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Tungsten Corp PLC (TUNG)

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Tuesday 02 September, 2014

Tungsten Corp PLC

Acquisition and Proposed Placing

RNS Number : 6677Q
Tungsten Corporation PLC
02 September 2014
 

TUNGSTEN CORPORATION PLC

 

NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN WHOLE OR IN PART, IN, INTO OR FROM THE UNITED STATES, CANADA, AUSTRALIA, JAPAN NOR ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OF SUCH JURISDICTION

  

For Immediate Release                                                                                              

2 September, 2014

 

Acquisition and Proposed Placing

 

 

Tungsten Corporation plc to enhance e-Invoicing with workflow and connectivity services through the acquisition of Image Integration Systems, Inc. ("DocuSphere")

 

Proposed Placing of new Ordinary Shares to raise a total of approximately £12m (the "Placing") to finance the DocuSphere acquisition for up to $6.5m (c. £4.0m), together with financing for expanded customer commitments

 

Tungsten Corporation plc (LSE:TUNG) ("Tungsten" or the "Company") is pleased to announce that, through its wholly owned subsidiary Tungsten Network Inc. (the "Purchaser"), it has conditionally agreed to acquire DocuSphere (the "Acquisition"). DocuSphere is a provider of accounts payable automation services, which will bring additional strength to the Tungsten Network offering.

 

Many multinational customers require connectivity and workflow tools to automate their invoice processes, in particular when handling invoice exceptions and achieving straight-through processing. By integrating DocuSphere's services and technology, Tungsten Network customers will benefit from quicker reliable connection to the Tungsten e-Invoicing network. DocuSphere's proven technology gives Tungsten enhanced control over the speed and cost of implementation and so contributes to the success of customers' e-Invoicing deployments.

 

Terms of the Placing

 

Tungsten intends to raise approximately £12m at a price to be determined in the context of the market by way of the Placing and has appointed Canaccord Genuity Limited ("Canaccord Genuity") as sole bookrunner, broker and agent to the Placing. The Placing will be effected, subject to the satisfaction of certain conditions, through an accelerated bookbuild process. It is expected that books will open immediately and close at 9:00am on 3 September 2014. Pricing and allocations are expected to be set as soon as practicable thereafter.  Timings for announcement of the closing of the Placing book and the results of the Placing will be determined at the sole discretion of Canaccord Genuity, in consultation with Tungsten.

 

Certain members of the Board and their family investment vehicles have indicated their interest in participating in the Placing, including indications of:

 

·     538,879 Ordinary Shares from Rockhopper Investments Limited, the family vehicle of Edmund Truell;

·     14,546 Ordinary Shares from Daniel Truell;

·     £750,000.00 from Michael Spencer via IPGL, the private holding company majority controlled by Michael Spencer and his family interests;

·     6,400 Ordinary Shares from Peter Kiernan; and

·     10,000 Ordinary Shares from Phil Ashdown.

The Placing will be undertaken in accordance with the terms and conditions set out in the Appendix to this announcement.

 

The Placing is not being underwritten and is being carried out pursuant to the authorities granted by shareholders at the Company's annual general meeting on 10 October 2013, so does not require any further shareholder approval. Application will be made for the shares issued pursuant to the Placing (the "Placing Shares") to be admitted to trading on the AIM market of the London Stock Exchange. Settlement of the Placing Shares together with Admission is expected to become effective on 9 September 2014. On Admission, the Placing Shares will rank pari passu in all respects with the existing Ordinary Shares in the capital of the Company.

 

The Placing is conditional, inter alia, on:

·      The placing agreement between the Company and Canaccord Genuity relating to the Placing becoming unconditional in all respects; and

·      The Admission of the Placing Shares to trading on AIM becoming effective by no later than 8.00 a.m. on 9 September 2014 or such other date as Canaccord Genuity and the Company may agree, being not later than 8 a.m. on 30 September 2014.

 

The Appendix to this Announcement (which forms part of this Announcement) sets out the terms and conditions of the Placing. Persons who have chosen to participate in the Placing, by making an oral or written offer to acquire Placing Shares, 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 terms and conditions herein, and to be providing the representations, warranties and acknowledgements contained in the Appendix.

 

Use of proceeds

Tungsten intends to use approximately £5m of the proceeds of the Placing to finance:

·     the acquisition of DocuSphere for a total cash consideration of approximately $6.5m on completion; and

·     the expected integration investment and DocuSphere working capital.

 

In addition, as previously announced to the market, Tungsten Network has had a series of contract wins with major, multinational enterprises and governments. Several of these contracts have been ahead of the Company's expectations in both scale and the rate at which they have been signed. Investment is required from Tungsten to enrol these buyers and their suppliers, and to create the appropriate infrastructure to service these contracts; it is to this end that the Company has decided to raise an additional £7m to enable it to maximise the benefits to Tungsten from these opportunities.

