CREST instructions (as appropriate)
Announcement of the results of the Open Offer 19 Oct
General Meeting 10:00 a.m. 20 Oct
Announcement of the results of the General Meeting 20 Oct
Record Date for the Capital Reorganisation Close of business on 20 Oct
Admission and commencement of dealings in the New Ordinary Shares on AIM 08:00 a.m. 21 Oct
New Ordinary Shares in uncertificated form expected to be credited to accounts 21 Oct
in CREST (uncertificated holders only)
Expected date of despatch of definitive share certificates for the New Within 10 business days of Admission
Ordinary Shares in certificated form (certificated holders only) and
certificates in respect of the Warrants
Notes
1. Each of the times and dates set out in the above timetable and
mentioned in this Document is subject to change by the Company (with the
agreement of finnCap), in which event details of the new times and dates will
be notified to London Stock Exchange plc and the Company will make an
appropriate announcement to a Regulatory Information Service.
2. References to times in this Document are to London time (unless
otherwise stated).
Enquiries:
Xeros Technology Group plc Tel: 0114 321 6328
Neil Austin, Chief Executive Officer
Paul Denney, Chief Financial Officer
finnCap Limited (Nominated Adviser & Broker) Tel: 020 7220 0500
Julian Blunt / Teddy Whiley / George Dollemore, Corporate Finance
Andrew Burdis / Sunila de Silva, ECM
Yellow Jersey PR Tel: 020 3004 9512
Sarah Hollins / Lilian Filips / Laurie Gellhorn
Notes for editors:
POWERED BY SCIENCE, XEROS CREATE TECHNOLOGIES ENGINEERED FOR THE FUTURE
Born out of textile research and advancing new standards of performance and
responsibility, Xeros' technologies revolutionise the way we make and clean
our clothes, conserving water and preventing waste. Designed to impact
industries and people on a global scale, Xeros transforms the performance,
impact and economics of the fashion and washing machine industry.
Xeros enables the scaling of its innovations and impact by licencing its
intellectual property to partners across the globe. Their work has, to date,
created 38 patent families.
Xeros' technologies are already in use in major global industries, including
commercial and home laundry and garment manufacture. So far, these
technologies have saved millions of litres of water and could prevent billions
of microfibres from ending in our oceans.
TO THE POWER OF CHANGE
xerostech.com (http://www.xerostech.com/)
Forward-Looking Statements
This announcement contains forward-looking statements. These statements relate
to the Group's future prospects, developments and business strategies.
Forward-looking statements are identified by their use of terms and phrases
such as "potential", "estimate", "expect", "may", "will" or the negative of
such terms and phrases, variations or comparable expressions, including
references to assumptions. The forward-looking statements in this announcement
are based on current expectations and are subject to risks and uncertainties
that could cause actual results to differ materially from those expressed or
implied by those statements. These forward-looking statements speak only as at
the date of this announcement. No statement in this announcement is intended
to constitute a profit forecast or profit estimate for any period. Neither the
Directors nor the Company undertake any obligation to update forward-looking
statements other than as required by the AIM Rules or by the rules of any
other securities regulatory authority, whether as a result of new information,
future events or otherwise.
Market Abuse Regulation
Market soundings, as defined in MAR, were taken in respect of the Placing,
with the result that certain persons became aware of inside information, as
permitted by MAR. That inside information is set out in this announcement and
has been disclosed as soon as possible in accordance with paragraph 7 of
article 17 of MAR. Therefore, those persons that received inside information
in a market sounding are no longer in possession of inside information
relating to the Company and its securities.
ADDITIONAL INFORMATION
ON
THE PROPOSED PLACING AND SUBSCRIPTION OF 120,000,000 ORDINARY SHARES, OPEN
OFFER OF UP TO 20,386,699 ORDINARY SHARES, ISSUE OF UP TO 140,386,699
WARRANTS, CAPITAL REORGANISATION
AND
GENERAL MEETING
Introduction
The Company announces that it proposes to raise £6.0 million (before fees and
expenses) by way of conditional Placing at the Issue Price. In addition the
Company also proposes to raise up to £1.0 million by way of Open Offer to
Qualifying Shareholders.
The Issue Price represents a discount of 72.6 per cent. to the Closing Price
on 29 September 2022, being the latest practical date prior to the
announcement of the Fundraising. It is anticipated the New Ordinary Shares
will represent approximately 85.5 per cent. of the Company's issued ordinary
share capital following Admission (assuming full take up under the Open
Offer).
The Company also proposes to issue Warrants to subscribers in the Placing and
Open Offer, granting rights to subscribe for one additional Ordinary Share for
each Warrant held in the ratio of one Warrant for every one New Ordinary Share
issued to those subscribers. The Warrants are exercisable at a price of 5
pence per Ordinary Share during the Warrant Exercise Period.
For the Fundraising to proceed, the Company requires approval of the
Shareholders to undertake the Capital Reorganisation, authorise the allotment
of the New Ordinary Shares, issue of Warrants and disapply pre-emption rights
in relation to the issue of the New Ordinary Shares and Warrants. A Circular
will be sent to shareholders in due course with details of the Fundraising and
to give notice of the General Meeting for shareholders to consider and, if
thought fit, approve the Resolutions to grant these authorities. The General
Meeting is to be held at the offices of Squire Patton Boggs (UK) LLP at
Premier Place, 2 & A Half Devonshire Square, London EC2M 4UJ at
10.00 a.m. on 20 October 2022. The Circular is expected to be published on 3
October 2022 and will be available from that date at the Company's website
https://www.xerostech.com/investor
(https://www.xerostech.com/investor/aim-rule-26/) for the purposes of AIM Rule
26.
The New Ordinary Shares will rank pari passu in all respects with the Existing
Ordinary Shares. Application will be made to the London Stock Exchange for the
New Ordinary Shares to be admitted to trading on AIM.
Proposed Capital Reorganisation of Ordinary Shares
The Company is not permitted by law to issue Ordinary Shares at an issue price
which is below their nominal value, currently 15 pence per Ordinary Share. In
order to enable the Company to issue shares at an issue price which is below
their current nominal value, the Company is proposing to complete a Capital
Reorganisation of the Ordinary Share capital of the Company. Each of the
Existing Ordinary Shares will be subdivided into one new Ordinary Share of 0.1
pence each and one Deferred Share of 14.9 pence each.
The Capital Reorganisation will not of itself affect the value of the shares
held by Shareholders. After the Capital Reorganisation, there will be the same
number of Ordinary Shares in issue as there are Existing Ordinary Shares in
issue (prior to completion of the Fundraising) and therefore your current
shareholding will not be diluted by the Capital Reorganisation, unless a
further equity fundraising is completed by the Company.
The new Ordinary Shares will have the same rights as those currently accruing
to the Existing Ordinary Shares in issue under the Current Articles, including
those relating to voting and entitlement to dividends. New share certificates
for new Ordinary Shares will not be issued and the existing share certificates
will remain valid.
The Deferred Shares will have no significant rights attached to them and carry
no right to vote or participate in distribution of surplus assets and will not
be admitted to trading on the AIM market of the London Stock Exchange plc.
Therefore, the Deferred Shares will effectively carry no value.
Holders of options or warrants over Existing Ordinary Shares will maintain the
same rights as currently accruing to them and will not be issued with new
warrant or option certificates.
Resolution 3 in the Notice of General Meeting, contained within the Circular,
is proposed to amend the Current Articles to, inter alia, create the new
Deferred Shares and to set out the rights pertaining thereto relative to the
new Ordinary Shares. Resolution 3 is conditional upon the passing of
Resolution 2. A copy of the New Articles will be available for inspection
throughout the General Meeting. A summary of the changes proposed to the
Current Articles is set out in schedule 1 of the Circular.
Background to and reasons for the Fundraising
As we said at the time of the 2021 results, the last financial year was one of
mixed fortunes for Xeros with Covid related lockdowns delaying commercial
progress, particularly so with our Chinese and Indian partners. Despite
this, progress was made with the pace quickening during 2022 as Covid related
restrictions have eased, particularly so in India. During 2022 we have been
able to substantially advance our domestic laundry offering with our Indian
partner, IFB, in addition to its established role as an OEM licence partner
for our solution in the commercial laundry setting. Through much of 2022 to
date, as travel restrictions have eased we have been able to send teams to
India to work alongside colleagues at IFB in the design of domestic machines
and cycle programming which has now been finalised. This was no small
undertaking and involved significant resource commitment from IFB and Xeros
alike and culminated in IFB's commitment to progress to a launch of a Xeros
front-loading washing machine in Q4 of 2022. This is a significant
development for Xeros, given IFB's prominence as the second largest domestic
washing machine company in India by sales volume, with over 500 consumer
appliance stores across the country as well as its own online operation.
Market launch now awaits the finalisation of consumer trials of the product
which are due to start soon in India with machines being used in homes in
India on a trial basis. A successful launch in India will be a pivotal
moment for Xeros, not just in giving a clear line of sight to a significant
future revenue stream but, as importantly, it will be key to unlocking wider
adoption by the industry and, with the evidence provided by IFB, we will
continue our engagement with other major manufacturers with a view to
increasing the number of licenses for this application. Commercial terms
agreed with IFB provide for a machine royalty to Xeros of just over 4 per
cent. of the retail value of Xeros machines sold by IFB.
The other significant development during 2022 has been the progress of the
commercialisation strategy for XFilter, the Company's proprietary micro-fibre
filtration technology. In June 2022 Xeros signed its first global domestic
washing machine filtration licensing agreement with Hanning Elektro Gmbh &
Co.KG ("Hanning"). Hanning is a world leading manufacturer of components for
the appliance industry, including pumps and motors for some of the world's
largest domestic washing machine manufacturers. Under the terms of the
10-year, non-exclusive agreement, Hanning will manufacture and sell the
XFilter technology with products expected to be in market in late 2023 ahead
of legislation in France and potentially other European countries, mandating
the use of a microplastic filter in all new washing machines from 1 January
2025. Under the terms of the agreement Xeros will receive a royalty per
filter device sold by Hanning. The royalty amount is commercially sensitive
though is in line with the Board's expectations. On 27 September 2022 Xeros
announced a joint development agreement with another significant European
headquartered domestic washing machine component manufacturer for XFilter. The
agreement sets out a programme of product development for the manufacture of
XFilter devices and a process to reach agreement of multi-year licensing
terms. Work under the agreement will commence immediately and the Directors
expect to agree license terms in the next six months. In addition, Xeros
continues to work with a large Asian domestic washing machine OEM, with whom a
trial and testing agreement was signed in 2021, on adoption of XFilter in
their machines. Xeros has recently started commercial licensing negotiations
with this OEM.
