Eco City Vehicles ECV Update on trading, Placing and Directorate Changes
Eco City Vehicles (ECV) - Update on trading, Placing and Directorate Changes
RNS Number : 8056L
Eco City Vehicles PLC
07 September 2012
7 September 2012
Eco City Vehicles PLC
("ECV", "Company" or "Group")
Update on trading, firm share placing, revised financing arrangements and
Board changes
Eco City Vehicles, a developer and supplier of the London licensed Mercedes
taxi, is pleased to make the following announcements to strengthen the
business and position it for future long term growth.
Summary
· Update on trading with strong growth in new Mercedes Vito sales and
market share achieved in the first seven months of 2012
· Firm share placing to raise £1.75 million to reduce debt and boost
working capital
· Board changes to position the Company for next phase of development
· Revised loan repayment arrangements
· Acquiring the benefit of a loan provided to One80 Limited secured
against certain of its assets
Current trading
The Company has experienced strong trading in the first seven months of 2012
against a challenging economic and industry environment. This reflects
increasing momentum of sales and popularity for the latest Mercedes Vito Euro
V model.
Throughout the seven-month period, ECV continued to enjoy solid demand for the
Mercedes Vito. Based on Transport for London (TfL) data, the Mercedes Vito
increased its share of the new London licensed taxi market to 36% in the first
seven months of the year, up from a market share of 22% in the same period
last year. New Vito taxi licenses increased by 102% to 354 vehicles in the
first seven months against 175 in the same period last year, and 331 for the
whole of 2011. This means that new licenses in the first seven months of 2012
represented 107% of the annual license sales achieved last year.
The latest version of the Blue Efficiency Vito taxi, which was launched a
year ago, complies with stringent new European Union vehicle emission
standards as well as providing superior quality, improved fuel efficiency,
comfort and six-seat capacity.
Share Placing
ECV has raised £1.75 million (before expenses) through a firm placing of
116,666,666 ordinary shares at 1.5 pence per share (the "Placing") The Company
has undertaken the Placing to certain new and existing institutional investors
at a price of 1.5 pence per share (representing a discount of approximately 18
per cent. against the closing mid-market price on 6 September 2012).
The net proceeds of the Placing will be used to repay debt, fund capital
investment and to provide additional working capital to support the growth of
the Company. The new funds will reduce the Group's borrowing by £0.6 million
from approximately £3.8 million to approximately £3.2 million. Further
details of the proposed use of the Placing proceeds and the terms of the
Placing are set out below.
Board Changes
The Company also announces that it proposes to make certain changes to its
Board following the completion of the Placing in order to lead the Company
through the next phase in its development. The Company intends to seek a new
Chief Executive Officer ("CEO") and, once a suitable candidate is confirmed,
Peter DaCosta intends to assume a Non-Executive Director role. Whilst Mr
DaCosta's intention is to reduce his time-commitment to the Company, he
expects to remain actively involved with the Company and, in addition to
providing the benefit of his substantial industry experience, his focus will
be on sourcing and assessing new opportunities. The process for recruiting a
new CEO will be led by John Swingewood.
The Company also announces that Tim Yeo will retire from the Board on
completion of the Placing, to be replaced as chairman by John Swingewood. Tim,
who has chaired the Company since its admission to AIM in October 2007, has
recently taken on new chairmanships in the education and energy sectors and
wishes to devote more time to those. Keith Marder is also stepping down from
the Board on completion of the Placing but will remain as an employee of the
business and a director of the Company's subsidiaries.
Tim Yeo non-executive chairman of ECV, said:
"I am pleased that the Company is making good progress after a challenging
period. Now that trading has improved and the Company's finances are being put
on a stronger footing it is the right time for management and board level
changes to position the business for the future. My successor, John
Swingewood, will be able to lead the process of recruiting a new Chief
Executive and I wish him and the Company every success in future."
John Swingewood, chairman delegate, said:
"We are delighted to announce the successful fundraising which puts us in an
excellent position. We are all extremely grateful for the skilful leadership
and commitment Tim has given the Company in his five years as Chairman. I look
forward to recruiting a new Chief Executive and increasing the Company's
market share. "
Enquiries:
Eco City Vehicles plc
Peter DaCosta, Chief Executive Officer +44 20 7377 2182
Ran Oren, Finance Director
Luther Pendragon
Neil Thapar, Alexis Gore +44 20 7618 9100
Numis Securities Limited
Stuart Skinner (Nominated Adviser) +44 20 7260 1000
David Poutney (Corporate Broker)
Use of proceeds
The net funds raised from the Placing will be used principally for the
following purposes:
· Repayment of £0.25 million of debt owed to the KPM-UK Taxi Plc
Discretionary Pension Scheme (the "Pension Scheme")
· Capital investment of approximately £0.1 million in infrastructure,
enabling part of the after sales division to obtain an accreditation which
will enable the division to diversify its revenue streams
· Repayment of £0.1 million of debt owed to Lee DaCosta, the son of director
Peter DaCosta
· Working capital: funds will also be used to provide additional working
capital to the business
Financing arrangements
As at the date of this announcement and before deployment of any of the net
funds raised from the Placing, the Company has various outstanding liabilities
with related parties and its directors (in relation to unpaid bonuses, fees
and loans) which are being restructured. Further details of these
arrangements are set out in appendix 1.
The Directors believe that these new arrangements together with the Placing
proceeds provide the Company with substantially increased clarity in respect
of the expected repayment profile of its key liabilities and materially
strengthen its financial position. The current economic climate makes
forecasting difficult and the Board will continue to monitor the Company's
financial position having regard to its ongoing trading performance.
Related Party Transactions
The transactions entered into with the beneficiaries of the Pension Scheme,
Global Meter Systems Limited, Peter DaCosta and Keith Marder in respect of the
outstanding loans and bonus payments due to them referred to in appendix 1 are
related party transactions and, for the purposes of Rule 13 of the AIM Rules,
the Company's directors consider, having consulted with its nominated adviser,
that the terms of such transactions are fair and reasonable insofar as its
shareholders are concerned.
EIS Relief
The Company has received provisional confirmation from HMRC that the Placing
Shares are eligible for relief under the Enterprise Investment Scheme.
Terms of the Placing
The Placing comprises a placing of 116,666,666 ordinary shares in the Company
(the "Placing Shares"), which are expected to be admitted to trading on AIM on
13 September ("Admission"). The Placing Shares have been placed at 1.5 pence
per share (the "Placing Price") with new and existing institutional investors.
The Placing will raise proceeds of £1,750,000 before expenses for the Company.
