Proposed Placing to raise approximately £20m
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR INTO OR FROM THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA OR ANY JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL.
THE INFORMATION CONTAINED WITHIN THIS ANNOUNCEMENT IS DEEMED TO CONSTITUTE INSIDE INFORMATION FOR THE PURPOSES OF ARTICLE 7 OF THE MARKET ABUSE REGULATION (EU) NO. 596/2014. UPON THE PUBLICATION OF THIS ANNOUNCEMENT, THIS INSIDE INFORMATION IS NOW CONSIDERED TO BE IN THE PUBLIC DOMAIN
3 July 2018
Proposed Placing to raise approximately £20 million
Ceres Power (AIM: CWR, "Ceres Power", "Ceres"), developer of the SteelCell®, a world-leading, low cost Solid Oxide Fuel Cell (SOFC) technology, today announces a proposed fundraising to raise up to £20.0 million (before expenses) by means of a conditional placing of up to 132,625,994 Placing Shares in aggregate with an Issue Price of 15.08 pence, representing approximately 13.0 per cent. of the Company's current issued Ordinary Share capital. The Placing, conducted by way of an accelerated bookbuild (the "Bookbuild") will be launched immediately following the release of this Announcement
This fundraising is in addition to the Weichai Subscription announced on 16 May 2018 which will (following adjustment for the dilution of the Placing) raise approximately £19.3 million (before expenses) by issuing approximately 127,760,800 Ordinary Shares, representing approximately 12.6 per cent. of the Company's current issued Ordinary Share capital. The Weichai Subscription is also priced at 15.08p per share. The value of the Weichai Subscription has increased compared to the Company's announcement on 16 May 2018 as the number of Initial Weichai Shares at the Issue Price has been increased to reflect the dilution of the Proposed Placing.
Ceres Power has entered into a placing agreement with Zeus Capital and Berenberg to act as the joint bookrunners in relation to the Placing (together the "Bookrunners").
The Placing will open with immediate effect following release of this announcement and will be conducted by way of an accelerated bookbuild. The Placing Shares are not being offered or otherwise made available to the public. The timing of the closing of the Placing and the number of Ordinary Shares to be issued and allocations are at the discretion of the Company and Bookrunners and a further announcement confirming these details is expected to be made in due course. The Bookrunners reserve the right to close the Bookbuild without further notice. The Placing is subject to the terms and satisfaction of certain conditions set out in the Appendix. No element of the Placing is being underwritten. Certain investors may participate by way of a subscription directly with the Company on terms substantially the same as the Placing and the number of Placing Shares shall be reduced accordingly.
The Placing Shares to be issued pursuant to the Placing will rank pari passu with the existing Ordinary Shares.
The Placing will be subject to the passing of certain resolutions at the General Meeting. Shareholder approval will be sought at the General Meeting, notice of which will be sent to Shareholders following the closing of the Bookbuilding. Settlement of the Proposed Placing and the Weichai Subscription is therefore expected to occur on or around 27 July 2018.
Background to the Fundraising and the Weichai Investment
Ceres Power is a world leader in next generation fuel cell technology with its low-cost Solid Oxide Fuel Cell (SOFC), SteelCell®. Currently, the Company's technology is being applied by its partners in the development of distributed power and automotive products that seek to reduce operating costs, lower CO2, SOx and NOx emissions and improve energy security. The Company intends to license its SteelCell® technology to OEM partners, who develop power systems and products, and also to manufacturing partners to produce the SteelCell® in volume.
The Company is benefitting from the twin drivers of an increasing emphasis on distributed generation combined with the rapid acceleration towards the electrification of vehicles. Distributed generation is increasingly seen as a solution for homes, businesses and data centres as the conventional central power grid is facing the growing pressures of intermittency due to more renewables combined with the growing electricity demands of electric vehicles. The increase in the electrification of vehicles is the result of increasing emissions regulations to improve air quality in countries and major cities worldwide. The SteelCell® is one of the few technologies that can provide a highly efficient, low to near zero emission power generation alternative to conventional power generation and combustion engine technology. This has driven a high level of interest in the SteelCell® technology from leading power system and engine manufacturers.
These trends are most evident in the rapid emergence of China as one of the leading markets for fuel cell technology. Accordingly the Company is delighted to include Weichai Power, one of the leading engine manufacturing companies in China, as a strategic partner in this fundraise. Weichai Power's positioning and experience provides direct access to one of the fastest growing fuel cell markets in the world. Initial plans are for Ceres Power and Weichai Power to jointly develop and launch an SOFC fuel cell range extender system for China's fast growing electric-powered bus market with the potential to add further stationary power products. As part of this partnership the Company intends to enter into a joint venture in China from 2020 to manufacture firstly systems and ultimately SteelCells®.
Weichai Power is initially investing £19.3 million to subscribe for 10 per cent. of the Enlarged Issued Share Capital. In addition, it has agreed a further investment of £26.3 million conditional on the signing of further commercial agreements to increase its holding to 20 per cent. of the Company's issued share capital by the end of November this year. This strategic relationship is a key milestone for Ceres Power as it continues to deliver on its strategy of licensing system and manufacturing of our SteelCell® technology to companies who are leaders in the power generation and automotive sectors.
Recent progress
The Company continues to grow to address increasing demand for its technology, adding new partners and progressing with existing partners towards commercialisation. Today the Company has six partners at the JDA stage of which, to date, two have strong intent to go to market with products based on licensing the SteelCell®.
Two years ago the Company made the strategic decision to target higher power applications such as data centres, commercial scale applications and transportation in addition to its home applications. In order to do this it invested in the development of larger 5kW fuel cell stack stocks and higher efficiency power modules to address the larger-scale power markets (from 5kW to hundreds of kW).
The development has been successful and the Company has early prototypes that demonstrate the capability of the 5kW stack going into several of our larger-scale power customer programmes. The Company's next step is to develop the 5kW platform further and invest in manufacturing equipment so the stacks can be produced and assembled at the cost and quality required by its OEM partners. The development of the larger stacks is key to unlocking value in most of our markets as over 80 per cent. of our customer programmes require this platform including Cummins, Nissan and Weichai Power.
In the next 12 months the Company expects several of its OEM partners to move towards field testing of multi-kW products, including a commercial scale partner which is due to start field trials later this year, the other confidential partner looking at 10kW scale products, and most recently Weichai Power, which has already started to develop a 30kW product suitable for many of the power markets across China, with the range extender for electric bus market as the first market to address.