 

Acquisition of DocuSphere

 

The acquisition of DocuSphere is subject to certain conditions, including, inter alia, Admission of the Placing Shares to trading on the Alternative Investment Market of the London Stock Exchange plc ("Admission").

 

Founded in 1993 and headquartered in Perrysburg, Ohio, DocuSphere focuses on the development, implementation and support of "The DocuSphere Difference" solution for accounts payable automation. DocuSphere's accounts payable automation software has standards based, validated integration with the three top ERP systems: JD Edwards (JDE), Oracle E-Business Suite (EBS) and SAP.

 

The acquisition of DocuSphere brings additional value to Tungsten through:

 

·     Leading technology

DocuSphere's robust and specialised technology provides Tungsten with certified integration tools that cover 80% of the ERPs used by Fortune 2000 companies

·     Customer flexibility

Adding DocuSphere's services to Tungsten's existing capabilities gives customers the opportunity to select the features that best match their businesses, projects and e-Invoicing needs

·     Blue-chip customer list

DocuSphere's blue-chip, multinational customer base offers substantial cross-selling opportunities

·     Significant pipeline

The value of DocuSphere's sales pipeline has grown, year on year, for the past  three years        

 

For the year ended 30 November 2013, DocuSphere generated revenue of $3.3m, a net loss of $0.4m and net assets of $0.7m. Revenue for the 12 months to July 2014 (as shown by the unaudited management accounts of DocuSphere) was $3.7m.

 

The Purchaser will acquire all of the issued and outstanding shares of DocuSphere's capital stock from DocuSphere's shareholders (the "Vendors") pursuant to a stock purchase agreement (the "Purchase Agreement") dated 2 September 2014. The aggregate cash consideration payable to the Vendors at completion will equal $6.5m, subject to customary adjustments. On the date that is 18 months after the completion date, Tungsten will issue to the Vendors an aggregate number of Ordinary Shares equal to $500,000 based on the price of a Tungsten share at completion (less any amounts offset against such Ordinary Shares to satisfy Vendors' indemnification obligations under the Purchase Agreement). 

 

In addition to the purchase price described above, the Purchase Agreement includes customary representations and warranties, covenants and indemnities of the parties. Completion under the Purchase Agreement is subject to the satisfaction of customary closing conditions and is expected to occur on 9 September 2014.

 

The Placing is not conditional upon shareholder approval. Admission is expected to become effective on 9 September 2014.

 

 

Commenting on the Placing and the Acquisition, Edmund Truell, Group Chief Executive Officer of Tungsten said:

 

"Tungsten Corporation's acquisition of DocuSphere demonstrates our commitment to delivering secure, smart and fast services through a stronger e-Invoicing proposition. This addition to our service portfolio will allow us to take greater control of the results we deliver to our customers by eliminating any reliance on third-party middleware providers. This adds another building block to our to our already powerful e-Invoicing services. 

 

"We are launching Tungsten Bank's offer of early payment to suppliers and the innovative Tungsten Network Analytics technology to give real-time spending insights for our buyers. Combined, we continue to work towards becoming the world's largest electronic trading network."

 

Commenting on the Acquisition, Bradley White, Chief Executive Officer and President of DocuSphere said:

 

"Increased control, on-time payment and straight-through processing are key goals for any forward-thinking finance function. Customers are looking for integrated, end-to-end solutions that automate and digitise their invoice processes, and enable them to trade with confidence. By becoming part of Tungsten Network, we will provide additional value and services to our community of current and future customers, and greater opportunities for our employees."

 

For further information:

 

Tungsten Corporation plc                                                                                       +44 20 7280 7807
Edmund Truell, CEO
Sandra Higgison, Head of Global Communications  

Charles Stanley Securities                                                                                     +44 20 7149 6000
(NOMAD and Joint Broker)
Marc Milmo
Dugald J. Carlean

Canaccord Genuity (Joint Broker)                                                                         +44 20 7523 8000
Corporate Finance:

Simon Bridges
Peter Stewart
Cameron Duncan

 

Equity Capital Markets:                                                                                               +44 20 7523 8000
Tim Redfern

Kit Stephenson

 

Equus Group (Communications)                                                                            +44 20 7223 1100
Piers Hooper
Sam Barton

 

About Tungsten Corporation plc

 

Tungsten Corporation (LSE: TUNG) accelerates global trade by enabling customers to streamline invoice processing, improve cash-flow management and make better buying decisions from their detailed spend data.