Notable also during 2022 has been the continued progress with denim
manufacturers in Bangladesh representing three leading global retail brands.
Trials have resulted in the production of denim jeans, with significant
reductions in the process' consumption of water, chemicals, energy and pumice
(an important ingredient to the denim finishing process), which have been sold
to consumers. One of these retail brands has invited Xeros to present a
proposal for the adoption of its technology in their manufacturing supply
chain and the Company expects these discussions to continue through the
remainder of 2022. Whilst denim manufacturers themselves are very focused on
sustainability the Directors expect that the denim brands and their consumers
will hold the key to widespread adoption of Xeros' finishing technology in a
global denim market producing c1.2bn pairs of jeans per annum.
The continued progress noted above in both domestic laundry, filtration and
denim finishing has been made in spite of the significant impact of COVID-19
in previous years. The disruption of the COVID-19 pandemic, which remains
ongoing in China, has delayed the Company's licensees entering their markets
on time, resulting in delays to the timing of initial revenues for Xeros.
Whilst the monthly rate of cash burn is well controlled at approximately
£0.5m per month, in line with previous statements the Directors believe that,
given the significant amount of commercial progress made, now is the time to
seek additional investment into the business.
Use of proceeds
As reported at the time of the FY21 results the Board now anticipates the
Company reaching month on month EBITDA and cash breakeven during 2024, later
than originally envisaged due to previously highlighted COVID-19 related
delays. Whilst the Directors are yet to ascertain exactly when in 2024 this
point will be reached, with further clarity expected during the next year,
they are clear that the current key commercial arrangements between the
Company and Hanning (in relation to XFilter) and with IFB (in relation to the
launch of Xeros enabled domestic washing machines into the Indian market),
each as referred to above, are capable of underpinning this shift to month on
month cashflow/EBITDA breakeven, with any further commercial arrangements only
improving the position. The net proceeds of the Fundraise will therefore be
used to fund activities pending achievement of this breakeven point with no
current plans to alter the current rate of monthly cash consumption in support
of these activities.
Current trading and outlook
The Company published its preliminary full year results for the 12 months
ending 30 December 2021 on the 22 June 2022, reporting revenue of £0.5m and
an EBITDA loss of £6.3m, a reduction of 7.1 per cent. over 2021. The Company
reported the expectation that monthly cash burn would remain £0.5m per month
on an ongoing basis. Cash balances at the end of August 2022 stood at
£2.6m.
Since the year end the Company has continued to trade in line with Board
expectations with further progress made on a number of fronts:
· A number of additional component suppliers have contacted the Company
in relation to XFilter since the announcement of the agreement with Hanning on
14 June 2022 and the further independent validation of XFilter by the highly
respected Hohenstein testing institute carried out on behalf of a leading
Asian domestic washing machine OEM as part of its test and trial agreement
signed with Xeros in July 2021. On 27 September 2022 the Company entered into
a joint development agreement with another significant European domestic
washing machine component supplier, as referred to above, and expects to enter
into further commercial XFilter arrangements as the environmental imperative
for effective filtration builds ahead of regulation scheduled at the start of
2025;
· The Company has continued to lobby at central government level with a
view to accelerating the drive for legislation and regulation around
microfibre filtration;
· The IFB domestic washing machine launch progress remains on-track
with Xeros enabled washing machines soon to be used on a trial basis in homes
in India and the first order of XOrbs for the IFB domestic launch now placed
by the Company with its supplier, BASF;
· A leading global retail brand, with whom Xeros has been conducting
denim finishing trials in 2022, has invited the Company to propose a model for
widespread adoption of its technology in its manufacturing supply chain.
As consumers and other stakeholders continue to call for the reduction of the
environmental impact of clothing on the planet and as demands for reduced
water usage, lower energy consumption and less microplastic pollution from the
manufacture and cleaning of clothes have increased so the Board has become
more sure than ever of a secure future for Xeros.
The Company expects to announce interim unaudited results for the six months
ending 30 June 2022 shortly. In line with expectations these will show
revenues of £0.04m (H1 2021: £0.3m) and EBITDA losses of £3.9m (H1 2021:
£2.8m) and reconfirm stable monthly cash burn of £0.5m. The statement also
confirms the Board's comfort as regards current forward guidance.
Board and incentivisation arrangements
On 1 August 2022 Neil Austin joined the Board as Chief Executive Officer of
the Company. The outgoing Chief Executive Officer, Mark Nichols, stepped down
from the Board on the 1 August 2022. Mark Nichols will remain an employee of
the Company until 30 September 2022.
The Board intends to award up to 4,925,134 share options to Neil Austin
conditional upon shareholder approval of the Fundraising resolutions at the
General Meeting. These options will be issued at the Issue Price. In addition
the Board intends to award up to 5,138,100 Ordinary Shares to incentivise key
members of staff following shareholder approval of the Fundraising
resolutions.
Details of The Fundraising
The Company is undertaking the Fundraise to raise up to £7.0 million (before
fees and expenses) from new and existing investors, through the Placing to
raise £6.0 million plus the Open Offer to raise up to an additional £1.0
million.
The Issue Price represents a discount of approximately 72.6 per cent. from the
Closing Price. It is anticipated the New Ordinary Shares will represent
approximately 85.5 per cent. of the Enlarged Share Capital following Admission
(assuming full take up under the Open Offer).
The New Ordinary Shares will be free of all liens, charges and encumbrances
and will, when issued and fully paid, be identical to and rank pari passu in
all respects with the Existing Ordinary Shares, including the right to receive
all future distributions, declared, paid or made in respect of the Ordinary
Shares following the date of Admission.
The Placing is being conducted via an accelerated bookbuild process which will
commence immediately following the release of this Announcement. The Placing
is not being underwritten. The Placing Shares are not subject to clawback and
are not part of the Open Offer.
The timing for the close of the Bookbuild and the allocation of the Placing
Shares shall be at the absolute discretion of finnCap, in consultation with
the Company. The final number of Placing Shares to be issued pursuant to the
Placing will be agreed by finnCap and the Company at the close of the
bookbuild and the results of the Placing will be announced as soon as
practicable thereafter.
As part of the Placing, pursuant to a subscription agreement entered into
between the Company and Entrepreneurs Fund (the "Subscription Agreement"),
Entrepreneurs Fund has committed to participating in the Fundraising and will
subscribe under the terms of the Subscription Agreement for 30,000,000 New
Ordinary Shares at the Issue Price, taking its holding to 21.79 per cent. of
the Enlarged Share Capital (assuming full take up under the Open Offer). The
Subscription Agreement is conditional upon, inter alia, the passing of the
Resolutions and contains certain warranties given by the Company in favour of
Entrepreneurs Fund. Entrepreneurs Fund has also provided an irrevocable
undertaking to vote in favour of the Resolutions.
Klaas de Boer, Neil Austin, Paul Denney, Rachel Nooney and Mark Nichols are
also participating in the Fundraising, pursuant to separate subscription
agreements on broadly the same terms as those for Entrepreneurs Fund as set
out above. Their aggregate participation will amount to 3,200,000 New Ordinary
Shares. Further details are set out below.
The Placing Agreement
In connection with the Placing, the Company has entered into the Placing
Agreement pursuant to which finnCap has agreed, in accordance with its terms,
to use reasonable endeavours to procure placees ("Placees") for the Placing
Shares at the Issue Price. The Placing is not underwritten.
In accordance with the terms of the Placing Agreement, the Placing is
conditional upon, amongst other things, finnCap having received legally
binding commitments from Placees to subscribe for the Placing Shares, the
passing of the Resolutions, the conditions in the Placing Agreement being
satisfied or (if applicable) waived and the Placing Agreement not having been
terminated in accordance with its terms prior to Admission occurring on or
before 21 October 2022 (or such later date as finnCap may agree).
The Placing Agreement contains certain warranties given by the Company in
favour of finnCap concerning, amongst other things, the accuracy of
information given in this Announcement and the Circular made by the Company in
respect of the Placing as well as other matters relating to the Group and its
business.
The Placing Agreement is terminable by finnCap in certain circumstances up
until the time of Admission, including, inter alia, should there be a breach
of a warranty contained in the Placing Agreement or a force majeure event
takes place or a material adverse change occurs to the business of the Company
or the Group. The Company has also agreed to indemnify finnCap against all
losses, costs, charges and expenses which finnCap may suffer or incur as a
result of, occasioned by or attributable to the carrying out of its duties
under the Placing Agreement.
The Placing is not conditional on the Open Offer proceeding or on any minimum
take-up under the Open Offer.
Admission of the New Ordinary Shares
Application will be made to the London Stock Exchange for the New Ordinary
Shares to be admitted to trading on AIM. Subject, inter alia, to the passing
of the Resolutions at the General Meeting it is expected that Admission will
become effective in respect of, and that dealings on AIM will commence in, all
of the New Ordinary Shares, on or around 21 October 2022.
It is expected that CREST ("CREST") accounts of the investors in the New
Ordinary Shares who hold their Ordinary Shares in CREST will be credited with
their New Ordinary Shares on 21 October 2022. In the case of investors in the
New Ordinary Shares holding their Ordinary Shares in certificated form, it is
expected that certificates will be dispatched within 10 business days of
Admission. Pending dispatch of the share certificates or the crediting of
CREST accounts, the Registrar ("Registrar") will certify any instruments of
transfer against the register.
Open Offer
In order to provide all Qualifying Shareholders with an opportunity to
participate, the Company is intending to conduct an Open Offer to provide
those shareholders the opportunity to subscribe at the Issue Price for an
aggregate of 20,386,699 Open Offer Shares. This will allow Qualifying
Shareholders to participate on a pre-emptive basis whilst providing the
Company with the flexibility to raise additional equity capital to further
improve its financial position.
Qualifying Shareholders will also be offered the opportunity to apply for
additional Open Offer Shares in excess of their pro rata entitlements to the
extent that other Qualifying Shareholders do not take up their entitlements in
full. In the event applications exceed the maximum number of Open Offer Shares
available, the Company will decide on the basis for allocation, however if
this scenario occurs, preference is likely to be given to Qualifying
Shareholders with smaller shareholdings (who historically may have had less
opportunity to participate in placings conducted by the Company). The Open
Offer Shares will not be placed subject to clawback nor will they be
underwritten. Consequently, there may be fewer than 20,386,699 Open Offer
Shares issued pursuant to the Open Offer. Qualifying Shareholders are able
to
to apply for Open Offer Shares under the Open Offer at the Issue Price on the following basis:
6 Open Offer Shares for every 7 Existing Ordinary Shares held by the Qualifying Shareholder on
the Record Date
The Open Offer is conditional upon, inter alia, the approval of Shareholders
of the Resolutions at the General Meeting and upon the Placing Agreement
becoming unconditional in all respects.
