TIDMORPH
RNS Number : 7391N
Open Orphan PLC
22 May 2020
THIS ANNOUNCEMENT (INCLUDING THE APPICES) AND THE INFORMATION
CONTAINED HEREIN ARE RESTRICTED AND ARE NOT FOR PUBLICATION,
RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN
PART, IN OR INTO THE UNITED STATES OF AMERICA, CANADA, AUSTRALIA,
NEW ZEALAND, THE REPUBLIC OF SOUTH AFRICA OR JAPAN OR IN OR INTO
ANY OTHER JURISDICTION WHERE TO DO SO WOULD BREACH ANY APPLICABLE
LAW OR REGULATION.
THIS ANNOUNCEMENT (INCLUDING THE APPICES) IS FOR INFORMATION
PURPOSES ONLY AND DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR
SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY. THIS ANNOUNCEMENT
(INCLUDING THE APPICES) DOES NOT CONSTITUTE OR CONTAIN ANY
INVITATION, SOLICITATION, RECOMMATION, OFFER OR ADVICE TO ANY
PERSON TO SUBSCRIBE FOR, OTHERWISE ACQUIRE OR DISPOSE OF ANY
SECURITIES OF OPEN ORPHAN PLC IN ANY JURISDICTION WHERE TO DO SO
WOULD BREACH ANY APPLICABLE LAW OR REGULATION.
UNLESS OTHERWISE INDICATED, CAPITALISED TERMS IN THIS
ANNOUNCEMENT HAVE THE MEANINGS GIVEN TO THEM IN THE DEFINITIONS
SECTION INCLUDED IN APPIX II.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION AS DEFINED IN
ARTICLE 7 OF THE MARKET ABUSE REGULATION NO. 596/2014 ("MAR"). UPON
THE PUBLICATION OF THIS ANNOUNCEMENT, THIS INSIDE INFORMATION IS
NOW CONSIDERED TO BE IN THE PUBLIC DOMAIN.
22 May 2020
Open Orphan plc
("Open Orphan", the "Company" or the "Group")
Proposed Fundraising to raise up to GBP12 million
Open Orphan plc (ORPH), a rapidly growing specialist CRO
pharmaceutical services company which has a focus on orphan drugs
and is the world leader in the testing of vaccines and antivirals
using human challenge study models, today announces its intention
to raise up to GBP12 million (net of expenses) (the "Fundraising")
via a placing of new Ordinary Shares ("Placing Shares") to
institutional and other investors (the "Placing"), subscription of
new Ordinary Shares ("Subscription Shares") to certain investors
and an offer subscription for new Ordinary Shares by PrimaryBid
("PrimaryBid Shares") all at a price of 11 pence per new Ordinary
Share (the "Issue Price").
Fundraising Highlights:
- The Group intends to conduct a Fundraising to raise up to
GBP12 million (net of expenses) via the Placing of the Placing
Shares, Subscription of the Subscription Shares and an offer for
subscription of the PrimaryBid Shares all at the Issue Price.
- The Placing is to be conducted by way of an accelerated
bookbuild process which will commence immediately following this
Announcement and will be subject to the terms and conditions set
out in Appendix I to this Announcement.
- The Company has conditionally raised approximately GBP80,000
(before expenses) through the Subscription of 727,272 Subscription
Shares.
- The Group also intends to launch an offer for subscription to
be conducted by PrimaryBid on behalf of the Company (the
"PrimaryBid Offer") on a "first come, first served" basis.
- The net proceeds of the Fundraising will be used to
o Maximise available Covid-19 opportunities including
accelerating the development of both a seasonal coronavirus and a
Covid-19 virus challenge study model to capitalise upon Group's
inbound demand from Covid-19 vaccine developers globally. These
challenge study models have the ability to speed up the development
of a vaccine by 2-3 years;
o Ramp up Covid-19 antiviral testing to the Group's current
capacity for 3,000 tests per day;
o Expand existing laboratory testing services to 3rd party
pharmaceutical and biotech companies in line with our strategy of
becoming a leading services provider to the growing viral, and
respiratory diseases sector of the pharmaceutical industry; and
o Strengthen the balance sheet to enable the Group to take
advantage of the significant and growing opportunities the Board
believes are available.
- The Issue Price represents a premium of 3.8 per cent. to the
closing price of 10.6 pence per Ordinary Share on 7 May 2020 being
the date immediately before the announcement of the Quotient
partnership on 11 May 2020. It represents a discount of
approximately 26.4 per cent. to the closing middle market price of
14.95 pence per Ordinary Share on 21 May 2020, being the latest
practicable date prior to the publication of this Announcement.
The Fundraising
The Fundraising comprises a proposed placing, an offer for
subscription through PrimaryBid and subscription of new Ordinary
Shares to be effected in two tranches. The first tranche of up to
44,824,000 new Ordinary Shares (the "Firm Fundraising Shares") will
utilise the Company's existing shareholder authorities to issue the
Firm Placing Shares and the Firm PrimaryBid Shares on a
non-pre-emptive basis for cash (the "Firm Fundraising"). The second
tranche of approximately 70,000,000 new Ordinary Shares (the
"Conditional Fundraising Shares") will be conditional (amongst
other things) on the passing of resolutions to grant authority to
the Directors to allot the Conditional Placing Shares, Conditional
PrimaryBid Shares and Subscription Shares for cash and to disapply
statutory pre-emption rights at a General Meeting.
The Placing is subject to the satisfaction of certain conditions
set out in this announcement and the appendices hereto (the
"Appendices") (together, this "Announcement") and is being
conducted by way of an accelerated bookbuild, which will be
launched immediately following the publication of this
Announcement. Arden Partners plc ("Arden") and finnCap Ltd
("finnCap" and, together with Arden, the "Joint Brokers") are
acting as Joint Brokers in connection with the Placing and Arden as
nominated adviser.
The Company intends to publish and send a circular (the
"Circular") to shareholders convening the General Meeting in
connection with the issue of the Conditional Fundraising Shares on
or around 26 May 2020. The Circular will also be available on the
Company's website: www .OpenOrphan. com .
An updated corporate presentation will be made available on the
Company's website.
A further announcement will be made following the close of the
Bookbuild, confirming final details of the Placing.
For further information please contact
Open Orphan plc
Cathal Friel, Executive Chairman +353 (0)1 644 0007
Arden Partners plc (Nominated Adviser and Joint Broker) +44
(0)20 7614 5900
John Llewellyn-Lloyd / Benjamin Cryer / Dan Gee-Summons
(Corporate Finance)
Fraser Marshall / Simon Johnson (Equity Sales)
finnCap plc (Joint Broker) +44 (0) 20 7220 0500
Geoff Nash / James Thompson/ Charlie Beeson (Corporate
Finance)
Richard Chambers (ECM)
Davy (Euronext Growth Adviser and Joint Broker) +353 (0)1 679
6363
Anthony Farrell
Camarco (Financial PR) +44 (0)20 3757 4980
Tom Huddart / Daniel Sherwen
Additional information
Expected timetable of principal events
2020
Announcement of the Fundraising 22 May
Announcement of the results of the Fundraising 22 May
Circular and Form of Proxy posted to Shareholders 26 May
First Admission of the Firm Fundraising 8.00 a.m. on 29 May
Shares to trading on AIM and Euronext
Growth and commencement of dealings
Expected date for CREST accounts to be 29 May
credited in respect of Firm Fundraising
Shares in uncertified form
Where applicable, expected date for despatch within 14 days
of definitive share certificated for Firm
Fundraising Shares in certified form
Latest time and date for receipt of Forms 11.00 a.m. on 9 June
of Proxy
General Meeting 11.00 a.m. on 11 June
Second Admission and dealings in the Conditional 8.00 a.m. on 12 June
Fundraising Shares
Expected date for CREST accounts to be 12 June
credited in respect of Conditional Fundraising
Shares in uncertified form
Where applicable, expected date for despatch within 14 days
of definitive share certificated for Conditional
Fundraising Shares in certified form
Information on Open Orphan
Open Orphan is a rapidly growing niche CRO pharmaceutical
services company which is a world leader in the provision of viral
laboratory services and the testing of vaccine and antivirus using
human challenge study models. Open Orphan comprises of two
commercial specialist CRO services businesses; hVIVO and Venn Life
Sciences, and Open Orphan Genomic Health Data.