 

Buyer organisations that join Tungsten Network, built on OB10 e-Invoicing, can reduce their invoice-processing costs by 60%. Suppliers benefit from efficiencies, greater visibility of their invoice status and peace of mind. Tungsten offers supply chain financing through Tungsten Bank to suppliers and helps buying organisations profit by applying real-time spend analytics to its vast repository of over $750 billion of line-level invoice data.

 

Tungsten Network serves 53% of the Fortune 500 and 66% of the FTSE 100 by connecting the world's largest companies and government agencies to their thousands of suppliers around the globe. It is compliant in 46 countries, and last year processed transactions worth over $187bn for organisations such as Alliance Data, Aviva, Cargill, Deutsche Lufthansa, General Motors, GlaxoSmithKline, Henkel, IBM, Kellogg's, and US Federal Government.

 

Tungsten Corporation joined forces with OB10 in 2013 to create the world's largest electronic trading network.



 

 

APPENDIX

 

IMPORTANT INFORMATION FOR PLACEES ONLY

 

MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS DOCUMENT AND THE TERMS AND CONDITIONS SET OUT AND REFERRED TO HEREIN ARE DIRECTED ONLY AT PERSONS SELECTED BY CANACCORD GENUITY LIMITED ("CANACCORD GENUITY" AND THE "PLACING AGENT") WHO ARE "INVESTMENT PROFESSIONALS" FALLING WITHIN ARTICLE 19(5) OF THE FINANCIAL CONDUCT AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "FPO") OR "HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS ETC" FALLING WITHIN ARTICLE 49(2) OF THE FPO OR TO PERSONS TO WHOM IT MAY OTHERWISE LAWFULLY BE COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). THIS DOCUMENT AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS.

 

THE ORDINARY SHARES THAT ARE THE SUBJECT OF THE PLACING (THE "PLACING SHARES") ARE NOT BEING OFFERED OR SOLD TO ANY PERSON IN THE EUROPEAN UNION, OTHER THAN TO "QUALIFIED INVESTORS" AS DEFINED IN ARTICLE 2.1(E) OF DIRECTIVE 2003/71/EC (THE "PROSPECTUS DIRECTIVE"), WHICH INCLUDES LEGAL ENTITIES WHICH ARE REGULATED BY THE FINANCIAL CONDUCT AUTHORITY (THE "FCA") OR ENTITIES WHICH ARE NOT SO REGULATED WHOSE CORPORATE PURPOSE IS SOLELY TO INVEST IN SECURITIES.

 

Securities may not be offered or sold in the United States absent (i) registration under the U.S. Securities Act of 1933, as amended (the "Securities Act") or (ii) an available exemption from registration under the Securities Act.  The Placing Shares have not been and will not be registered under the Securities Act or under the securities laws of any state or other jurisdiction of the United States and may not be offered, sold, resold or delivered, directly or indirectly, in or into the United States absent registration except pursuant to an exemption from or in a transaction not subject to the registration requirements of the Securities Act. No public offering of the Placing Shares is being made in the United States. The Placing (as defined below) is being made (i) outside the United States in "offshore transactions" (as defined in Regulation S under the Securities Act ("Regulation S")) meeting the requirements of Regulation S under the Securities Act and (ii) to a limited number of "qualified institutional buyers" (as defined in Rule 144A under the Securities Act) located in the United States that have executed and delivered a "U.S. investor representation letter" in private placements that are exempt from or not subject to the registration requirements under the Securities Act. Persons receiving this announcement (including custodians, nominees and trustees) must not forward, distribute, mail or otherwise transmit it in or into the United States or use the United States mails, directly or indirectly, in connection with the Placing.

 

This announcement does not constitute an offer to sell or issue or a solicitation of an offer to buy or subscribe for Placing Shares in any jurisdiction including, without limitation, the United States, Canada, Australia, Japan or any other jurisdiction in which such offer or solicitation is or may be unlawful (a "Prohibited Jurisdiction"). This announcement and the information contained herein are not for publication or distribution, directly or indirectly, to persons in a Prohibited Jurisdiction unless permitted pursuant to an exemption under the relevant local law or regulation in any such jurisdiction.

 

The distribution of this announcement and the Placing and/or issue of the Placing Shares in certain jurisdictions may be restricted by law and/or regulation. No action has been taken by the Company, Canaccord Genuity or any of their respective Affiliates (as defined below) that would permit an offer of the Placing Shares or possession or distribution of this announcement or any other publicity material relating to such Placing Shares in any jurisdiction where action for that purpose is required. Persons receiving this announcement are required to inform themselves about and to observe any such restrictions.

 

Canaccord Genuity Limited, regulated in the United Kingdom by the Financial Conduct Authority, is acting for Tungsten Corporation Plc and for no one else in connection with the Placing and will not be responsible to anyone other than the Tungsten Corporation Plc for providing the protections afforded to clients of Canaccord Genuity Limited or for affording advice in relation to the Placing, or any other matters referred to herein.