Application will be made to the London Stock Exchange for admission of the
Open Offer Shares to trading on AIM. Admission of the Open Offer Shares is
expected to take place, and dealings on AIM are expected to commence, at 8.00
a.m. on 21 October 2022.
The Warrants
As referred to above, the Company has also agreed to issue Warrants to
investors in the Placing and Open Offer on the basis of one Warrant for every
one New Ordinary Shares subscribed for. Accordingly, there will be up to
140,386,699 Warrants in issue following Admission, with each Warrant granting
the holder the right to subscribe for one new Ordinary Share. The Warrants are
exercisable at a price of 5 pence per Ordinary Share during the Warrant
Exercise Period.
The issue and validity of the Warrants is conditional, amongst other things,
on the passing of the Resolutions and Admission on or before 8.00 a.m. on 21
October 2022 (or such later date as finnCap and the Company may agree being
not later than 8.00 a.m. on 11 November 2022).
The other key terms and conditions of the Warrants are set out in the table
below:
Subscription
Rights Each
Warrant issued will confer on the holder the right to subscribe for one new
Ordinary Share at a price of 5 pence per Ordinary Share by notice to the
Company during the Warrant Exercise Period.
Warrant Exercise Period
The exercise period for a Warrant is the period from the date of issue of the
Warrant to (and including) 5.00 p.m. on the date falling 18 months thereafter
(unless terminated earlier in accordance with the terms of the Warrants).
Exercise of
Warrants The
Warrants may be exercised in whole or in part during the Warrant Exercise
Period, provided that any partial exercise of Warrants by a holder shall be
for a minimum aggregate exercise price of £10,000 or, if less, the balance of
the relevant holder's Warrants then outstanding.
Adjustment to Subscription Rights The subscription
rights conferred by the Warrants and/or the exercise price of the Warrants
shall be adjusted by the Board in its sole discretion on the occurrence of
certain events in relation to the Company, including
a) a subdivision, consolidation or reclassification of the
Ordinary Shares;
b) a reduction of capital or any other reduction in the number
of Ordinary Shares in issue from time to time;
c) an issue of Ordinary Shares by way of dividend or
distribution or by way of capitalisation of profits or reserves; or
d) a consolidation, amalgamation or merger of the Company with or
into another entity in certain circumstances,
with the intention, in broad terms, that any such adjustment will leave the
holder(s) of the Warrant(s) in a similar position to the position they were in
immediately before the event giving rise to the adjustment.
Transfer
The Warrants are non-transferable by the holders without the prior consent of
the Company.
Security
The Warrants are not secured.
Modifications
The Company may amend the provisions of the instrument constituting the
Warrants without the consent of the holders of the Warrants where such
amendment is of a minor nature or to correct a manifest error. Otherwise no
amendment or abrogation to the terms of the instrument are permitted without
the consent of holders of at least 75 per cent. of the Warrants in issue at
the time.
Information
Rights The
Warrants entitle holders to receive the Company's annual report and accounts
and all accompanying documents, together with every other document sent to the
holders of the Ordinary Shares, in each case at the same time as it is sent to
the holders of Ordinary Shares.
Administration
The Warrants are in certificated form and the Registrar has established and
will maintain a register of the holders of Warrants. There are also provisions
in the Warrant Instrument for convening meetings of the holders of Warrants.
A copy of the Warrant Instrument is available on the Company's website at
https://www.xerostech.com/ .
Related Party Transactions
Entrepreneurs Fund L.P., Lombard Odier Investment Managers, Klaas de Boer,
Neil Austin, Paul Denney Rachel Nooney and Mark Nichols each a Related Party
(as defined by the AIM Rules), will be participating in the Placing as
follows:
Name Existing holding Existing % holding New Ordinary Shares issued in Fundraising Holdings post Fundraising % Holding post Fundraising(1)
Neil Austin nil nil 200,000 200,000 0.12%
Paul Denney 75,000 0.32% 200,000 275,000 0.17%
Klaas de Boer 250,000 1.05% 2,400,000 2,650,000 1.61%
Rachel Nooney nil nil 200,000 200,000 0.12%
Mark Nichols 87,482 0.37% 200,000 287,482 0.18%
Entrepreneurs Fund L.P. 5,767,534 24.25% 30,000,000 35,767,534 21.79%
Lombard Odier Investment Managers 2,905,027 12.21% 10,000,000 12,905,027 7.86%
Notes:
1. Assuming full take up under the Open Offer.
The entering into of the Subscription Agreement and the participation of
Entrepreneurs Fund in the Placing constitutes a related party transaction by
virtue of Entrepreneurs Fund (and its affiliates) being classified as
significant shareholders in the Company. The Directors consider, having
consulted with finnCap (the Company's nominated adviser) that the terms of the
Subscription Agreement and the participation in the Placing by Entrepreneurs
Fund are fair and reasonable insofar as the Company's Shareholders are
concerned.
The entering into the Subscription Agreements with the Company and the
participation in the Fundraising of Klaas De Boer, Neil Austin, Paul Denney,
Rachel Nooney and Mark Nichols constitute related party transactions under the
AIM Rules by virtue of them each being Directors (or a director within the
last 12 months in the case of Mark Nichols). The Directors (excluding the
aforementioned Directors participating in the Placing) consider, having
consulted with finnCap (the Company's nominated adviser), that the terms of
their participation in the Fundraising are fair and reasonable insofar as the
Company's Shareholders are concerned.
The participation in the Placing by Lombard Odier Investment Managers
constitutes a related party transaction by virtue of them being a significant
shareholder in the Company. The Directors consider, having consulted with
finnCap (the Company's nominated adviser), that the terms of their
participation in the Fundraising are fair and reasonable insofar as the
Company's Shareholders are concerned.
Recommendation
The Directors consider the Resolutions being proposed at the General Meeting
to be in the best interests of the Company and the Shareholders as a whole.
Consequently, the Directors are recommending in the Circular that Shareholders
vote in favour of the Resolutions to be proposed at the General Meeting, as
they intend to do in respect of the 462,482 Existing Ordinary Shares held,
directly or indirectly, by them representing approximately 1.94 per cent. of
the total current voting rights of the Company.
APPENDIX 1
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR INVITED PLACEES ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THE
ANNOUNCEMENT REGARDING THE PLACING (THE "ANNOUNCEMENT") AND THE TERMS AND
CONDITIONS SET OUT HEREIN ("TERMS AND CONDITIONS") ARE DIRECTED ONLY AT
PERSONS WHOSE ORDINARY ACTIVITIES INVOLVE THEM IN ACQUIRING, HOLDING, MANAGING
AND DISPOSING OF INVESTMENTS (AS PRINCIPAL OR AGENT) FOR THE PURPOSES OF THEIR
BUSINESS AND WHO HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO
INVESTMENTS AND ARE: (A) IF IN THE UNITED KINGDOM, QUALIFIED INVESTORS AS
DEFINED IN ARTICLE 2(E) OF THE EU DIRECTIVE 2017/1129 WHICH FORMS PART OF
DOMESTIC LAW PURSUANT TO THE EUROPEAN UNION (WITHDRAWAL) ACT 2018 WHO ALSO (I)
HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS WHO FALL
WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL
PROMOTION) ORDER 2005, AS AMENDED (THE "ORDER") (INVESTMENT PROFESSIONALS) OR
(II) FALL WITHIN ARTICLE 49(2)(a) TO (d) (HIGH NET WORTH COMPANIES,
UNINCORPORATED ASSOCIATIONS, ETC.) OF THE ORDER; OR (B) PERSONS TO WHOM THEY
MAY OTHERWISE LAWFULLY BE COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING
REFERRED TO AS "RELEVANT PERSONS").
THE ANNOUNCEMENT AND THE TERMS AND CONDITIONS AND THE INFORMATION HEREIN MUST
NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS.
PERSONS DISTRIBUTING THE ANNOUNCEMENT OR THE TERMS AND CONDITIONS MUST SATISFY
THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY
TO WHICH THE TERMS AND CONDITIONS RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS
AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THE ANNOUNCEMENT AND THE
TERMS AND CONDITIONS DO NOT THEMSELVES CONSTITUTE AN OFFER FOR SALE OR
SUBSCRIPTION OF ANY SECURITIES IN XEROS TECHNOLOGY GROUP PLC.
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
APPLICABLE SECURITIES LAWS OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY
STATE OR JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES
EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED
STATES. THE PLACING SHARES ARE BEING OFFERED AND SOLD ONLY OUTSIDE THE
UNITED STATES IN "OFFSHORE TRANSACTIONS" WITHIN THE MEANING OF, AND IN
ACCORDANCE WITH, REGULATION S UNDER THE SECURITIES ACT AND OTHERWISE IN
ACCORDANCE WITH APPLICABLE LAWS. NO PUBLIC OFFERING OF THE PLACING SHARES IS
BEING MADE IN THE UNITED STATES OR ELSEWHERE.
THE ANNOUNCEMENT AND THE TERMS AND CONDITIONS ARE RESTRICTED AND ARE NOT FOR
RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR
INDIRECTLY, IN OR INTO OR FROM THE UNITED STATES, AUSTRALIA, CANADA, THE
REPUBLIC OF SOUTH AFRICA, THE REPUBLIC OF IRELAND OR JAPAN OR ANY OTHER
JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE
UNLAWFUL.
The distribution of the Terms and Conditions and/or the Placing and/or issue
of the Placing Shares in certain jurisdictions may be restricted by law. No
action has been taken by the Company, finnCap Limited (the "Bookrunner") or
any of their respective affiliates, agents, directors, officers or employees
that would permit an offer of the Placing Shares or possession or distribution
of the Terms and Conditions or any other offering or publicity material
relating to such Placing Shares in any jurisdiction where action for that
purpose is required. Persons into whose possession these Terms and
Conditions come are required by the Company and the Bookrunner to inform
themselves about and to observe any such restrictions.
The Announcement and these Terms and Conditions or any part of them are for
information purposes only and do not constitute or form part of any offer to
issue or sell, or the solicitation of an offer to acquire, purchase or
subscribe for, any securities in the United States, Australia, Canada, the
Republic of South Africa, the Republic of Ireland or Japan or any other
jurisdiction in which the same would be unlawful. No public offering of the
Placing Shares is being made in any such jurisdiction.
In the United Kingdom, the Announcement and these Terms and Conditions are
being directed solely at persons in circumstances in which section 21(1) of
the Financial Services and Markets Act 2000 (as amended) (the "FSMA") does
not apply.
