TIDMDFX
RNS Number : 2204N
Defenx plc
07 August 2017
THIS ANNOUNCEMENT, INCLUDING THE APPIX TO THIS ANNOUNCEMENT, AND
THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR
RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY
OR INDIRECTLY, IN OR INTO THE UNITED STATES, REPUBLIC OF IRELAND,
AUSTRALIA, CANADA, JAPAN, SOUTH AFRICA OR ANY OTHER JURISDICTION IN
WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE
UNLAWFUL.
THIS ANNOUNCEMENT, INCLUDING THE APPIX TO THIS ANNOUNCEMENT, IS
FOR INFORMATION PURPOSES ONLY AND DOES NOT ITSELF CONSTITUTE AN
OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
THIS ANNOUNCEMENT AND THE APPIX 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 DEFENX PLC IN ANY JURISDICTION IN WHICH ANY SUCH
OFFER OR SOLICITATION WOULD BE UNLAWFUL.
7 August 2017
Defenx PLC
("Defenx" or the "Company")
Proposed Placing and Subscription to raise approximately GBP1.37
million at 160 pence per share
Issue of Secured Convertible Bonds to raise up to GBP2
million
Defenx PLC (AIM:DFX), the cyber-security software group, is
pleased to announce a proposed Fundraising to raise up to
approximately GBP3.37 million (before expenses) comprising
approximately GBP1.12 million under a Placing and GBP0.25 million
under a Subscription by BV Tech at a price of 160 pence per share,
and up to GBP2 million through the issue of Secured Convertible
Bonds.
Highlights:
-- Proposed Placing of approximately GBP1.12 million before
expenses at a price of 160 pence per share
-- Subscription by BV Tech for up to GBP250,000 at a price of 160 pence per share
-- Placing being conducted through an accelerated book build
process which will open with immediate effect following this
announcement and is intended to close at 7.30 a.m.
-- In addition, the Company has granted the Broker Option to WH
Ireland so as to raise up to a further GBP450,000 before expenses
in order to enable WH Ireland to deal with additional demand
received after the closing of the accelerated book build
process
-- Proceeds to be used to accelerate the Group's growth plans, as further detailed below
-- Placing Price represents a discount of approximately 13.75
per cent to the closing mid-market price of Defenx's existing
ordinary shares of 185.5 pence on 4 August 2017
-- Placing and Subscription Shares, assuming full take-up, will
represent approximately 7.2 per cent. of the Company's existing
issued share capital
-- Further details of the Placing are set out in the appendix to this announcement
EXPECTED TIMETABLE OF PRINCIPAL EVENTS
Date of publication of 7 August 2017
this announcement
Expected date for Admission 11 August 2017
of the Placing Shares
CREST accounts to be 11 August 2017
credited for Placing
Shares in uncertificated
form
Secured Convertible Bond 9.00 a.m. on 14 August
auction opens 2017
Latest time and date 12.00 p.m. on 21 August
for receipt of Forms 2017
of Proxy
General Meeting 12.00 p.m. on 23 August
2017
Expected latest date 24 August 2017
for posting of share
certificates for Placing
Shares
Secured Convertible Bond 4.30 p.m. on 30 August
auction closes 2017
Issue of the Secured 31 August 2017
Convertible Bonds
Expected date for admission 1 September 2017
of the Subscription Shares
Each of the times and dates above are indicative only and refer
to London time and are subject to change. Any such change will be
notified by an announcement on a Regulatory Information
Service.
There is a pre--auction period, commencing on or around the date
of this announcement, for Eligible Investors to review the offering
of Secured Convertible Bonds, followed by a two week live auction
period, at the end of which the final Convertible Bond Issue size
and coupon will be determined.
Additional information on the Fundraising is included below.
Attention is also drawn to the section headed 'Important Notice'
and to the Appendix to this Announcement containing, inter alia,
the terms and conditions of the Placing (representing important
information for Placees only). The number of Placing Shares to be
issued in connection with the Placing will be determined by WH
Ireland at the close of the Bookbuild process, and the results of
the Placing will be announced as soon as practicable thereafter.
The timing of the closing of the book, pricing and allocations is
at the absolute discretion of WH Ireland.
Terms used but not defined in this Announcement shall have the
meanings given to such terms in the Definitions section of,
otherwise in the text of, the Appendix to this Announcement.
Enquiries
Defenx PLC
Andrea Stecconi - Chief Executive
Officer
Philipp Prince - Chief Financial
Officer 020 3769 0687
IFC Advisory (Financial PR and
IR)
Tim Metcalfe / Graham Herring
/ Heather Armstrong 020 3053 8671
Strand Hanson Limited (Nominated
and Financial Adviser)
Angela Hallett / Richard Tulloch
/ Ritchie Balmer 020 7409 3494
WH Ireland (Bookrunner and Joint-Broker)
Bookrunning queries: Melvyn Brown
/ David Kilbourn
Corporate finance queries: Paul
Shackleton / Jessica Cave / James
Sinclair Ford 020 7220 1666
Beaufort Securities (Joint-Broker)
Jon Belliss 020 7382 8300
The information contained within this announcement is deemed by
the Company to constitute inside information as stipulated under
the Market Abuse Regulations (EU) No. 596/2014 ("MAR").
Important Notice
MAR became effective from 3 July 2016. Market soundings, as
defined in MAR, were taken in respect of the Placing with the
result that certain persons became aware of inside information, as
permitted by MAR. That inside information is set out in this
Announcement and has been disclosed as soon as possible in
accordance with paragraph 7 of article 17 of MAR. Therefore, those
persons that received inside information in a market sounding are
no longer in possession of inside information relating to the
Company and its securities.
This Announcement does not constitute a prospectus for the
purposes of the Prospectus Rules of the Financial Conduct
Authority, nor does it comprise an admission document prepared in
accordance with the AIM Rules. Accordingly, this Announcement has
not been approved by or filed with the Financial Conduct
Authority.
This Announcement must not be distributed to a US Person (as
such term is defined in Rule 902 of Regulation S under the US
Securities Act of 1933, as amended (the "Securities Act")) or
within or into the United States, Canada, Japan, South Africa, the
Republic of Ireland or Australia. Neither the Ordinary Shares nor
the Secured Convertible Bonds have been and will not be registered
under the Securities Act, and may not be offered or sold or
subscribed, directly or indirectly, within the United States,
Canada, Japan, South Africa, the Republic of Ireland or Australia
or to or by any US Person or any national, resident or citizen of
Canada, Japan, the Republic of South Africa, the Republic of
Ireland or Australia or any corporation, partnership or other
entity created or organised under the laws thereof.
Strand Hanson Limited ("Strand Hanson"), which is a member of
the London Stock Exchange and is authorised and regulated in the
United Kingdom by the Financial Conduct Authority, is acting as
Financial and Nominated Adviser to the Company in connection with
the Placing and Subscription and is not acting for any other person
and will not be responsible to any person other than the Company
for providing the protections afforded to clients of Strand
Hanson.
WH Ireland Limited ("WH Ireland") which is authorised and
regulated in the United Kingdom by the Financial Conduct Authority,
is acting for Defenx plc and no-one else in connection with the
Placing. WH Ireland will not regard any other person (whether or
not a recipient of this Announcement) as its client or be
responsible to any other person for providing the protections
afforded to clients of WH Ireland nor for providing advice in
relation to the transactions and arrangements described in this
Announcement. WH Ireland is not making any representation or
warranty, express or implied, as to the contents of this
Announcement. WH Ireland has not approved the contents of, or any
part of, this Announcement and no liability whatsoever is accepted
by WH Ireland for the accuracy of any information or opinions
contained in this Announcement or for the omission of any
information from this Announcement.
Past performance is not a guide to future performance.
Forward Looking Statements
This Announcement contains forward-looking statements. These
statements relate to the Group's future prospects, developments and
business strategies. Forward-looking statements are identified by
their use of terms and phrases such as "potential", "estimate",
"expect", "may", "will" or the negative of those, variations or
comparable expressions, including references to assumptions. The
forward-looking statements in this Announcement are based on
current expectations and are subject to risks and uncertainties
that could cause actual results to differ materially from those
expressed or implied by those statements. These forward-looking
statements speak only as at the date of this Announcement. No
statement in this Announcement is intended to constitute a profit
forecast or profit estimate for any period. Neither the Directors
nor the Group undertake any obligation to update forward-looking
statements or risk factors other than as required by the AIM Rules
or by the rules of any other securities regulatory authority,
whether as a result of new information, future events or
otherwise.