Reasons for the placing and use of funds
The Company is looking to raise new equity in order to enable the Company to continue to grow and commercialise the SteelCell®. The Board believes that the Net Proceeds of the Placing along with the proceeds of the overall Weichai Investment, along with the Group's existing cash and cash equivalents, will provide sufficient capital to fund the Group and it intends to use the proceeds of the Placing and the Weichai Investment to:
- provide working capital to fund the business through to commercial launches with OEMs from 2020/2021;
- finance a new manufacturing facility in the UK to provide near term capacity for the next 3-5 years. The new facility will phase the increase in annual capacity from 1 to 3 MW initially potentially growing to 10 MW over the next 5 years, which will provide a platform for licensing to the Company's manufacturing partnerships for higher volume. The Company is very close to committing on a new site within commuting distance to Horsham, where its current facility will remain as its Technology Centre of Excellence;
- enable the Company to industrialise the 5kW stack, which is the key technology platform for most of its current demand. This work will build on the early prototype 5kW stacks the Company has developed in 2017/18. It enables approximately 30 per cent. reduced cost/kW compared to the equivalent 1kW stacks and will ready these products for anticipated market launches;
- provide initial funding of the proposed manufacturing JV with Weichai, which would be required from 2020; and
- strengthen the Company's balance sheet to support the multiple ongoing customer programmes.
Alongside the above, the Company will continue to invest in the technology to continuously improve and maintain its competitive advantage and will investigate additional strategic uses of the core technology to enable additional long term value creation.
Current trading and prospects
Ceres Power has reached a new phase of its business - having secured six partners at the development stage, it is now seeing several of these relationships moving towards field trials with the intent to launch commercial products under licence.
With these higher levels of commercial activity in new countries and broadening markets, the Directors anticipate revenue and other operating income for the year ended 30 June 2018 will be approximately £7 million, up c.70 per cent. from the prior year. The Board is confident that the Company can maintain this trend of strong revenue growth as it secures more technology transfer and licence revenues in addition to its current engineering services and 2019 revenues are expected to be ahead of current market expectations. The order book is currently £5.1 million, up from £3.2 million as published last year and the Company has a strong commercial pipeline with several opportunities at an advanced stage, including potential substantial grant award.
Outlook
The next year will be extremely exciting for Ceres Power, as we expect field trials to start across a number of applications: 5kW commercial CHP with our confidential customer starting later this year, the first 30kW system being run on a bus in China with our new partner Weichai in 2019, and we expect 10kW power only systems to start being trialled later in 2019. These initial trials will no doubt provide new challenges for the Company servicing several different OEMs in different markets. The Company's focus remains on getting to the SteelCell products to market under licence with leading OEMs and proving out the technology and business model in several different applications.
Of primary importance, later this year the Company is working towards completing the joint venture and licensing agreement with Weichai which will allow us to work towards a manufacturing joint venture in China and which triggers a further equity stake in the Company to increase Weichai Power's holding in the Company to 20 per cent. We also continue to target an additional strategic manufacturing partner within the next 12 months and we are in discussions with a partner regarding a broad strategic collaboration, including manufacturing, however negotiations are at an early stage.
The Board intends to continue to scale and develop the business to be able to deliver these new opportunities and completion of the proposed fundraise would put the Company in a strong financial position through this key period of growth and commercial launches.
Details of the Placing
The Company is proposing to raise approximately £20.0 million by way of the conditional placing of up to 132,625,994 Placing Shares at 15.08p with existing and new institutional investors. The Placing Shares to be issued pursuant to the Placing will represent approximately 10.4 per cent. of the Enlarged Share Capital. The Placing is conditional on (amongst other things) shareholder approval of the Placing Shares and approval of the shares resulting from the Weichai Investment and Admission and has not been underwritten.
This announcement should be read in its entirety. In particular, your attention is drawn to the detailed terms and conditions of the Placing and further information relating to the Bookbuild described in the Appendix to this announcement (which forms part of this announcement).
By choosing to participate in the Placing and by making an oral and legally binding offer to acquire Placing Shares, investors will be deemed to have read and understood this announcement in its entirety (including the Appendix), and to be making such offer on the terms and subject to the conditions of the Placing contained herein, and to be providing the representations, warranties and acknowledgements contained in the Appendix.
For further information please contact:
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Ceres Power Holdings plc Dan Caesar |
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Tel: +44 (0)1403 273 463 |
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Zeus Capital (Nominated Adviser and Broker) Giles Balleny / Andrew Jones / Dominic King |
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Tel: +44 (0) 20 3829 5000 |
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Berenberg (Joint Broker) Ben Wright / Mark Whitmore / Laure Fine |
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Tel: +44 (0) 203 207 7800 |
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Powerscourt Peter Ogden/Andy Jones |
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Tel: +44 (0) 20 7250 1446 |
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Zeus Capital, which is authorised and regulated in the United Kingdom by the Financial Conduct Authority ("FCA"), and Berenberg, which is authorised by the German Federal Financial Conduct Authority and subject to limited regulation by the FCA, are acting exclusively for the Company and for no‐one else in relation to the Placing, and will not be responsible to any other person for providing the protections afforded to their respective clients nor for providing advice in connection with the matters contained in this announcement.
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 Zeus Capital, Berenberg nor by any of their respective affiliates, partners or agents (or any of their respective directors, officers, employees or advisers), as to or in relation to, the contents, 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, or any other statement made or purported to be made by or on behalf of either of Zeus Capital or Berenberg or any of their respective affiliates in connection with the Company or the Placing, and any liability therefor is expressly disclaimed.
Zeus Capital, Berenberg and each of their respective affiliates accordingly disclaim all and any liability, whether arising in tort, contract or otherwise (save as referred to above) in respect of any statements or other information contained in this announcement.
This announcement does not identify or suggest, or purport to identify or suggest, the risks (direct or indirect) that may be associated with an investment in the Placing Shares. Any investment decision to buy Placing Shares in the Placing must be made solely on the basis of publicly available information, which has not been independently verified by Zeus Capital or Berenberg.