hVIVO is the world leader in testing the efficacy of vaccines,
antivirals and respiratory disease agents using human challenge
study models. hVIVO has the world leading portfolio of challenge
study such models including flu, RSV, asthma, HRV, COPD and cough
which have a replacement cost in excess of GBP25million. These
studies are run from the Group's 24-bedroom quarantine clinic in
London, which can be made into three zones to run three different
vaccine company's challenge studies at the same time. hVIVO also
has a state of the art viral laboratory that is utilised in
connection with its challenge studies and on contract with third
parties, including for anti-body testing.
Venn Life Sciences is an integrated drug development business
which offers phase I & II clinical trials design and execution,
post-trial data management, statistics, trial randomisation and
regulatory expertise.
Background to and Reasons for the Fundraising
On 31 January 2020, the World Health Organisation declared a
global pandemic due to the Covid-19 virus that has spread across
the globe, causing different governments and countries to enforce
restrictions on people movements, a stop to international travel,
and other precautionary measures. This has had a widespread impact
economically and a number of industries have been heavily impacted.
As well as the challenges faced by other industries this has
presented Open Orphan with some unique opportunities as a
specialist provider to pharmaceutical companies.
There is now a global urgency to quickly and effectively develop
and subsequently demonstrate effective Covid-19 vaccines, in May
2020 the World Health Organisation backed Covid-19 human challenge
studies to speed up Covid-19 vaccine approvals. On 9 March 2020 the
Group announced that it had commenced the development of a
commercial human coronavirus challenge study model, also known as a
Controlled Human Infection Model (CHIM) utilising seasonal
coronavirus strains such as OC43 and 229E which are from the same
family of viruses as the Covid-19 virus. Following this
announcement, the Group has continued development of its Covid-19
challenge study and has opened discussions with 12 of the leading
Covid-19 vaccine developers around the world. hVIVO is also now
developing an attenuated Covid-19 virus challenge study model. The
Group has decided to self-fund the investment to develop both of
these models to ensure that it retains ownership and control of the
resulting challenge model. In addition to the testing of potential
vaccines and antivirals, it is expected that the challenge study
models will facilitate a greater understanding of the type and
durability of the immune response coronavirus infections elicit.
The Board believes that, based on current discussions, the Group
has as potential pipeline of up to six Covid-19 related challenge
study contracts in 2020 with a further potential six contracts in
2021.
Challenge Studies
Challenge studies involve, in a controlled setting, using small
numbers of volunteers removed from community exposure to other
infections, the inoculation of volunteers with known doses of the
challenge virus and the monitoring of the disease time course. All
subjects are inoculated with virus but with some receiving a
placebo and others the experimental drug to test the efficacy of
the drug and obtain proof of concept data much quicker than can be
achieved in the field. Challenge studies can be carried out for
novel therapeutics, including vaccines, immunomodulators and
antivirals, as well as new diagnostics. Challenge study models can
potentially speed up vaccine development and approval by 2-3 years
by testing the efficacy on human volunteers over a short period of
time in a quarantine clinic.
By splitting the hVIVO 24 bed quarantine clinic into 3 zones the
Group is able to run up to 3 different vaccine challenge studies
concurrently. The Group typically expects a complete challenge
study trial to deliver project revenues of approximately GBP7
million with the revenue dependent in part on the size of the trial
and the number of volunteers.
Open Orphan plans to have a growing, clinical trial challenge
study business and also a testing capability. The challenge study
business will provide third-party laboratory services whilst also
providing actual testing capability of human population groups.
The fundraising will allow the Group to provide virology and
laboratory testing services to third parties, such as its recent
contract with Nearmedic International Ltd. This provision of
third-party laboratory services is a growth area for the Group as
numerous biotechnology companies across Europe do not have their
own virology laboratory. This revenue stream is in line with our
strategy of becoming a leading pharma services provider to the
viral, and respiratory diseases sector of the pharmaceutical
industry.
Use of Proceeds
It is as a result of the recent expansion of the Group's
pipeline and other recent commercial developments that the Group is
looking to raise up to GBP12 million net of expenses. T he proceeds
of the Fundraising will be used to:
a. Maximise available Covid-19 opportunities including
accelerating the development of both a seasonal coronavirus and a
Covid-19 virus challenge study model to capitalise upon Group's
inbound demand from Covid-19 vaccine developers globally. These
challenge study models have the ability to speed up the development
of a vaccine by 2-3 years;
b. Ramp up Covid-19 antiviral testing to the Group's current capacity for 3,000 tests per day;
c. Expand existing laboratory testing services to 3rd party
pharmaceutical and biotech companies in line with our strategy of
becoming a leading services provider to the growing viral, and
respiratory diseases sector of the pharmaceutical industry ;
and
d. Strengthen the balance sheet to enable the Group to take
advantage of the significant and growing opportunities the Board
believes are available.
Current trading and prospects
All results provided are preliminary and subject to completion
of the 2019 audit. The audit is substantially complete and Open
Orphan's audited accounts for the year ended 31 December 2019 are
expected to be published in late June 2020.
The Company confirms that on a proforma basis including the full
year of Open Orphan and hVIVO, the Group generated revenue of
EUR27.1 million for the year ended 31 December 2019, gross profit
of EUR4.2 million and a normalized LBITDA of EUR10.1 million
adjusting for depreciation, amortization, one-time and
non-recurring expenses / charges.
The Group's cash and cash equivalents at 30 April 2020 was
EUR2.6 million and debt at 30 April 2020 was EUR1.6 million which
related to loans arranged previously by Raglan Capital.
Since the merger of Open Orphan and hVIVO, the group has
successfully integrated hVIVO and Venn Life Sciences, has reduced
the Group's cost base by an annualised EUR5.0 million (in an
addition to the EUR3.8 million of savings realised in 2019).
Further annualised cost savings of EUR2.5m are expected to be
implemented by year end. We have also expanded hVIVO's laboratory
services and converted the hVIVO pipeline of contracts,
including:
- a new contract with a European Biotech Company for the
provision of a RSV human challenge study projected to deliver
GBP3.2m in revenue all of which is expected to be recognised in
2020. If successful, it is anticipated that an additional follow-on
larger pivotal challenge study will commence end Q4 2020,
delivering significant further revenue and expected to be a minimum
of GBP7m; and
- a contract with a US Biotech company for the provision of an
RSV human challenge study projected to deliver GBP3.5 million in
revenue all of which is expected to be recognised in 2020.