Defenx PLC
Placing, Subscription and issue of Secured Convertible Bonds to
raise up to approximately GBP3.37 million
Additional Information
1. Introduction
Defenx plc (AIM:DFX), the cyber-security software group, is
pleased to announce its intention to conduct a placing of
approximately 700,000 new ordinary shares of GBP0.018 each in the
Company (the "Placing Shares"), at a price of 160 pence per Placing
Share ("Placing Price"), to raise approximately GBP1.12 million
(before expenses) (the "Placing") and the intention of an existing
shareholder of the Company, BV Tech ("BV Tech") to subscribe for up
to an additional 156,250 new ordinary shares of GBP0.018 each at
the Placing Price to raise up to an additional GBP250,000.
The Company is also proposing to issue secured convertible bonds
("Secured Convertible Bond") to raise up to GBP2 million
("Convertible Bond Issue"). The Convertible Bond Issue is subject
to, inter alia, the receipt of shareholder approval of the
necessary resolutions at a general meeting of the Company, notice
of which is to be dispatched on or about the date of this
Announcement. If the requisite resolutions are not passed, the
Convertible Bond Issue will not proceed.
The Placing Shares are being offered by way of an accelerated
bookbuilding process (the "Bookbuild"), which will be launched
immediately following this Announcement in accordance with the
terms and conditions set out in the Appendix to this Announcement.
WH Ireland Limited ("WH Ireland") will be acting as sole bookrunner
in connection with the Bookbuild. A further announcement will be
made to confirm the completion of the Bookbuild in due course.
2. Background to and reasons for the Fundraising and use of net proceeds
The Company intends to use the net proceeds from the Fundraising
to invest in its product portfolio, and its delivery and sales
capability over the next 12 months to accelerate growth in existing
and corporate markets.
The Directors believe that with recent high-profile cyber
attacks, such as the WannaCry ransomware attack, cyber security is
becoming a higher-priority board level issue for companies to
address and as such the corporate market is a significant
opportunity for the Company. The impact of ransomware on business
and the challenges of protecting mobile devices in the workplace,
together with the implementation of the EU General Data Protection
Regulation ("GDPR") in May 2018, are set to drive corporate
investment in cyber security. The Company is keen to capitalise on
this current positive market sentiment in order to raise additional
funds to build on its existing IP base, to better leverage its
value, and to accelerate growth into corporate and non-Italian
markets which is expected to de-risk future revenues.
The funds raised from the Fundraising will be used to invest in
the Company's product portfolio, broaden the development and
operations teams to support the Group's products, and enhance the
Group's sales capacity, focusing particularly on the corporate
sector. The Company's strategic partnership with BV Tech is
expected to provide access to corporate customers to whom the
expanded product portfolio can be sold.
The Company intends to use the proceeds from the Fundraising to
accelerate software development spend, including:
-- the development of corporate versions of its consumer
products e.g. enterprise security suite and mobile device
management;
-- building on Memopal Srl's 'MGFS' technology e.g. end-2-end encrypted cloud backup;
-- building privacy protection into its products e.g. addressing GDPR requirements;
-- adding features and integrating products to provide 360deg protection;
-- accelerating the update cycle of its most popular mobile products; and
-- building/acquiring complementary new functionality.
3. Details of the Placing
The Placing Shares will be offered by way of an accelerated
bookbuilding process which will launch immediately following this
Announcement. The Placing Price represents a discount of
approximately 13.75 per cent. to the closing middle market price of
185.5 pence per Ordinary Share on 4 August 2017, being the Latest
Practicable Date.
The New Ordinary Shares to be issued pursuant to the Placing
will be conditionally placed by WH Ireland, as agent of the
Company, with certain existing Shareholders and new institutional
and other investors pursuant to the Placing Agreement. The Placing
is not conditional on the passing of any of the Resolutions,
although it is conditional, inter alia, on Admission and the
Subscription Agreement being entered into.
In addition, the Company has also granted the Broker Option to
WH Ireland order to enable WH Ireland to deal with additional
demand under the Placing, following the closing of the Bookbuild
where requests to participate in the Placing from institutional
investors and certain other investors are received during the
period from such closing to 4.30 p.m. on the date of this
Announcement. The Broker Option is exercisable on more than one
occasion at any time prior to 4.30 p.m. on the date of this
Announcement. Any Ordinary Shares issued pursuant to the exercise
of the Broker Option will be issued on the same terms and
conditions as the Placing Shares placed under the Bookbuild. The
Broker Option may be exercised by WH Ireland, following
consultation with the Company, but there is no obligation on WH
Ireland to exercise the Broker Option or to seek to procure
subscribers for Ordinary Shares pursuant to the Broker Option. The
maximum number of new Ordinary Shares that may be issued under the
Placing, including pursuant to the exercise of the Broker Option,
is 981,250. Accordingly, the maximum number of Ordinary Shares that
may be issued under the Broker Option (assuming 700,000 Ordinary
Shares are subscribed under the Bookbuild) is 281,250.
Under the terms of the Placing Agreement, WH Ireland will
receive commission from the Company conditional on Admission and
the Company will give customary warranties and undertakings to WH
Ireland in relation, inter alia, to its business and the
performance of its duties.
In addition, the Company has agreed to indemnify WH Ireland in
relation to certain liabilities that they may incur in undertaking
the Placing. WH Ireland has the right to terminate the Placing
Agreement in certain circumstances prior to Admission, in
particular, in the event that there has been, inter alia, a
material breach of any of the warranties. The Placing is not being
underwritten.
Following the issue of the New Ordinary Shares, the Company is
expected to have approximately 12,719,042 Ordinary Shares in issue
(assuming no exercise of the Broker Option) and there are no shares
held in treasury.
The New Ordinary Shares will, when issued, be credited as fully
paid and will rank pari passu in all respects with the existing
Ordinary Shares of the Company, including the right to receive all
dividends or other distributions made, paid or declared in respect
of such shares after the date of issue of the New Ordinary
Shares.
4. Details of the Subscription
BV Tech has indicated that it intends to subscribe for up to
156,250 New Ordinary Shares at the Placing Price pursuant to the
Subscription, assuming the full funds are raised under the Placing.
The Subscription is taking place on the same terms and conditions
as the Placing, other than in respect of settlement. BV Tech
currently holds 3,480,388 Ordinary Shares representing 29.34 per
cent. of the Existing Ordinary Shares. Following admission of the
Subscription Shares, BV Tech will hold up to 3,636,638 Ordinary
Shares representing 28.59 per cent. of the Enlarged Share Capital,
assuming the full funds are raised under the Placing and
Subscription. In the event that the full funds are not raised under
the Placing, the Subscription may be reduced to ensure that BV
Tech's resultant shareholding in the Company is less than than 30
per cent.. The Subscription is conditional upon the completion of
the Placing and if the Placing does not proceed for whatever
reason, then the Subscription will also not proceed.
BV Tech is a related party of the Company for the purposes of
the AIM Rules by virtue of its status as a substantial shareholder
of the Company, therefore the participation by BV Tech in the
Subscription is a related party transaction under the AIM Rules.
The independent Directors, being the Directors other than Raffaele
Boccardo and Franco Francione, consider, having consulted with the
Company's nominated adviser, Strand Hanson Limited, that the terms
of the Subscription by BV Tech, reflecting those of the Placing,
are fair and reasonable insofar as the Company's shareholders are
concerned.
5. Details of the Secured Convertible Bonds
(a) Summary
The Company is proposing to raise up to GBP2 million pursuant to
the Convertible Bond Issue, with the final amount to be determined
by the auction process. Of this amount, UK Bond Network has
procured that GBP1.25 million of the Convertible Bond Issue has
been underwritten pursuant to the Bond Underwriting Commitment.
The Bonds will pay a coupon of between 8 per cent. and 10 per
cent., with the exact rate being determined by participating bond
investors through UK Bond Network's auction process. Interest under
the Secured Convertible Bonds will be payable quarterly.