Important Notice
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT IN THE APPENDIX ARE DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA ("EEA") WHO ARE QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE EU PROSPECTUS DIRECTIVE (WHICH MEANS DIRECTIVE 2003/71/EC, AS AMENDED FROM TIME TO TIME, AND INCLUDES ANY RELEVANT IMPLEMENTING DIRECTIVE MEASURE IN ANY MEMBER STATE) (THE "PROSPECTUS DIRECTIVE") ("QUALIFIED INVESTORS"); AND (B) IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE PERSONS WHO (I) HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS FALLING WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER"); (II) ARE PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER; OR (III) ARE PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS").
THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THE APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THE APPENDIX 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 APPENDIX HAS BEEN ISSUED BY AND IS THE SOLE RESPONSIBILITY OF THE COMPANY.
THIS ANNOUNCEMENT, INCLUDING THIS APPENDIX, 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. THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, RESOLD, TRANSFERRED OR DELIVERED, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES EXCEPT PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES. THERE WILL BE NO PUBLIC OFFER OF THE SECURITIES MENTIONED HEREIN IN THE UNITED STATES.
THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN, NOR WILL BE, APPROVED OR DISAPPROVED BY THE US SECURITIES AND EXCHANGE COMMISSION (THE "SEC"), ANY STATE SECURITIES COMMISSION OR ANY 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 THIS ANNOUNCEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENCE IN THE UNITED STATES.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, REGULATORY, TAX, BUSINESS, FINANCIAL AND RELATED ASPECTS OF AN ACQUISITION OF PLACING SHARES.
No statement in this announcement is intended to be a profit forecast and no statement in this announcement should be interpreted to mean that the 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 Ordinary Shares and the income from them may go down as well as up and investors may not get back the full amount invested on disposal of the Placing Shares.
Neither the content of the Company's website (or any other website) nor the content of any website accessible from hyperlinks on the Company's website (or any other website) is incorporated into, or forms part of, this announcement.
Information to Distributors
Solely for the purposes of the product governance requirements contained within: (a) EU Directive 2014/65/EU on markets in financial instruments, as amended ("MiFID II"); (b) Articles 9 and 10 of Commission Delegated Directive (EU) 2017/593 supplementing MiFID II; and (c) local implementing measures (together, the "MiFID II Product Governance Requirements"), and disclaiming all and any liability, whether arising in tort, contract or otherwise, which any "manufacturer" (for the purposes of the Product Governance Requirements) may otherwise have with respect thereto, the Placing Shares have been subject to a product approval process, which has determined that the Placing Shares are: (i) compatible with an end target market of (a) retail investors, (b) investors who meet the criteria of professional clients and (c) eligible counterparties, each as defined in MiFID II; and (ii) eligible for distribution through all distribution channels as are permitted by MiFID II (the "Target Market Assessment"). Notwithstanding the Target Market Assessment, Distributors should note that: the price of the Placing Shares may decline and investors could lose all or part of their investment; the Placing Shares offer no guaranteed income and no capital protection; and an investment in the Placing Shares is compatible only with investors who do not need a guaranteed income or capital protection, who (either alone or in conjunction with an appropriate financial or other adviser) are capable of evaluating the merits and risks of such an investment and who have sufficient resources to be able to bear any losses that may result therefrom. The Target Market Assessment is without prejudice to the requirements of any contractual, legal or regulatory selling restrictions in relation to the Offer. Furthermore, it is noted that, notwithstanding the Target Market Assessment, the Joint Bookrunners will only procure investors who meet the criteria of professional clients and eligible counterparties.
For the avoidance of doubt, the Target Market Assessment does not constitute: (a) an assessment of suitability or appropriateness for the purposes of MiFID II; or (b) a recommendation to any investor or group of investors to invest in, or purchase, or take any other action whatsoever with respect to the Placing Shares.
Each distributor is responsible for undertaking its own target market assessment in respect of the Placing Shares and determining appropriate distribution channels.
the appendix
TERMS AND CONDITIONS OF THE Placing
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE Placing
1. Details of the Placing
1.1 Zeus Capital and Berenberg (the "Bookrunners") have entered into an agreement with the Company (the "Placing Agreement") under which, subject to the terms and conditions set out in that agreement, each of the Bookrunners has severally agreed, as agent and on behalf of the Company, to use its respective reasonable endeavours to procure placees (the "Placees") for the Placing Shares at a price of 15.08p per Placing Share (the "Issue Price"), where up to 132,625,994 Ordinary Shares (the "Placing Shares") shall be allocated and issued to new and existing shareholders of the Company in accordance with such allocation determined by agreement between the Company and the Bookrunners pursuant to the bookbuilding process (the "Bookbuild"), described in this announcement and set out in the Placing Agreement. Certain investors may participate by subscription (the "Investor Subscriptions") and subscribe for Ordinary Shares at the Issue Price by way of a subscription agreement rather than under the Placing (the "Investor Subscription Shares").
1.2 The Placing is conditional upon completion of the subscription by Weichai Power for approximately 127,760,800 Ordinary Shares (the "Weichai Subscription Shares") at the Issue Price and completion of the Investor Subscriptions (if any) at the Issue Price (the Investor Subscriptions together with the Weichai Subscription Shares being the "Subscription Shares").
1.3 The placing of the Placing Shares and the Subscription Shares is not underwritten by the Bookrunners. The Placing Shares will be issued conditional on, amongst other things, the approval by Shareholders of the Resolutions which will (inter alia) grant authority to the Directors to allot the Placing Shares and the Subscription Shares and disapply pre-emption rights in respect of the Placing Shares and the Subscription Shares and admission of the Placing Shares and the Subscription Shares to trading on AIM. The Circular containing details of the proposed Placing and the notice of the General Meeting will be sent to shareholders shortly following the publication of this announcement.
1.4 The Placing Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing Ordinary Shares including the right to receive all dividends and other distributions declared, made or paid on or in respect of such Ordinary Shares after the date of issue of the relevant Placing Shares.
1.5 As a term of the Placing, the Company has agreed that it will not issue or sell any Ordinary Shares (other than the Placing Shares and the Subscription Shares or pursuant to existing share options) for a period ending 90 days after Admission, without the prior consent of the Bookrunners. This agreement does not however prevent the Company from granting or satisfying exercises of options granted pursuant to existing share schemes of the Company.