The Group's pipeline of potential new contracts is now in excess
of GBP160 million and includes c.GBP110 million of near-term
contracts within hVIVO and Venn Life Sciences along with new
opportunities arising post Covid-19. This includes the delivery of
Covid-19 related challenge studies, third party testing and
laboratory services, and the roll out of Covid-19 antibody testing
utilising the Quotient Limited system. The MosaiQ Covid-19 Antibody
Microarray machine is expected to have capability to undertake up
to 3,000 tests a day once fully operational, in line with expected
performance as stated by Quotient Limited. The MosaiQ COVID-19
Antibody Microarray machine has demonstrated a 100% sensitivity to
detect Covid-19 antibodies and a 99.8% ability to rule out the
presence of Covid-19 antibodies. The Group's plan is to develop
this pipeline with channel partners to secure testing volumes.
The Directors believe that the increased investment in testing
capability will result in companies, such as Open Orphan,
benefitting as a provider of testing services.
The Directors believe that the recent conversion of the Group's
pipeline coupled with additional annualised savings of EUR2.5
million referred to above, and strong pipeline of work for the
second half of 2020 should allow the Company to achieve its goal of
being operationally profitable by Q3 2020.
The Subscription
Under the Subscription , the Company has conditionally raised
approximately GBP80,000 (before expenses) by way of the
subscription at the Issue Price of 727,272 new Ordinary Shares
.
The Subscription is conditional upon (amongst other things) the
Placing and Subscription Agreement not having been terminated, the
passing of the Resolutions at the General Meeting and Second
Admission occurring on or before 8.00 a.m. on 12 June 2020 (or such
later date and/or time as the Joint Brokers and the Company may
agree, being no later than 3.00 p.m. on 30 June 2020 in respect of
the Conditional Fundraise).
PrimaryBid Offer
PrimaryBid intends to conduct an offer for subscription for
PrimaryBid Shares on behalf of the Company on the terms set out in
a separate announcement to be made by the Company immediately after
this announcement.
The Firm PrimaryBid Offer is conditional upon (amongst other
things) the Placing and Subscription Agreement not having been
terminated and First Admission occurring on or before 8.00 a.m. on
29 May 2020 (or such later date and /or time as the Joint Brokers
and the Company may agree, being no later than 3.00 p.m. on 30 June
2020 in respect of the Firm Placing).
The Conditional PrimaryBid Offer is conditional upon (amongst
other things) the Placing and Subscription Agreement not having
been terminated, the passing of the Resolutions at the General
Meeting and Second Admission occurring on or before 8.00 a.m. on 12
June 2020 (or such later date and/or time as the Joint Brokers and
the Company may agree, being no later than 3.00 p.m. on 30 June
2020 in respect of the Conditional Fundraise).
The Placing and Subscription Agreement
Pursuant to the Placing and Subscription Agreement, the Joint
Brokers, as agents for the Group, have conditionally agreed to use
reasonable endeavours to procure subscribers at the Issue Price for
the Placing Shares.
The Joint Brokers intend to conditionally place the Placing
Shares with certain institutional and other investors at the Issue
Price. The Firm Placing is conditional upon (amongst other things)
the Placing and Subscription Agreement not having been terminated
and First Admission occurring on or before 8.00 a.m. on 29 May 2020
(or such later date and/or time as the Joint Brokers and the
Company may agree, being no later than 3.00 p.m. on 30 June 2020 in
respect of the Firm Placing).
The Conditional Placing is conditional upon (amongst other
things) the Placing and Subscription Agreement not having been
terminated, the passing of the Resolutions at the General Meeting
and Second Admission occurring on or before 8.00 a.m. on 12 June
2020 (or such later date and/or time as the Joint Brokers and the
Company may agree, being no later than 3.00 p.m. on 30 June 2020 in
respect of the Conditional Placing).
The Placing and Subscription Agreement contains customary
warranties from the Company in favour of the Joint Brokers in
relation to, inter alia, the accuracy of the information in this
Announcement and other matters relating to the Group and its
business. In addition, the Company has agreed to indemnify the
Joint Brokers in relation to certain liabilities that they may
incur in respect of the Placing, Subscription and PrimaryBid
Offer.
The Joint Brokers (together acting in good faith) have the right
to terminate the Placing and Subscription Agreement in certain
circumstances prior to Second Admission, including (but not limited
to): in the event that any of the warranties in the Placing and
Subscription Agreement were untrue or inaccurate in any material
respect, or were misleading in any respect when given or in the
event of a material adverse change affecting the business,
financial trading position or prospects of the Company. The Brokers
shall also have a further right to terminate the Placing and
Subscription Agreement, following consultation with the Company to
the extent practicable, if, at any time before Second Admission
there occurs any change, or development involving a prospective
change, in national or international, military, diplomatic,
monetary, economic, political, financial, industrial or market
conditions or exchange rates or exchange controls, or any incident
of terrorism or outbreak or escalation of hostilities or any
declaration by the UK, the US or in any member or associate member
of the European Union or elsewhere of a national emergency or war
or pandemic, epidemic or any other calamity or crisis (including a
significant worsening of the Covid-19 crisis in the United Kingdom)
(amongst other things).
The Placing and Subscription Agreement also provides for the
Company to pay all agreed costs, charges and expenses of, or
incidental to, the Placing and Admission including all legal and
other professional fees and expenses up to the specified amounts
stipulated in the Placing and Subscription Agreement.
Fundraising Shares
The Fundraising Shares, when issued, will be fully paid and will
rank pari passu in all respects with the existing Ordinary Shares
in issue, including the right to receive all dividends and other
distributions declared, made or paid after the date of issue.
Applications will be made to the London Stock Exchange for
admission of the Firm Fundraising Shares and the Conditional
Fundraising Shares to trading on AIM.
Application will be made to Euronext Dublin for admission of the
Firm Fundraising Shares and the Conditional Fundraising Shares to
trading on Euronext Growth.
It is expected that First Admission of the Firm Fundraising
Shares ("First Admission") will take place on or before 8.00 a.m.
on 29 May 2020 and that dealings in the Firm Fundraising Shares on
AIM will commence at the same time. It is expected that Second
Admission of the Conditional Fundraising Shares ("Second Admission"
and, together with First Admission "Admission" , as the context may
require) will take place on or before 8.00 a.m. on 12 June 2020 and
that dealings in the Conditional Fundraising Shares on AIM will
commence at the same time.
General Meeting
The General Meeting will be held at 11.00 a.m. on 11 June 2020,
at which the Resolutions will be proposed for the purposes of
implementing the Second Admission as follows:
Resolution 1 - an ordinary resolution to grant the Directors
authority to allot shares in the Company and to grant right to
subscribe for, or convert or exchange any security into shares in
the Company.
Resolution 2 - a special resolution to disapply statutory
pre-emption rights otherwise applicable to the Company in respect
of resolution one.
IMPORTANT INFORMATION
This Announcement has been issued by, and is the sole
responsibility, of the Group. No representation or warranty express
or implied, is or will be made as to, or in relation to, and no
responsibility or liability is or will be accepted by the Joint
Brokers or by any of their respective affiliates or agents as to or
in relation to, the accuracy or completeness of this Announcement
or any other written or oral information made available to or
publicly available to any interested party or its advisers, and any
liability therefore is expressly disclaimed.