The Placing Price of 1.5 pence per share represents a discount of
approximately 18 per cent. to the closing price of 1.825 pence per ordinary
share on 6 September 2012 (being the last business day prior to this
announcement). Under the terms of the placing agreement, Numis, as agent for
the Company, has agreed to use its reasonable endeavours to procure placees
for the Placing Shares at the Placing Price. Numis will be paid an advisory
fee and a placing commission, from which it will settle any sub-placing
commissions payable. The Placing Shares will represent approximately 26 per
cent. of the enlarged share capital of the Company. The Placing Share will be
in registered form and capable of being held in certificated form or
uncertificated form in CREST.
The Placing is conditional, inter alia, upon the placing agreement becoming
unconditional, and admission of the Placing Shares to trading on AIM becoming
effective. The Placing is not being underwritten.
The Placing Agreement contains customary warranties given by the Company to
Numis as to matters relating to the Company and its business and a customary
indemnity given by the Company to Numis in respect of liabilities arising out
of or in connection with the Placing. Numis is entitled to terminate the
Placing Agreement in certain circumstances prior to Admission, including,
inter alia,where any of the warranties are found not to be true or accurate or
were misleading in any material respect or on the occurrence of certain force
majeure events.
Peter DaCosta, Michael Troullis and Keith Marder have agreed to enter into
lock-in agreements with the Company and Numis whereby they have agreed not to
dispose of any shares in the Company for a period of six months from the date
of completion of the placing, and have agreed to certain orderly marketing
restrictions for a period of 12 months after expiry of that six month period.
Application will be made to the London Stock Exchange for the Placing Shares
to be admitted to trading on AIM. It is expected that Admission will become
effective and that trading in the Placing Shares will commence on AIM at 8.00
a.m. on 13 September 2012. The Placing Shares will, when issued and fully
paid, rank pari passu in all respects with the existing ordinary shares,
including the right to receive any dividend or other distribution declared,
made or paid after Admission.
One80 Limited
There is no update to the position in relation to One80 disclosed on 20 July
2012. As at the date of this announcement the valuation report required under
s593 Companies Act 2006 has not been completed and no shares in the capital of
ECV have been issued to the seller. The Company will release further updates
as appropriate.
ECV is the legal and beneficial holder of 16,250 A ordinary shares of £0.01
each in the capital of One80, representing 61.9% of its total issued share
capital. ECV also holds the beneficial interest in 3,850 B ordinary shares of
£0.01 each, such interest having been acquired from Jevon Thurston-Thorpe
pursuant to the transaction described in the announcement dated 20 July 2012.
These shares represent a further 14.67% of One80's total issued share capital,
and ECV has voting control in relation to such shares. Accordingly, ECV has
control of 76.6% of the voting rights in One80.
One80 is party to a licence agreement, signed in July 2011, which provides a
fixed licence fee per Vito taxi produced with a minimum guaranteed level of
450 units per annum. The transfer of second stage manufacture to Mercedes-Benz
enabled One80 to reduce its cost base and moved One80 into an EBITDA positive
position. One80 owns the intellectual property rights to the rear wheel steer
technology used on the Mercedes Vito taxi.
The Company has entered into an agreement to acquire the benefit of a £250,000
short-term loan made to One80 by Cabvision Network Limited. The acquisition
of the benefit of the One80 Loan by ECV will ensure that the One80 Loan and
the related security over One80's assets are under the control of ECV as
majority shareholder rather than an external party. As a result ECV will
control the enforceability of the loan and related security over the relevant
assets of One80, which are important to the business of ECV. Further details
are set out in appendix 1.
Cabvision settlement
On 13 July 2012 ECV and certain other group companies entered into an
agreement with a number of third parties which, together with a separate
agreement concluded on 6 July 2012 with other parties who had claims against
Cabvision Limited, effects a full and final settlement of all outstanding
claims against Cabvision Limited, ECV and the other group companies. The
settlement has removed all and any risk of claims against or liability of the
Group under Section 51 of the Senior Courts Act 1981 or otherwise.
APPENDIX 1
FINANCING ARRANGEMENTS
As at the date of this announcement, and before the deployment of any of the
net funds raised from the Placing, the outstanding liabilities of the Company
and its subsidiaries (the "Group") include the following:
· £1.5 million owing to the Pension Scheme, whose beneficiaries are Peter
DaCosta, Michael Troullis and Keith Marder (all directors and/or shareholders
of ECV) (the "Pension Scheme Loan") together with accrued interest of £66,120
as at 31 August 2012;
· accrued rent arrears of approximately £200,000 owing to the Pension
Scheme relating to premises owned by the Pension Scheme;
· £514,000 in outstanding arrears owing to Global Meter Systems Limited
(the "Global Meters Arrears");
· £60,964 owing to executive directors in respect of loans they have made
to the Company;
· £126,000 in deferred gross bonuses owing to executive directors
together with employer national insurance contributions in relation thereto;
· £97,500 in deferred fees owing to non-executive directors;
· £100,000 owing to Lee DaCosta, the son of director Peter DaCosta; and
· £250,000 plus accrued interest owing to Cabvision Networks Limited.
The Pension Scheme Loan
The Pension Scheme Loan was provided in various tranches and was due to be
repaid in tranches on various dates as previously announced on 2 May and 22
June 2012. However, the beneficiaries of the Pension Scheme (being Peter
DaCosta, Keith Marder and Michael Troullis) and the Company have now agreed
revised repayment terms, pursuant to which £0.25 million, including associated
expenses, will be paid out of the Placing Proceeds.
In accordance with these revised repayment terms, repayment of the remaining
£1.25 million outstanding principal amount will commence:
(a) once the Company has achieved a cumulative consolidated EBITDA of
£1 million on a consolidated basis (the "Target"), to be measured on a monthly
basis from 1 September 2012; and
(b) once the loan of £250,000 owed by the trustees of the Pension
Scheme to Barclays Bank plc has been repaid (which the beneficiaries have
undertaken to repay using the £250,000 Pension Scheme Loan repayment referred
to above),
(together the "Repayment Conditions"). Repayments will be made in monthly
instalments of £20,800, starting in the month after the Target is met and
ending in September 2017. The remaining balance outstanding at September 2017
will be repaid but, subject to compliance with H M Revenue and Customs' rules,
will be re-lent to the Company on substantially similar terms to those
described in this paragraph. Interest will accrue at a rate of 5% per annum
from the date of this Announcement and will be payable on 31 December 2012 and
on 31 December in each year thereafter (subject to the Repayment Conditions
being satisfied). Interest accrued up to 31 August 2012, totalling £66,120,
and interest accruing thereafter, up to a total of £33,880, will be deferred
and paid in 12 monthly payments which will commence after satisfaction of the
Repayment Conditions.