Solely for the purposes of the product governance requirements of Chapter 3 of
the FCA Handbook Product Intervention and Product Governance Sourcebook (the
"UK MiFIR 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 MiFIR 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 paragraphs 3.5 and 3.6 of COBS;
and (ii) eligible for distribution through all permitted distribution channels
(the "Target Market Assessment"). Notwithstanding the Target Market
Assessment, distributors should note that: the price of the Placing Shares may
decline and investors could lose all or part of their investment; the Placing
Shares offer no guaranteed income and no capital protection; and an investment
in the Placing Shares is compatible only with investors who do not need a
guaranteed income or capital protection, who (either alone or in conjunction
with an appropriate financial or other adviser) are capable of evaluating the
merits and risks of such an investment and who have sufficient resources to be
able to bear any losses that may result therefrom. The Target Market
Assessment is without prejudice to any contractual, legal or regulatory
selling restrictions in relation to the Placing. Furthermore, it is noted
that, notwithstanding the Target Market Assessment, finnCap will only procure
investors who meet the criteria of professional clients and eligible
counterparties. For the avoidance of doubt, the Target Market Assessment does
not constitute: (a) an assessment of suitability or appropriateness for the
purposes of Chapters 9A or 10A respectively of COBS; or (b) a recommendation
to any investor or group of investors to invest in, or purchase, or take any
other action whatsoever with respect to the Placing Shares. Each distributor
is responsible for undertaking its own target market assessment in respect of
the Placing Shares and determining appropriate distribution channels.
The Placing Shares have not been approved or disapproved by the US Securities
and Exchange Commission, any state securities commission or other regulatory
authority in the United States, nor have any of the foregoing authorities
passed upon or endorsed the merits of the Placing or the accuracy or adequacy
of the Announcement and these Terms and Conditions or the Circular. Any
representation to the contrary is a criminal offence in the United States. The
relevant clearances have not been, nor will they be, obtained from the
securities commission of any province or territory of Canada, no prospectus
has been lodged with, or registered by, the Australian Securities and
Investments Commission or the Japanese Ministry of Finance; the relevant
clearances have not been, and will not be, obtained for the South Africa
Reserve Bank or any other applicable body in the Republic of South Africa in
relation to the Placing Shares and the Placing Shares have not been, nor will
they be, registered under or offering in compliance with the securities laws
of any state, province or territory of Australia, Canada, the Republic of
South Africa, the Republic of Ireland or Japan. Accordingly, the Placing
Shares may not (unless an exemption under the relevant securities laws is
applicable) be offered, sold, resold or delivered, directly or indirectly, in
or into Australia, Canada, the Republic of South Africa, the Republic of
Ireland or Japan or any other jurisdiction in which such offer, sale, re-sale
or delivery would be unlawful.
Persons (including, without limitation, nominees and trustees) who have a
contractual right or other legal obligations to forward a copy of the
Announcement (or any part of it) and/or these Terms and Conditions should seek
appropriate advice before taking any action.
The Terms and Conditions should be read in their entirety.
Details of the Placing Agreement and the Placing Shares
The Bookrunner has entered into the Placing Agreement with the Company under
which, on the terms and subject to the conditions set out in the Placing
Agreement, the Bookrunner, as agent for and on behalf of the Company, has
agreed to use its reasonable endeavours to procure Placees for the Placing
Shares at the Issue Price. The Placing is not being underwritten by the
Bookrunner or any other person.
The exact number of Placing Shares to be allocated and issued to Placees shall
be determined by the Bookrunner and the Company following completion of the
Bookbuild (as defined below).
The Placing Shares will, when issued, be subject to the memorandum and
articles of association of the Company and credited as fully paid and will
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 in respect of such Ordinary Shares after the date of issue of the Placing
Shares.
Accelerated bookbuilding process
Commencing today, the Bookrunner will be conducting an accelerated
bookbuilding process to determine demand for participation in the Placing by
Placees (the "Bookbuild"). The Announcement gives details of the terms and
conditions of, and the mechanics of participation in, the Placing. However,
the Bookrunner will be entitled to effect the Placing by such alternative
method to the Bookbuild as they may, after consultation with the Company,
determine. No commissions will be paid by or to Placees in respect of any
participation in the Placing for Placing Shares.
A bid in the Bookbuild will be made on these Terms and Conditions which are
attached to the Announcement and will be legally binding on the Placee on
behalf of which it is made and, except with the Bookrunner's consent, will not
be capable of variation or revocation after the close of the Bookbuild.
The book will open with immediate effect. The final number of Placing Shares
to be issued pursuant to the Placing will be agreed by the Bookrunner and the
Company at the close of the Bookbuild, and the result of the Placing will be
announced as soon as practicable thereafter. The timing for the close of the
Bookbuild and the allocation of the Placing Shares shall be at the absolute
discretion of the Bookrunner, in consultation with the Company.
To the fullest extent permissible by law, neither:
(a) the Bookrunner;
(b) any of their respective affiliates, agents, advisers, directors, officers,
consultants or employees; nor
(c) to the extent not contained within (a) or (b), any person connected with
the Bookrunner as defined in the FSMA ((b) and (c) being together "affiliates"
and individually an "affiliate" of the Bookrunner),
shall have any liability (including to the extent permissible by law, any
fiduciary duties) to Placees or to any other person whether acting on behalf
of a Placee or otherwise. In particular, neither the Bookrunner nor any of
their respective affiliates shall have any liability (including, to the extent
legally permissible, any fiduciary duties), in respect of their conduct of the
Bookbuild or of such alternative method of effecting the Placing as the
Bookrunner may determine.
By participating in the Placing (such participation up to an agreed maximum
level to be confirmed in and evidenced by either (i) a recorded telephone call
or (ii) email correspondence, in either case between representatives of the
Bookrunner to whom the Placee's commitment is given and the relevant Placee (a
"Recorded Commitment")), each Placee will be deemed to have read and
understood the Announcement and these Terms and Conditions in their entirety,
to be participating and acquiring Placing Shares on these Terms and Conditions
and to be providing the representations, warranties, indemnities,
acknowledgements and undertakings contained in these Terms and Conditions.
In particular, each such Placee irrevocably represents, warrants, undertakes,
agrees and acknowledges (amongst other things) severally to the Company and
the Bookrunner that:
1. it is a Relevant Person and that it will acquire,
hold, manage or dispose of any Placing Shares that are allocated to it for the
purposes of its business;
2. it is acquiring the Placing Shares for its own
account or is acquiring the Placing Shares for an account with respect to
which it exercises sole investment discretion and has the authority to make
and does make the representations, warranties, indemnities, acknowledgements,
undertakings and agreements contained in these Terms and Conditions; and
3. it understands (or if acting for the account of
another person, such person has confirmed that such person understands) and
agreed to comply with the resale and transfer restrictions set out in these
Terms and Conditions; and
4. except as otherwise permitted by the Company and
subject to any available exemptions from applicable securities laws, it (and
any account referred to in paragraph 3 above) is outside the United States
acquiring the Placing Shares in offshore transactions as defined in and in
accordance with Regulation S under the Securities Act.
No prospectus
The Placing Shares are being offered to a limited number of specifically
invited persons only and will not be offered in such a way as to require any
prospectus or other offering document to be published. No prospectus or
other offering document has been or will be submitted to be approved by the
Financial Conduct Authority ("FCA") in relation to the Placing or the Placing
Shares and Placees' commitments will be made solely on the basis of the
information contained in the Announcement and any information publicly
announced through a Regulatory Information Service (as defined in the AIM
Rules for Companies (the "AIM Rules")) by or on behalf of the Company on or
prior to the date of these Terms and Conditions (the "Publicly Available
Information") and subject to any further terms set forth in writing in any
contract note sent to an individual Placee.
Each Placee, by participating in the Placing, agrees that the content of the
Announcement is exclusively the responsibility of the Company and confirms
that it has neither received nor relied on any information (other than the
Publicly Available Information), representation, warranty or statement made by
or on behalf of the Bookrunner or the Company or any other person and none of
the Bookrunner, the Company nor any other person acting on such person's
behalf nor any of their respective affiliates has or shall have any liability
for any Placee's decision to participate in the Placing based on any other
information, representation, warranty or statement. Each Placee acknowledges
and agrees that it has relied on its own investigation of the business,
financial or other position of the Company in accepting a participation in the
Placing. No Placee should consider any information in the Announcement or
these Terms and Conditions to be legal, tax, business or other advice.
Nothing in this paragraph shall exclude the liability of any person for
fraudulent misrepresentation.
Application for admission to trading
Application(s) will be made to the London Stock Exchange for admission of the
Placing Shares to trading on AIM.
It is expected that Admission will take place on the Admission Date and that
dealings in the New Ordinary Shares on AIM will commence at the same time.
Principal terms of the Placing
1. finnCap is acting as nominated adviser and broker to
the Placing, as agent for and on behalf of the Company.
2. Participation in the Placing is by invitation only
and will only be available to persons who may lawfully be, and are, invited by
the Bookrunner to participate. The Bookrunner and any of their respective
affiliates are entitled to participate in the Placing as principal.
3. Each Placee will confirm the maximum number of
Placing Shares it is willing to acquire in a Recorded Commitment. Once they
have made a Recorded Commitment, each Placee will have an immediate, separate,
irrevocable and binding obligation, owed to the Bookrunner (as agent for the
Company), to subscribe and pay for, at the Issue Price, the number of Placing
Shares allocated to it, up to the agreed maximum.
4. Each Placee's allocation and whether such Placee
participates in the Placing has or will be determined by the Bookrunner in
their discretion following consultation with the Company will be confirmed by
the Bookrunner either orally or in writing via a contract note.
5. Each Placee's commitment will be confirmed in and
evidenced by a Recorded Commitment. These Terms and Conditions will be
deemed incorporated into each contract which is entered into by way of a
Recorded Commitment and will be legally binding on the relevant Placee(s) on
behalf of whom the commitment is made with effect from the end of the Recorded
Commitment and, except with the Bookrunner's prior written consent, will not
be capable of variation or revocation after such time. A contract note
confirming each Placee's allocation of Placing Shares will be sent to them
following the Recorded Commitment and the allocation process. These Terms
and Conditions shall be deemed incorporated into any such contract note.
6. Each Placee will have an immediate, separate,
irrevocable and binding obligation, owed to the Bookrunner (as agent for the
Company), to pay to it (or as it may direct) in cleared funds an amount equal
to the product of the Issue Price and the number of Placing Shares allocated
to such Placee (subject always to such Placee's agreed maximum).
7. The Bookrunner reserves the right to scale back the
number of Placing Shares to be subscribed by any Placee in the event that the
Placing is oversubscribed. The Bookrunner also reserves the right not to
accept offers to subscribe for Placing Shares or to accept such offers in part
rather than in whole. The acceptance and, if applicable, scaling back of
offers shall be at the absolute discretion of the Bookrunner.