NOTICE TO OVERSEAS PERSONS
This Announcement does not constitute, or form part of, a
prospectus relating to the Group, nor does it constitute or contain
any invitation or offer to any person, or any public offer, to
subscribe for, purchase or otherwise acquire any shares in the
Group or advise persons to do so in any jurisdiction, nor shall it,
or any part of it form the basis of or be relied on in connection
with any contract or as an inducement to enter into any contract or
commitment with the Group. In particular, the Fundraising Shares
have not been, and will not be, registered under the United States
Securities Act of 1933 as amended or qualified for sale under the
laws of any state of the United States or under the applicable laws
of any of Canada, Australia, New Zealand, the Republic of South
Africa or Japan and, subject to certain exceptions, may not be
offered or sold in the United States or to, or for the account or
benefit of, US persons (as such term is defined in Regulation S
under the Securities Act) or to any national, resident or citizen
of Canada, Australia, New Zealand, the Republic of South Africa or
Japan.
The distribution or transmission of this Announcement and the
offering of the Fundraising Shares in certain jurisdictions other
than the UK may be restricted or prohibited by law or regulation.
Persons distributing this Announcement must satisfy themselves that
it is lawful to do so. Any failure to comply with these
restrictions may constitute a violation of the securities laws of
any such jurisdiction. No action has been taken by the Group that
would permit an offering of such shares or possession or
distribution of this Announcement or any other offering or
publicity material relating to such shares in any jurisdiction
where action for that purpose is required. Persons into whose
possession this Announcement comes are required by the Group to
inform themselves about, and to observe, such restrictions. In
particular, this announcement may not be distributed, directly or
indirectly, in or into the United States, Canada, Australia, New
Zealand, the Republic of South Africa or Japan. Overseas
Shareholders and any person (including, without limitation,
nominees and trustees), who have a contractual or other legal
obligation to forward this Announcement to a jurisdiction outside
the UK should seek appropriate advice before taking any action.
FORWARD-LOOKING STATEMENTS
This Announcement includes statements that are, or may be deemed
to be, "forward-looking statements". These forward-looking
statements can be identified by the use of forward-looking
terminology, including the terms "believes", "estimates", "plans",
"projects", "anticipates", "expects", "intends", "may", "will", or
"should" or, in each case, their negative or other variations or
comparable terminology. These forward-looking statements include
matters that are not historical facts. They appear in a number of
places throughout this Announcement and include statements
regarding the Directors' current intentions, beliefs or
expectations concerning, among other things, the Group's results of
operations, financial condition, liquidity, prospects, growth,
strategies and the Group's markets.
By their nature, forward-looking statements involve risk and
uncertainty because they relate to future events and circumstances.
Actual results and developments could differ materially from those
expressed or implied by the forward-looking statements.
Forward-looking statements may and often do differ materially
from actual results and are not guarantees of future performance.
Any forward-looking statements in this Announcement are based on
certain factors and assumptions, including the Directors' current
view with respect to future events and are subject to risks
relating to future events and other risks, uncertainties and
assumptions relating to the Group's operations, results of
operations, growth strategy and liquidity. Whilst the Directors
consider these assumptions to be reasonable based upon information
currently available, they may prove to be incorrect. Save as
required by law or by the AIM Rules or the Euronext Growth Rules,
none of the Group, Arden, finnCap, Davy nor their respective
directors undertakes any obligation to publicly release the results
of any revisions to any forward-looking statements in this
Announcement that may occur due to any change in the Directors'
expectations or to reflect events or circumstances after the date
of this Announcement.
GENERAL
Arden, which is authorised and regulated by the FCA in the
United Kingdom, is acting as Nomad and Joint Broker to the Group in
connection with the Fundraising. Arden will not be responsible to
any person other than the Group for providing the protections
afforded to clients of Arden or for providing advice to any other
person in connection with the Fundraising. Arden is not making any
representation or warranty, express or implied, as to the contents
of this Announcement. Arden has not authorised the contents of, or
any part of, this Announcement, and no liability whatsoever is
accepted by Arden for the accuracy of any information or opinions
contained in this Announcement or for the omission of any material
information.
finnCap, which is authorised and regulated by the FCA in the
United Kingdom, is acting as Joint Broker to the Group in
connection with the Fundraising. finnCap will not be responsible to
any person other than the Group for providing the protections
afforded to clients of finnCap or for providing advice to any other
person in connection with the Fundraising. finnCap is not making
any representation or warranty, express or implied, as to the
contents of this Announcement. finnCap has not authorised the
contents of, or any part of, this Announcement, and no liability
whatsoever is accepted by finnCap for the accuracy of any
information or opinions contained in this Announcement or for the
omission of any material information.
The Fundraising Shares will not be admitted to trading on any
stock exchange other than AIM and Euronext Growth.
Nothing in this Announcement shall be effective to limit or
exclude any liability for fraud or which otherwise, by law or
regulation, cannot be so limited or excluded.
Neither the content of the Group's website (or any other
website) nor the content of any website accessible from hyperlinks
on the Group's website (or any other website) is incorporated into,
or forms part of, this Announcement.
INTERPRETATION
Certain terms used in this Announcement are defined under the
heading "Definitions" in Appendix II of this Announcement.
All times referred to in this Announcement are, unless otherwise
stated, references to London time.
All references to legislation in this Announcement are to the
legislation of England and Wales unless the contrary is indicated.
Any reference to any provision of any legislation or regulation
shall include any amendment, modification, re-enactment or
extension thereof.
Words importing the singular shall include the plural and vice
versa, and words importing the masculine gender shall include the
feminine or neutral gender and vice versa.
APPIX I
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR INVITED PLACEES ONLY REGARDING THE
PLACING.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THE ANNOUNCEMENT REGARDING THE PLACING AND THE TERMS AND
CONDITIONS ("TERMS AND CONDITIONS") SET OUT HEREIN (TOGETHER, THE
"ANNOUNCEMENT") 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: (1) IF IN A MEMBER STATE OF THE
EUROPEAN ECONOMIC AREA ("EEA"), QUALIFIED INVESTORS AS DEFINED IN
ARTICLE 2(1)(e) OF DIRECTIVE 2003/71/EC AS AMED FROM TIME TO TIME
("QUALIFIED INVESTORS"), INCLUDING BY THE 2010 PROSPECTUS DIRECTIVE
AMING DIRECTIVE (DIRECTIVE 2010/73/EC) AND TO THE EXTENT
IMPLEMENTED IN THE RELEVANT MEMBER STATE (THE "PROSPECTUS
DIRECTIVE"); (2) IF IN THE UNITED KINGDOM, INVESTORS WHO ARE
QUALIFIED INVESTORS (ACTING AS PRINCIPAL OR IN CIRCUMSTANCES TO
WHICH SECTION 86(2) OF FSMA APPLIES) AND WHO ARE PERSONS WHO: (A)
FALL WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT
2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMED (THE "ORDER")
(INVESTMENT PROFESSIONALS) OR (B) FALL WITHIN ARTICLE 49(2)(a) TO
(d) (HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC.)
OF THE ORDER (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS
"RELEVANT PERSONS").
THE ANNOUNCEMENT AND THE INFORMATION IN IT MUST NOT BE ACTED ON
OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS
DISTRIBUTING THE ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS
LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THE
ANNOUNCEMENT RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL
BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THE ANNOUNCEMENT DOES NOT
ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY
SECURITIES IN OPEN ORPHAN PLC.
THE PLACING SHARES HAVE NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMED (THE
"SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY AUTHORITY OF
ANY STATE OR JURISDICTION OF THE UNITED STATES, AND MAY NOT BE
OFFERED, SOLD OR 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 CONTAINED HEREIN
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 OR JAPAN OR ANY OTHER JURISDICTION IN WHICH SUCH
RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL.
The distribution of the Announcement 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, the
Brokers 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 Announcement 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 the Announcement comes are
required by the Company and the Brokers to inform themselves about
and to observe any such restrictions.