 

By participating in the Placing, each person who is invited to and who chooses to participate in the Placing (a "Placee") by making an oral offer to take up Placing Shares is deemed to have read and understood this announcement in its entirety and to be providing the representations, warranties, undertakings, agreements and acknowledgements contained herein.

 

Details of the Placing Agreement and the Placing Shares

 

The Company has entered into a placing agreement (the "Placing Agreement") with Canaccord Genuity, under which Canaccord Genuity has, subject to the terms set out therein, agreed to use reasonable endeavours, as agents of the Company, to procure Placees for the Placing Shares (the "Placing").

 

The Placing Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with each other.

 

The Placing Shares will be issued free of any encumbrance, lien or other security interest.

 

Application for listing and admission to trading

 

Application will be made to the London Stock Exchange plc (the "London Stock Exchange") for admission to trading of the Placing Shares on the AIM market of the London Stock Exchange ("Admission"). It is expected that Admission will become effective and that dealings will commence at 8:00am 9 September 2014, and in any event no later than 8:00am on 30 September 2014.

 

Participation in, and principal terms of, the Bookbuilding Process

 

Canaccord Genuity will conduct an accelerated bookbuilding process in relation to the Placing which will establish a single price per Placing Share payable by Placees (the "Bookbuilding Process").

 

Canaccord Genuity and each of its Affiliates is entitled to participate as a Placee in the Bookbuilding Process.

 

The Bookbuilding Process is expected to close not later than 9 a.m. London time on 3 September 2014, but may be closed earlier at the sole discretion of Canaccord Genuity.  A further announcement will be made following the close of the Bookbuilding Process detailing the Placing Price at which the Placing Shares are being placed (the "Pricing Announcement").  Canaccord Genuity may, in its sole discretion, accept bids that are received after the Bookbuilding Process has closed.

 

A bid in the Bookbuilding Process will be made on the terms and conditions in this announcement and will not be capable of variation or revocation after the close of the Bookbuilding Process.

 

A Placee who wishes to participate in the Bookbuilding Process should communicate its bid by telephone to the usual sales, sales trading or ECM contact at Canaccord Genuity.  If successful, Canaccord Genuity will re-contact and confirm orally to Placees following the close of the Bookbuilding Process and the size of their respective allocations and a trade confirmation will be dispatched as soon as possible thereafter.  Canaccord Genuity's oral confirmation of the size of allocations and each Placee's oral commitments to accept the same will constitute a legally binding agreement pursuant to which each such Placee will be required to accept the number of Placing Shares allocated to the Placee at the Placing Price set out in the Pricing Announcement and otherwise on the terms and subject to the conditions set out herein.

 

Canaccord Genuity reserves the right to scale back the number of Placing Shares to be subscribed by any Placee in the event of an oversubscription under the Placing.  Canaccord Genuity also reserves the right not to accept offers to subscribe for Placing Shares or to accept such offers in part rather than in whole.  The acceptance of offers shall be at the absolute discretion of Canaccord Genuity.  Canaccord Genuity shall be entitled to effect the Placing by such alternative method to the Bookbuilding Process as it shall in its sole discretion determine.  To the fullest extent permissible by law, neither Canaccord Genuity, any holding company thereof, nor any subsidiary, branch or affiliate of Canaccord Genuity (each an "Affiliate") nor any person acting on their behalf shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise).  In particular, neither Canaccord Genuity, nor any Affiliate thereof nor any person acting on their behalf shall have any liability in respect of its conduct of the Bookbuilding Process or of such alternative method of effecting the Placing as it may determine. 

 

Each Placee's obligations will be owed to the Company and to Canaccord Genuity.  Following the oral confirmation referred to above, each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to Canaccord Genuity, to pay to Canaccord Genuity (or as Canaccord Genuity may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares such Placee has agreed to acquire.  The Company shall allot such Placing Shares to each Placee following each Placee's payment to Canaccord Genuity of such amount.

 

All obligations of Canaccord Genuity under the Placing will be subject to fulfilment of the conditions referred to below under "Conditions of the Placing".

 

Conditions of the Placing

 

The Placing is conditional upon the Placing Agreement becoming unconditional and not having been terminated in accordance with its terms.

 

The obligations of Canaccord Genuity under the Placing Agreement are conditional, inter alia, on:

 

1.   admission occurring by no later than 8.00 a.m. on 9 September 2014 (or such later date as may be agreed between the Company and Canaccord Genuity, not being later than 8:00am on 30 September 2014;

 

2.   the Company delivering, by no later than 5.00 p.m. on the dealing day immediately prior to the expected date of admission (but dated the day of admission), to Canaccord Genuity a certificate confirming, inter alia, that none of the representations, warranties and undertakings given by the Company in the Placing Agreement has been breached or was untrue, inaccurate or misleading when made or would cease to be true and accurate were it to be repeated by reference to the facts subsisting on the date of the certificate; and

 

3.   the Acquisition becoming unconditional in all respects (other than as regards the Placing) and the Purchase Agreement having been completed in escrow).