8. Except as required by law or regulation, no press
release or other announcement will be made by the Bookrunner or the Company
using the name of any Placee (or its agent), in its capacity as Placee (or
agent), other than with such Placee's prior written consent.
9. 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 "Termination of the Placing".
10. By participating in the 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.
Registration and settlement
By participating in the Placing, each Placee will be deemed to agree that it
will do all things necessary to ensure that delivery and payment is completed
as directed by the Bookrunner in accordance with either the standing CREST or
certificated settlement instructions which they have in place with the
Bookrunner.
Settlement of transactions in the New Ordinary Shares following Admission will
take place within the CREST system, subject to certain exceptions.
Settlement through CREST will be on a delivery versus payment basis ("DVP")
unless otherwise notified by the Bookrunner and is expected to occur on the
Admission Date.
In the event of any difficulties or delays in the admission of any Placing
Shares to CREST or the use of CREST in relation to the Placing, the Company
and the Bookrunner may agree that the Placing Shares (or any of them) should
be issued in certificated form. The Bookrunner reserves the right to require
settlement for any of the Placing Shares, and to deliver any of the Placing
Shares to any Placees, by such other means as it deems necessary if delivery
or settlement to any Placee is not practicable within the CREST system or
would not be consistent with regulatory requirements in the jurisdiction in
which a Placee is located.
Interest is chargeable daily on payments not received from Placees on or
before the due date in accordance with the arrangements set out above, in
respect of either CREST or certificated deliveries, at the rate of 3
percentage points above prevailing base rate of Barclays Bank plc as
determined by the Bookrunner.
Each Placee is deemed to agree that if it does not comply with these
obligations, the Bookrunner may sell any or all of their Placing Shares on
their behalf and retain from the proceeds, for the Bookrunner's own account
and benefit, an amount equal to the aggregate amount owed by the Placee plus
any interest due. The relevant Placee will, however, remain liable for any
shortfall below the Issue Price and for any stamp duty or stamp duty reserve
tax (together with any interest or penalties) which may arise upon the sale of
its Placing Shares on its behalf.
If Placing Shares are to be delivered to a custodian or settlement agent,
Placees must ensure that, upon receipt, any relevant contract note is copied
and delivered immediately to the relevant person within that organisation.
Insofar as Placing Shares are registered in a Placee's name or that of its
nominee or in the name of any person for whom a Placee is contracting as agent
or that of a nominee for such person, such Placing Shares should, subject as
provided below, be so registered free from any liability to United Kingdom
stamp duty or stamp duty reserve tax. Placees will not be entitled to receive
any fee or commission in connection with the Placing.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional
and not having been terminated in accordance with its terms.
Subject to the proviso that once Admission has occurred no party to the
Placing Agreement shall be entitled to terminate any part of the Placing
Agreement which relates to Admission and/or the placing, allotment or issue of
the/New Ordinary Shares, the obligations of the Bookrunner under the Placing
Agreement are, and the Placing is, conditional upon, inter alia:
(a) the Resolutions being passed at the General Meeting;
(b) the warranties and undertakings contained in the Placing Agreement
("Warranties") being true, accurate and not misleading when made on the date
of the Placing Agreement and immediately prior to Admission by reference to
the facts and circumstances subsisting at that time;
(c) the Company having fully performed its obligations under the Placing
Agreement to the extent that they fall to be performed prior to Admission;
(d) the Bookrunner not having exercised their right to terminate the Placing
Agreement; and
(e) Admission having become effective at or around the Admission Date;
(f) all conditions to the obligations of the Bookrunner included in the
Placing Agreement being together, the "conditions").
If any of the conditions is not fulfilled or, where permitted, waived in
accordance with the Placing Agreement within the stated time periods (or such
later time and/or date as the Company and the Bookrunner may agree), or the
Placing Agreement is terminated in accordance with its terms, the Placing (or
such part of it as may then remain to be completed) will lapse and the
Placee's rights and obligations shall cease and terminate at such time and
each Placee agrees that no claim can be made by or on behalf of the Placee (or
any person on whose behalf the Placee is acting) in respect thereof.
By participating in the Placing, each Placee agrees that its rights and
obligations cease and terminate only in the circumstances described above and
under "Termination of the Placing" below and will not be capable of rescission
or termination by it.
The Bookrunner may, in its absolute discretion and upon such terms as it
thinks fit, waive fulfilment of all or any of the conditions in the Placing
Agreement in whole or in part, or extend the time provided for fulfilment of
one or more conditions, save that certain conditions may not be waived. Any
such extension or waiver will not affect Placees' commitments as set out in
these Terms and Conditions.
The Bookrunner may terminate the Placing Agreement in certain circumstances,
details of which are set out below.
Neither the Bookrunner nor any of their respective affiliates, agents,
advisers, directors, officers or employees nor the Company shall have any
liability to any Placee (or to any other person whether acting on behalf of a
Placee or otherwise) in respect of any decision any of them may make as to
whether or not to waive or to extend the time and/or date for the satisfaction
of any condition to the Placing (or any part thereof) nor for any decision any
of them may make as to the satisfaction of any condition or in respect of the
Placing generally (or any part thereof) and by participating in the Placing
each Placee agrees that any such decision is within the absolute discretion of
the Bookrunner.
Termination of the Placing
If in the Bookrunner's reasonable opinion:
(a) the Company is in breach of any of its obligations under the
Placing Agreement, or is likely to be so in breach, or cannot comply with any
such obligation, or is unlikely to able to do so; or any warranty is or if
repeated at any time up to Admission (by reference to the facts and
circumstances then existing) would be untrue, inaccurate or misleading; or
(b) there has been an adverse development or other adverse
occurrence relating to any director or any group member (whether or not
occurring or arising before or after the date of the Placing Agreement) of
which the Bookrunner was unaware when entering into the Placing Agreement, (in
any case by itself or together with any other such occurrence) to an extent
which the Bookrunner reasonably regards as material; or
(c) on or after the date of the Placing Agreement there happens,
develops or comes into effect:
i. a general moratorium on commercial banking
activities in London or New York declared by the relevant authorities or a
material disruption in commercial banking or securities settlement or
clearance services in the United Kingdom, any member state of the EEA or the
United States; or
ii. the declaration, outbreak or escalation of war or
other hostilities, or the occurrence of any acts of terrorism, involving the
United Kingdom or the United States or the declaration by or for the
government of the United Kingdom or the United States of a national emergency;
or
iii. any calamity, disaster, natural event or other
occurrence of any kind (including without limitation as a result of a
significant new mutation or escalation of the infection rate of COVID-19 after
the date of the Placing Agreement) which (by itself or together with any other
such occurrence) in the Bookrunner's reasonable opinion is likely to
materially and adversely affect or prejudice the market's perception of the
Company or the financial position or trading position or prospects of the
Group taken as a whole; or
iv. a change, or any development likely to involve a
prospective change (in each case whether or not foreseeable at the date of the
Placing Agreement) in or affecting the condition (financial or other),
business prospects, earnings, business affairs or results of the Group,
whether or not arising in the ordinary course of business which, in any such
case, in the Bookrunner's reasonable opinion is materially adverse; or
v. any crisis of international or national effect
(including without limitation as a result of a significant new mutation or
escalation of the infection rate of COVID-19 after the date of the Placing
Agreement and a material escalation of the conflict in Ukraine) or any change
in any currency exchange rates or controls or in any financial, political,
economic or market conditions (including disruption to trading on any stock
exchange, multilateral trading facility or over-the-counter market) or in
market sentiment or any other calamity or crisis which, in any such case, in
the Bookrunner's reasonable opinion is materially adverse; or the suspension
or limitation of trading generally on the London Stock Exchange, the American
Stock Exchange, the New York Stock Exchange, the NASDAQ National Market or any
other market operated within the United Kingdom that is a "prescribed market"
for the purpose of section 118 of FSMA or the fixing of any minimum or maximum
prices or price ranges for any such trading; or
vi. a change or development involving a prospective change
in taxation affecting any Group Member, the Placing or the holding or
ownership or transfer of any Ordinary Shares which, in any such case, in the
Bookrunner's reasonable opinion is materially adverse; or
vii. the imposing of exchange controls by the United
Kingdom, any member state of the EEA, the United States or China,
the Bookrunner may terminate its obligations under the Placing Agreement with
immediate effect by notice in writing delivered to the Company or (if such
delivery is not practicable in the circumstances) by a verbal communication to
any Director (such communication to be confirmed in writing by the Bookrunner
as soon as reasonably practicable afterwards), such delivery or communication
to be made before Admission.
If the Placing Agreement is terminated in accordance with its terms, the
rights and obligations of each Placee in respect of the Placing as described
in these Terms and Conditions shall cease and terminate at such time and no
claim can be made by any Placee in respect thereof.
By participating in the Placing, each Placee agrees with the Company and the
Bookrunner that the exercise by the Company or the Bookrunner of any right of
termination or any other right or other discretion under the Placing Agreement
shall be within the absolute discretion of the Company or the Bookrunner or
for agreement between the Company and the Bookrunner (as the case may be) and
that neither the Company nor the Bookrunner need make any reference to such
Placee and that none of the Company, the Bookrunner nor any of their
respective affiliates, agents, advisers, directors, officers or employees
shall have any liability to such Placee (or to any other person whether acting
on behalf of a Placee or otherwise) whatsoever in connection with any such
exercise.
By agreeing with the Bookrunner (as agent of the Company) to subscribe for
Placing Shares under the Placing, a Placee (and any person acting on a
Placee's behalf) will irrevocably acknowledge and confirm and warrant and
undertake to, and agree with, each of the Company and the Bookrunner, in each
case as a fundamental term of such Placee's application for Placing Shares and
of the Company's obligation to allot and/or issue any Placing Shares to it or
at its direction, that its rights and obligations in respect of the Placing
(or any part of it) will terminate only in the circumstances described above
and under the "Conditions of the Placing" section above and will not be
capable of rescission or termination by it in any other circumstances.