The Announcement or any part of it is for information purposes
only and does 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 (including its
territories and possessions, any state of the United States and the
District of Columbia), Australia, Canada, the Republic of South
Africa 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.
All offers of the Placing Shares in the EEA will be made
pursuant to an exemption under the Prospectus Directive from the
requirement to produce a prospectus. In the United Kingdom, the
Announcement is 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.
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. 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 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 or Japan or
any other jurisdiction outside the United Kingdom.
Persons (including, without limitation, nominees and trustees)
who have a contractual right or other legal obligations to forward
a copy of the Announcement should seek appropriate advice before
taking any action.
The Announcement (including the Terms and Conditions) should be
read in its entirety. Capitalised terms not defined in these Terms
and Conditions shall have the meaning given to them in the
Announcement.
By participating in the Placing (such participation to be
confirmed in a recorded telephone conversation with the Brokers),
each person who is invited to and who chooses to participate in the
Placing (a "Placee") will be deemed to have read and understood the
Announcement in its entirety, to be participating and acquiring
Placing Shares on the Terms and Conditions contained herein 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) 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. in the case of a Relevant Person in a member state of the EEA
which has implemented the Prospectus Directive (each, a "Relevant
Member State") who acquires any Placing Shares pursuant to the
Placing:
(a) it is a Qualified Investor within the meaning of Article
2(1)(e) of the Prospectus Directive; and
(b) in the case of any Placing Shares acquired by it as a
financial intermediary, as that term is used in Article 3(2) of the
Prospectus Directive:
(i) the Placing Shares acquired by it in the Placing have not
been acquired on behalf of, nor have they been acquired with a view
to their offer or resale to, persons in any Relevant Member State
other than Qualified Investors or in circumstances in which the
prior consent of the Brokers have been given to the offer or
resale; or
(ii) where Placing Shares have been acquired by it on behalf of
persons in any Relevant Member State other than Qualified
Investors, the offer of those Placing Shares to it is not treated
under the Prospectus Directive as having been made to such persons;
and
3. 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
4. it understands (or if acting for the account of another
person, such person has confirmed that such person understands) the
resale and transfer restrictions set out in these Terms and
Conditions; and
5. 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 the Announcement
(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
Brokers or the Company or any other person and none of the Brokers,
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 to be legal,
tax or business advice. Nothing in this paragraph shall exclude the
liability of any person for fraudulent misrepresentation.
Details of the Placing and Subscription Agreement and the
Placing Shares
The Brokers will shortly be entering into a placing and
subscription agreement (the "Placing and Subscription Agreement")
with the Company under which, on the terms and subject to the
conditions set out in the Placing and Subscription Agreement, the
Brokers, as joint agents for and on behalf of the Company, have
agreed to use their reasonable endeavours to procure Placees for
the Placing Shares.
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 issued ordinary shares of GBP0.001 each ("Ordinary
Shares") in the capital of the Company, 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.
Application for admission to trading
Application will be made to the London Stock Exchange for
admission of the Fundraising Shares to trading on AIM.
It is expected that: (i) First Admission will take place on or
around 8.00 a.m. on 29 May 2020 and that dealings in the Firm
Fundraising Shares on AIM will commence at the same time; and (ii)
Second Admission will take place on or around 8.00 a.m. on 12 June
2020 and that dealings in the Conditional Fundraising Shares on AIM
will commence at the same time.
Principal terms of the Placing
1. The Brokers are acting bookrunners to the Placing, as agent
for and on behalf of the Company.
2. Participation in the Placing will only be available to
persons who may lawfully be, and are, invited by the Brokers to
participate. The Brokers and any of their affiliates are entitled
to participate in the Placing as principal.
3. The price per Placing Share (the "Issue Price") will be
agreed between the Company and the Brokers following the date of
the Placing and Subscription Agreement and as stated in the Results
Announcement and the final fixed figure is payable to the relevant
Broker (in each case acting as agent for the Company) by all
Placees.
4. Each Placee's allocation will be determined by the relevant
Broker in their discretion following consultation with the Company
and will be confirmed orally by the relevant Broker. The relevant
number of Placing Shares in each Placee's allocation will be
allocated equally between First Admission and Second Admission.
5. Each Placee's commitment will be confirmed in and evidenced
by each Broker by a recorded telephone call between representatives
of each Broker and the relevant Placee (the "Recorded Call"). These
Terms and Conditions will be deemed incorporated into the contract
which is entered into on the Recorded Call 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 Call and, except
with the relevant Broker's prior written consent, will not be
capable of variation or revocation after such time. Without
prejudice to the foregoing, a contract note recording each Placee's
commitment will be sent to them following the Recorded Call.
6. From the end of the relevant Recorded Call, each Placee will
have an immediate, separate, irrevocable and binding obligation,
owed to the relevant Broker (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 such
Placee has agreed to acquire and the Company has agreed to allot
and issue to that Placee.
7. Except as required by law or regulation, no press release or
other announcement will be made by either Broker or the Company
using the name of any Placee (or its agent), in its capacity as
Placee (or agent), other than with such Placee's prior written
consent.
8. Irrespective of the time at which a Placee's allocation(s)
pursuant to the Placing is/are confirmed, settlement for all
Placing Shares to be acquired pursuant to the Placing will be
required to be made at the same time, on the basis explained below
under "Registration and settlement".
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 will agree 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.
11. To the fullest extent permissible by law and applicable FCA rules, neither:
(a) of the Brokers;
(b) any of their affiliates, agents, advisers, directors,
officers, consultants or employees; nor
(c) to the extent not contained within (a) or (b), any person
connected with the Brokers as defined in the FSMA ((b) and (c)
being together "affiliates" and individually an "affiliate" of the
Brokers),
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 any of the Brokers nor any of their affiliates shall have
any liability (including, to the extent permissible by law, any
fiduciary duties) in respect of any of the Broker's conduct of the
Placing or of such alternative method of effecting the Placing as
the Brokers and the Company may agree.
Registration and settlement
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 relevant Broker in accordance with either the
standing CREST or certificated settlement instructions which they
have in place with the relevant Broker.
Settlement of transactions in the Placing Shares
(ISIN:GB00B9275X97) 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 relevant Broker and is expected to occur
on 29 May 2020 (the "Settlement Date"). However, in the event of
any difficulties or delays in the admission of the Placing Shares
to CREST or the use of CREST in relation to the Placing, the
Company and the Brokers may agree that the Placing Shares should be
issued in certificated form. The Brokers reserve the right to
require settlement for the Placing Shares, and to deliver the
Placing Shares to Placees, by such other means as each may deem
necessary if delivery or settlement to Placees 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
relevant Broker.
Each Placee is deemed to agree that if it does not comply with
these obligations, the relevant Broker may sell any or all of their
Placing Shares on their behalf and retain from the proceeds, for
the relevant Broker'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 and Subscription
Agreement becoming unconditional and not having been terminated in
accordance with its terms.