It has also been agreed that arrears of rent of approximately £200,000 in
respect of premises owned by the Pension Scheme and occupied by the Company,
will be paid in equal monthly instalments over a period of 12 months once the
Repayment Conditions have been satisfied. Interest will accrue on the arrears
at a rate of 5% per annum.
KPM-UK Taxes Plc, a wholly owned subsidiary of the Company, has the benefit of
a claim for a refund of VAT in an amount of up to £2.8m ("VAT Claim"). The
Company has agreed that any compensation net of corporation tax received from
HMRC as a result of the VAT Claim will be applied firstly in repayment of the
Pension Scheme Loan and secondly (provided the Pension Scheme Loan has been
repaid in full) in repayment of the Global Meters Arrears.
The beneficiaries of the Pension Scheme have also agreed to use all reasonable
endeavours to procure that the trustees of the Pension Scheme offer reasonable
alternative repayment terms to the Company in the event that the Company,
acting reasonably, is unable to meet the revised repayment terms described
above (subject always to compliance with HMRC rules).
The revised repayment terms described above require the approval of the
corporate trustee of the Pension Scheme. The beneficiaries of the Pension
Scheme have agreed to use all reasonable endeavours to ensure that the
necessary documentation is entered into by the Pension Scheme trustees within
30 business days of the date of this Announcement to give effect to these
revised terms. A further announcement will be made at that point. The
revised repayment terms set out above therefore remain subject to the
agreement of the Pension Scheme trustees and no guarantee can be given at this
stage that they will agree to such terms.
The parties have further agreed that once the Company is in a position to pay
a dividend then the Company shall be permitted to increase the amount of
repayments of the Pension Scheme Loans to an amount equal to the amount of any
dividends paid, such amount to be allocated by the Company between the Pension
Scheme Loan and the Global Meters Arrears described below.
The Global Meters Arrears
Repayment of the Global Meters Arrears will commence following completion of
the Placing and once the £250,000 loan owed by the Pension Scheme to Barclays
Bank Plc has been repaid. It will be repaid by way of monthly payments of
£10,000. Interest will accrue from the date of this Announcement at a rate
equal to 5% per annum payable on 31 December 2012 and on 31 December in each
year thereafter, subject to the repayment of the Pension Scheme Loan from
Barclays Bank plc as described above.
As described above the Company may increase payments to Global Meters provided
such payments are matched by dividends, and do not exceed the amount of any
dividends when aggregated with any additional repayments made under the
Pension Scheme Loan.
Amounts owing to directors
The Company has agreed with Peter DaCosta and Keith Marder that the
outstanding loans of £12,450 and £48,514 respectively made by them to the
Company will be repaid to each of them in equal monthly instalments of in
aggregate £5,000 commencing in the month following the Placing or, if later,
once the £250,000 loan owed by the Pension Scheme to Barclays Bank Plc has
been repaid. Interest will accrue at a rate of 5% per annum. Both Mr DaCosta
and Mr Marder have been granted options to convert the outstanding balance of
the loans to ECV shares at 1.5p per share, to be exercised at any time in the
period of six months commencing on completion of the Placing.
The outstanding bonus payments of £63,000 owed to each of Mr DaCosta and Mr
Marder will be satisfied by the issue to each of them of such number of ECV
shares at 1.5p per share having an aggregate value equal to 50% of the bonus
payment after income tax and national insurance contributions have been paid,
with the remaining sum being repaid in cash in monthly repayments of £5,000,
such repayments to commence following repayment of the loans referred to
above. Interest will accrue on the amount owed at a rate of 5% per annum.
Any outstanding bonus balance will be repaid in cash upon either of Mr DaCosta
or Mr Marder leaving the Company. Both Mr DaCosta and Mr Marder have been
granted options to convert the remaining outstanding balance of the bonus
payments to ECV shares at 1.5p per share, to be exercised at any time in the
period of six months commencing on completion of the Placing.
Further, John Swingewood and Jeremy Fenn, non-executive directors of the
Company, are each owed fees of £27,000 and £19,500 respectively by the
Company. They have each agreed to receive ECV shares in lieu of those fees,
at 1.5p per share. They have also agreed to use the fees that will be payable
to them over the next 12 months to purchase ECV shares, at 1.5p per share, on
a quarterly basis.
Tim Yeo will also receive approximately £51,000 in relation to fees owed to
him for the period from October 2011 and in respect of his three month notice
period.
Amount owing to Lee DaCosta
In January 2011 the Group received an interest-free loan from Lee DaCosta of
£100,000 which will be repaid following completion of the Placing.
Acquisition of One80 Loan
The Company has entered into an agreement to acquire the benefit of a £250,000
short-term loan at par (plus accrued unpaid interest) made to One80 by
Cabvision Network Limited (the "One80 Loan"). The One80 Loan was made to One80
in August 2011 as a short-term facility, is secured against certain of the
assets of One80 and carries interest of 3% per month. The acquisition of the
benefit of the One80 Loan by ECV will ensure that the One80 Loan and the
related security over One80's assets are under the control of ECV as majority
shareholder rather than an external party. As a result ECV will control the
enforceability of the loan and related security over the relevant assets of
One80, which are important to the business of ECV. The secured assets include
the rear wheel steer technology developed and owned by One80 which is used on
the Mercedes Vito taxi. The technology is installed in Mercedes Vito taxis in
order to meet the Conditions of Fitness of the Public Carriage Office of
Transport for London. The agreement is conditional on payment of £250,000
plus interest and on payment of the £100,000 due to Lee DaCosta, as described
above.
APPENDIX 2
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR INVITED PLACEES ONLY REGARDING THE PLACING
THIS ANNOUNCEMENT, INCLUDING THIS APPENDIX (TOGETHER, THE "ANNOUNCEMENT") AND
THE INFORMATION IN IT, IS RESTRICTED, AND IS NOT FOR PUBLICATION, RELEASE OR
DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR INTO THE
UNITED STATES, AUSTRALIA, CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA OR ANY
OTHER JURISDICTION IN WHICH SUCH PUBLICATION OR DISTRIBUTION WOULD BE
UNLAWFUL.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS
APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN ARE FOR INFORMATION
PURPOSES ONLY AND ARE DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF THE
EUROPEAN ECONOMIC AREA WHO ARE QUALIFIED INVESTORS AS DEFINED IN SECTION 86(7)
OF THE FINANCIAL SERVICES AND MARKETS ACT 2000, AS AMENDED, ("QUALIFIED
INVESTORS") BEING PERSONS FALLING WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE
EU PROSPECTUS DIRECTIVE (WHICH MEANS DIRECTIVE 2003/71/EC AND INCLUDES ANY
RELEVANT IMPLEMENTING DIRECTIVE MEASURE IN ANY MEMBER STATE) (THE "PROSPECTUS
DIRECTIVE"); (B) IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE PERSONS
WHO (I) FALL WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT
2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER"); (II) FALL 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 APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT
BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY
INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS APPENDIX AND THE TERMS AND
CONDITIONS SET OUT HEREIN RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND
WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS.