Representations, warranties and further terms
By participating in the Placing, each Placee (and any person acting on such
Placee's behalf) represents, warrants, acknowledges, undertakes, confirms and
agrees (for itself and for any such prospective Placee) that (save where the
Bookrunner expressly agrees in writing to the contrary):
1. it has read and understood the Announcement and
these Terms and Conditions in their entirety and its acquisition of Placing
Shares is subject to and based upon all the terms, conditions,
representations, warranties, indemnities, acknowledgements, agreements and
undertakings and other information contained herein and it has not relied on,
and will not rely on, any information given or any representations, warranties
or statements made at any time by any person in connection with Admission, the
Placing, the Company, the Placing Shares or otherwise, other than the
information contained in the Announcement and the Publicly Available
Information;
2. it has not received a prospectus or other offering
document in connection with the Placing and acknowledges that no prospectus or
other offering document:
(a) is required under any applicable law; and
(b) has been or will be prepared in connection with the
Placing
and, in particular, that the Subscription and Open Offer referred to in the
Announcement and the Circular relating thereto are separate from the Placing
and do not form part of any offer or agreement concerning the Placing and/or
any Placing Shares;
3. the Ordinary Shares are admitted to trading on AIM,
and that the Company is therefore required to publish certain business and
financial information in accordance with the AIM Rules and the Market Abuse
Regulation (EU Regulation No. 596/2014, as retained and applicable in the UK
pursuant to s3 of the European Union (Withdrawal) Act 2018 (the "MAR")), which
includes a description of the nature of the Company's business and the
Company's most recent balance sheet and profit and loss account and that it is
able to obtain or access such information without undue difficulty, and is
able to obtain access to such information or comparable information concerning
any other publicly traded company, without undue difficulty;
4. it has made its own assessment of the Placing Shares
and has relied on its own investigation of the business, financial position
and other aspects of the Company in accepting a participation in the Placing
and neither the Bookrunner nor the Company nor any of their respective
affiliates, agents, advisers, directors, officers or employees nor any person
acting on behalf of any of them has provided, and will not provide, it with
any material regarding the Placing Shares or the Company or any other person
other than the information in the Announcement and these Terms and Conditions
or the Publicly Available Information; nor has it requested either of the
Bookrunner, the Company, any of their respective affiliates, agents, advisers,
directors, employees or officers or any person acting on behalf of any of them
to provide it with any such information;
5. neither the Bookrunner nor any person acting on
behalf of them nor any of their respective affiliates, agents, directors,
officers or employees has or shall have any liability for any Publicly
Available Information, or any representation relating to the Company, provided
that nothing in these Terms and Conditions excludes the liability of any
person for any fraudulent misrepresentation made by that person;
6.
(a) the only information on which it is entitled to rely on and
on which it has relied in committing to acquire the Placing Shares is
contained in this Announcement and the Publicly Available Information, such
information being all that it deems necessary to make an investment decision
in respect of the Placing Shares and it has made its own assessment of the
Company, the Placing Shares and the terms of the Placing based on this
Announcement and the Publicly Available Information;
(b) neither the Bookrunner nor any of their respective
affiliates, agents, directors, officers or employees have made any
representation or warranty to it, express or implied, with respect to the
Company, the Placing or the Placing Shares or the accuracy, completeness or
adequacy of this Announcement, the Circular or the Publicly Available
Information;
(c) it has conducted its own investigation of the
Company, the Placing and the Placing Shares, satisfied itself that the
information is still current and relied on that investigation for the purposes
of its decision to participate in the Placing; and
(d) it has not relied on any investigation that the
Bookrunner or any person acting on their behalf may have conducted with
respect to the Company, the Placing or the Placing Shares;
7. the contents of this Announcement, the Circular and
the other Publicly Available Information as well as any information made
available (in written or oral form) in presentations or as part of roadshow
discussions with investors relating to the Company (the "Information") has
been prepared by and is exclusively the responsibility of the Company and
neither the Bookrunner nor any persons acting on their behalf is responsible
for or has or shall have any liability for any such Information, or for any
representation, warranty or statement relating to the Company contained
therein nor will they be liable for any Placee's decision to participate in
the Placing based on any Information or any representation, warranty or
statement contained therein or otherwise;
8. it has the funds available to pay for the Placing
Shares which it has agreed to acquire and acknowledges and agrees that it will
pay the total subscription amount in accordance with the Announcement and
these Terms and Conditions by the due time and date set out herein, failing
which the relevant Placing Shares may be placed with other Placees or sold at
such price as the Bookrunner determines;
9. it and/or each person on whose behalf it is
participating:
(a) is entitled to acquire Placing Shares pursuant to the
Placing under the laws and regulations of all relevant jurisdictions;
(b) has fully observed such laws and regulations;
(c) has capacity and authority and is entitled to enter
into and perform its obligations as an acquirer of Placing Shares and will
honour such obligations; and
(d) has obtained all necessary consents and authorities
(including, without limitation, in the case of a person acting on behalf of a
Placee, all necessary consents and authorities to agree to the terms set out
or referred to in these Terms and Conditions) under those laws or otherwise
and complied with all necessary formalities to enable it to enter into the
transactions contemplated hereby and to perform its obligations in relation
thereto and, in particular, if it is a pension fund or investment company it
is aware of and acknowledges it is required to comply with all applicable laws
and regulations with respect to its acquisition of Placing Shares;
10. it is not, and any person who it is acting on behalf of is
not, and at the time the Placing Shares are acquired will not be, a resident
of, or with an address in, or subject to the laws of, Australia, Canada, the
Republic of South Africa, the Republic of Ireland or Japan, and it
acknowledges and agrees that the Placing Shares have not been and will not be
registered or otherwise qualified under the securities legislation of
Australia, Canada, the Republic of South Africa, the Republic of Ireland or
Japan and may not be offered, sold, or acquired, directly or indirectly,
within those jurisdictions;
11. it and the beneficial owner of the Placing Shares is, and
at the time the Placing Shares are acquired will be, outside the United States
and acquiring the Placing Shares in an "offshore transaction" as defined in,
and in accordance with, Regulation S under the Securities Act;
12. it understands that the Placing Shares have not been, and
will not be, registered under the Securities Act and may not be offered, sold
or resold in or into or from the United States except pursuant to an effective
registration under the Securities Act, or pursuant to an exemption from, or in
a transaction not subject to, the registration requirements of the Securities
Act and in accordance with applicable state securities laws; and no
representation is being made as to the availability of any exemption under the
Securities Act for the reoffer, resale, pledge or transfer of the Placing
Shares;
13. it (and any account for which it is purchasing) is not
acquiring the Placing Shares with a view to any offer, sale or distribution
thereof within the meaning of the Securities Act;
14. it understands that:
(a) the Placing Shares are "restricted securities" within
the meaning of Rule 144(a)(3) under the Securities Act and will be subject to
restrictions on resale and transfer subject to certain exceptions under US
law; and
(b) it will not deposit the Placing Shares in an
unrestricted depositary receipt programme in the United States or for US
persons (as defined in the Securities Act);
15. it will not offer, sell, transfer, pledge or otherwise
dispose of any Placing Shares except:
(a) in an offshore transaction in accordance with Rules
903 or 904 of Regulation S under the Securities Act; or
(b) pursuant to another exemption from registration under
the Securities Act, if available,
and in each case in accordance with all applicable securities laws of the
states of the United States and all other applicable jurisdictions;
16. no representation has been made as to the availability of
the exemption provided by Rule 144, Rule 144A or any other exemption under the
Securities Act for the reoffer, resale, pledge or transfer of the Placing
Shares;
17. it understands that the Placing Shares are expected to be
issued to it through CREST but may be issued to it in certificated, definitive
form and acknowledges and agrees that the Placing Shares will, to the extent
they are delivered in certificated form, bear a legend to the following effect
unless agreed otherwise with the Company and the Bookrunner:
"THESE SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER
THE APPLICABLE SECURITIES LAWS OR WITH ANY SECURITIES REGULATORY AUTHORITY OF
ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT OR (C) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION OF THE UNITED STATES. NOTWITHSTANDING ANYTHING TO THE CONTRARY
IN THE FOREGOING, THE SECURITIES MAY NOT BE DEPOSITED INTO ANY UNRESTRICTED
DEPOSITARY RECEIPT FACILITY IN RESPECT OF THE COMPANY'S SECURITIES ESTABLISHED
OR MAINTAINED BY A DEPOSITARY BANK. EACH HOLDER, BY ITS ACCEPTANCE OF THESE
SHARES, REPRESENTS THAT IT UNDERSTANDS AND AGREES TO THE FOREGOING
RESTRICTIONS.";
18. it is not taking up the Placing Shares as a result of
any "general solicitation" or "general advertising" efforts (as those terms
are defined in Regulation D under the Securities Act) or any "directed selling
efforts" (as such term is defined in Regulation S under the Securities Act);
19. if located in the United States, it understands that
there may be certain consequences under United States and other tax laws
resulting from an investment in the Placing and it has made such investigation
and has consulted its own independent advisers or otherwise has satisfied
itself concerning, without limitation, the effects of United States federal,
state and local income tax laws and foreign tax laws generally;
20. it will not distribute, forward, transfer or otherwise
transmit this Announcement or these Terms and Conditions and/or the Circular
or any part of them, or any other presentational or other materials concerning
the Placing in or into or from the United States (including electronic copies
thereof) to any person, and it has not distributed, forwarded, transferred or
otherwise transmitted any such materials to any person;
21. none of the Bookrunner, their respective affiliates
and/or any person acting on behalf of any of them is making any
recommendations to it or advising it regarding the suitability of any
transactions it may enter into in connection with the Placing and that
participation in the Placing is on the basis that it is not and will not be a
client of the Bookrunner and that the Bookrunner has no duties or
responsibilities to it for providing the protections afforded to its clients
or for providing advice in relation to the Placing nor in respect of any
representations, warranties, undertakings or indemnities contained in the
Placing Agreement nor for the exercise or performance of any of its rights and
obligations thereunder including any rights to waive or vary any conditions or
exercise any termination right;
22. it will make payment to the Bookrunner for the Placing
Shares allocated to it in accordance with these Terms and Conditions on or by
the specified time (being the Admission Date), failing which the relevant
Placing Shares may be placed with others on such terms as the Bookrunner
determines in its absolute discretion without liability to the Placee and it
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 any
stamp duty or stamp duty reserve tax (together with any interest or penalties
due pursuant to the terms set out or referred to in these Terms and
Conditions) which may arise upon the sale of such Placee's Placing Shares on
its behalf;
23. its Recorded Commitment to acquire Placing Shares will
represent a maximum number of Placing Shares which it may be required to
subscribe for, and that following the allocation process the Bookrunner may
call upon it to subscribe for a lower number of Placing Shares (if any), but
in no event in aggregate more than the aforementioned maximum;
24. no action has been or will be taken by any of the
Company, the Bookrunner or any person acting on behalf of the Company or the
Bookrunner that would, or is intended to, permit a public offer of the Placing
Shares in the United States or in any country or jurisdiction where any such
action for that purpose is required;
25. the person who it specifies for registration as holder
of the Placing Shares will be:
(a) the Placee; or
(b) a nominee of the Placee, as the case may be.