The obligations of the Brokers under the Placing and
Subscription Agreement are, and the Firm Placing is, conditional
upon, inter alia:
(a) the delivery by the Company to the Brokers of certain
documents required under the Placing and Subscription
Agreement;
(b) the release of the Launch Announcement through a Regulatory
Information Service by not later than 8.00 am on 22 May 2020 (or
such later date as is agreed in writing between the Company and
each of the Brokers);
(c) the release of the Results Announcement through a Regulatory
Information Service by not later than 4.30 pm on 22 May 2020 (or
such later date as is agreed in writing between the Company and the
Brokers);
(d) the Firm Placing Shares and the Firm PrimaryBid Shares
having been allotted, conditional only on First Admission, by 8.00
a.m. 29 May 2020 or such later time as may be agreed between the
Company and the Brokers, not being later than 5.00 p.m. on the
First Long Stop Date;
(e) the Company complying with its obligations under this
Agreement in all material respects to the extent that the same fall
to be performed prior to First Admission or Second Admission (as
applicable);
(f) none of the Warranties being untrue or inaccurate or
misleading in any material respect at any time between the
execution of this agreement and First Admission and no fact or
circumstance having arisen which would render any of the Warranties
untrue or inaccurate or misleading in any material respect if it
was repeated as at any time up to First Admission by reference to
such facts or circumstances; and
(g) First Admission taking place not later than 8.00 am on the
First Admission Target Date or such later date as is agreed in
writing between the Company and the Brokers, but in any event not
later than 8.00 am on the First Long Stop Date,
and, in respect of the Conditional Placing specifically, inter
alia:
(h) First Admission becoming effective in accordance with the
AIM Rules not later than 8.00am on the First Admission Target Date
or such later date as the Company and the Brokers may agree, being
not later than the First Long Stop Date;
(i) the passing of each of the Resolutions by the necessary
majority at the General Meeting;
(j) none of the Warranties being untrue or inaccurate or
misleading in any material respect at any time between the
execution of this agreement and Second Admission and no fact or
circumstance having arisen which would render any of the Warranties
untrue or inaccurate or misleading in any material respect if it
was repeated as at any time up to Second Admission by reference to
such facts or circumstances;
(k) the Company allotting the Conditional Placing Shares,
Conditional PrimaryBid Shares and the Subscription Shares prior to
and conditional only on Second Admission, by 8.00 a.m. 12 June 2020
or such later time as may be agreed between the Company and the
Brokers, not being later than 5.00 p.m. on the Second Long Stop
Date; and
(l) Second Admission becoming effective in accordance with the
AIM Rules not later than 8.00am on the Second Admission Target Date
or such later date as the Company and the Brokers may agree, being
not later than the Second Long Stop Date.
(all conditions to the obligations of the Brokers included in
the Placing and Subscription Agreement being together, the
"conditions").
If any of the conditions is not fulfilled or, where permitted,
extended or waived in accordance with the Placing and Subscription
Agreement within the stated time periods (or such later time and/or
date as the Company and the Brokers may agree), or the Placing and
Subscription Agreement is terminated in accordance with its terms,
the Placing 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 Brokers may waive fulfilment of all or any of the conditions
in the Placing and Subscription Agreement in whole or in part, or
extend the time and/or date provided for fulfilment of one or more
conditions. Any such extension or waiver will not affect Placees'
commitments as set out in these Terms and Conditions.
The Brokers may terminate the Placing and Subscription Agreement
in certain circumstances, details of which are set out below.
Neither the Brokers nor any of their 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 nor for any decision any of them may make as to the
satisfaction of any condition or in respect of the Placing
generally and by participating in the Placing each Placee agrees
that any such decision is within the absolute discretion of the
Brokers.
Termination of the Placing
If at any time before Second Admission, in the opinion of the
Brokers (together acting in good faith) any of the following occur,
the Brokers have the right to terminate the Placing and
Subscription Agreement with immediate effect (each capitalised word
as defined in the Placing and Subscription Agreement unless
otherwise defined in these Terms and Conditions):
(a) any statement contained in any of the Placing Documents or
any subscription agreements to be entered into between the Company
and subscribers relating to the Subscription has become or been
discovered to be untrue, inaccurate or misleading in any material
respect or that there has been a material omission therefrom;
or
(b) any of the Warranties was, when given, untrue or inaccurate
in any material respect or misleading in any respect; or
(c) any of the Warranties is not, or has ceased to be, true and
accurate in all material respects or is or has become misleading in
any respect (or would not be true and accurate in all material
respects or would be misleading if then repeated) by reference to
the facts subsisting at the time; or
(d) circumstanc es have occurred or are likely to occur which
will result in any of the Warranties not being, or ceasing to be,
true and accurate in all material respects and not misleading in
all respects (or any of the Warranties would not be true and
accurate in all material respects and not misleading if then
repeated); or there has been a material (in either of the Brokers'
reasonable opinion) breach by the Company of its obligations under
this Agreement; or
(e) the London Stock Exchange, the FCA or any other Agency in
any jurisdiction launches or threatens to launch an investigation
into the affairs of the Group;
(f) an event or other matter (including, without limitation, any
change or development in economic, financial, p olitical,
diplomatic or other market conditions or any change in any
government regulation) has occurred or is likely to occur which, in
the good faith opinion of the Brokers, is (or will be if it occurs)
likely materially and prejudicially to affect the financial
position or the business or prospects of the Company or otherwise
makes it impractical or inadvisable for any of the Brokers to
perform their respective obligations under this Agreement; for
these purposes "market conditions" includes conditions affecting
securities in the business sector in which the Company operates and
conditions affecting securities generally; or
(g) there has occurred any other crisis of international or
national effect (including, but not limited to, in the opinion of
the Brokers, a significant worsening of the situation relating to
COVID-19 in the United Kingdom),
If, at any time before Second Admission, any of the following
occur, which, in either of the Brokers' reasonable opinion
(together acting in good faith), would or would be likely to
prejudice materially any Group Company or the Placing, or make the
success of the Placing doubtful or makes it impracticable or
inadvisable to proceed with the Placing (or any part thereof), or
render the creation of a market in the ordinary share capital of
the Company temporarily or permanently impracticable, then either
Broker (acting solely), subject as follows, will have the right,
after consultation with the Company and the other Broker to the
extent practicable, by notice to the Company (either in writing, or
orally but then confirmed in writing) to terminate the Placing and
Subscription Agreement with immediate effect (each capitalised word
as defined in the Placing and Subscription Agreement unless
otherwise defined in these Terms and Conditions):
(a) any change, or development involving a prospective change,
in national or international, military, diplomatic, monetary,
economic, political, financial, industrial or market conditions or
exchange rates or exchange controls, or any incident of terrorism
or outbreak or escalation of hostilities or any declaration by the
UK, the US or in any member or associate member of the European
Union or elsewhere of a national emergency or war or pandemic,
epidemic or any other calamity or crisis (including a significant
worsening of the COVID-19 crisis in the United Kingdom); or
(b) a suspension of trading in securities generally on the
London Stock Exchange or New York Stock Exchange or trading is
limited or minimum prices established on any such exchange; or
(c) a declaration of a banking moratorium in London or by the US
federal or New York State authorities or any material disruption to
commercial banking or securities settlement or clearance services
in the US or the UK,
If the Placing and Subscription Agreement is terminated in
accordance with the above termination provisions, including (but
not limited to) any non-fulfilment of the conditions, then the
Brokers shall be paid the expenses payable pursuant to Clause 11 as
if Admission had occurred together with any VAT payable thereon (if
applicable).
If the Placing and Subscription Agreement is terminated in
accordance with its terms, the rights and obligations of each
Placee in respect of the Placing as described in the Announcement
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 Brokers that the exercise by the Company or the
Brokers of any right of termination or any other right or other
discretion under the Placing and Subscription Agreement shall be
within the absolute discretion of the Company or the Brokers or for
agreement between the Company and the Brokers (as the case may be)
and that neither the Company nor the Brokers need make any
reference to such Placee and that none of the Company, the Brokers
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 participating in the Placing, each Placee agrees that its
rights and obligations 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 at
any time after the end of the Recorded Call confirming the relevant
Placee's allocation and commitment in the Placing.