The Secured Convertible Bonds will be convertible into Ordinary
Shares at the Conversion Price of 200 pence per Ordinary Share,
being a 25 per cent. premium to the Placing Price.
The auction process to be carried out in connection with the
Convertible Bond Issue will be carried out by UK Bond Network, as
agent of the Company, using its designated website auction
platform. There will be a pre-auction period commencing on or
around the date of this Announcement for Eligible Investors to
review the Secured Convertible Bonds offering, followed by a live
auction period commencing at 9.00 a.m. on 14 August 2017 and
finishing at 4.30 p.m. on 30 August 2017.
Eligible Investors will be the only investors eligible to
participate in the Convertible Bond Issue. Eligible Investors will
be required to self-certify themselves, in accordance with the
procedure required under FSMA, as being an investor falling into
one of these categories before participating. Eligible Investors
who wish to participate will need to register as a member of UK
Bond network's platform (www.ukbondnetwork.com).
(b) Terms of the Secured Convertible Bonds
The Company will create and authorise the issue of up to GBP2
million unlisted Secured Convertible Bonds (in multiples of GBP1
each) by entering into the Convertible Bond Instrument upon
completion of the auction. The Secured Convertible Bonds will
mature and be due for repayment in full on 31 August 2020. At the
option of the Company, the Secured Convertible Bonds may be repaid
fully or partially at any time on or after 31 August 2019 (being
the second anniversary of the date of the Convertible Bond
Instrument), subject to the share price being at least 130 per
cent. of the Conversion Price for 20 consecutive Dealing Days.
The Company, Defenx SA, Memopal Srl and the Security Trustee
will enter into an all assets debenture and guarantee and a
security trust deed (each in customary form) to provide security in
respect of the Secured Convertible Bonds.
The full amount of principal under the Secured Convertible
Bonds, together with any interest accrued on them, may, at the
option of the Security Trustee (acting in its capacity as the
Bondholders' trustee), become immediately due and repayable if an
"Event of Default" occurs and is continuing. The Events of Default
set out in the conditions to the Convertible Bond Instrument
include, inter alia, late payment of any sum due under the Secured
Convertible Bonds, or the insolvent liquidation of the Company.
The Secured Convertible Bonds accrue interest daily, payable in
quarterly instalments by the Company. The rate at which interest
will accrue will be between 8 per cent. and 10 per cent. per annum
with the exact interest rate payable to be determined through the
auction process conducted by UK Bond Network.
Each Bondholder will receive a certificate recording the details
of their Secured Convertible Bonds and, at any time before the
Secured Convertible Bonds mature, Bondholders will have the right
to convert the principal amounts of their Secured Convertible Bonds
then outstanding into Ordinary Shares.
The Conversion Price represents a 25 per cent. premium to the
Placing Price. However, the conditions attached to the Convertible
Bond Instrument set out a number of different circumstances in
which this Conversion Price may be adjusted, including in the event
of any share capital reorganisation affecting the Ordinary Shares,
or if an Event of Default or a Takeover Offer occurs. Accordingly,
as at the date of this Announcement, it is not possible to
ascertain exactly what effect any conversion of the Secured
Convertible Bonds may have on the interests of Shareholders,
because the Conversion Price (and therefore the number of Ordinary
Shares into which the Secured Convertible Bonds convert) may be
subject to change. However, for illustrative purposes only, if the
maximum amount of GBP2 million is raised by the Convertible Bond
Issue, and each Bondholder were to convert their entire holding of
Secured Convertible Bonds into Ordinary Shares, then based upon the
current Conversion Price the Company would need to allot and issue
1,000,000 Ordinary Shares in satisfaction of such a conversion.
The Company gives certain customary representations, warranties,
covenants and undertakings to the Bondholders under the terms of
the Convertible Bond Instrument and the associated security
documents, including as to matters relating to the Group and its
business.
(c) Terms of the Bond Placing Agreement
Under the terms of the Bond Placing Agreement, for the purpose
of procuring Eligible Investors who will subscribe for the Secured
Convertible Bonds, UK Bond Network has agreed to make available to
the Company its website platform, upon which the auction of the
Secured Convertible Bonds to Eligible Investors is to be
conducted.
Under the terms of the Bond Placing Agreement, completion of the
Convertible Bond Issue is conditional, inter alia, upon the
requisite resolutions being passed at the General Meeting referred
to below under the heading "Notice of General Meeting".
This means that unless such conditions are satisfied, the
Convertible Bond Issue will not complete.
The Bond Placing Agreement incorporates the customary
representations and warranties given by the Company under the
Convertible Bond Instrument, including as to matters relating to
the Group and its business. The Bond Placing Agreement also
contains customary rights of termination which could enable UK Bond
Network to terminate the Bond Placing Agreement in certain
circumstances.
The Secured Convertible Bonds have not been made available to
the public and have not been offered or sold in any jurisdiction
where it would be unlawful to do so.
(d) Terms of the Bond Underwriting Commitment
Pursuant to the terms of the Bond Underwriting Commitment, UK
Bond Network has procured that GBP1.25 million of the Convertible
Bond Issue has been underwritten, subject to certain
conditions.
The Directors consider the terms of the Convertible Bond Issue
to be appropriate in view of the reasons for the Fundraising and
use of net proceeds as described above.
6. Current trading and outlook
As announced on 22 June 2017, year-to-date trading remains in
line with management expectations.
As seen in previous years, the Group's business is heavily
seasonal with the majority of billings falling towards the end of
the year, whereas certain costs, notably marketing contributions,
are higher in the first half of the year. Whilst the Directors
believe that the strategic partnership with BV Tech will, in time,
reduce this seasonality, the Company's results for 2017 are
inevitably dependent on billings in the second half of 2017 and
driven predominately by the existing core business.
The Company and BV Tech are at an advanced stage of negotiations
on a master services agreement ("MSA") pursuant to which BV Tech
will (once entered into) develop software for Defenx, which
alongside the software distribution contract announced on 22 June
2017, forms part of the strategic partnership between both parties
as envisaged at the time of BV Tech's initial investment. The MSA
will constitute a related party transaction under the AIM Rules
once entered into and further announcements will be made in this
regard as appropriate.
The core business, which is focused on the distribution of
mobile and PC security software to the Group's channel partners, is
maturing and new channel partners - including Multi Time Srl and
Arnavalle Telecommunications SL announced on 3 July 2017 - and
products are now starting to support future growth. Meanwhile, the
sales and technical teams are making good progress with BV Tech,
with whom a promising pipeline of opportunities is developing.
Accordingly, the Directors remain confident that Defenx's
diversification into the corporate market, supported by BV Tech,
will yield significant profitable growth over the medium term and
that the results for 2017 will remain in line with
expectations.
7. Notice of General Meeting
A notice convening a general meeting of the Company "General
Meeting" to be held at the offices of Taylor Vinters LLP, Tower 42,
33rd Floor, 25 Old Broad Street, London EC2N 1HQ on 23 August 2017
at 12.00 p.m., at which resolutions authorising the Convertible
Bond Issue and giving the Directors general authorities to allot
shares will be proposed, will be dispatched shortly.
8. Irrevocable undertakings
BV Tech, Andrea Stecconi, Philipp Prince, Anthony Reeves and
Leonard Seelig are expected to provide irrevocable undertakings to
vote in favour of the resolutions to be proposed at the General
Meeting ("Resolutions") in respect of their own beneficial holdings
of, in aggregate, 5,434,729 Existing Ordinary Shares, in aggregate
representing approximately 45.81 per cent. of the Existing Ordinary
Shares.
9. Admission, Settlement and CREST
Application will be made to the London Stock Exchange for the
admission of the New Ordinary Shares to trading on AIM. It is
expected that Admission of the Placing Shares will become effective
at 8.00 a.m. on 11 August 2017 and that dealings in the Placing
Shares will commence at that time. It is expected that admission of
the Subscription Shares will become effective by 8.00 a.m. on 1
September 2017 and that dealings in the Subscription Shares will
commence at that time.
The Articles permit the Company to issue shares in
uncertificated form. CREST is a computerised paperless share
transfer and settlement system which allows shares and other
securities to be held in electronic rather than paper form. The
Ordinary Shares are already admitted to CREST and therefore the New
Ordinary Shares will also be eligible for settlement in CREST.