 

If (a) the conditions are not fulfilled (or to the extent permitted under the Placing Agreement waived by Canaccord Genuity), or (b) the Placing Agreement is terminated in the circumstances specified below, the Placing will lapse and each Placee's rights and obligations hereunder shall cease and determine at such time and no claim may be made by a Placee in respect thereof. Canaccord Genuity shall not 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 it may make as to whether or not to waive or to extend the time and/or date for the satisfaction of any condition in the Placing Agreement or in respect of the Placing generally.

 

By participating in the Placing, each Placee agrees that its rights and obligations hereunder terminate only in the circumstances described above and under "Right to terminate under the Placing Agreement" below, and will not be capable of rescission or termination by the Placee.

 

Right to terminate under the Placing Agreement

 

Canaccord Genuity may, at any time before Admission, terminate the Placing Agreement by giving notice to the Company if, inter alia, there shall have occurred, happened or come into effect:

 

(a)        any government regulation or other occurrence of any nature whatsoever which, in the opinion of Canaccord Genuity, acting in good faith, seriously and adversely affects or will or is reasonably likely seriously and adversely to affect the business of the Company or DocuSphere or their respective groups; or

 

(b)        a suspension or material limitation in trading in securities generally on the London Stock Exchange's market for listed securities or in any other EU member state, a general moratorium on commercial banking activities in London, New York or in any other EU member state or a material disruption in commercial banking or securities settlement or clearance services in the United Kingdom, any other EU member state or the United States, an incident of terrorism or the outbreak or escalation of hostilities involving the UK, any other EU member state or the United States or the declaration by the UK, any other EU member state or the United States of a national emergency or war or the occurrence of any other calamity or crisis resulting in a change in financial, political, market or economic conditions or currency exchange rates in the UK, any other EU member state or the United States or any other EU Member State which, in the opinion of Canaccord Genuity, acting in good faith, makes it impractical or inadvisable to continue with the Placing; or

 

(c)        any material adverse change in the business, management, operations, assets, liabilities, position or profits of the Company or DocuSphere or their respective groups and, in the opinion of Canaccord Genuity, acting in good faith, the effect of such change is such that it would materially prejudice the success of the Placing or the distribution of Placing Shares or the application for admission is refused by the London Stock Exchange or, in the judgement of Canaccord Genuity will not be granted.

 

By participating in the Placing, each Placee agrees with Canaccord Genuity that the exercise by Canaccord Genuity of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of Canaccord Genuity and that Canaccord Genuity need not make any reference to the Placee in this regard and that, to the fullest extent permitted by law, Canaccord Genuity shall not have any liability whatsoever to the Placee in connection with any such exercise.

 

No Prospectus

 

No offering document or prospectus has been or will be prepared in relation to the Placing and Placees' commitments will be made solely on the basis of the information contained in this announcement and any information previously published by or on behalf of the Company by notification to a Regulatory Information Service (as defined in the AIM Rules for Companies of the London Stock Exchange). 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 to Canaccord Genuity and the Company that it has neither received nor relied on any information, representation, warranty or statement made by or on behalf of Canaccord Genuity (other than the amount of the relevant Placing participation in the oral confirmation given to Placees and the trade confirmation referred to below), any of its Affiliates, any persons acting on its behalf or the Company and neither Canaccord Genuity nor any of its Affiliates, nor any persons acting on its behalf, nor the Company will be liable for the decision of any Placee to participate in the Placing based on any other information, representation, warranty or statement which the Placee may have obtained or received (regardless of whether or not such information, representation, warranty or statement was given or made by or on behalf of any such persons). By participating in the Placing, each Placee acknowledges to and agrees with Canaccord Genuity for itself and as agent for the Company that, except in relation to the information contained in this announcement, it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placing. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.

 

Registration and settlement

 

Settlement of transactions in the Placing Shares (ISIN: GB00B7Z0Q502) following Admission will take place within the CREST system, using the DVP mechanism, subject to certain exceptions. Canaccord Genuity reserves the right to require settlement for and delivery of the Placing Shares to Placees by such other means that it deems necessary, if delivery or settlement is not possible or practicable within the CREST system within the timetable set out in this announcement or would not be consistent with the regulatory requirements in the Placee's jurisdiction. 