THE ANNOUNCEMENT INCLUDING THIS 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 HAS BEEN ISSUED BY AND IS THE SOLE
RESPONSIBILITY OF THE COMPANY.
THE 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 JURISDICTION. THE
ANNOUNCEMENT INCLUDING THIS APPENDIX IS NOT AN OFFER OF OR SOLICITATION TO
PURCHASE OR SUBSCRIBE FOR SECURITIES IN THE UNITED STATES. THE SECURITIES
REFERRED TO HEREIN HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED OR SOLD IN THE UNITED STATES, EXCEPT PURSUANT TO AN EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. NEITHER THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION
NOR ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF
THE UNITED STATES HAS APPROVED OR DISAPPROVED OF AN INVESTMENT IN THE
SECURITIES OR PASSED UPON OR ENDORSED THE MERITS OF THE PLACING OR THE
ACCURACY OR ADEQUACY OF THE CONTENTS OF THIS ANNOUNCEMENT. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE IN THE UNITED STATES. NO PUBLIC OFFERING
OF SECURITIES IS BEING MADE IN THE UNITED STATES. NO MONEY, SECURITIES OR
OTHER CONSIDERATION FROM ANY PERSON INSIDE THE UNITED STATES IS BEING
SOLICITED AND, IF SENT IN RESPONSE TO THE INFORMATION CONTAINED IN THIS
ANNOUNCEMENT, WILL NOT BE ACCEPTED.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS
AND RELATED ASPECTS OF AN INVESTMENT IN PLACING SHARES. The price of shares
and the income from them (if any) may go down as well as up and investors may
not get back the full amount invested on disposal of shares.
Persons who are invited to and who choose to participate in the Placing, by
making (or on whose behalf there is made) an oral or written offer to
subscribe for Placing Shares (the "Placees"), will be deemed to have read and
understood this Announcement, including this Appendix, in its entirety and to
be making such offer on the terms and conditions, and to be providing the
representations, warranties, acknowledgements, and undertakings contained in
this Appendix. In particular, each such Placee represents, warrants and
acknowledges that:
1. it is a Relevant Person (as defined above) 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;
2. in the case of any Placing Shares acquired by it as a financial
intermediary, as that term is used in Article 3(2) of the Prospectus
Directive, (i) the Placing Shares acquired by it in the Placing have not been
acquired on behalf of, nor have they been acquired with a view to their offer
or resale to, persons in any Member State of the European Economic Area which
has implemented the Prospectus Directive other than Qualified Investors or in
circumstances in which the prior consent of Numis has been given to the offer
or resale; or (ii) where Placing Shares have been acquired by it on behalf of
persons in any member state of the EEA other than Qualified Investors, the
offer of those Placing Shares to it is not treated under the Prospectus
Directive as having been made to such persons; and
3. (a) (i) it is not in the United States and (ii) it is not acting
for the account or benefit of a person in the United States, (b) it is a
dealer or other professional fiduciary in the United States acting on a
discretionary basis for a non-US person (other than an estate or trust) in
reliance on Regulation S; or (c) it is otherwise acquiring the Placing Shares
in an "offshore transaction" meeting the requirements of Regulation S under
the Securities Act.
The Company and Numis will rely upon the truth and accuracy of the foregoing
representations, acknowledgements and agreements.
This Announcement does not constitute an offer, and may not be used in
connection with an offer, to sell or issue or the solicitation of an offer to
buy or subscribe for Placing Shares in any jurisdiction in which such offer or
solicitation is or may be unlawful. This Announcement and the information
contained herein is not for publication or distribution, directly or
indirectly, to persons in the United States, Australia, Canada, Japan or the
Republic of South Africa or in any other jurisdiction in which such
publication or distribution is unlawful. Persons into whose possession this
Announcement may come are required by the Company to inform themselves about
and to observe any restrictions of transfer of this Announcement. No public
offer of securities of the Company is being made in the United Kingdom, the
United States or elsewhere.
In particular, the Placing Shares referred to in this Announcement have not
been and will not be registered under the Securities Act or any laws of, or
with any securities regulatory authority of, any state or other jurisdiction
of the United States, and may not be offered, sold, pledged or otherwise
transferred within the United States except pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the
Securities Act and the securities laws of any state or other jurisdiction of
the United States. The Placing Shares are being offered and sold outside the
United States in accordance with Regulation S under the Securities Act
("Regulation S").
The Placing Shares have not been approved or disapproved by the US Securities
and Exchange Commission, any state securities commission or other regulatory
authority in the United States, nor have any of the foregoing authorities
passed upon or endorsed the merits of the Placing or the accuracy or adequacy
of this Announcement. Any representation to the contrary is a criminal offence
in the United States.
The relevant clearances have not been, nor will they be, obtained from the
securities commission of any province or territory of Canada; no prospectus
has been lodged with or registered by the Australian Securities and
Investments Commission or the Japanese Ministry of Finance; and the Placing
Shares have not been, nor will they be, registered under or offered in
compliance with the securities laws of any state, province or territory of
Australia, Canada, Japan or the Republic of South Africa. Accordingly, the
Placing Shares may not (unless an exemption under the relevant securities laws
is applicable) be offered, sold, resold or delivered, directly or indirectly,
in or into Australia, Canada, Japan or the Republic of South Africa or any
other jurisdiction outside the United Kingdom.
Persons (including, without limitation, nominees and trustees) who have a
contractual or other legal obligation to forward a copy of this Appendix or
the Announcement of which it forms part should seek appropriate advice before
taking any action.
In this Appendix, unless the context otherwise requires, "Placee" means a
Relevant Person (including individuals, funds or others) on whose behalf a
commitment to subscribe for Placing Shares has been given.
Details of the Placing Agreement and the Placing Shares
Numis has entered into a Placing Agreement (the "Placing Agreement") with the
Company under which Numis has, on the terms and subject to the conditions set
out therein, undertaken to use its reasonable endeavours to procure, as agent
for the Company, subscribers for the Placing Shares. The Placing has not been
underwritten.
The Placing Shares will, when issued and fully paid, rank pari passu in all
respects with the existing issued ordinary shares in the capital of the
Company ("Ordinary Shares"), including the right to receive all dividends and
other distributions (if any) declared, made or paid on or in respect of the
Ordinary Shares after the date of issue of the Placing Shares.