26. neither the Bookrunner nor the Company will be
responsible for any liability to stamp duty or stamp duty reserve tax
resulting from a failure to observe the above requirement. Each Placee and
any person acting on behalf of such Placee agrees to acquire Placing Shares
pursuant to the Placing and agrees to indemnify the Company and the Bookrunner
in respect of the same on the basis that the Placing Shares will be allotted
to a CREST stock account of the Bookrunner or transferred to a CREST stock
account of the Bookrunner who will hold them as nominee on behalf of the
Placee until settlement in accordance with its standing settlement
instructions with it;
27. the allocation, allotment, issue and delivery to it, or
the person specified by it for registration as holder, of Placing Shares will
not give rise to a stamp duty or stamp duty reserve tax liability under (or at
a rate determined under) any of sections 67, 70, 93 or 96 of the Finance Act
1986 (depository receipts and clearance services) and it is not participating
in the Placing as nominee or agent for any person or persons to whom the
allocation, allotment, issue or delivery of Placing Shares would give rise to
such a liability;
28. if it is within the United Kingdom, it and any person
acting on its behalf (if within the United Kingdom) falls within Article 19(5)
and/or 49(2) of the Order and undertakes that it will acquire, hold, manage
and (if applicable) dispose of any Placing Shares that are allocated to it for
the purposes of its business only;
29. it has not offered or sold and will not offer or sell
any Placing Shares to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their business or
otherwise in circumstances which have not resulted, and which will not result
in an offer to the public in the United Kingdom within the meaning of section
85(1) of the FSMA;
30. it has only communicated or caused to be communicated
and it will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of section 21
of the FSMA) relating to Placing Shares in circumstances in which section
21(1) of the FSMA does not require approval of the communication by an
authorised person and it acknowledges and agrees that neither the
Announcement, these Terms and Conditions nor the Circular has been or will be
approved by the Bookrunner in their capacity as an authorised person under
section 21 of the FSMA and it may not therefore be subject to the controls
which would apply if it was made or approved as financial promotion by an
authorised person;
31. it has complied, and it will comply with all applicable
laws in any jurisdiction with respect to anything done by it or on its behalf
in relation to the Placing Shares (including all relevant provisions of the
FSMA in respect of anything done in, from or otherwise involving the United
Kingdom);
32. the Placing Shares acquired by it in the Placing will
not be acquired on a non-discretionary basis on behalf of, nor will they be
acquired with a view to their offer or resale to any person save in
circumstances in which the express prior written consent of the Bookrunner has
been given to the offer or resale;
33. if it has received any inside information (for the
purposes of the MAR and/or section 56 of the Criminal Justice Act 1993 or
other applicable law) about the Company in advance of the Placing, it has not:
(a) dealt (or attempted to deal) in the securities of the
Company;
(b) encouraged, recommended or induced another person to
deal in the securities of the Company; or
(c) unlawfully disclosed such information to any person,
prior to the information being made publicly available;
34. neither the Bookrunner, the Company nor any of their
respective affiliates, agents, advisers, directors, officers or employees nor
any person acting on behalf of the Bookrunner or their respective affiliates,
agents, advisers, directors, officers or employees nor any person acting on
behalf of any of them is making any recommendations to it, advising it
regarding the suitability of any transactions it may enter into in connection
with the Placing nor providing advice in relation to the Placing nor in
respect of any representations, warranties, acknowledgements, agreements,
undertakings, or indemnities contained in the Placing Agreement nor the
exercise or performance of any of the Bookrunner's rights and obligations
thereunder including any rights to waive or vary any conditions or exercise
any termination right;
35. the Bookrunner and their respective affiliates, acting as
an investor for its or their own account(s), may bid or subscribe for and/or
purchase Placing Shares and, in that capacity, may retain, purchase, offer to
sell or otherwise deal for its or their own account(s) in the Placing Shares,
any other securities of the Company or other related investments in connection
with the Placing or otherwise. Accordingly, references in these Terms and
Conditions and/or the Announcement to the Placing Shares being offered,
subscribed, acquired or otherwise dealt with should be read as including any
offer to, or subscription, acquisition or dealing by, the Bookrunner and/or
any of their respective affiliates acting as an investor for its or their own
account(s). Neither the Bookrunner nor the Company intend to disclose the
extent of any such investment or transaction otherwise than in accordance with
any legal or regulatory obligation to do so;
36. it:
(a) has complied, and will comply, with its obligations
in connection with money laundering and terrorist financing under the Proceeds
of Crime Act 2002, the Terrorism Act 2000 (as amended), the Terrorism Act 2006
and the Money Laundering, Terrorist Financing and Transfer of Funds
(Information on the Payer) Regulations 2017;
(b) is not a person:
(i) with whom transactions are prohibited under the US
Foreign Corrupt Practices Act of 1977 or any economic sanction programmes
administered by, or regulations promulgated by, the Office of Foreign Assets
Control of the U.S. Department of the Treasury;
(ii) named on the Consolidated List of Financial Sanctions
Targets maintained by HM Treasury of the United Kingdom; or
(iii) subject to financial sanctions imposed pursuant to a
regulation of the European Union or a regulation adopted by the United Nations
or other applicable law,
(all such statutes, rules and regulations referred to in this
paragraph 36 together, the "Regulations") and if making payment on behalf
of a third party, that satisfactory evidence has been obtained and recorded by
it to verify the identity of the third party as required by the Regulations
and has obtained all governmental and other consents (if any) which may be
required for the purpose of, or as a consequence of, such purchase, and it
will provide promptly to the Bookrunner such evidence, if any, as to the
identity or location or legal status of any person which it may request from
it in connection with the Placing (for the purpose of complying with the
Regulations or ascertaining the nationality of any person or the
jurisdiction(s) to which any person is subject or otherwise) in the form and
manner requested by the Bookrunner on the basis that any failure by it to do
so may result in the number of Placing Shares that are to be acquired by it or
at its direction pursuant to the Placing being reduced to such number, or to
nil, as the Bookrunner may decide at its sole discretion;
37. in order to ensure compliance with the Regulations, the
Bookrunner (for itself and as agent on behalf of the Company) or the Company's
registrars may, in their absolute discretion, require verification of its
identity. Pending the provision to the Bookrunner or the Company's
registrars, as applicable, of evidence of identity, definitive certificates in
respect of the Placing Shares may be retained at the Bookrunner's absolute
discretion or, where appropriate, delivery of the Placing Shares to it in
uncertificated form may be delayed at the Bookrunner or the Company's
registrars', as the case may be, absolute discretion. If within a reasonable
time after a request for verification of identity the Bookrunner (for itself
and as agent on behalf of the Company) or the Company's registrars have not
received evidence satisfactory to them, either the Bookrunner and/or the
Company may, at its absolute discretion, terminate its commitment in respect
of the Placing, in which event the monies payable on acceptance of allotment
will, if already paid, be returned without interest to the account of the
drawee's bank from which they were originally debited;
38. its commitment to acquire Placing Shares on the Terms
and Conditions 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 Bookrunner's conduct of the Placing;
39. neither of the Bookrunner nor any of their respective
affiliates, agents, advisers, directors, officers or employees makes any
representation in respect of or shall have any responsibility for the tax
treatment that any Placee may receive or expect in relation to their
investment in Placing Shares;
40. it has knowledge and experience in financial, business
and international investment matters as is required to evaluate the merits and
risks of acquiring the Placing Shares. It further acknowledges that it is
experienced in investing in securities of this nature and is aware that it may
be required to bear, and is able to bear, the economic risk of, and is able to
sustain, a complete loss in connection with the Placing. It has relied upon
its own examination and due diligence of the Company and its affiliates taken
as a whole, and the terms of the Placing, including the merits and risks
involved;
41. it irrevocably appoints any duly authorised officer of
the Bookrunner as its agent for the purpose of executing and delivering to the
Company and/or its registrars any documents on its behalf necessary to enable
it to be registered as the holder of any of the Placing Shares which it agrees
to acquire upon these Terms and Conditions;
42. the Company, the Bookrunner and others (including each
of their respective affiliates, agents, advisers, directors, officers and
employees) will rely upon the truth and accuracy of the foregoing
representations, warranties, acknowledgements and agreements, which are given
to the Bookrunner on their own behalf and on behalf of the Company and are
irrevocable;
43. it is acting as principal only in respect of the
Placing or, if it is acquiring the Placing Shares as a fiduciary or agent for
one or more investor accounts, it is duly authorised to do so and it has full
power and authority to make, and does make, the foregoing representations,
warranties, acknowledgements, agreements and undertakings on behalf of each
such accounts;
44. time is of the essence as regards its obligations under
these Terms and Conditions;
45. any document that is to be sent to it in connection
with the Placing will be sent at its risk and may be sent to it at any address
provided by it to the Bookrunner;
46. the Placing Shares will be issued subject to these
Terms and Conditions; and
47. these Terms and Conditions and all documents into which
these Terms and Conditions are incorporated by reference or otherwise validly
forms a part and/or any agreements entered into pursuant to these terms and
conditions and all agreements to acquire Placing Shares pursuant to the
Placing will be governed by and construed in accordance with English law and
it submits to the exclusive jurisdiction of the English courts in relation to
any claim, dispute (contractual or otherwise) or matter arising out of or in
connection with such contract except that enforcement proceedings in respect
of the obligation to make payment for the Placing Shares (together with
interest chargeable thereon) may be taken by the Company or the Bookrunner in
any jurisdiction in which the relevant Placee is incorporated or in which any
of its securities have a quotation on a recognised stock exchange.
By participating in the Placing, each Placee (and any person acting on such
Placee's behalf) agrees to indemnify and hold the Company, the Bookrunner and
each of their respective affiliates, agents, directors, officers and employees
harmless from any and all costs, claims, liabilities and expenses (including
legal fees and expenses) arising out of or in connection with any breach of
the representations, warranties, acknowledgements, agreements and undertakings
given by the Placee (and any person acting on such Placee's behalf) in these
Terms and Conditions or incurred by either of the Bookrunner, the Company or
any of their respective affiliates, agents, directors, officers or employees
arising from the non-performance of the Placee's obligations as set out in
these Terms and Conditions, and further agrees that the provisions of these
Terms and Conditions shall survive after the completion of the Placing.