2. Application for admission to trading
Application will be made to the London Stock Exchange for the Admission of the Placing Shares and the Subscription Shares to trading on AIM. It is expected that Admission will become effective and that dealings in the Placing Shares and the Subscription Shares will commence on or around 27 July 2018.
3. Bookbuild
3.1 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. The Bookrunners shall be entitled to effect the Placing by such alternative method to the Bookbuild as agreed between the Company and the Bookrunners.
4. Participation in, and principal terms of, the Placing
4.1 Zeus Capital is acting as nominated adviser, joint bookrunner and joint broker of the Company in respect of the Placing. Berenberg is acting as joint bookrunner and joint broker of the Company in respect of the Placing. The Bookrunners are arranging the Placing severally, and not jointly, nor jointly and severally.
4.2 Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by either of the Bookrunners.
4.3 Zeus Capital, Berenberg and each of their respective affiliates and partners are entitled to enter bids in the Bookbuild as principal.
4.4 The Bookbuild will be carried out on the basis of the Issue Price of 15.08p per Placing Share payable by all Placees whose bids are successful in accordance with this Appendix and the settlement instructions contained in the Placee's contract note. The number of the Placing Shares to be allocated and issued to each Placee will be determined by agreement between the Company and the Bookrunners following the Bookbuild.
4.5 The Bookrunners will today commence the bookbuilding process in respect of the Placing. The Bookrunners may, in agreement with the Company, accept bids that are received after the Bookbuild has closed. The Company reserves the right (upon the agreement of the Bookrunners) to reduce or seek to increase the amount to be raised pursuant to the Placing.
4.6 Each prospective Placee's allocation will be determined by agreement between the Company and the Bookrunners, and will be confirmed orally by either Zeus Capital or Berenberg, as agents of the Company. That oral confirmation will constitute an irrevocable legally binding commitment upon that person (who will at that point become a Placee) in favour of Zeus Capital, Berenberg and the Company to subscribe for the number of Placing Shares allocated to it at the Issue Price on the terms and conditions set out in this Appendix and in accordance with the Company's articles of association.
4.7 Each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to each of the Bookrunners as agents of the Company, to pay or procure payment in cleared funds, an amount equal to the product of the Issue Price and the number of Placing Shares that such Placee has agreed to subscribe for and the Company has agreed to allot and issue to that Placee, in accordance with this Appendix and the settlement instructions contained in the Placee's contract note.
4.8 The Bookrunners, following consultation amongst themselves, may choose to accept bids, either in whole or in part, and may scale down any bids for this purpose on such basis as they may in their sole discretion determines. The Bookrunners may also, notwithstanding paragraphs 4.6 and 4.7 above, subject to the prior agreement with the Company: (i) allocate Placing Shares after the time of any initial allocation to any person submitting a bid after that time and (ii) allocate Placing Shares after the Bookbuild has closed to any person submitting a bid after that time.
4.9 A bid in the Bookbuild will be made on the terms and subject to the conditions in this Appendix and will be legally binding on the Placee on behalf of which it is made and, except with the Bookrunners' consent, will not be capable of variation or revocation after the time at which it is submitted. However, each Bookrunner reserves the right (on agreement between the Company and the Bookrunners) to amend the terms and conditions in this Appendix with respect to individual Placees, provided that no such amendment is made to the Issue Price.
4.10 Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all Placing Shares to be subscribed for pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement".
4.11 All obligations under the Bookbuild and the Placing will be subject to fulfilment or waiver (as applicable) 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 Agreement".
4.12 By participating in the Bookbuild, 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.
4.13 To the fullest extent permissible by law, neither Zeus Capital, Berenberg nor any of their respective affiliates, agents, directors, officers, partners or employees shall have any responsibility or liability (whether in contract, tort or otherwise) to Placees (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither Zeus Capital, Berenberg nor any of their respective affiliates, agents, directors, officers, partners or employees shall have any responsibility or liability (whether in contract, tort or otherwise and including to the fullest extent permissible by law, any fiduciary duties) in respect of their conduct of the Bookbuild or of such alternative method of effecting the Placing the Bookrunners may determine.
4.14 Placees will have no rights against either of the Bookrunners, the Company nor any of their respective directors, partners or employees under the Placing Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 (as amended).
5. Conditions of the Placing
5.1 The Placing is conditional upon the Placing Agreement becoming unconditional with respect to the Placing and not having been terminated in accordance with its terms prior to Admission. The obligations of the Bookrunners under the Placing Agreement in respect of the Placing is conditional on, amongst other things:
5.1.1 the passing of the Resolutions numbered 1, 2 and 3 in the form set out in the notice of general meeting contained in the Circular, subject to any amendment approved by the Bookrunners;
5.1.2 the performance by the Company of all its obligations under the Placing Agreement so far as the same fall to be performed prior to Admission;
5.1.3 admission of the Subscription Shares to trading on AIM; and
5.1.4 Admission taking place by 8.00 a.m. (London time) on 27 July 2018 or such later date as the Company and the Bookrunners may otherwise agree (the "Admission Date").
5.2 If:
5.2.1 any of the conditions contained in the Placing Agreement in relation to the Placing (including those described in 5.1 above)(the "Placing Conditions") are not fulfilled or waived by the Bookrunners, by the time or date where specified (or, in each case, such later time and/or date as the Company and the Bookrunners may agree); or
5.2.2 the Placing Agreement is terminated in the circumstances specified below prior to Admission,
the Placing will not proceed and the Placee's 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.
5.3 The Bookrunners may, at their absolute discretion and upon such terms as they think fit, waive compliance by the Company with the whole or any part of certain of the Placing Conditions in the Placing Agreement save that the conditions in the Placing Agreement relating to Admission Date. Any such extension or waiver will not affect Placees' commitments as set out in this announcement.
5.4 None of Zeus Capital, Berenberg, the Company nor any other person shall have any liability (whether in contract, tort or otherwise) 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 the 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 the Bookrunners.