10. Directors' recommendation
The Directors consider the passing of the Resolutions and the
completion of the Proposals to be in the best interests of the
Company and its Shareholders as a whole. Accordingly, the Directors
recommend that all Shareholders vote in favour of the
Resolutions.
APPIX
TERMS AND CONDITIONS OF THE PLACING
THIS ANNOUNCEMENT, INCLUDING THIS APPIX (TOGETHER, THE
"ANNOUNCEMENT") AND THE INFORMATION IN IT IS RESTRICTED AND IS NOT
FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY,
IN WHOLE OR IN PART, IN OR INTO THE UNITED STATES, AUSTRALIA,
CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA OR ANY OTHER
JURISDICTION IN WHICH SUCH PUBLICATION OR DISTRIBUTION WOULD BE
UNLAWFUL.
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES
ONLY.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THIS APPIX AND THE TERMS AND CONDITIONS SET OUT HEREIN ARE
FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT: (A) PERSONS
WHO ARE IN A MEMBER STATE OF THE EUROPEAN ECONOMIC AREA AND ARE,
UNLESS OTHERWISE AGREED BY WH IRELAND, "QUALIFIED INVESTORS" AS
DEFINED IN ARTICLE 2.1(E) OF THE EU PROSPECTUS DIRECTIVE (WHICH
MEANS DIRECTIVE 2003/71/EC AND INCLUDES ANY RELEVANT IMPLEMENTING
DIRECTIVE MEASURE IN ANY MEMBER STATE) (THE "PROSPECTUS
DIRECTIVE"); AND (B) IN THE UNITED KINGDOM, PERSONS WHO ARE: (I)
"INVESTMENT PROFESSIONALS" WITHIN THE MEANING OF ARTICLE 19(5) OF
THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION)
ORDER 2005 (THE "ORDER"); (II) PERSONS FALLING WITHIN ARTICLE
49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED
ASSOCIATIONS, ETC") OF THE ORDER; OR (III) PERSONS TO WHOM IT MAY
OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING
REFERRED TO AS "RELEVANT PERSONS"). THIS APPIX AND THE TERMS AND
CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY
PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT
ACTIVITY TO WHICH THIS APPIX AND THE TERMS AND CONDITIONS SET OUT
HEREIN RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE
ENGAGED IN ONLY WITH RELEVANT PERSONS.
THIS ANNOUNCEMENT IS NOT AN OFFER FOR SALE OR SUBSCRIPTION IN
ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL UNDER THE SECURITIES LAWS OF ANY SUCH JURISDICTION. THIS
ANNOUNCEMENT DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR
SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY. THIS ANNOUNCEMENT IS
NOT AN OFFER OF OR SOLICITATION TO PURCHASE OR SUBSCRIBE FOR
SECURITIES IN THE UNITED STATES. THE SECURITIES REFERRED TO HEREIN
HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED
OR SOLD IN THE UNITED STATES, EXCEPT PURSUANT TO AN APPLICABLE
EXEMPTION FROM, OR AS PART OF A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. NEITHER THE UNITED
STATES SECURITIES AND EXCHANGE COMMISSION NOR ANY SECURITIES
REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE
UNITED STATES HAS APPROVED OR DISAPPROVED OF AN INVESTMENT IN THE
SECURITIES OR PASSED UPON ORORSED THE MERITS OF THE PLACING OR THE
ACCURACY OR ADEQUACY OF THE CONTENTS OF THIS ANNOUNCEMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENCE IN THE UNITED
STATES. NO PUBLIC OFFERING OF SECURITIES IS BEING MADE IN THE
UNITED STATES.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO THE
LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF AN INVESTMENT IN
PLACING SHARES. THE PRICE OF ORDINARY SHARES AND THE INCOME FROM
THEM (IF ANY) MAY GO DOWN AS WELL AS UP AND INVESTORS MAY NOT GET
BACK THE FULL AMOUNT INVESTED ON DISPOSAL OF ORDINARY SHARES.
These terms and conditions apply to persons making an offer to
acquire Placing Shares (as defined below). Each person to whom
these terms and conditions apply, as described above, who confirms
its agreement, either orally or in writing, to WH Ireland to
acquire Placing Shares (each a "Placee") hereby agrees with WH
Ireland and the Company to be bound by these terms and conditions
as being the terms and conditions upon which Placing Shares will be
issued or acquired. A Placee shall, without limitation, become so
bound if WH Ireland confirms to such Placee its allocation of
Placing Shares.
Upon being notified of its allocation of Placing Shares, a
Placee shall be contractually committed to acquire the number of
Placing Shares allocated to it at the Placing Price and, to the
fullest extent permitted by law, will be deemed to have agreed not
to exercise any rights to rescind or terminate or otherwise
withdraw from such commitment.
This Announcement does not constitute an offer, and may not be
used in connection with an offer, to sell or issue or the
solicitation of an offer to buy or subscribe for Placing Shares in
any jurisdiction in which such offer or solicitation is or may be
unlawful. This Announcement and the information contained herein is
not for publication or distribution, in whole or in part, directly
or indirectly, to persons in the United States, Australia, Canada,
Japan, the Republic of South Africa or in any jurisdiction in which
such publication or distribution would be unlawful. Persons into
whose possession this Announcement may come are required by the
Company to inform themselves about and to observe any restrictions
on transfer of this Announcement. No public offer of securities of
the Company is being made in the United Kingdom, the United States
or elsewhere.
In particular, the Placing Shares referred to in this
Announcement have not been and will not be registered under the
Securities Act or any laws of 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
within the United States except pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of
the Securities Act and the securities laws of any state or other
jurisdiction of 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 or the South African Reserve
Bank; and the Placing Shares have not been, nor will they be,
registered under or offered in compliance with the securities laws
of any state, province or territory of Australia, Canada, Japan or
the Republic of South Africa. 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, Japan, the Republic of
South Africa or any other jurisdiction in which such offer, sale,
resale or delivery would be unlawful.
Persons (including, without limitation, nominees and trustees)
who have a contractual or other legal obligation to forward a copy
of this Appendix or the Announcement of which it forms part should
seek appropriate advice before taking any action.
In this Appendix, unless the context otherwise requires,
"Placee" means a Relevant Person (including individuals, funds or
others) on whose behalf a commitment to subscribe for or acquire
Placing Shares has been given.
Details of the Placing Agreement and the Placing Shares
WH Ireland has entered into a Placing Agreement (the "Placing
Agreement") with the Company under which WH Ireland has, on the
terms and subject to the conditions set out therein, undertaken to
use its reasonable endeavours to procure subscribers for new
ordinary shares of GBP0.018 each in the capital of the Company (the
"Placing Shares"). It is expected that the Placing will raise
approximately GBP1.12 million in gross proceeds at a price of 160
pence per ordinary share (the "Placing Price") with approximately
700,000 Placing Shares expected to be placed. The Placing is not
being underwritten by WH Ireland or any other person.
The number of Placing Shares will be determined following
completion of the Bookbuild (as defined below) as set out in this
Announcement.
The Placing Shares will, when issued, be subject to the articles
of association of the Company, will be credited as fully paid and
will rank pari passu in all respects with the existing issued
ordinary shares of GBP0.018 each in the capital of the Company
("Ordinary Shares"), including the right to receive all dividends
and other distributions (if any) declared, made or paid on or in
respect of the Ordinary Shares after the date of issue of the
Placing Shares.
The Placing Shares will trade on AIM under the TIDM: AIM:DFX,
with ISIN: GB00BYNF4J61.
Application for admission to trading
Application will be made to London Stock Exchange plc (the
"London Stock Exchange") for admission to trading of the Placing
Shares on AIM ("Admission"). It is expected that settlement of any
such shares and Admission will become effective on or around 11
August 2017 and that dealings in the Placing Shares will commence
at that time.
Bookbuild
WH Ireland will today commence an accelerated bookbuilding
process (the "Bookbuild") to determine demand for participation in
the Placing by potential Placees at the Placing Price. This
Appendix gives details of the terms and conditions of, and the
mechanics of participation in, the Placing. No commissions will be
paid to Placees or by Placees in respect of any Placing Shares.
WH Ireland and the Company shall be entitled to effect the
Placing by such alternative method to the Bookbuild as they may, in
their sole discretion, determine.