 

Each Placee allocated Placing Shares in the Placing will be sent a trade confirmation stating the number of Placing Shares allocated to it, the Placing Price, the aggregate amount owed by such Placee to Canaccord Genuity and settlement instructions. Placees should settle against CREST ID: 805. It is expected that such trade confirmation will be despatched on 3 September 2014 and that this will also be the trade date. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions which it has in place with Canaccord Genuity.

 

It is expected that settlement will be on 9 September 2014 on a T+3 basis in accordance with the instructions set out in the trade 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 2 percentage points above the base rate of Barclays Bank Plc.

 

Each Placee is deemed to agree that if it does not comply with these obligations, Canaccord Genuity may sell any or all of the Placing Shares allocated to the Placee on such Placee's behalf and retain from the proceeds, for its own account and profit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The Placee will, however, remain liable for any shortfall below the aggregate amount owed by such Placee and it may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf.

 

If Placing Shares are to be delivered to a custodian or settlement agent, the Placee should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation.

 

Insofar as Placing Shares are registered in the Placee's name or that of its nominee or in the name of any person for whom the Placee is contracting as agent or that of a nominee for such person, such Placing Shares will, subject as provided below, be so registered free from any liability to PTM levy, stamp duty or stamp duty reserve tax. If there are any circumstances in which any other stamp duty or stamp duty reserve tax is payable in respect of the issue of the Placing Shares, neither Canaccord Genuity nor the Company shall be responsible for the payment thereof. Placees will not be entitled to receive any fee or commission in connection with the Placing.

 

Representations and Warranties

 

By participating in the Placing, each Placee (and any person acting on such Placee's behalf):

 

1.         represents and warrants that it has read and understood this announcement in its entirety and acknowledges that its participation in the Placing will be governed by the terms of this announcement;

2.         acknowledges that no prospectus or offering document has been prepared in connection with the placing of the Placing Shares;

3.         agrees to indemnify on an after-tax basis and hold harmless each of the Company, Canaccord Genuity, its respective Affiliates and any person acting on its behalf 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;

4.         acknowledges that the new Placing Shares of the Company will be admitted to the AIM market of the London Stock Exchange, and the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the London Stock Exchange (collectively, the "Exchange Information") and that the Placee is able to obtain or access the Exchange Information without undue difficulty;

5.         acknowledges that neither Canaccord Genuity, nor any of its Affiliates nor any person acting on its behalf has provided, and will not provide it with any material or information regarding the Placing Shares or the Company; nor has it requested Canaccord Genuity, any of its Affiliates or any person acting on its behalf to provide it with any such material or information;

6.         acknowledges that the content of this announcement is exclusively the responsibility of the Company and that neither Canaccord Genuity, nor any of its respective Affiliates nor any person acting on its behalf will be responsible for or shall have any liability for any information, representation or statement relating to the Company contained in this announcement or any information previously published by or on behalf of the Company and neither Canaccord Genuity, nor any of its Affiliates nor any person acting on its behalf will be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this announcement or otherwise. Each Placee further represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing to subscribe for the Placing Shares is contained in this announcement and any Exchange Information, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares, and that it has relied on its own investigation with respect to the Placing Shares and the Company in connection with its decision to subscribe for the Placing Shares and acknowledges that it is not relying on any investigation that Canaccord Genuity, any of its Affiliates or any person acting on their behalf may have conducted with respect to the Placing Shares or the Company and none of such persons has made any representations to it, express or implied, with respect thereto;

7.         acknowledges that it has not relied on any information relating to the Company contained in any research reports prepared by Canaccord Genuity, its Affiliates or any person acting on its or any of its Affiliates' behalf and understands that (i) none of Canaccord Genuity, any of its Affiliates nor any person acting on its behalf has or shall have any liability for public information or any representation; (ii) none of Canaccord Genuity, any of its Affiliates nor any person acting on its behalf has or shall have any liability for any additional information that has otherwise been made available to such Placee, whether at the date of publication, the date of this announcement or otherwise; and that (iii) none of Canaccord Genuity, any of its Affiliates nor any person acting on its behalf makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of such information, whether at the date of publication, the date of this announcement or otherwise;

8.         represents and warrants that (i) it is entitled to acquire the Placing Shares under the laws and regulations of all relevant jurisdictions which apply to it; (ii) it has fully observed such laws and regulations and obtained all such governmental and other guarantees and other consents and authorities which may be required thereunder and complied with all necessary formalities; (iii) it has all necessary capacity to commit to participation in the Placing and to perform its obligations in relation thereto and will honour such obligations; (iv) it has paid any issue, transfer or other taxes due in connection with its participation in any territory and (v) it has not taken any action which will or may result in the Company, Canaccord Genuity, any of its Affiliates or any person acting on its behalf being in breach of the legal and/or regulatory requirements of any territory in connection with the Placing;