6. Termination of the Placing Agreement
6.1 The Bookrunners may at any time prior to Admission terminate the Placing Agreement in respect of the Placing Shares by giving notice in writing to the Company if, amongst other things:
6.1.1 the Company's application for Admission of the Placing Shares is refused by the London Stock Exchange; or
6.1.2 there has been a breach of any of the warranties given by the Company in the Placing Agreement in the opinion of either Bookrunner, acting in good faith; or
6.1.3 there has occurred:
(a) a general moratorium on commercial banking activities in London declared by the relevant authorities or a material disruption in commercial banking or securities settlement or clearance services in the United Kingdom;
(b) the declaration, outbreak, escalation or threatening of war or other hostilities, or the occurrence of any acts of terrorism, involving the United Kingdom or the declaration by the United Kingdom of a national emergency;
(c) a change or development involving a prospective change in taxation adversely affecting any member of the Group or its prospects or the Placing;
(d) any other occurrence of any kind which (by itself or together with any other such occurrence) in the reasonable opinion of either Bookrunner is likely to materially and adversely affect the market's perception of the Company or the financial position or trading position or prospects of the Group taken as a whole; or
(e) any other crisis of international or national effect or any change in any currency exchange rates or controls or in any financial, political, economic or market conditions or in market sentiment or any other calamity or crisis which, in any case, in the opinion of either Bookrunner (acting in good faith) is material.
6.2 Upon such termination of the Placing Agreement, the parties to the Placing Agreement shall be released and discharged (except for any liability arising before or in relation to such termination) from their respective obligations under or pursuant to the Placing Agreement subject to certain exceptions. For the avoidance of doubt, the Placing cannot be terminated after Admission has occurred to the extent it relates to the Placing Shares.
6.3 The rights and obligations of the Placees shall terminate only in the circumstances described in these terms and conditions and in the Placing Agreement and will not be subject to termination by the Placee or any prospective Placee at any time or in any circumstances. By participating in the Placing, Placees agree that the exercise by Zeus Capital and/or Berenberg of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of such Bookrunner and that it need not make any reference to, or consult with, Placees and that it shall have no responsibility or liability to Placees whatsoever in connection with any such exercise and neither the Company nor the Bookrunners nor any of their respective directors, officers, employees, agents or affiliates shall have any liability to Placees whatsoever in connection with any such exercise or failure to exercise or otherwise.
7. No prospectus
7.1 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 a prospectus in the UK. No offering document, prospectus or admission document has been or will be submitted to be approved by the FCA or submitted to the London Stock Exchange in relation to the Placing and Placees' commitments will be made solely on the basis of their own assessment of the Company, the Placing Shares and the Placing based on the Company's publicly available information taken together with the information contained in this announcement (including this Appendix), and subject to the further terms set forth in the contract note to be provided to individual prospective Placees.
7.2 Each Placee, by accepting a participation in the Placing, agrees that the content of this announcement (including this Appendix) is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information representation, warranty, or statement made by or on behalf of the Company, Berenberg or Zeus Capital or any other person and none of Zeus Capital, Berenberg or 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 Placees may have obtained or received. 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. Nothing in this paragraph shall exclude or limit the liability of any person for fraud or fraudulent misrepresentation by that person.
8. Registration and Settlement
8.1 Settlement of transactions in the Placing Shares following Admission will take place within the system administered by CREST, subject to certain exceptions. The Bookrunners and the Company reserve the right to require settlement for and delivery of the Placing Shares (or a portion thereof) to Placees in certificated form if, in their opinion, delivery or settlement is not possible or practicable within the CREST system or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
8.2 Each Placee to be allocated Placing Shares in the Placing will be sent a contract note in accordance with the standing arrangements in place with Zeus Capital or Berenberg stating the number of Placing Shares allocated to it at the Issue Price and settlement instructions. The number of Placing Shares allocated to each Placee will be allocated in a manner determined by agreement between the Company and the Bookrunners, and Placees will be notified of the relevant allocation in the contract note.
8.3 Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with the standing CREST or certificated settlement instructions that it has in place with Zeus Capital or Berenberg (as the case may be).
8.4 The Company will deliver the Placing Shares to a CREST account operated by Zeus Capital or Berenberg (as applicable) as settlement agent for the Company and Zeus Capital or Berenberg (as applicable) will enter its delivery (DEL) instruction into the CREST system. The input to CREST by a Placee of a matching or acceptance instruction will then allow delivery of the relevant Placing Shares to that Placee against payment.
8.5 It is expected that settlement of the Placing Shares will take place on 27 July 2018 on a delivery versus payment basis.
8.6 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 as determined by the Bookrunners.
8.7 Each Placee is deemed to agree that, if it does not comply with these obligations, the Bookrunners may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for the Company's 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 aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties thereon) or other similar taxes imposed in any jurisdiction which may arise upon the sale of such Placing Shares on such Placee's behalf. By communicating an intention to subscribe for Placing Shares, each Placee confers on the Bookrunners all such authorities and powers necessary to carry out any such sale and agrees to ratify and confirm all actions which the Bookrunners lawfully take in pursuance of such sale.
8.8 If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the trade confirmation or 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 of 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. Placees will not be entitled to receive any fee or commission in connection with the Placing.
8.9 Each Placee acknowledges and agrees that the Company is responsible for the allotment of the Placing Shares to the Placees and each of the Bookrunners shall have no liability to the Placees for the failure of the Company to fulfil those obligations.