The Company, subject to certain exceptions, has agreed not to allot, issue or
grant any rights in respect of its Ordinary Shares in the period of 180 days
from the date of Admission without Numis's prior consent, such consent not to
be unreasonably withheld.
Application for admission to trading
Application will be made to the London Stock Exchange for admission to trading
of the Placing Shares on AIM ("Admission"). It is expected that settlement of
any such shares and Admission will become effective on or around 13 September
2012 and that dealings in the Placing Shares will commence at that time.
Participation in, and principal terms of, the Placing
1. Numis (whether through itself or any of its affiliates) is
arranging the Placing as placing agent of the Company for the purpose of using
reasonable endeavours to procure Placees at the Placing Price for the Placing
Shares.
2. Participation in the Placing will only be available to persons
who may lawfully be, and are, invited to participate by Numis. Numis and its
affiliates may participate in the Placing as principal.
3. 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.
4. The placing price will be a fixed price of 1.5 pence per New
Ordinary Share (the "Placing Price").
5. Each Placee's allocation will be confirmed to Placees orally by
Numis, and a trade confirmation or contract note will be dispatched as soon as
possible thereafter. The oral confirmation to such Placee will constitute an
irrevocable legally binding commitment upon such person (who will at that
point become a Placee) in favour of Numis and the Company, under which it
agrees to acquire the number of Placing Shares allocated to it at the Placing
Price on the terms and conditions set out in this Appendix and in accordance
with the Company's Articles of Association.
6. Except as required by law or regulation, no press release or
other announcement will be made by Numis or the Company using the name of any
Placee (or its agent), in its capacity as Placee (or agent), other than with
such Placee's prior written consent.
7. Irrespective of the time at which a Placee's allocation pursuant
to the Placing is confirmed, settlement for all Placing Shares to be acquired
pursuant to the Placing will be required to be made at the same time, on the
basis explained below under "Registration and Settlement".
8. All obligations under the Placing will be subject to fulfilment
or (where applicable) waiver of, amongst other things, the conditions referred
to below under "Conditions of the Placing" and to the Placing not being
terminated on the basis referred to below under "Right to terminate under the
Placing Agreement".
9. By participating in the Placing, each Placee will agree that its
rights and obligations in respect of the Placing will terminate only in the
circumstances described below and will not be capable of rescission or
termination by the Placee.
10. To the fullest extent permissible by law, none of the Company,
Numis or any of their respective affiliates shall have any liability to
Placees (or to any other person whether acting on behalf of a Placee or
otherwise of these terms and conditions). In particular, none of the Company,
Numis or any of their respective affiliates shall have any liability
(including to the fullest extent permissible by law, any fiduciary duties) in
respect of Numis' conduct of the Placing. Each Placee acknowledges and agrees
that the Company is responsible for the allotment of the Placing Shares to the
Placees and Numis shall have no liability to the Placees for the failure of
the Company to fulfil those obligations.
Conditions of the Placing
Numis' obligations under the Placing Agreement in respect of the Placing
Shares are conditional on, inter alia:
(a) the warranties contained in the Placing Agreement being true,
accurate and not misleading as at the date of the Placing Agreement and at all
times before Admission as though they had been given and made on such dates
(by reference to the facts and circumstances existing at such dates);
(b) the Company allotting, subject only to Admission, the Placing
Shares in accordance with the Placing Agreement;
(c) Admission taking place not later than 8.00 a.m on 13 September
2012 or such later date as the Company and Numis may otherwise agree not being
later than 8.00 a.m on 27 September 2012;
(d) there having been no Material Adverse Change (as defined in the
Placing Agreement) prior to Admission; and
(e) the Placing Agreement not having lapsed or been terminated prior
to Admission.
If (i) any of the conditions contained in the Placing Agreement in relation to
the Placing Shares are not fulfilled or waived by Numis by the respective time
or date where specified (or such later time or date as the Company and Numis
may agree not being later than 8.00 a.m on 27 September 2012), or (ii) the
Placing Agreement is terminated as described below, the Placing in relation to
the Placing Shares will lapse 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 and any funds delivered by Placee to Numis will be returned without
interest as soon as reasonably practicable (and at each Placee's risk).
Numis may, at its discretion and upon such terms as it thinks fit, waive, or
extend the period for, compliance by the Company with the whole or any part of
any of the Company's obligations in relation to the conditions in the Placing
Agreement, save that the condition relating to Admission taking place may not
be waived. Any such extension or waiver will not affect Placees' commitments
as set out in this Announcement.
Neither Numis nor the Company shall have any liability to any Placee (or to
any other person whether acting on behalf of a Placee or otherwise) in respect
of any decision they may make as to whether or not to waive or to extend the
time and/or date for the satisfaction of any condition to the Placing nor for
any decision they may make as to the satisfaction of any condition or in
respect of the Placing generally and by participating in the Placing each
Placee agrees that any such decision is within the absolute discretion of
Numis.
Right to terminate under the Placing Agreement
Numis is entitled, at any time before Admission, to terminate the Placing
Agreement by giving notice to the Company in certain circumstances, including,
inter alia, a breach of the warranties given to Numis in the Placing
Agreement, the failure of the Company to comply with obligations under the
Placing Agreement or, the occurrence of a force majeure event which, in the
good faith opinion of Numis, make it impracticable or inadvisable to market
the Placing Shares or to enforce contracts for the subscription of the Placing
Shares. Following Admission, the Placing Agreement is not capable of
termination to the extent that it relates to the Placing of the Placing
Shares.
The rights and obligations of the Placees shall terminate only in the
circumstances described in these terms and conditions 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 Numis of any right of termination or other discretion under the
Placing Agreement shall be within the absolute discretion of Numis, and that
it need not make any reference to Placees and that it shall have no liability
to Placees whatsoever in connection with any such exercise or decision not to
exercise. Placees will have no rights against Numis, the Company or any of
their respective directors or employees under the Placing Agreement pursuant
to the Contracts (Rights of Third Parties) Act 1999 (as amended).