Representations, warranties and further terms
By participating in the Placing, each Placee (and any person
acting on such Placee's behalf) represents, warrants, acknowledges,
confirms and agrees (for itself and for any such prospective
Placee) that (save where the Brokers expressly agree in writing to
the contrary):
1. it has read and understood the Announcement (including these
Terms and Conditions) in its entirety and that its acquisition of
the 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 that it has not relied on, and will not rely
on, any investor presentation, 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 other 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 the Prospectus Directive or other applicable law; and
(b) has been or will be prepared in connection with the Placing;
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 (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 Brokers 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 or the Publicly Available
Information; nor has it requested the Brokers, 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 Brokers nor any person acting on behalf of it nor
any of its 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 this paragraph 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 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 the Publicly Available Information;
(b) neither the Brokers, nor the Company (nor any of their
respective affiliates, agents, directors, officers and 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 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 Brokers or
any person acting on their behalf may have conducted with respect
to the Company, the Placing or the Placing Shares;
7. the content of the Announcement and the other Publicly
Available Information has been prepared by and is exclusively the
responsibility of the Company and that neither of the Brokers nor
any persons acting on their behalf are responsible for or have or
shall have any liability for any information, representation,
warranty or statement relating to the Company contained in the
Announcement or the other Publicly Available Information nor will
they be liable for any Placee's decision to participate in the
Placing based on any information, representation, warranty or
statement contained in the Announcement, the other Publicly
Available Information or otherwise. Nothing in these Terms and
Conditions shall exclude any liability of any person for fraudulent
misrepresentation;
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 terms
of the Announcement 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 Brokers determine;
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 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 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:
"THESE SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMED (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 the Announcement or any part of it, 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 Brokers, their affiliates and any person acting
on behalf of any of them is making any recommendations to them or
advising any of them regarding the suitability of any transactions
they 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 Brokers and that the Brokers have 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 and
Subscription 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 relevant Broker for the Placing
Shares allocated to it in accordance with these Terms and
Conditions on or by the due time and date set out in the
Announcement, failing which the relevant Placing Shares may be
placed with others on such terms as the Brokers determine in their
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 allocation (if any) of Placing Shares will represent a
maximum number of Placing Shares which it will be entitled, and
required, to subscribe for, and that the relevant Broker 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 Brokers or any person acting on behalf of the Company or the
Brokers 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. the Brokers and the Company will not be responsible for any
liability to stamp duty or stamp duty reserve tax resulting from a
failure to observe this 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
Brokers in respect of the same on the basis that the Placing Shares
will be allotted to a CREST stock account of the Brokers or
transferred to a CREST stock account of the relevant Broker 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 that 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 the Placee is in the UK, the Placee is a Qualified
Investor (acting as principal or in circumstances to which section
86(2) of FSMA applies) and a person: (i) who has professional
experience in matters relating to investments falling within
article 19(5) of the Order; or (ii) a high net worth entity falling
within article 49(2)(a) to (d) of the Order; or (iii) is a person
to whom this Announcement may otherwise be lawfully communicated,
and in all cases is capable of being categorised as a Professional
Client or Eligible Counterparty for the purposes of the Financial
Conduct Authority Conduct of Business Rules;
;
29. it has not offered or sold and will not offer or sell any
Placing Shares to persons in the United Kingdom or elsewhere in the
EEA prior to the expiry of a period of six months from Admission
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 or an offer to the public in any other
member state of the EEA within the meaning of the Prospectus
Directive;
30. if it is within the EEA (other than the United Kingdom), it
is a Qualified Investor as defined in section 86(7) of the FSMA,
being a person falling within Article 2(1)(e) of the Prospectus
Directive;
31. 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 the Announcement has not been approved by the Brokers
in their capacity as authorised persons 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;
32. 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);
33. if it is a financial intermediary, as that term is used in
Article 3(2) of the Prospectus Directive (including any relevant
implementing measure in any member state), 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, persons in a member state
of the EEA which has implemented the Prospectus Directive other
than Qualified Investors, or in circumstances in which the express
prior written consent of the Brokers have been given to the offer
or resale;
34. 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;
35. neither the Brokers, the Company nor any of their respective
affiliates, agents, advisers, directors, officers or employees nor
any person acting on behalf of the Brokers or their affiliates,
agents, directors, officers or employees 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 and
Subscription Agreement nor the exercise or performance of any of
the Brokers' rights and obligations thereunder including any rights
to waive or vary any conditions or exercise any termination
right;
36. the Brokers and their 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 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 Brokers and/or any of
their affiliates acting as an investor for its or their own
account(s). Neither the Brokers 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;
37. it:
(a) has complied 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 the
paragraph 37 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 Brokers 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 Brokers 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 Brokers may decide at their sole discretion;
38. in order to ensure compliance with the Regulations, the
Brokers (for themselves and as joint agents 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 Brokers or the Company's registrars, as
applicable, of evidence of identity, definitive certificates in
respect of the Placing Shares may be retained at the Brokers'
absolute discretion or, where appropriate, delivery of the Placing
Shares to either of them in uncertificated form may be delayed at
the Brokers' 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 Brokers (for themselves and as
joint agents on behalf of the Company) or the Company's registrars
have not received evidence satisfactory to them, either the Brokers
and/or the Company may, at their 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;
39. it acknowledges that 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 Brokers' conduct of the Placing;
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
Brokers 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 the these Terms and
Conditions;
42. the Company, the Brokers 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 Brokers 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 Brokers;
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 Brokers 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 Brokers 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 the
Brokers, the Company or each of their respective affiliates,
agents, directors, officers or employees arising from the
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 Brokers 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
Brokers 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 Brokers in
the event that either the Company and/or the Brokers 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 Brokers for themselves and on behalf of the Company and are
irrevocable.
Arden and finnCap are each authorised and regulated by the FCA
in the United Kingdom and are acting jointly and exclusively for
the Company and no one else in connection with the Placing, and
each of Arden and finnCap will not be responsible to anyone
(including any Placees) other than the Company for providing the
protections afforded to its clients or for providing advice in
relation to the Placing or any other matters referred to in the
Announcement.
Each Placee and any person acting on behalf of the Placee
acknowledges that the Brokers do not owe any fiduciary or other
duties to any Placee in respect of any representations, warranties,
undertakings, acknowledgements, agreements or indemnities in the
Placing and Subscription Agreement.
Each Placee and any person acting on behalf of the Placee
acknowledges and agrees that the Brokers may (at their absolute
discretion) satisfy their obligations to procure Placees by
themselves 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 any of the Brokers, any money held in an account with
the relevant Broker 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
Brokers' 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 the Announcement is intended to be a profit
forecast or estimate, and no statement in the Announcement should
be interpreted to mean that earnings per share of the Company for
the current or future financial years would necessarily match or
exceed the historical published earnings per share of the
Company.
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 the London
Stock Exchange.
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, the Announcement.