9. Representations and warranties
9.1 By participating in the Placing, each Placee (and any person acting on such Placee's behalf) irrevocably acknowledges, confirms, undertakes, represents, warrants and agrees (as the case may be) with Zeus Capital and Berenberg (in their respective capacities as joint bookrunners and agents of the Company, in each case as a fundamental term of their application for relevant Placing Shares), the following:
9.1.1 it has read and understood this announcement (including this Appendix) in its entirety and that its subscription of Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, acknowledgements, agreements and undertakings and other information contained herein;
9.1.2 its understanding is that the Placing does not constitutes a recommendation or financial product advice and neither Zeus Capital nor Berenberg has had regard to its particular objectives, financial situation or needs;
9.1.3 unless paragraph 9.1.4 below applies, it has neither received nor relied on any 'inside information' (for the purposes of EU Market Abuse Regulation (2014/596/EU)("MAR") and section 56 of the Criminal Justice Act 1993) concerning the Company in accepting this invitation to participate in the Placing;
9.1.4 if it has received any 'inside information' (for the purposes of MAR and section 56 of the Criminal Justice Act 1993) in relation to the Company and its securities, it confirms that it has received such information within the market soundings regime provided for in article 11 of MAR and associated delegated regulations and it has not: (i) dealt (or attempted to deal) in the securities of the Company; (ii) encouraged, recommended or induced another person to deal in the securities of the Company; or (iii) unlawfully disclosed inside information to any person, prior to the information being made publicly available;
9.1.5 it has the power and authority to carry on the activities in which it is engaged, to subscribe for and/or acquire the Placing Shares and to execute and deliver all documents necessary for such acquisition and/or subscription;
9.1.6 its understanding is that no offering document, listing particulars, prospectus or admission document has been or will be prepared in connection with the Placing and it has not received and will not receive a prospectus, admission document or other offering document in connection with the Bookbuild, the Placing or the Placing Shares;
9.1.7 its understanding is that the existing Ordinary Shares in the capital of the Company are admitted to trading on AIM and that the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of AIM which includes a description of the nature of the Company's business and its most recent balance sheet and profit and loss account and that it is able to obtain or access such information and such information or comparable information concerning any other publicly traded company, in each case without undue difficulty;
9.1.8 that none of Zeus Capital, Berenberg, the Company nor any of their respective affiliates, agents, directors, officers, partners or employees nor any person acting on behalf of any of them has provided, and none of them will provide it, with any material regarding the Placing Shares or the Company or any other person other than this announcement nor has it requested Zeus Capital, Berenberg, the Company, any of their respective affiliates, agents, directors, officers, partners or employees nor any person acting on behalf of any of them to provide it with any such information;
9.1.9 unless otherwise specifically agreed with the Bookrunners, that neither it nor the beneficial owner of the Placing Shares is, or at the time the Placing Shares are acquired, neither it nor the beneficial owner of the Placing Shares will be, a resident of, or otherwise located in, the United States, Australia, Canada, Japan or the Republic of South Africa, and it further acknowledges that the Placing Shares have not been and will not be registered under the securities legislation of the United States, Australia, Canada, Japan or the Republic of South Africa and subject to certain exceptions, may not be offered, sold transferred delivered or distributed, directly or indirectly, in or into those jurisdictions;
9.1.10 that: (i) it is outside the United States and is not acquiring the Placing Shares for the account of any person who is located in the United States; (ii) it is acquiring the Placing Shares in an "offshore transaction" (within the meaning of Regulation S ("Regulation S") under the US Securities Act of 1933, as amended (the "Securities Act")); (iii) it is not acquiring any of the Placing Shares as a result of any form of "directed selling efforts" as defined in Rule 902(c) under Regulation S; (iv) it is not acquiring the Placing Shares with a view to the offer, sale, resale, transfer, delivery or distribution directly or indirectly, of any such Placing Shares into the United States; and (v) it is not within Australia, Canada, Japan, the Republic of South Africa or any other jurisdiction in which it is unlawful to make or accept an offer to acquire the Placing Shares, and it is not acquiring the Placing Shares with a view to the offer, sale, resale, transfer, delivery or distribution directly or indirectly, of any such Placing Shares into any of the jurisdictions referred to above,
9.1.11 its understanding is that the content of this announcement is exclusively the responsibility of the Company and that neither Berenberg, Zeus Capital nor any person acting on their respective behalf have or shall have any liability for any information, representation or statement contained in this announcement or any information previously or subsequently published by or on behalf of the Company, including, without limitation, any information required to be published by the Company pursuant to applicable laws (the "Exchange Information") and will not be liable for its decision to participate in the Placing based on any information, representation or statement contained in this announcement or otherwise. It further represents, warrants and agrees that the only information on which it is entitled to rely and on which it has relied in committing itself to subscribe for the Placing Shares is contained in this announcement and any information previously published by the Company by notification to a RNS, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares and that it has neither received nor relied on any other information given or representations, warranties or statements made by Zeus Capital, Berenberg or the Company and neither Zeus Capital, Berenberg nor the Company will be liable for its decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement. It further acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placing. None of Zeus Capital, Berenberg, the Company or any of their respective affiliates, agents, directors, officers, partners or employees has made any representations to it express or implied, with respect to the Company, the Placing and the Placing Shares or the accuracy, completeness or adequacy of the Exchange Information, and each of them expressly disclaims any liability in respect thereof. Nothing in this paragraph or otherwise in this announcement excludes the liability of any person for fraud or fraudulent misrepresentation made by that person;
9.1.12 neither it, nor the person specified by it for registration as holder of Placing Shares is, or is acting as nominee or agent for, and the Placing Shares will not be allotted to, a person who is or may be liable to stamp duty or stamp duty reserve tax under any of sections 67, 70, 93 and 96 of the Finance Act of 1986 (depositary receipts and clearance services);
9.1.13 that it has complied with its obligations under the Criminal Justice Act 1993, MAR and in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002 (as amended), the Terrorism Act 2000, the Terrorism Act 2006, the Money Laundering Regulations 2007 and the Money Laundering Sourcebook of the FCA (the "Money Laundering 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;
9.1.14 subject to paragraph 9.2, that it is acting as principal only in respect of the Placing or, if it is acting for any other person (i) it is duly authorised to do so and has full power to make the acknowledgments, representations and agreements herein on behalf of each such person; and (ii) it is and will remain liable to the Company, Berenberg and/or Zeus Capital for the performance of all its obligations as a Placee in respect of the Placing (regardless of the fact that it is acting for another person);
9.1.15 if it is a financial intermediary, as that term is used in Article 3(2) of the EU Prospectus Directive (which shall mean Directive 2003/71/EC and amendments thereto, including the 2010 PD Amending Directive to the extent implemented in the Relevant Member State), that the Placing Shares subscribed by it in the Placing will not be acquired on a non-discretionary basis on behalf of nor will they be acquired with a view to their offer or resale to persons in a member state of the EEA other than qualified investors or in circumstances in which the prior consent of the Bookrunners has been given to the proposed offer or resale;