Participation in, and principal terms of, the Placing
1. WH Ireland is arranging the Placing as agent for, and broker
of, the Company.
2. Participation in the Placing is only available to persons who
are lawfully able to be, and have been, invited to participate by
WH Ireland. WH Ireland is entitled to participate in the Placing as
principal.
3. The Bookbuild will establish the number of Placing Shares to
be issued at the Placing Price, which will be agreed between WH
Ireland and the Company following completion of the Bookbuild. The
number of Placing Shares will be announced on a Regulatory
Information Service following the completion of the Bookbuild.
4. To bid in the Bookbuild, Placees should communicate their bid
by telephone to their usual contact at WH Ireland Corporate &
Institutional Broking. Each bid should state the number of Placing
Shares which the prospective Placee wishes to subscribe for or
purchase at the Placing Price. Bids may be scaled down by WH
Ireland on the basis referred to in paragraph 8 below.
5. The closing of the Bookbuild is intended to be at 7.30 a.m.
on the date of this Announcement. The Company reserves the right to
reduce or seek to increase the amount to be raised pursuant to the
Placing, in its absolute discretion and WH Ireland reserves the
right to extend the time for closing of the Bookbuild. WH Ireland
is entitled to exercise the Broker Option following the closing of
the Bookbuild up to 4.30 p.m. on the date of this Announcement.
6. Each Placee's allocation will be confirmed to Placees orally,
or by email, by WH Ireland following the close of the Bookbuild and
a trade confirmation or contract note will be dispatched as soon as
practicable thereafter. WH Ireland's oral or emailed confirmation
will give rise to an irrevocable, legally binding commitment by the
person to which it is given (who at that point becomes a Placee),
in favour of WH Ireland and the Company, under which that person
agrees to acquire by subscription the number of Placing Shares
allocated to it at the Placing Price and otherwise on the terms and
subject to the conditions set out in this Appendix and in
accordance with the Company's articles of association. Except with
WH Ireland's consent, such commitment will not be capable of
variation or revocation.
7. The Company will make a further announcement following the
close of the Bookbuild detailing the number of Placing Shares to be
issued at the Placing Price.
8. Subject to paragraphs 4 and 5 above, WH Ireland may choose
not to accept bids and/or to accept bids, either in whole or in
part, on the basis of allocations determined at their discretion
(after consultation with the Company) and may scale down any bids
for this purpose on such basis as it may determine. WH Ireland may
also, notwithstanding paragraphs 4 and 5 above, subject to the
prior consent of the Company, allocate Placing Shares after the
time of any initial allocation to any person submitting a bid after
that time.
9. A bid in the Bookbuild will be made on the terms and subject
to the conditions in the Announcement (including this Appendix) and
will be legally binding on the Placee on behalf of which it is made
and except with WH Ireland's consent will not be capable of
variation or revocation from the time at which it is submitted.
10. Except as required by law or regulation, no press release or
other announcement will be made by WH Ireland 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.
11. Irrespective of the time at which a Placee's allocation
pursuant to the Placing is 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".
12. All obligations of WH Ireland under the Placing will be
subject to fulfilment of the conditions referred to below under
"Conditions of the Placing" and to the Placing not being terminated
on the basis referred to below under "Right to terminate the
Placing Agreement".
13. By participating in the Placing, each Placee agrees that its
rights and obligations in respect of the Placing will terminate
only in the circumstances described below and will not be capable
of rescission or termination by the Placee.
14. To the fullest extent permissible by law and the applicable
rules of the Financial Conduct Authority ("FCA"), neither WH
Ireland nor any of its affiliates shall have any liability to
Placees (or to any other person whether acting on behalf of a
Placee or otherwise and whether or not a recipient of these terms
and conditions) in respect of the Placing. Each Placee acknowledges
and agrees that the Company is responsible for the allotment of the
Placing Shares to the Placees and WH Ireland and its affiliates
shall have no liability to the Placees for the failure of the
Company to fulfil those obligations. In particular, neither WH
Ireland nor any of its affiliates shall have any liability (or, to
the extent permissible by law, any fiduciary duties) in respect of
WH Ireland's conduct of the Placing.
Conditions of the Placing
WH Ireland's obligations under the Placing Agreement in respect
of the Placing Shares are conditional on, inter alia:
(a) the Subscription Agreement being entered into by the Company and BV Tech
(b) the Company allotting the Placing Shares prior to and
conditional only on Admission, in accordance with the terms of the
Placing Agreement;
(c) Admission taking place not later than 8.00 a.m. on 11 August
2017 (or such later time or date as the Company and WH Ireland may
agree, not being later than 8.00 a.m. on 4 September 2017); and
(d) the Placing Agreement becoming unconditional in all respects
(save for the condition relating to Admission) and not having been
terminated in accordance with its terms.
If: (i) any of the conditions contained in the Placing Agreement
in relation to the Placing Shares are not fulfilled or waived by WH
Ireland by the respective time or date where specified (or such
later time or date as WH Ireland may agree in writing with the
Company, not being later than 8.00 a.m. on 4 September 2017); (ii)
any of such conditions becomes incapable of being satisfied; or
(iii) the Placing Agreement is terminated in the circumstances
specified below, the Placing will lapse and the Placees' rights and
obligations hereunder in relation to the Placing Shares shall cease
and terminate at such time and each Placee agrees that no claim can
be made by the Placee in respect thereof.
WH Ireland may, at its discretion and upon such terms as it
thinks fit, waive, or extend the period for, compliance by the
Company with the whole or any part of any of the Company's
obligations in relation to the conditions in the Placing Agreement
save that the above condition relating to Admission taking place
may not be waived. Any such extension or waiver will not affect
Placees' commitments as set out in this Announcement.
Neither WH Ireland nor the Company, nor any of their respective
affiliates, 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 they 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 they 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 WH
Ireland and the Company.
Right to terminate the Placing Agreement
WH Ireland is entitled, at any time before Admission, to
terminate the Placing Agreement by giving notice to the Company in
certain circumstances, including, inter alia:
(a) a material breach by the Company of any of its obligations
under the Placing Agreement and such breach is considered by WH
Ireland (acting reasonably) to be material and adverse in the
context of the Placing;
(b) any of the warranties given in the Placing Agreement not
being true and accurate or being misleading, in each case in a way
that is material in the context of the Placing in the reasonable
opinion of WH Ireland; or
(c) the occurrence of a specified force majeure event, which
WHIL in its reasonable opinion considers to be likely to have an
adverse effect on the financial or trading position or the business
or prospects of the Group which is material in the context of Group
as a whole, or which renders the Placing impracticable or
inadvisable.
The rights and obligations of the Placees will not be subject to
termination by the Placees or any prospective Placees at any time
or in any circumstances. By participating in the Placing, Placees
agree that the exercise by WH Ireland of any right of termination
or other discretion under the Placing Agreement shall be within the
absolute discretion of WH Ireland and WH Ireland need not make any
reference to Placees and that neither WH Ireland nor any of its
affiliates shall have any liability to Placees whatsoever in
connection with any such exercise.
No Admission Document or Prospectus
The Placing Shares are being offered to a limited number of
specifically invited persons only and have not been nor will be
offered in such a way as to require the publication of an admission
document or prospectus in the United Kingdom or in any other
jurisdiction. No offering document, admission document or
prospectus has been or will be submitted to be approved by the FCA
in relation to the Placing, and Placees' commitments will be made
solely on the basis of the information contained in the
Announcement (including this Appendix) and the business and
financial information that the Company is required to publish in
accordance with the AIM Rules for Companies (the "Exchange
Information"). Each Placee, by accepting a participation in the
Placing, agrees that the content of this Announcement is
exclusively the responsibility of the Company and confirms that it
has neither received nor relied on any other information (other
than the Exchange Information), representation, warranty, or
statement made by or on behalf of the Company or WH Ireland or any
other person and neither WH Ireland, the Company nor any other
person will be liable for any Placee's decision to participate in
the Placing based on any other information, representation,
warranty or statement which the Placee may have obtained or
received and, if given or made, such information, representation,
warranty or statement must not be relied upon as having been
authorised by WH Ireland, the Company, or their respective
officers, directors, employees or agents. 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. Neither the Company nor WH Ireland
are making any undertaking or giving any warranty to any Placee
regarding the legality of an investment in the Placing Shares by
such Placee under any legal, investment or similar laws or
regulations. Each Placee should not consider any information in
this Announcement to be legal, tax or business advice. Each Placee
should consult its own solicitor, tax adviser and financial adviser
for independent legal, tax and financial advice regarding an
investment in the Placing Shares. Nothing in this paragraph shall
exclude the liability of any person for fraudulent
misrepresentation.