9.         represents and warrants that the issue to the Placee, or the person specified by the Placee for registration as holder, of Placing Shares will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depositary receipts and clearance services) and that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer Placing Shares into a clearance system;

10.       represents and warrants that it understands that the Placing Shares have not been and will not be registered under the Securities Act or under the securities laws of any state or other jurisdiction of the United States (as defined below) and that the Company has not been registered as an "investment company" under the United States Investment Company Act of 1940, as amended (the "Investment Company Act");

11.       represents and warrants that it is, or at the time the Placing Shares are acquired, it will be, either (i) (a) the beneficial owner of such Placing Shares and is neither a person located in the United States of America, its territories or possessions, any state of the United States or the District of Columbia (the "United States") nor is acquiring the Placing Shares on behalf of a person in the United States, (b) acquiring the Placing Shares in an "offshore transaction" (as defined in Regulation S under the Securities Act) and (c) will not offer or sell, directly or indirectly, any of the Placing Shares in the United States except in accordance with Regulation S or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, or (ii) is a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act) located in the United States that has executed and delivered a "U.S. investor representation letter" and is acquiring the Placing Shares in private placements that is exempt from or not subject to the registration requirements under the Securities Act;

12.       represents and warrants that it has not offered or sold and will not offer or sell any Placing Shares to persons in the United Kingdom prior to Admission except to "qualified investors" as defined in Article 2.1(e) of the Prospectus Directive;

13.       represents and warrants 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 it is permitted to do so pursuant to section 21 of FSMA;

14.       represents and warrants that it has complied 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;

15.       represents and warrants that it has complied with its obligations in connection with money laundering and terrorist financing under the Criminal Justice Act 1993, the Proceeds of Crime Act 2002, the Terrorism Act 2000, the Anti-terrorism Crime and Security Act 2001 and the Money Laundering Regulations (2007) (the "Regulations") and, if it is 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;

16.       represents and warrants that it is (a) a person falling within Article 19(5) of the FPO or (b) a person falling within Article 49(2)(a) to (d) of the FPO and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business;

17.       represents and warrants that it is a qualified investor as defined in section 86(7) of FSMA, being a person falling within Article 2.1(e)(i), (ii) or (iii) of the Prospectus Directive;

18.       undertakes that it (and any person acting on its behalf) will pay for the Placing Shares acquired by it in accordance with this announcement on the due time and date set out herein against delivery of such Placing Shares to it, failing which the relevant Placing Shares may be placed with other Placees or sold as Canaccord Genuity may, in its absolute discretion, determine and it will remain liable for any shortfall below the net proceeds of such sale and the placing proceeds of such Placing Shares and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties due pursuant to the terms set out or referred to in this announcement) which may arise upon the sale of such Placee's Placing Shares on its behalf;

19.       acknowledges that none of Canaccord Genuity, any of its Affiliates nor any person acting on its behalf is making any recommendations to it or advising it regarding the suitability or merits of any transaction it may enter into in connection with the Placing, and acknowledges that neither Canaccord Genuity, any of its Affiliates nor any person acting on its behalf has any duties or responsibilities to it for providing advice in relation to the Placing or in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement or for the exercise or performance of any of Canaccord Genuity's rights and obligations thereunder, including any right to waive or vary any condition or exercise any termination right contained therein;

20.       undertakes that (i) the person whom it specifies for registration as holder of the Placing Shares will be (a) the Placee or (b) the Placee's nominee, as the case may be, (ii) neither Canaccord Genuity nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax resulting from a failure to observe this requirement and (iii) the Placee and any person acting on its behalf agrees to acquire the Placing Shares on the basis that the Placing Shares will be allotted to the CREST stock account of Canaccord Genuity which will hold them as settlement agent as nominee for the Placees until settlement in accordance with its standing settlement instructions with payment for the Placing Shares being made simultaneously upon receipt of the Placing Shares in the Placee's stock account on a delivery versus payment basis;

21.       acknowledges that 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 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;

22.       acknowledges that it irrevocably appoints any director of Canaccord Genuity as its agent for the purposes of executing and delivering to the Company and/or its registrars any documents on its behalf necessary to enable it to be registered as the holder of any of the Placing Shares agreed to be taken up by it under the Placing;

23.       represents and warrants that it is not a resident of any Prohibited Jurisdiction and acknowledges that the Placing Shares have not been and will not be registered nor will a prospectus be cleared in respect of the Placing Shares under the securities legislation of any Prohibited Jurisdictions and, subject to certain exceptions, may not be offered, sold, taken up, renounced, delivered or transferred, directly or indirectly, within any Prohibited Jurisdiction;

24.       represents and warrants that any person who confirms to Canaccord Genuity on behalf of a Placee an agreement to subscribe for Placing Shares and/or who authorises Canaccord Genuity to notify the Placee's name to the Company's registrar, has authority to do so on behalf of the Placee;