No Admission Document or Prospectus
The Placing Shares are being offered to a limited number of specifically
invited persons only and will not be offered in such a way as to require an
admission document or prospectus in the United Kingdom or in any other
jurisdiction. No offering document, admission document or prospectus has been
or will be submitted to be approved by the Financial Services Authority
("FSA") or submitted to the London Stock Exchange in relation to the Placing,
and Placees' commitments will be made solely on the basis of the information
contained in the Announcement (including this Appendix) and the Exchange
Information (as defined further below). Each Placee, by accepting a
participation in the Placing, agrees that the content of this Announcement is
exclusively the responsibility of the Company and confirms that it has neither
received nor relied on any other information (other than the Exchange
Information), representation, warranty, or statement made by or on behalf of
the Company or Numis or any other person and neither Numis nor 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 and, if given or
made, such information, representation, warranty or statement must not be
relied upon as having been authorised by Numis, the Company, or their
respective officers, directors, employees or agents. Each Placee acknowledges
and agrees that it has relied on its own investigation of the business,
financial or other position of the Company in accepting a participation in the
Placing. Neither the Company, nor Numis are making any undertaking or warranty
to any Placee regarding the legality of an investment in the Placing Shares by
such Placee under any legal, investment or similar laws or regulations. Each
Placee should not consider any information in this Announcement to be legal,
tax or business advice. Each Placee should consult its own solicitor, tax
adviser and financial adviser for independent legal, tax and financial advice
regarding an investment in the Placing Shares. Nothing in this paragraph shall
exclude the liability of any person for fraudulent misrepresentation.
Registration and Settlement
Settlement of transactions in the Placing Shares (ISIN: GB0034353754)
following Admission will take place within CREST provided that, subject to
certain exceptions, Numis reserves the right to require settlement for, and
delivery of, the Placing Shares (or a portion thereof) to Placees by such
other means that it deems necessary if delivery or settlement is not possible
or practicable within CREST within the timetable set out in this Announcement
or would not be consistent with the regulatory requirements in any Placee's
jurisdiction.
Each Placee allocated Placing Shares in the Placing will be sent a trade
confirmation or contract note, in accordance with the standing arrangements in
place with Numis, stating the number of Placing Shares allocated to it at the
Placing Price, the aggregate amount owed by such Placee to Numis and
settlement instructions. 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 that it has
in place with Numis.
It is expected that settlement will be on 13 September 2012 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 two
percentage points above LIBOR as determined by Numis.
Each Placee is deemed to agree that, if it does not comply with these
obligations, Numis may sell any or all of the Placing Shares allocated to that
Placee on such Placee's behalf and retain from the proceeds, for Numis'
account and benefit (as agent for the Company), an amount equal to the
aggregate amount owed by the Placee plus any interest due. The relevant Placee
will, however, remain liable and shall indemnify Numis on demand for any
shortfall below the aggregate amount owed by it and may be required to bear
any stamp duty or stamp duty reserve tax or securities transfer tax (together
with any interest or penalties) which may arise upon the sale of such Placing
Shares on such Placee's behalf. By communicating a bid for Placing Shares,
each Placee confers on Numis all such authorities and powers necessary to
carry out any such sale and agrees to ratify and confirm all actions which
Numis lawfully takes in pursuance of such sale.
If Placing Shares are to be delivered to a custodian or settlement agent,
Placees should ensure that the 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 for such person, such Placing Shares should, subject as
provided below, be so registered free from any liability to UK stamp duty or
stamp duty reserve tax or securities transfer tax. Placees will not be
entitled to receive any fee or commission in connection with the Placing.
Representations, Warranties and Further Terms
By participating in the Placing each Placee (and any person acting on such
Placee's behalf) makes the following representations, warranties,
acknowledgements, agreements and undertakings (as the case may be) to the
Company and Numis:
1. represents and warrants that it has read and understood the
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 and undertakes not to
redistribute or duplicate this Announcement;
2. acknowledges that no offering document, admission document or
prospectus has been prepared in connection with the Placing and represents and
warrants that it has not received and will not receive a prospectus, admission
document or other offering document in connection therewith;
3. acknowledges that the Ordinary Shares are admitted to trading on
AIM, and the Company is therefore required to publish certain business and
financial information in accordance with the AIM Rules for Companies
(collectively "Exchange Information"), which includes the Company's most
recent balance sheet and profit and loss account and the Company's
announcements and circulars published in the past 12 months and that it is
able to obtain or access such information without undue difficulty;
4. acknowledges that none of Numis, the Company, any of their
respective affiliates or any person acting on behalf of any of them has
provided it, and will not provide it, with any material regarding the Placing
Shares or the Company other than this Announcement; nor has it requested any
of Numis, the Company, their respective affiliates or any person acting on
behalf of any of them to provide it with any such information;
5. acknowledges that the content of this Announcement is
exclusively the responsibility of the Company, and that none of Numis, its
affiliates or any person acting on its or their behalf has or shall have any
liability for any information, representation or statement contained in this
Announcement or any information previously or concurrently published by or on
behalf of the Company, and will not 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 itself to
acquire 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 neither
received nor relied on any other information given or representations,
warranties or statements made by Numis, the Company or any of their respective
directors, officers or employees or any person acting on behalf of any of
them, or, if received, it has not relied upon any such information,
representations, warranties or statements (including any management
presentation that may have been received by any prospective Placee or any
material prepared by the Research Department of Numis (the views of such
Research Department not representing and being independent from those of the
Company and the Corporate Finance Department of Numis and not being
attributable to the same)), and neither Numis nor the Company will be liable
for any Placee's decision to accept an invitation to participate in the
Placing based on any other information, representation, warranty or statement.