Registration and Settlement
Following the close of the Bookbuild, each Placee allocated
Placing Shares in the Placing will be sent a trade confirmation or
contract note in accordance with the standing arrangements in place
with WH Ireland, stating the number of Placing Shares allocated to
it at the Placing Price, the aggregate amount owed by such Placee
(in GBP) and a form of confirmation in relation to settlement
instructions.
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 WH Ireland in accordance with the standing CREST
settlement instructions which they have in place with WH
Ireland.
Settlement of transactions in the Placing Shares
(ISIN:GB00BYNF4J61) following Admission will take place within the
system administered by Euroclear UK & Ireland Limited ("CREST")
provided that, subject to certain exceptions, WH Ireland reserves
the right to require settlement for, and delivery of, the Placing
Shares (or a portion thereof) to Placees by such other means that
it deems necessary if delivery or settlement is not possible or
practicable within CREST within the timetable set out in this
Announcement or would not be consistent with the regulatory
requirements in any Placee's jurisdiction.
It is expected that settlement will be on 11 August 2017 in
accordance with the instructions set out in the form of
confirmation.
Interest is chargeable daily on payments not received from
Placees on the due date in accordance with the arrangements set out
above at the rate of two percentage points above LIBOR.
Each Placee is deemed to agree that, if it does not comply with
these obligations, WH Ireland may sell any or all of the Placing
Shares allocated to that Placee on such Placee's behalf and retain
from the proceeds, for WH Ireland's account and benefit (as agent
for the Company), an amount equal to the aggregate amount owed by
the Placee plus any interest due. The relevant Placee will,
however, remain liable and shall indemnify WH Ireland on demand for
any shortfall below the aggregate amount owed by it and may be
required to bear any stamp duty or stamp duty reserve tax or
securities transfer tax (together with any interest or penalties)
which may arise upon the sale of such Placing Shares on such
Placee's behalf. By communicating a bid for Placing Shares, each
Placee confers on WH Ireland such authorities and powers necessary
to carry out any such sale and agrees to ratify and confirm all
actions which WH Ireland lawfully takes in pursuance of such
sale.
If Placing Shares are to be delivered to a custodian or
settlement agent, Placees should ensure that the form of
confirmation 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 UK stamp duty or stamp duty reserve tax
or securities transfer tax. Neither WH Ireland nor the Company will
be liable in any circumstances for the payment of stamp duty, stamp
duty reserve tax or securities transfer tax in connection with any
of the Placing Shares. Placees will not be entitled to receive any
fee or commission in connection with the Placing.
Representations, Warranties and Further Terms
By participating in the Placing, each Placee (and any person
acting on such Placee's behalf) makes the following
representations, warranties, acknowledgements, agreements and
undertakings (as the case may be) to WH Ireland (for itself and on
behalf of the Company):
1. that it has read and understood this Announcement, including
the Appendix, in its entirety and that its subscription for or
purchase of Placing Shares is subject to and based upon all the
terms, conditions, representations, warranties, acknowledgements,
agreements and undertakings and other information contained herein
and undertakes not to redistribute or duplicate this
Announcement;
2. that its obligations are irrevocable and legally binding and
shall not be capable of rescission or termination by it in any
circumstances;
3. that the exercise by WH Ireland of any right or discretion
under the Placing Agreement shall be within the absolute discretion
of WH Ireland and WH Ireland does not need to have any reference to
it and shall have no liability to it whatsoever in connection with
any decision to exercise or not to exercise any such right or
discretion and each Placee agrees that it has no rights against WH
Ireland or the Company, or any of their respective officers,
directors or employees, under the Placing Agreement pursuant to the
Contracts (Rights of Third Parties Act) 1999;
4. that these terms and conditions represent the whole and only
agreement between it, WH Ireland and the Company in relation to its
participation in the Placing and supersede any previous agreement
between any of such parties in relation to such participation.
Accordingly, each Placee, in accepting its participation in the
Placing, is not relying on any information or representation or
warranty in relation to the Company or any of its subsidiaries or
any of the Placing Shares other than as contained in this
Announcement and the Exchange Information. Each Placee agrees that
neither the Company nor WH Ireland nor any of their respective
officers, directors or employees will have any liability for any
such other information, representation or warranty, express or
implied;
5. that 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
Member State of the European Economic Area which has implemented
the Prospectus Directive other than Qualified Investors or in
circumstances in which the prior consent of WH Ireland has been
given to the offer or resale; or (ii) where Placing Shares have
been acquired by it on behalf of persons in any member state of the
EEA 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;
6. that neither it nor, as the case may be, its clients expect WH Ireland to have any duties or responsibilities to it or such persons similar or comparable to the duties of "best execution" and "suitability" imposed by the FCA's Conduct of Business Source Book, and that WH Ireland is not acting for it or its clients, and that WH Ireland will not be responsible for providing the protections afforded to customers of WH Ireland or for providing advice in respect of the transactions described herein;
7. that it is: (i) unless otherwise agreed in writing with WH
Ireland, located outside the United States and is not a US person
as defined in Regulation S under the Securities Act ("Regulation
S") and is subscribing for and/or purchasing the Placing Shares
only in "offshore transactions" as defined in and pursuant to
Regulation S, and (ii) it is not subscribing for and/or purchasing
Placing Shares as a result of any "directed selling efforts" as
defined in Regulation S or by means of any form of "general
solicitation" or "general advertising" as such terms are defined in
Regulation D under the Securities Act;
8. that the Placing Shares have not been and will not be
registered under the Securities Act, or under the securities
legislation of, or with any securities regulatory authority of, any
state or other jurisdiction of the United States and that, subject
to certain exceptions, the Placing Shares may not be offered, sold,
pledged, resold, transferred, delivered or distributed into or
within the United States;
9. that, unless specifically agreed with WH Ireland, it is not
and was not acting on a non-discretionary basis for the account or
benefit of a person located within the United States at the time
the undertaking to subscribe for and/or purchase Placing Shares is
or was given and it is not acquiring Placing Shares with a view to
the offer, sale, resale, transfer, delivery or distribution,
directly or indirectly, of any Placing Shares into the United
States and it will not reoffer, resell, pledge or otherwise
transfer the Placing Shares except pursuant to an exemption from,
or in a transaction not subject to, the registration requirements
of the Securities Act and otherwise in accordance with any
applicable securities laws of any state or jurisdiction of the
United States;
10. that it is not a national or resident of Canada, Australia,
South Africa or Japan or a corporation, partnership or other entity
organised under the laws of Canada, Australia, the Republic of
South Africa or Japan and that it will not offer, sell, renounce,
transfer or deliver, directly or indirectly, any of the Placing
Shares in Canada, Australia, the Republic of South Africa or Japan
or to or for the benefit of any person resident in Canada,
Australia, the Republic of South Africa or Japan and each Placee
acknowledges that the relevant exemptions are not being obtained
from the Securities Commission of any province of Canada, that no
document has been or will be lodged with, filed with or registered
by the Australian Securities and Investments Commission or Japanese
Ministry of Finance and that the Placing Shares are not being
offered for sale and may not be, directly or indirectly, offered,
sold, transferred or delivered in or into Canada, Australia, the
Republic South Africa or Japan;
11. that it does not have a registered address in, and is not a
citizen, resident or national of, any jurisdiction in which it is
unlawful to make or accept an offer of the Placing Shares and it is
not acting on a non-discretionary basis for any such person;
12. that it has not, directly or indirectly, distributed,
forwarded, transferred or otherwise transmitted, and will not,
directly or indirectly, distribute, forward, transfer or otherwise
transmit, any presentation or offering materials concerning the
Placing or the Placing Shares to any persons within the United
States or to any US persons (as that term is defined in Regulation
S);
13. that it is entitled to subscribe for and/or purchase Placing
Shares under the laws of all relevant jurisdictions which apply to
it and that it has fully observed such laws and obtained all
governmental and other consents which may be required thereunder or
otherwise and complied with all necessary formalities and that it
has not taken any action which will or may result in the Company or
WH Ireland or any of their respective directors, officers,
employees or agents acting in breach of any regulatory or legal
requirements of any territory in connection with the Placing or its
acceptance;
14. that it has obtained all necessary consents and authorities