9.1.16 that it has not offered or sold and will not offer or sell any Placing Shares to the public in any member state of the EEA except in circumstances falling within Article 3(2) of the Prospectus Directive which do not result in any requirement for the publication of a prospectus pursuant to Article 3 of that Directive;
9.1.17 that 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;
9.1.18 that it has complied with and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving, the United Kingdom;
9.1.19 if in a member state of the EEA, unless otherwise specifically agreed with the Bookrunners in writing, that it is a qualified investor within the meaning of Article 2(l)(e) of the Prospectus Directive;
9.1.20 if in the United Kingdom, that it is a person (i) having professional experience in matters relating to investments who falls within the definition of "investment professionals" in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the "Order") or (ii) who falls within Article 49(2) (a) to (d) ("High Net Worth Companies, Unincorporated Associations, etc") of the Order, or (iii) to whom this announcement may otherwise lawfully be communicated;
9.1.21 that no action has been or will be taken by any of the Company, Berenberg or Zeus Capital or any person acting on behalf of the Company, Berenberg or Zeus Capital that would or is intended to permit a public offer of the Placing Shares in any country or jurisdiction where any such action for that purpose is required;
9.1.22 that it and any person acting on its behalf is entitled to acquire the Placing Shares under the laws of all relevant jurisdictions which apply to it and that it has fully observed such laws and obtained all such governmental and other guarantees, permits authorisations, approvals and consents which may be required thereunder and complied with all necessary formalities and that it has not taken any action or omitted to take any action which will or may result in Zeus Capital, Berenberg, the Company or any of their respective directors officers, partners, agents, employees or advisers acting in breach of the legal or regulatory requirements of any jurisdiction in connection with the Placing;
9.1.23 that it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to its participation in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this announcement) and will honour such obligations;
9.1.24 that it and any person acting on its behalf will make or procure payment for the Placing Shares allocated to it in accordance with this announcement on the due time and date set out herein, failing which the relevant Placing Shares may be placed with other subscribers or sold as the Bookrunners may in their absolute discretion determine and without liability to it, but it will remain liable for any amount by which the net proceeds of such sale falls short of the product of the Issue Price and the number of Placing Shares allocated to it and may be required to bear and indemnify the Bookrunners and their affiliates, directors, partners, officers and employees on an after-tax basis against any stamp duty, stamp duty reserve tax or other similar taxes (together with any interest or penalties due pursuant to the terms set out or referred to in this Announcement) which may arise upon the sale of its Placing Shares on its behalf;
9.1.25 that its allocation (if any) of Placing Shares will represent a maximum number of Placing Shares to which it will be entitled, and required, to subscribe for, and that the Bookrunners (having agreed with the Company and Berenberg) 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;
9.1.26 that the person whom it specifies for registration as holder of the Placing Shares will be (i) itself or (ii) its nominee, as the case may be. None of Zeus Capital, Berenberg and the Company will be responsible for any liability to stamp duty or stamp duty reserve tax or other similar taxes resulting from a failure to observe this requirement. It and any person acting on its behalf agrees to indemnify the Company, Berenberg and Zeus Capital in respect of the same on the basis that the Placing Shares will be allotted to the CREST stock account of Zeus Capital or Berenberg who will hold them as nominee on its behalf until settlement in accordance with standing settlement instructions;
9.1.27 that neither Zeus Capital, Berenberg nor any of their respective affiliates, agents, directors, officers, partners or employees, nor any person acting on their behalf is making any recommendations to it or advising it regarding the suitability of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be a client of either Bookrunner and that neither Bookrunner has any duties or responsibilities to it for providing the protections afforded to its clients or customers or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
9.1.28 that in making any decision to subscribe for the Placing Shares, it has knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of subscribing for or purchasing the Placing Shares. It further confirms that it is experienced in investing in securities of this nature in this sector and is aware that it may be required to bear, and is able to bear the economic risk of participating in, and is able to sustain a complete loss in connection with, the Placing. It further confirms that it relied on its own examination and due diligence of the Company and its associates taken as a whole, and the terms of the Placing, including the merits and risks involved, and not upon any view expressed or information provided by or on behalf of either Bookrunner;
9.1.29 that in connection with the Placing, Zeus Capital, Berenberg and any of their respective affiliates acting as an investor for their own account may take up Placing Shares in the Company and in that capacity may retain, purchase or sell for its own account such Placing Shares in the Company and any securities of the Company or related investments and may offer or sell such securities or other investments otherwise than in connection with the Placing. Neither Zeus Capital nor Berenberg intend to disclose the extent of any such investment or transactions otherwise than in accordance with any legal or regulatory obligation to do so;
9.1.30 that these terms and conditions and any agreements entered into by it pursuant to these terms and conditions and any non-contractual obligations arising out of or in connection with such agreements shall be governed by and construed in accordance with the laws of England and Wales and it submits, on its own behalf 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, 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, Berenberg or Zeus Capital in any jurisdiction in which it is incorporated or in which any of its securities have a quotation on a recognised stock exchange;
9.1.31 that the Company, Berenberg, Zeus Capital and their respective affiliates, agents, directors, officers, partners or employees and others will rely upon the truth and accuracy of the representations, warranties and acknowledgements set forth herein and which are given to the Bookrunners on their own behalf and on behalf of the Company and are irrevocable and it irrevocably authorises the Company, Berenberg and Zeus Capital to produce this announcement, pursuant to in connection with, or as may be required by any applicable law or regulation, administrative or legal proceeding or official inquiry with respect to the matters set forth herein;
9.1.32 none of the Company, Berenberg or Zeus Capital owes any fiduciary or other duties to any Placee in respect of any acknowledgements, confirmations, undertakings, representations, warranties or indemnities in the Placing Agreement; and
9.1.33 its commitment to take up Placing Shares on the terms set out in this Announcement (including this Appendix) will continue notwithstanding any amendment that may or in the 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, Berenberg or Zeus Capital's conduct of the Placing, that it will indemnify and hold the Company, Berenberg and Zeus Capital and their respective affiliates, agents, directors, officers, partners or 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 in this announcement and further agrees that the provisions of this announcement shall survive after completion of the Placing.
9.2 The Company and each Bookrunner acknowledge, where a Placee is acting as agent for discretionary managed clients, that (i) the Placee is acting at all times as agent for and on behalf of certain discretionary managed clients of whom it has discretionary management authority (the "Funds") and (ii) the Placee shall have no liability as principal to acquire and pay for the Placing Shares allocated to it as agent for and on behalf of the Funds or in respect of each Fund's obligations under these terms and conditions who will hold the Placing Shares through a custodian and (iii) all representations, warranties and undertakings are given by the Placee as agent and not as principal.
9.3 For the avoidance of doubt, nothing in these terms and conditions is intended to create joint and several liability between the Funds. The Company and each Bookrunner agree that any liabilities of a Fund incurred hereunder shall be limited to the property of that Fund and under no circumstances shall there be recourse to the assets of any other fund within the same umbrella as the Fund or any other Fund in respect of those liabilities.