Each Placee further acknowledges and agrees that it may not place the same
degree of reliance as it may otherwise place on a prospectus or admission
document. Each Placee further acknowledges and agrees that it has relied
solely on its own investigation of the business, financial or other position
of the Company in deciding to participate in the Placing and it will not rely
on any investigation that Numis, its affiliates or any other person acting on
its or their behalf has or may have conducted;
6. represents and warrants that it has neither received nor relied
on any confidential price sensitive information concerning the Company in
accepting this invitation to participate in the Placing;
7. acknowledges that Numis does not have any duties or
responsibilities to it, or its clients, similar or comparable to the duties of
"best execution" and "suitability" imposed by the Conduct of Business
Sourcebook in the FSA's Handbook of Rules and Guidance and that Numis is not
acting for it or its clients and that Numis will not be responsible for
providing protections to it or its clients;
8. acknowledges that none of Numis, any person acting on behalf of
it or them, or any of its affiliates has or shall have any liability for the
Exchange Information, any publicly available or filed information or any
representation relating to the Company, provided that nothing in this
paragraph excludes the liability of any person for fraudulent
misrepresentation made by that person;
9. that, save in the event of fraud on the part of Numis (and to
the extent permitted by the Rules of the FSA), neither Numis, its ultimate
holding company nor any direct or indirect subsidiary undertakings of that
holding company, nor any of their respective directors and employees shall be
liable to Investors for any matter arising out of Numis' role as placing agent
or otherwise in connection with the Placing and that where any such liability
nevertheless arises as a matter of law Investors will immediately waive any
claim against any of such persons which you may have in respect thereof;
10. represents and warrants that (i) it is not in the United States
and (ii) it is not acting for the account or benefit of a person in the United
States;
11. acknowledges that the Placing Shares are being offered and sold
only pursuant to Regulation S under the Securities Act in a transaction not
involving a public offering of securities in the United States and the Placing
Shares have not been and will not be registered under the Securities Act or
with any state or other jurisdiction of the United States, nor approved or
disapproved by the US Securities and Exchange Commission, any state securities
commission in the United States or any other United States regulatory
authority, and that the offer and sale of the Placing Shares to it has been
made outside of the United States in an 'offshore transaction' (as such term
is defined in Regulation S under the Securities Act) and agrees not to
reoffer, resell, pledge or otherwise transfer the Placing Shares except
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and otherwise in accordance
with any applicable securities laws of any state or jurisdiction of the United
States;
12. unless otherwise specifically agreed in writing with Numis,
represents and warrants that neither it nor the beneficial owner of such
Placing Shares will be a resident of Australia, Canada, Japan or the Republic
of South Africa;
13. acknowledges that the Placing Shares have not been and will not
be registered under the securities legislation of Australia, Canada, Japan or
the Republic of South Africa and, subject to certain exceptions, may not be
offered, sold, taken up, renounced or delivered or transferred, directly or
indirectly, within those jurisdictions;
14. represents and warrants that the issue to it, or the person
specified by it 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 transfer Placing Shares into a clearance system;
15. represents and warrants that: (i) it has complied with its
obligations under the Criminal Justice Act 1993, section 118 of FSMA and in
connection with money laundering and terrorist financing under the Proceeds of
Crime Act 2002 (as amended), the Terrorism Act 2000 (as amended), the
Terrorism Act 2006 and the Money Laundering Regulations 2007 and (ii) it is
not a person: (a) with whom transactions are prohibited under the Foreign
Corrupt Practices Act of 1977 or any economic sanction programmes administered
by, or regulations promulgated by, the Office of Foreign Assets Control of the
U.S. Department of the Treasury; (b) named on the Consolidated List of
Financial Sanctions Targets maintained by HM Treasury of the United Kingdom;
or (c) subject to financial sanctions imposed pursuant to a regulation of the
European Union or a regulation adopted by the United Nations (together, the
"Regulations"); and, if making payment on behalf of a third party, that
satisfactory evidence has been obtained and recorded by it to verify the
identity of the third party as required by the Regulations and, if making
payment on behalf of a third party, that satisfactory evidence has been
obtained and recorded by it to verify the identity of the third party as
required by the Regulations and has obtained all governmental and other
consents (if any) which may be required for the purpose of, or as a
consequence of, such purchase, and it will provide promptly to Numis such
evidence, if any, as to the identity or location or legal status of any person
which Numis may request from it in connection with the Placing (for the
purpose of complying with such Regulations or ascertaining the nationality of
any person or the jurisdiction(s) to which any person is subject or otherwise)
in the form and manner requested by Numis on the basis that any failure by it
to do so may result in the number of Placing Shares that are to be purchased
by it or at its direction pursuant to the Placing being reduced to such
number, or to nil, as Numis may decide at its sole discretion;
16. if a financial intermediary, as that term is used in Article 3(2)
of the Prospectus Directive, represents and warrants that the Placing Shares
purchased 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 European Economic Area which has
implemented the Prospectus Directive other than Qualified Investors, or in
circumstances in which the prior consent of Numis has been given to the offer
or resale;
17. represents and warrants that it has not offered or sold and will
not offer or sell any Placing Shares to persons in the European Economic Area
prior to Admission except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their business or otherwise in circumstances which
have not resulted in and which will not result in an offer to the public in
any member state of the European Economic Area within the meaning of the
Prospectus Directive (including any relevant implementing measure in any
member state);
18. 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 the FSMA) relating to the Placing Shares in circumstances in
which section 21(1) of the FSMA does not require approval of the communication
by an authorised person;
19. represents and warrants that it has complied and will comply with
all applicable provisions of the FSMA with respect to anything done by it in
relation to the Placing Shares in, from or otherwise involving, the United
Kingdom;
20. if in a Member State of the European Economic Area, unless
otherwise specifically agreed with Numis in writing, represents and warrants
that it is a Qualified Investor within the meaning of the Prospectus
Directive;
21. if in the United Kingdom, represents and warrants that it is a
person (i) who has professional experience in matters relating to investments
falling within Article 19(1) of the Financial Services and Markets Act 2000
(Financial Promotion) Order 2005 (the "Order"); (ii) falling 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 be lawfully
communicated;
22. represents and warrants that it and any person acting on its
behalf is entitled to acquire the Placing Shares under the laws of all
relevant jurisdictions and that it has all necessary capacity and has obtained
all necessary consents and authorities and taken any other necessary actions
to enable it to commit to this 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;
23. where it is acquiring Placing Shares for one or more managed
accounts, represents and warrants that it is authorised in writing by each
managed account: (a) to acquire the Placing Shares for each managed account;
(b) to make on its behalf the representations, warranties, acknowledgements,
undertakings and agreements in this Appendix and the Announcement of which it
forms part; and (c) to receive on its behalf any investment letter relating to
the Placing in the form provided to it by Numis;
24. undertakes that it (and any person acting on its behalf) will
make 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 Numis
may in its sole discretion determine and without liability to such Placee and
it will remain liable and will indemnify Numis on demand for any shortfall
below the net proceeds of such sale and the placing proceeds of such Placing
Shares and may be required to bear the liability for any stamp duty or stamp
duty reserve tax or security transfer tax (together with any interest or
penalties due pursuant to or referred to in these terms and conditions) which
may arise upon the placing or sale of such Placee's Placing Shares on its
behalf;
25. acknowledges that none of Numis, any of its affiliates, or any
person acting on behalf of any of them, is making any recommendations to it,