to enable it to give its commitment to subscribe for and/or
purchase the Placing Shares and to perform its subscription and/or
purchase obligations under the Placing;
15. that where it is acquiring Placing Shares for one or more
managed accounts, it is authorised in writing by each managed
account: (a) to acquire the Placing Shares for each managed
account; (b) to make on its behalf the representations, warranties,
acknowledgements, undertakings and agreements in this Appendix and
the Announcement of which it forms part; and (c) to receive on its
behalf any confirmation, contract note or investment letter
relating to the Placing in the form provided to it by WH
Ireland;
16. that it is either: (a) a person of a kind described in
paragraph 5 of Article 19 (persons having professional experience
in matters relating to investments and who are investment
professionals) of the Order; or (b) a person of a kind described in
paragraph 2 of Article 49 (high net worth companies, unincorporated
associations, partnerships or trusts or their respective directors,
officers or employees) of the Order; or (c) a person to whom it is
otherwise lawful for this Announcement to be communicated and in
the case of (a) and (b) undertakes that it will acquire, hold,
manage or dispose of any Placing Shares that are allocated to it
for the purposes of its business;
17. that, unless otherwise agreed by WH Ireland, it is a
qualified investor (as defined in section 86(7) of the Financial
Services and Markets Act 2000, as amended ("FSMA"));
18. that, unless otherwise agreed by WH Ireland, it is a
"professional client" or an "eligible counterparty" within the
meaning of Chapter 3 of the FCA's Conduct of Business Sourcebook
and it is purchasing Placing Shares for investment only and not
with a view to resale or distribution;
19. it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
section 21 of FSMA) relating to the Placing Shares in circumstances
in which section 21(1) of FSMA does not require approval of the
communication by an authorised person;
20. that any money held in an account with each of WH Ireland
(or its nominee) on its behalf and/or any person acting on WH
Ireland's behalf will not be treated as client money within the
meaning of the rules and regulations of the FCA. Each Placee
further acknowledges that the money will not be subject to the
protections conferred by the FCA's client money rules. As a
consequence, this money will not be segregated from WH Ireland's
(or its nominee's) or such person's money in accordance with such
client money rules and will be used by WH Ireland or such person in
the course of its own business and each Placee will rank only as a
general creditor of WH Ireland or such person;
21. that it will (or will procure that its nominee will) if
applicable, make notification to the Company of the interest in its
ordinary shares in accordance with the Disclosure Guidance and
Transparency Rules published by the FCA;
22. that it is not, and it is not acting on behalf of, a person
falling within subsections (6), (7) or (8) of sections 67 or 70
respectively or subsections (2) and (3) of section 93 or subsection
(1) of section 96 of the Finance Act 1986;
23. that it is not relying on any representations or warranties
or agreements by the Company or WH Ireland or by any of their
respective directors, employees or agents or any other person
except as set out in the express terms of this Announcement;
24. that it will not deal or cause or permit any other person to
deal in all or any of the Placing Shares which it is subscribing
for and/or purchasing under the Placing unless and until Admission
becomes effective;
25. that it appoints irrevocably any director of WH Ireland as
its agent for the purpose of executing and delivering to the
Company and/or its registrars any document on its behalf necessary
to enable it to be registered as the holder of the Placing Shares
or to deliver its Placing Shares into CREST;
26. that, as far as it is aware, it is not acting in concert
(within the meaning given in The City Code on Takeovers and
Mergers) with any other person in relation to the Company;
27. that this Announcement does not constitute a securities
recommendation or financial product advice and that neither WH
Ireland nor the Company has considered its particular objectives,
financial situation and needs;
28. that it is aware that it may be required to bear, and it,
and any accounts for which it may be acting, are able to bear, the
economic risk of, and is able to sustain, a complete loss in
connection with the Placing;
29. that it will indemnify and hold the Company and WH Ireland
and their respective affiliates 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, confirmations, warranties, acknowledgements,
agreements and undertakings in this Appendix and further agrees
that the Company and WH Ireland will rely on the truth and accuracy
of the representations, confirmations, warranties,
acknowledgements, agreements and undertakings herein and, if any of
the foregoing is or becomes no longer true or accurate, the Placee
shall promptly notify WH Ireland and the Company. All
representations, confirmations, warranties, acknowledgements,
agreements and undertakings given by the Placee, pursuant to this
Announcement (including this Appendix) are given to WH Ireland for
itself and on behalf of the Company and will survive completion of
the Placing and Admission;
30. that time shall be of the essence as regards obligations
pursuant to this Appendix;
31. that it is responsible for obtaining any legal, tax and
other advice that it deems necessary for the execution, delivery
and performance of its obligations in accepting the terms and
conditions of the Placing, and that it is not relying on the
Company or WH Ireland to provide any legal, tax or other advice to
it;
32. that all dates and times in this Announcement (including
this Appendix) may be subject to amendment and that WH Ireland
shall notify it of such amendments;
33. that (i) it has complied with its obligations under the
Criminal Justice Act 1993, Part VIII of FSMA and MAR, (ii) in
connection with money laundering and terrorist financing, it has
complied with its obligations under the Proceeds of Crime Act 2002
(as amended), the Terrorism Act 2000 (as amended), the Terrorism
Act 2006 and the Money Laundering Regulations 2007 and 2017 and
(iii) it is not a person: (a) with whom transactions are prohibited
under the United States 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 US
Department of the Treasury; (b) named on the Consolidated List of
Financial Sanctions Targets maintained by HM Treasury of the United
Kingdom; or (c) subject to financial sanctions imposed pursuant to
a regulation of the European Union or a regulation adopted by the
United Nations (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 it has obtained all
governmental and other consents (if any) which may be required for
the purpose of, or as a consequence of, such subscription or
purchase, and it will provide promptly to WH Ireland such evidence,
if any, as to the identity or location or legal status of any
person which WH Ireland may request from it in connection with the
Placing (for the purpose of complying with such 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 WH Ireland on the basis that any failure by it to do
so may result in the number of Placing Shares that are to be
subscribed for and/or purchased by it or at its direction pursuant
to the Placing being reduced to such number, or to nil, as WH
Ireland may decide in its absolute discretion;
34. that it will not make any offer to the public of those
Placing Shares to be subscribed for and/or purchased by it for the
purposes of the Prospectus Rules made by the FCA pursuant to
Commission Regulation (EC) No. 809/2004;
35. that it will not distribute any document relating to the
Placing Shares and it will be acquiring the Placing Shares for its
own account as principal or for a discretionary account or accounts
(as to which it has the authority to make the statements set out
herein) for investment purposes only and it does not have any
contract, understanding or arrangement with any person to sell,
pledge, transfer or grant a participation therein to such person or
any third person with respect to any Placing Shares; save that that
if it is a private client stockbroker or fund manager it confirms
that in purchasing the Placing Shares it is acting under the terms
of one or more discretionary mandates granted to it by private
clients and it is not acting on an execution only basis or under
specific instructions to purchase the Placing Shares for the
account of any third party;
36. that it acknowledges that these terms and conditions and any
agreements entered into by it pursuant to these terms and
conditions shall be governed by and construed in accordance with
the laws of England and Wales and it submits (on behalf of itself
and on behalf of any person on whose behalf it is acting) to the
exclusive jurisdiction of the English courts as regards any claim,
dispute or matter arising out of any such contract or agreement,
except that enforcement proceedings in respect of the obligation to
make payment for the Placing Shares (together with any interest
chargeable thereon) may be taken by the Company or WH Ireland 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;
37. that any documents sent to Placees will be sent at the
Placees' risk. They may be sent by post to such Placees at an
address notified to WH Ireland;
38. that WH Ireland owes no fiduciary or other duties to any
Placee in respect of any representations, warranties, undertakings
or indemnities in the Placing Agreement;
39. that WH Ireland or any of its affiliates may, at their
absolute discretion, agree to become a Placee in respect of some or
all of the Placing Shares;
40. that no prospectus or offering document has been or will be
prepared in connection with the Placing and it has not received and
will not receive a prospectus or other offering document in
connection with the Placing or the Placing Shares; and
41. that it has neither received nor relied on any confidential
price sensitive information concerning the Company in accepting its
invitation to participate in the Placing.