APPIX II
DEFINITIONS
"Admission" the First Admission and Second Admission of the relevant Fundraising
Shares to trading on
AIM and Euronext Growth in accordance with Rule 6 of the AIM Rules
and Rule 6 of the Euronext
Growth Rules respectively
"AIM" the AIM Market of the London Stock Exchange
"AIM Rules" the rules applicable to companies governing their admission to AIM,
and following admission
their continuing obligations to AIM, as set out in the AIM Rules for
Companies published by
the London Stock Exchange from time to time
"Announcement" this announcement (including Appendices I and II which form part of
this announcement) dated
22 May 2020
"Arden" means Arden Partners plc, nominated adviser and joint broker to the
Company
"business day" a day (excluding Saturdays, Sundays and public holidays) on which
banks are generally open
for business in the City of London
"certificated" or in "certificated form" where a share or other security is not in uncertificated form (that
is, not in CREST)
"Circular" the circular of the Company to be posted to Shareholders on or around
26 May 2020 giving (amongst
other things) details of the Fundraising and incorporating the Notice
of General Meeting
"Conditional Fundraise" the Conditional Placing, the Conditional PrimaryBid Offer and the
Subscription
"Conditional Fundraising Shares" approximately 70,000,000 new Ordinary Shares comprising the
Conditional Placing Shares, the
Conditional PrimaryBid Shares and the Subscription Shares
"Conditional Placing" the conditional placing by the Joint Brokers (on behalf of the
Company) of the Conditional
Placing Shares at the Issue Price subject to, inter alia, the passing
of the Resolutions and
Second Admission
"Conditional Placing Shares" such number of new Ordinary Shares to be allotted and issued pursuant
to the Conditional Placing
"Conditional PrimaryBid Offer" the conditional offer for subscription of new Ordinary Shares to be
undertaken by PrimaryBid
on behalf of the Company subject to, inter alia, the passing of the
Resolutions and Second
Admission
"Conditional PrimaryBid Shares" such number of new Ordinary Shares to be allotted and issued pursuant
to the Conditional PrimaryBid
Offer
"CREST" the relevant system (as defined in the CREST Regulations) in respect
of which Euroclear is
the Operator (as defined in the CREST Regulations)
"CREST Regulations" the Uncertificated Securities Regulations 2001 (SI 2001 No. 3755)
"CRO" Clinical Research Organisation
"Davy" J&E Davy, trading as Davy, the Group's Euronext Growth Adviser
"Directors" any member of the Company's board of directors
"EEA" the European Economic Area
"Enlarged Issued Share Capital" the Ordinary Shares which shall be in issue immediately following
Second Admission
"Existing Shares" the 549,038,274 Ordinary Shares in issue at the date of this
document, all of which are admitted
to trading on AIM
"Euro", "EUR" the currency adopted by those nations participating in the third
stage of the economic and
monetary union provisions of the Treaty on European Union, signed at
Maastricht on February
7, 1992
"Euroclear" Euroclear UK & Ireland Limited, a company incorporated under the laws
of England and Wales
"Euronext Growth" the market of that name operated by Euronext Dublin
"Euronext Growth Rules" the Euronext Growth Rules for Companies published by Euronext Dublin
from time to time
"FCA" the UK Financial Conduct Authority
"finnCap" means finnCap Ltd, joint broker to Open Orphan
"First Admission" the Admission of the Firm Placing Shares and the Firm PrimaryBid
Shares
"Firm Fundraise" the Firm Placing and Firm PrimaryBid Offer
"Firm Fundraising Shares" Up to 44,824,000 new Ordinary Shares comprising the Firm Placing
Shares and the Firm PrimaryBid
Shares
"Firm Placing" the placing of the Firm Placing Shares by the Joint Brokers (on
behalf of the Company) of
the Firm Placing Shares at the Issue Price
"Firm Placing Shares" such number of Ordinary Shares, to be allotted and issued pursuant to
the Firm Placing
"Firm PrimaryBid Offer" the offer for subscription conducted by PrimaryBid of the Firm
PrimaryBid Shares at the Issue
Price
"Firm PrimaryBid Shares " such number of Ordinary Shares, to be allotted and issued pursuant to
the Firm PrimaryBid
Offer
"Form of Proxy" the form of proxy for use by Shareholders in connection with the
General Meeting, which is
enclosed with the Circular
"FSMA" the Financial Services and Markets Act 2000 (as amended)
"Fundraising" the proposed Placing, the PrimaryBid Offer and Subscription of new
Ordinary Shares to be undertaken
by Open Orphan
"Fundraising Shares" the Firm Fundraising Shares and the Conditional Fundraising Shares
"General Meeting" the general meeting of the Company convened for 11 a.m. on 11 June
2020 (or any adjournment
thereof) at which the Resolutions will be proposed, notice of which
is set out at the end
of the Circular
"hVIVO" the hVIVO business of the Group
"Issue Price" 11 pence per Fundraising Share
"Joint Brokers" Arden and finnCap
"London Stock Exchange" London Stock Exchange plc
"Market Abuse Regulation" the Market Abuse Regulation (2014/596/EU) (incorporating the
technical standards, delegated
regulations and guidance notes, published by the European Commission,
London Stock Exchange,
the FCA and the European Securities and Markets Authority)
"Notice of General Meeting" the notice of General Meeting to be sent to Shareholders
"Open Orphan" or the " Company" Open Orphan plc
"Open Orphan Directors" or "Directors" any member of the Open Orphan board of directors
"Open Orphan Group" or "Group" Open Orphan and its subsidiaries and subsidiary undertakings (each as
defined in the Companies
Act 2006)
"Ordinary Shares" the ordinary shares of 0.1 pence each in the capital of the Company
"Overseas Shareholders" Shareholders of Open Orphan who are resident in, ordinarily resident
in, or citizens of, jurisdictions
outside the United Kingdom
"Placing" the proposed Firm Placing and Conditional Placing to be undertaken by
Open Orphan
"Placing and Subscription Agreement" the placing and subscription agreement entered into on 22 May 2020
(and as amended and restated)
between the Company, Arden and finnCap
"Placing Shares" together, the Firm Placing Shares and the Conditional Placing Shares
proposed to be issued
pursuant to the Placing
"PrimaryBid" means PrimaryBid limited, a limited company registered in England and
Wales (No. 08092575)
with its registered office at 21 Albemarle Street, London W1S 4BS.
PrimaryBid Limited
"PrimaryBid Offer" the proposed Firm PrimaryBid Offer and Conditional PrimaryBid offer
to be undertaken by Open
Orphan
"PrimaryBid Shares" the Firm PrimaryBid Shares and the Conditional PrimaryBid Shares
"Quotient Limited" a commercial-stage diagnostics company
"pounds", "GBP", "pence", "p" or "Sterling" the lawful currency of the United Kingdom
"Registrars" the Company's registrars, being SLC Registrars of Elder House, St
Georges Business Part, Weybridge,
Surrey
"Resolutions" the resolutions to be proposed at the General Meeting and set out in
the Notice of General
Meeting
"Second Admission" the Admission of the Conditional Placing Shares, the Conditional
PrimaryBid Shares and the
Subscription Shares
"Securities Act" the United States Securities Act of 1933, as amended
"Subscription" the proposed subscription of the Subscription Shares to be undertaken
by Open Orphan
"Subscription Shares" the Subscription Shares proposed to be issued pursuant to the
Subscription
"UK" or "United Kingdom" the United Kingdom of Great Britain and Northern Ireland
" uncertificated" or in "uncertificated form" in respect of a share or other security, where that share or other
security is recorded on
the relevant register of the share or security concerned as being
held in uncertificated form
in CREST and title to which may be transferred by means of CREST
"Venn" or "Venn Life Sciences" the Venn Life Sciences business of the Group
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 rns@lseg.com or visit www.rns.com.
END
IOEKKBBNPBKKFPB
(END) Dow Jones Newswires
May 22, 2020 02:00 ET (06:00 GMT)
Grafico Azioni Venn Life Sciences (LSE:VENN)
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