25.       acknowledges that the agreement to settle each Placee's acquisition of Placing Shares (and/or the acquisition of a person for whom it is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to an acquisition by it and/or such person direct from the Company of the Placing Shares in question. Such agreement assumes that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer the Placing Shares into a clearance service. If there were any such arrangements, or the settlement related to other dealing in the Placing Shares, stamp duty or stamp duty reserve tax may be payable, for which neither the Company nor Canaccord Genuity will be responsible. If this is the case, the Placee should take its own advice and notify Canaccord Genuity accordingly;

26.       acknowledges that the Placing Shares will be issued and/or transferred subject to the terms and conditions set out in this announcement;

27.       acknowledges that when a Placee or any person acting on behalf of the Placee is dealing with Canaccord Genuity any money held in an account with Canaccord Genuity on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the relevant rules and regulations of the FCA. 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 Canaccord Genuity money in accordance with the client money rules and will be used by Canaccord Genuity in the course of its business; and the Placee will rank only as a general creditor of Canaccord Genuity (as the case may be);

28.       acknowledges and understands that the Company, Canaccord Genuity, and others will rely upon the truth and accuracy of the foregoing representations, warranties, agreements, undertakings and acknowledgements;

29.       acknowledges that under the articles of association of the Company, if the board of directors of the Company (the "Board") becomes aware that any Ordinary Shares are owned directly or beneficially by a person in circumstances which would or might result in: (a) the Company incurring a liability to taxation or suffering any pecuniary, fiscal, administrative or regulatory or similar disadvantages in connection with the Company being, or being required to register as, an "investment company" under the Investment Company Act; (b) the Company being unable to rely on any offering-related exemption under the Investment Company Act; or (c) the assets of the Company being deemed to be assets of a "plan investor" (in each case, a "prohibited person"), the Board may give notice to the member requiring him either: (i) to provide the Board within 30 days of receipt of such notice with sufficient documentary evidence to satisfy the Board that such person is not a prohibited person; or (ii) to sell or transfer his shares to a person who is not a prohibited person within 30 days and within such 30 days to provide the Board with satisfactory evidence of such sale or transfer. Where condition (i) or (ii) is not satisfied within 30 days after the serving of the notice, the Board is entitled to arrange for the sale of the relevant shares on behalf of the member at the best price reasonably obtainable at the relevant time. If the Company cannot effect a sale of the relevant shares within five business days of its first attempt to do so, the member will be deemed to have forfeited his shares; and

30.       acknowledges that the basis of allocation will be determined by Canaccord Genuity (after consulting with the Company) at its absolute discretion. The right is reserved to reject in whole or in part and/or scale back any participation in the Placing.

 

The acknowledgements, agreements, undertakings, representations and warranties referred to above are given to each of the Company and Canaccord Genuity (for its own benefit and, where relevant, the benefit of its Affiliates and any person acting on its behalf) and are irrevocable.

 

No UK stamp duty or stamp duty reserve tax should be payable to the extent that the Placing Shares are issued or transferred (as the case may be) into CREST to, or to the nominee of, a Placee who holds those shares beneficially (and not as agent or nominee for any other person) within the CREST system and registered in the name of such Placee or such Placee's nominee.

 

Any arrangements to issue or transfer the Placing Shares into a depositary receipts system or a clearance service or to hold the Placing Shares as agent or nominee of a person to whom a depositary receipt may be issued or who will hold the Placing Shares in a clearance service, or any arrangements subsequently to transfer the Placing Shares, may give rise to stamp duty and/or stamp duty reserve tax, for which neither the Company nor Canaccord Genuity 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 stamp duty or stamp duty reserve tax undertakes to pay such stamp duty or stamp duty reserve tax forthwith and to indemnify on an after-tax basis and to hold harmless the Company and Canaccord Genuity in the event that any of the Company and/or Canaccord Genuity has incurred any such liability to stamp duty or stamp duty reserve tax.

 

In addition, Placees should note that they will be liable for any capital duty, stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by them or any other person on the acquisition by them of any Placing Shares or the agreement by them to acquire any Placing Shares.

 

All times and dates in this announcement may be subject to amendment.  Canaccord Genuity shall notify the Placees and any person acting on behalf of the Placees of any such changes.

 

This announcement has been issued by the Company and is the sole responsibility of the Company.

 

The rights and remedies of Canaccord Genuity 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 or partial exercise of one will not prevent the exercise of others.

 

Each Placee may be asked to disclose in writing or orally to Canaccord Genuity:

 

(a)  if he is an individual, his nationality; or

(b)  if he is a discretionary fund manager, the jurisdiction in which the funds are managed or owned.

 


This information is provided by RNS
The company news service from the London Stock Exchange
 
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