The Company and WH Ireland and their respective affiliates will
rely upon the truth and accuracy of each of the foregoing
representations, warranties, acknowledgements, agreements and
undertakings which are given to WH Ireland for itself and on behalf
of the Company and are irrevocable.
The provisions of this Appendix may be waived, varied or
modified as regards specific Placees or on a general basis by WH
Ireland.
The agreement to settle a Placee's subscription and/or purchase
(and/or the subscription of a person for whom such Placee is
contracting as agent) free of stamp duty and stamp duty reserve tax
depends on the settlement relating only to a subscription by it
and/or such person direct from the Company for the Placing Shares
in question. Such agreement assumes that the Placing Shares are not
being subscribed for 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 relates to any other subsequent dealing in the Placing
Shares, stamp duty or stamp duty reserve tax may be payable, for
which neither the Company nor WH Ireland will be responsible, and
the Placee to whom (or on behalf 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 UK stamp duty or stamp duty reserve
tax undertakes to pay such UK stamp duty or stamp duty reserve tax
forthwith and to indemnify on an after-tax basis and to hold
harmless the Company and WH Ireland in the event that either of the
Company and/or WH Ireland has incurred any such liability to UK
stamp duty or stamp duty reserve tax. If this is the case, each
Placee should seek its own advice and notify WH Ireland
accordingly.
In addition, Placees should note that they will be liable for
any 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
UK by them or any other person on the subscription or purchase by
them of any Placing Shares or the agreement by them to subscribe
for or purchase any Placing Shares.
All times and dates in this Announcement (including this
Appendix) may be subject to amendment. WH Ireland shall notify the
Placees and any person acting on behalf of a Placee of any
changes.
This Announcement has been issued by, and is the sole
responsibility of, the Company. No representation, warranty or
undertaking 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 WH Ireland or by any of its 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 therefor is expressly disclaimed.
DEFINITIONS
The following definitions apply in this Announcement, unless the
context otherwise requires:
"Act" the Companies Act 2006 (as amended);
"Admission" admission of the Placing Shares
to trading on AIM becoming effective
in accordance with the AIM Rules;
"AIM" the market of that name operated
by London Stock Exchange;
"AIM Rules" the rules for AIM companies and
their AIM advisers, as published
from time to time by the London
Stock Exchange in relation to AIM
traded securities;
"Announcement" this announcement regarding the
Placing, Subscription and Convertible
Bond Issue released by the Company
on 7 August 2017;
"Articles" the articles of association of
the Company;
"Bond Conversion Ordinary Shares issued upon any
Shares" conversion of the Secured Convertible
Bonds;
"Bond Placing the conditional agreement dated
Agreement" 7 August 2017 between the Company
and UK Bond Network relating to
the Convertible Bond Issue;
"Bond Underwriting the conditional agreement dated
Commitment" 23 June 2017 relating to the underwriting
of the Convertible Bond Issue;
"Bondholder" each Eligible Investor (or its
nominee) who holds a Secured Convertible
Bond from time to time;
"Broker Option" the option granted to WH Ireland
pursuant to the Placing Agreement;
"Broker Option new Ordinary Shares, if any, to
Shares" be allotted and issued by the Company
to Placees following the exercise
of the Broker Option;
"BV Tech" BV Tech S.p.A;
"Conversion Price" 200 pence per Ordinary Share;
"Convertible the instrument to be entered into
Bond Instrument" by the Company following completion
of the auction of the Secured Convertible
Bonds, which will constitute the
Secured Convertible Bonds;
"Convertible the proposed issue by the Company
Bond Issue" of the Secured Convertible Bonds,
as arranged by UK Bond Network,
as agent of the Company, further
details of which are set out in
paragraph 4 of this Announcement;
"Company" or Defenx PLC, a public limited company
"Defenx" registered in England and Wales
with registration number 08993398;
"CREST" the computerised settlement system
(as defined in the CREST Regulations)
operated by Euroclear which facilitates
the transfer of title to shares
in uncertificated form;
"CREST Regulations" the Uncertificated Securities Regulations
2001 (SI 2001/3755) including any
enactment or subordinate legislation
which amends or supersedes those
regulations and any applicable
rules made under those regulations
or any such enactment or subordinate
legislation for the time being
in force;
"Directors" or the directors of Defenx;
"Board"
"Dealing Day" a day on which AIM (or other relevant
stock exchange or securities market)
is open for business, other than
a day on which AIM (or other relevant
stock exchange or securities market)
is scheduled to or does close prior
to its regular weekday closing
time;
"Eligible Investors" high net worth, sophisticated,
professional and institutional
investors (in each case as defined
in FSMA and regulations under FSMA);
"Enlarged Share the entire issued Ordinary Share
Capital" capital of the Company immediately
following admission of the Placing
and Subscription Shares (assuming
no exercise of the Broker Option);
"Euroclear" Euroclear UK & Ireland Limited;
"Existing Ordinary the 11,862,792 Ordinary Shares
Shares" in issue on the Latest Practicable
Date;
"FSMA" the Financial Services and Markets
Act 2000;
"Fundraising" the Placing, Subscription and Convertible
Bond Issue;
"General Meeting" the general meeting of the Shareholders
or "GM" convened pursuant to the notice
of General Meeting at which the
Resolutions will be proposed;
"Group" the Company and its subsidiaries;
"Latest Practicable close of business (5.00 p.m. London
Date" time) on 4 August 2017, being the
latest practicable date prior to
the publication of this Announcement;
"London Stock London Stock Exchange PLC;
Exchange"
"New Ordinary the approximately 856,250 new Ordinary
Shares" Shares to be issued by the Company
pursuant to the Placing and Subscription,
and the Ordinary Shares (if any)
to be issued on exercise of the
Broker Option;
"Ordinary Shares' the ordinary shares of GBP0.018
each in the capital of the Company;
"Placing" The placing of the Placing Shares
at the Placing Price by WH Ireland
as agent for the Company by way
of an accelerated bookbuilding
process and the allotment of the
Broker Option Shares (if any) to
Placees, subject to a maximum of
981,250 Placing Shares being allotted;
"Placing Agreement" the placing agreement between the
Company and WH Ireland dated 7
August 2017 relating to the Placing;
"Placing Price" 160 pence per Placing Share;
"Placing Shares" the approximately 700,000 new Ordinary
Shares and (where applicable) the
Broker Option Shares to be placed
with institutional and certain
other investors at the Placing
Price pursuant to the Placing;
"Proposals" together the Placing, Subscription
and the Convertible Bond Issue;
"Resolutions" the resolutions to be set out in
the notice of General Meeting and
which are to be proposed as ordinary
and special resolutions as indicated;
"Secured Convertible up to GBP2 million in convertible
Bonds" bonds to be issued by the Company
on completion of the Convertible
Bond Issue;
"Security Trustee" Jade State Wealth Limited of 59-60
Thames Street, Windsor, Berkshire
SL4 1TX;
"Shareholders" the holders of Ordinary Shares
from time to time;
"Strand Hanson" Strand Hanson Limited, the nominated
and financial adviser to the Company;
"Subscription" the conditional allotment and issue
of up to 156,250 New Ordinary Shares
to BV Tech pursuant to the Subscription
Agreement;
"Subscription the agreement to be entered into
Agreement" between the Company and BV Tech
providing for BV Tech to make the
Subscription;
"Subscription the New Ordinary Shares subscribed
Shares" for under the Subscription;
"Takeover Offer" an offer made to all Shareholders
to acquire the whole or any part
of the issued Ordinary Share capital
of the Company, or the proposal
to carry out such an acquisition
by way of a scheme of arrangement;
"UK Bond Network" UK Bond Network Limited; and
"WH Ireland" WH Ireland Limited of 24 Martin
Lane, London EC4R 0DR.
References to "GBP", "pence" and "p" are to British pounds and
pence sterling, the currency of the United Kingdom.
This information is provided by RNS
The company news service from the London Stock Exchange
END
IOEPFMBTMBAMTTR
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August 07, 2017 02:01 ET (06:01 GMT)
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