9.4 For the avoidance of doubt, nothing in these terms and conditions is intended to create joint and several liability amongst Placees, nor between Placees, nor between any Placee and any of the Company and/or any of the Bookrunners.
9.5 By participating in the Placing, each Placee (and any person acting on the Placee's behalf) subscribing for Placing Shares acknowledges that the Placing Shares have not been and will not be registered under the Securities Act or with any securities regulatory authority of any state or other jurisdiction of the United States and are being offered and sold solely outside the United States in "offshore transactions" pursuant to and in reliance on Regulation S, in a transaction not involving a public offering of securities in the United States.
9.6 Please also note that 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 UK relates only to their allotment and issue to Placees, or such persons as they nominate as their agents, direct from the Company for the Placing Shares in question. The Company, Berenberg and Zeus Capital are not liable to bear any transfer taxes that arise on a sale of Placing Shares subsequent to their acquisition by Placees or for transfer taxes arising otherwise than under the laws of the United Kingdom. Each Placee should, therefore, take its own advice as to whether any such transfer tax liability arises. Furthermore, each Placee agrees to indemnify on an after-tax basis and hold Zeus Capital, Berenberg and the Company and their respective affiliates harmless from any and all interest, fines or penalties in relation to stamp duty, stamp duty reserve tax and all other similar duties or taxes to the extent that such interest, fines or penalties arise from the unreasonable default or delay of that Placee or its agent.
9.7 Each Placee and any person acting on behalf of each Placee acknowledges and agrees that Zeus Capital, Berenberg or any of their respective affiliates may, at their absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares.
9.8 When a Placee or person acting on behalf of the Placee is dealing with either Bookrunner, any money held in an account with such Bookrunner on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the FCA made under FSMA. The 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 such Bookrunner's money in accordance with the client money rules and will be used by the relevant Bookrunner in the course of its own business; and the Placee will rank only as a general creditor of such Bookrunner.
9.9 All times and dates in this announcement may be subject to amendment. Zeus Capital and/or Berenberg shall notify the Placees and any person acting on behalf of the Placees of any changes.
9.10 The rights and remedies of Zeus Capital, Berenberg and the Company under these Terms and Conditions are in addition to any rights and remedies which would otherwise be available to each of them and the exercise or partial exercise of one will not prevent the exercise of others.
9.11 Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.
DEFINITIONS
The following definitions apply throughout this announcement, unless the context requires otherwise:
Admission means the admission of the Placing Shares and Subscription Shares to trading on AIM, pursuant to the Placing, becoming effective in accordance with the AIM Rules.
AIM means the AIM market of the London Stock Exchange.
AIM Rules means the AIM rules for companies published by the London Stock Exchange.
Berenberg means Joh. Berenberg, Gossler & Co. KG, London Branch, being the Company's joint broker and joint bookrunner in relation to the Placing.
Circular means the circular to be published by the Company on 4 July 2018 in relation to the Placing which includes notice of convening the General Meeting at which the Resolutions will be proposed.
Company or Ceres means Ceres Power Holdings PLC, a company incorporated in England and Wales with registered number 5174075.
CREST means a relevant system (as defined in the CREST Regulations) in respect of which Euroclear is the Operator (as defined in the CREST Regulations).
Directors or Board means the board of directors of the Company.
Euroclear means Euroclear UK & Ireland Limited.
EU means the European Union.
FCA means Financial Conduct Authority.
FSMA means Financial Services and Markets Act 2000.
General Meeting means the general meeting of the Company convened for 11.00 a.m. on 20 July 2018 at Powerscourt, 1 Tudor Street, London EC4Y 0AH.
Group means the Company and its subsidiaries from time to time.
Investor Subscription Shares means the Ordinary Shares potentially to be allotted and issued pursuant to the Investor Subscriptions.
Investor Subscriptions means the potential participation by certain investors by way of a subscription agreement.
Issue Price means 15.08p per Placing Share.
London Stock Exchange means London Stock Exchange plc.
MAR means the EU Market Abuse Regulation (2014/596/EU).
Notice of General Meeting means the notice of the General Meeting set out in the Circular.
Ordinary Shares means ordinary shares of 1 penny each in the capital of the Company.
Placing means the proposed placing by Zeus Capital and Berenberg, as joint bookrunners and agents to the Company, of the Placing Shares at the Issue Price on a non-pre-emptive basis, on the terms and conditions set out in the Placing Agreement.
Placing Agreement the agreement between the Company, Zeus Capital and Berenberg dated 3 July 2018 in connection with the Placing.
Placing Shares means up to 132,625,994 Ordinary Shares to be allotted and issued to new and existing institutional shareholders by the Company pursuant to the Placing.
Resolutions means the resolutions to be proposed at the General Meeting, as set out in the Notice of General Meeting.
RNS means the regulatory information service approved by the London Stock Exchange for the distribution of AIM announcements.
Shareholders means holders of Ordinary Shares.
Takeover Code means the City Code on Takeovers and Mergers.
Takeover Panel means the Panel on Takeover and Mergers.
United Kingdom or UK means United Kingdom.
United States or US means United States of America, its territories and possessions, any state of the United States of America and the District of Columbia.
"Weichai Power" means Weichai Power (Hong Kong) International Development Co., Ltd (registered in Hong Kong Special Administrative Region, with company number 1251879) whose registered office is at Room 3407-08, 34/Floor, Gloucester Tower, The Landmark, 15 Queen's Road, Central, Hong Kong Special Administrative Region.
Weichai Subscription Shares means the approximately 127,760,800 Ordinary Shares to be allotted and issued to Weichai Power.
Zeus Capital means Zeus Capital Limited, the registered office of which is at 82 King Street, Manchester, M2 4WQ as nominated adviser, joint broker and joint bookrunner in relation to the Placing.
All references in this announcement to "£", "pence" or "p" are to the lawful currency of the United Kingdom. All references to "USS" or "$" are to the lawful currency of the United States.
This information is provided by RNS, the news service of the London Stock Exchange. RNS is approved by the Financial Conduct Authority to act as a Primary Information Provider in the United Kingdom. Terms and conditions relating to the use and distribution of this information may apply. For further information, please contact rns@lseg.com or visit www.rns.com.
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