The agreement to allot and issue Placing Shares to Placees (or the persons for
whom Placees are contracting as agent) free of stamp duty and stamp duty
reserve tax in the United Kingdom relates only to their allotment and issue to
Placees, or such persons as they nominate as their agents, direct by the
Company. Such agreement assumes that the Placing Shares are not being
acquired in connection with arrangements to issue depositary receipts or to
transfer the Placing Shares into a clearance service. If there are any such
arrangements, or the settlement related to any other dealings in the Placing
Shares, stamp duty or stamp duty reserve tax may be payable. In that event,
the Placee agrees that it shall be responsible for such stamp duty or stamp
duty reserve tax and neither the Company nor the Bookrunner shall be
responsible for such stamp duty or stamp duty reserve tax. If this is the
case, each Placee should seek its own advice and they should notify the
Bookrunner accordingly. In addition, Placees should note that they will be
liable for any capital duty, stamp duty and all other stamp, issue,
securities, transfer, registration, documentary or other duties or taxes
(including any interest, fines or penalties relating thereto) payable outside
the United Kingdom by them or any other person on the acquisition by them of
any Placing Shares or the agreement by them to acquire any Placing Shares and
each Placee, or the Placee's nominee, in respect of whom (or in respect of the
person for whom it is participating in the Placing as an agent or nominee) the
allocation, allotment, issue or delivery of Placing Shares has given rise to
such non-United Kingdom stamp, registration, documentary, transfer or similar
taxes or duties undertakes to pay such taxes and duties, including any
interest and penalties (if applicable), forthwith and to indemnify on an
after-tax basis and to hold harmless the Company and the Bookrunner in the
event that any of the Company and/or the Bookrunner have incurred any such
liability to such taxes or duties.
The representations, warranties, acknowledgements and undertakings contained
in these Terms and Conditions are given to the Bookrunner for itself and on
behalf of the Company and are irrevocable.
The Bookrunner is authorised and regulated by the FCA in the United Kingdom
and is acting exclusively for the Company and no one else in connection with
the Placing, and will not be responsible to anyone (including any Placees)
other than the Company for providing the protections afforded to their clients
or for providing advice in relation to the Placing or any other matters
referred to in these Terms and Conditions.
Each Placee and any person acting on behalf of the Placee acknowledges that
the Bookrunner does not owe any fiduciary or other duties to any Placee in
respect of any representations, warranties, undertakings, acknowledgements,
agreements or indemnities in the Placing Agreement.
The provisions of these Terms and Conditions may be varied, waived or modified
as regards specific Placees or on a general basis by the Bookrunner provided
always that such variation, waiver or modification is not materially
prejudicial to the interests of the Company.
In the case of a joint agreement to acquire Placing Shares, references to a
"Placee" in these Terms and Conditions are to each of such Placees and such
joint Placees' liability is joint and several.
Each Placee and any person acting on behalf of the Placee acknowledges and
agrees that the Bookrunner may (at its absolute discretion) satisfy its
obligations to procure Placees by itself agreeing to become a Placee in
respect of some or all of the Placing Shares or by nominating any connected or
associated person to do so.
When a Placee or any person acting on behalf of the Placee is dealing with the
Bookrunner, any money held in an account with the Bookrunner on behalf of the
Placee and/or any person acting on behalf of the Placee will not be treated as
client money within the meaning of the relevant rules and regulations of the
FCA made under the FSMA. Each Placee acknowledges that the money will not be
subject to the protections conferred by the client money rules: as a
consequence this money will not be segregated from the Bookrunner's money in
accordance with the client money rules and will be held by it under a banking
relationship and not as trustee.
In these Terms and Conditions any words following the
terms "including", "include", "in particular", "for example" or any
similar expression shall be construed as illustrative and shall not limit the
sense of the words, description, definition, phrase or term preceding those
terms.
References to time in the Terms and Conditions are to London time, unless
otherwise stated.
All times and dates in these Terms and Conditions may be subject to
amendment. Placees will be notified of any changes.
No statement in this Announcement, these Terms and Conditions or the Circular
is intended to be a profit forecast or estimate, and no statement in this
Announcement, these Terms and Conditions or the Circular 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.
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.
The Placing Shares to be issued pursuant to the Placing will not be admitted
to trading on any stock exchange other than AIM.
Neither the content of the Company's website nor any website accessible by
hyperlinks on the Company's website is incorporated in, or forms part of,
these Terms and Conditions and/or this Announcement.
APPENDIX 2
DEFINITIONS
The following definitions apply throughout this announcement, unless the
context requires otherwise:
Admission means the admission of the New Ordinary Shares to trading on AIM
and such admission becoming effective in accordance with the AIM Rules.
Admission Date means the admission of the New Ordinary Shares to trading on
AIM becoming effective as provided in Rule 6 of the AIM Rules for Companies.
Admission Settlement Date means the date of settlement of transactions in the
New Ordinary Shares following Admission which will take place within the CREST
system (subject to certain exceptions).
AIM means the AIM market of the London Stock Exchange.
AIM Rules means the AIM rules for companies published by the London Stock
Exchange.
Application means the application to be made by or on behalf of the Company
to the London Stock Exchange for Admission.
Bookbuild means an accelerated process conducted by the Bookrunner to
determine demand for participation in the Placing by Placees.
Capital Reorganisation means the proposed subdivision of the Company's
23,784,483 Existing Ordinary Shares of 15 pence into 23,784,483 ordinary
shares of 0.1 pence and 23,784,483 Deferred Shares of 14.9 pence in accordance
with Resolution 3, contained in the Notice of General Meeting set out within
the Circular.
Circular means the circular, to be published by the Company on 3 October 2022
in relation to the Placing and Open Offer which will include notice of
convening the General Meeting at which the Resolutions will be proposed.
Closing Price means the closing middle market quotation of an Ordinary Share
as derived from the Daily Official List of the London Stock Exchange on 29
September 2022.
Company or Xeros means Xeros Technology Group plc, a company incorporated
in England and Wales with registered number 8684474, with its registered
office at Unit 2, Evolution, Advanced Manufacturing Park, Whittle Way,
Catcliffe, Rotherham, South Yorkshire S60 SBL.
CREST means a relevant system (as defined in the CREST Regulations) in
respect of which Euroclear is the Operator (as defined in the CREST
Regulations).
CREST Regulations means the Uncertificated Securities Regulations 2001
(SI 2001 No. 3755) (as amended).
Current Articles means the articles of association of the Company dated 25
November 2020.
Directors or Board means the board of directors of the Company.
EBITDA means earnings before interest, taxation, depreciation and
amortisation.
EEA means The European Economic Area.
Enlarged Share Capital means the Issued share capital of the Company
immediately following Admission comprising the Existing Ordinary Shares and
the New Ordinary Shares.
Entrepreneurs Fund means Entrepreneurs Fund L.P.
EU means the European Union.
Euroclear means Euroclear UK & Ireland Limited.
Existing Ordinary Shares means the 23,784,483 Ordinary Shares in issue at the
date of this document, all of which are admitted to trading on AIM and being
the entire issued ordinary share capital of the Company.
FCA means Financial Conduct Authority.
finnCap means finnCap Ltd, Nominated Advisor, Broker and Bookrunner to the
Company.
Form of Proxy means the form of proxy for use in connection with the General
Meeting accompanying the Circular.
FSMA means Financial Services and Markets Act 2000.
Fundraising means the Placing and the Open Offer (and "Fundraise" shall be
constructed accordingly).
General Meeting means the general meeting of the Company to be convened
pursuant to the notice of general meeting included within the Circular.
Group means the group of which the Company is the parent.
Group Member means a member of the Group.
IFB means IFB Industries Limited.
Issue Price means 5 pence per New Ordinary Share.
London Stock Exchange means London Stock Exchange plc.
MAR means the Market Abuse Regulation (EU)No.596/2014, as retained and
applicable in the UK pursuant to s3 of the European Union (Withdrawal) Act
2018.
New Articles means the proposed new articles of association to be adopted in
the event Resolution 3 as set out in the notice of General Meeting included
within the Circular is passed at the General Meeting
New Ordinary Shares means the Placing Shares and the Open Offer Shares.
Notice of General Meeting means the notice of the General Meeting included
within the Circular.
OEMs means original equipment manufacturers.
Open Offer means the conditional invitation proposed to be made by the Company
to Qualifying Shareholders to subscribe for the Open Offer Shares.
Open Offer Shares means up to 20,386,699 new Ordinary Shares which are to be
the subject of the Open Offer.
Ordinary Shares means ordinary shares of 15 pence each in the capital of the
Company and following the Capital Reorganisation the ordinary shares of 0.1
pence each in the capital of the Company.
Placees means the institutional investors participating in the proposed
Placing.
Placing means the proposed placing by finnCap as agent for the Company, of the
Placing Shares at the Issue Price on a non-pre-emptive basis, on the terms and
conditions set out in the Placing Agreement and/or the Subscription Agreements
(as applicable).
Placing Agreement means the agreement to be entered into between the Company
and finnCap in connection with the Placing.
Placing Conditions are as defined in Appendix 1.
Placing Shares means 120,000,000 Ordinary Shares which may, pursuant to the
Placing, be allotted and issued fully paid up at the Issue Price and admitted
to trading on AIM.
Qualifying Shareholders means Shareholders on the register of members of the
Company as at the Record Date, excluding certain overseas Shareholders (as
further described in the Circular).
Record Date means close of business on 29 September 2022.
Registrar means Neville Registrars Limited.
Relevant Persons are as defined in Appendix 1.
Resolutions means the resolutions relating to the Placing and Open Offer in
the approved terms set out in the notice convening the General Meeting
contained in the Circular.
RNS means the regulatory information service approved by the London Stock
Exchange for the distribution of AIM announcements.
Securities Act means the US Securities Act of 1933, as amended.
Shareholders means holders of Ordinary Shares.
Subscription means the conditional subscription for 33,200,000 New Ordinary
Shares by Entrepreneurs Fund L.P., Klaas de Boer, Neil Austin, Paul Denney,
Rachel Nooney and Mark Nichols as part of the Placing.
Takeover Code means the City Code on Takeovers and Mergers.
United Kingdom or UK means United Kingdom of Great Britain and Northern
Ireland.
United States or US means the United States of America, its territories and
possessions, any state of the United States of America and the District of
Columbia.
Warrant Instrument means the instrument dated 20 October 2022 constituting the
Warrants.
Warrants means the unlisted warrants to be issued, conditional on the passing
of the Resolutions and completion of the Fundraising, to subscribers of
Placing Share, Subscription Shares and Open Offer Shares granting to the
holders thereof rights to subscribe for new Ordinary Shares exercisable at a
price of 5 pence per Ordinary Share during the Warrant Exercise Period in
accordance with the terms of the Warrant Instrument.
Warrant Exercise Period means the period of 18 months from Admission in
accordance with the terms of the Warrant Instrument.
All references in this announcement to "£", "pence" or "p" are to the lawful
currency of the United Kingdom. All references to "USS" or "$" are to the
lawful currency of the United States.
This information is provided by RNS, the news service of the London Stock Exchange. RNS is approved by the Financial Conduct Authority to act as a Primary Information Provider in the United Kingdom. Terms and conditions relating to the use and distribution of this information may apply. For further information, please contact
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