advising it regarding the suitability of any transactions it may enter into in
connection with the Placing and that participation in the Placing is on the
basis that it is not and will not be treated for these purposes as a client of
Numis and that Numis has no duties or responsibilities to it for providing the
protections afforded to their respective 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 their rights and obligations
thereunder including any rights to waive or vary any conditions or exercise
any termination right;
26. undertakes 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. Neither Numis 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. Each Placee and any person acting on behalf of such
Placee agrees to participate in the Placing and it agrees to indemnify the
Company and Numis in respect of the same on the basis that the Placing Shares
will be allotted to the CREST stock account of Numis who will hold them as
nominee on behalf of such Placee until settlement in accordance with its
standing settlement instructions;
27. acknowledges 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
agreement shall be governed by and construed in accordance with the laws of
England and Wales and it submits (on behalf of itself and on behalf of any
person on whose behalf it is acting) to the exclusive jurisdiction of the
English courts as regards any claim, dispute or matter (including
non-contractual matters) 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 or Numis in any jurisdiction in which the relevant Placee is
incorporated or in which any of its securities have a quotation on a
recognised stock exchange;
28. acknowledges that time shall be of the essence as regards to
obligations pursuant to this Appendix;
29. agrees that the Company, Numis and their respective affiliates
and others will rely upon the truth and accuracy of the foregoing
representations, warranties, acknowledgements and undertakings which are given
to Numis on its own behalf and on behalf of the Company and are irrevocable
and are irrevocably authorised to produce this Announcement or a copy thereof
to any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby;
30. agrees to indemnify on an after-tax basis and hold the Company,
Numis and their respective affiliates harmless from any and all costs, claims,
liabilities and expenses (including legal fees and expenses) arising out of or
in connection with any breach of the representations, warranties,
acknowledgements, agreements and undertakings in this Appendix and further
agrees that the provisions of this Appendix shall survive after completion of
the Placing;
31. acknowledges that no action has been or will be taken by any of
the Company, Numis or any person acting on behalf of the Company or Numis 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;
32. acknowledges that it is an institution that has knowledge and
experience in financial, business and international investment matters as is
required to evaluate the merits and risks of subscribing for the Placing
Shares. It further acknowledges that it is experienced in investing in
securities of this nature and in this sector and is aware that it may be
required to bear, and it, and any accounts for which it may be acting, are
able to bear, the economic risk of, and is able to sustain, a complete loss in
connection with the Placing. It has relied upon 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;
33. acknowledges that its commitment to subscribe for Placing Shares
on the terms set out herein and in the trade confirmation or contract note
will continue notwithstanding any amendment that may in future be made to the
terms of the Placing and that Placees will have no right to be consulted or
require that their consent be obtained with respect to the Company's conduct
of the Placing;
34. acknowledges that Numis or any of its affiliates acting as an
investor for its own account may take up shares in the Company and in that
capacity may retain, purchase or sell for its own account such shares and may
offer or sell such shares other than in connection with the Placing;
35. represents and warrants that, if it is a pension fund or
investment company, its purchase of Placing Shares is in full compliance with
all applicable laws and regulation;
37. irrevocably appoints any director or employee of Numis as its
agent for the purpose of executing and delivering to the Company and/or its
registrars any document on its behalf necessary to enable it to be registered
as the holder of Placing Shares;
38. acknowledges that its name and participation in the Placing may
be disclosed if required by law or any applicable rules or regulations
including the AIM Rules for Companies of the Takeover Code; and
39. to the fullest extent permitted by law, it acknowledges and
agrees to the disclaimers contained in the Announcement including this
Appendix.
The representations, warranties, acknowledgments and undertakings contained in
this Appendix are given to Numis and the Company and are irrevocable and shall
not be capable of termination in any circumstances.
The agreement to settle a Placee's subscription (and/or the subscription of a
person for whom such Placee is contracting as agent) free of stamp duty and
stamp duty reserve tax depends on the settlement relating only to a
subscription by it and/or such person direct from the Company for the Placing
Shares in question. Such agreement assumes that the Placing Shares are not
being subscribed for in connection with arrangements to issue depositary
receipts or to transfer the Placing Shares into a clearance service. If there
are any such arrangements, or the settlement relates to any other subsequent
dealing in the Placing Shares, stamp duty or stamp duty reserve tax may be
payable, for which neither the Company nor Numis will be responsible, and the
Placee to whom (or on behalf of whom, or in respect of the person for whom it
is participating in the Placing as an agent or nominee) the allocation,
allotment, issue or delivery of Placing Shares has given rise to such UK stamp
duty or stamp duty reserve tax undertakes to pay such UK stamp duty or stamp
duty reserve tax forthwith and to indemnify on an after-tax basis and to hold
harmless the Company and Numis in the event that any of the Company and/or
Numis has incurred any such liability to UK stamp duty or stamp duty reserve
tax. If this is the case, each Placee should seek its own advice and notify
Numis accordingly.
In addition, Placees should note that they will be liable for any stamp duty
and all other stamp, issue, securities, transfer, registration, documentary or
other duties or taxes (including any interest, fines or penalties relating
thereto) payable outside the UK by them or any other person on the
subscription by them of any Placing Shares or the agreement by them to
subscribe for any Placing Shares.
Each Placee, and any person acting on behalf of the Placee, acknowledges that
Numis does not owe any fiduciary or other duties to any Placee in respect of
any representations, warranties, undertakings or indemnities in the Placing
Agreement.
Each Placee and any person acting on behalf of the Placee acknowledges and
agrees that Numis or any of its affiliates may, at their absolute discretion,
agree to become a Placee in respect of some or all of the Placing Shares.
When a Placee or person acting on behalf of the Placee is dealing with Numis,
any money held in an account with Numis 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 FSA made under the
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 Numis' money in accordance with the client money
rules and will be used by Numis in the course of its own business and the
Placee will rank only as a general creditor of Numis.
All times and dates in this Announcement may be subject to amendment. Numis
shall notify the Placees and any person acting on behalf of the Placees of any
changes.
Past performance is no guide to future performance and persons needing advice
should consult an independent financial adviser.
DEFINITIONS
In this Appendix 2:
'Admission' means the admission of the Placing Shares to trading on AIM
becoming effective (pursuant to Rule 6 of the AIM Rules for Companies);
'Announcement' means this announcement (including the appendices to this
announcement);
'CREST' means the relevant system, as defined in the Uncertificated Securities
Regulations 2001 (SI 2001/3755), as amended (in respect of which Euroclear UK
& Ireland Limited is the operator);
'FSA' means the Financial Services Authority of the United Kingdom acting in
its capacity as the competent authority for the purposes of Part IV of FSMA;
'FSMA' means the Financial Services and Markets Act 2000 (as amended);
'London Stock Exchange' means the London Stock Exchange plc;
the 'Company' means Eco City Vehicles plc;
'Ordinary Share' means an ordinary share of 1 pence each in the capital of the
Company;
'Placee' means any person (including individuals, funds or otherwise) by whom
or on whose behalf a commitment to acquire Placing Shares has been given;
'Placing' means the placing of the Placing Shares by Numis, on behalf of the
Company, with both new and existing institutional investors;
'Placing Agreement' means the placing agreement dated 7 September 2012 between
the Company and Numis in respect of the Placing;
'Placing Price' means 1.5 pence per Ordinary Share at which the Placing Shares
are placed;
'Placing Shares' means the up to 116,666,666 Ordinary Shares to be issued
pursuant to the Placing;
'Prospectus Directive' means the Directive of the European Parliament and of
the Council of the European Union 2003/71/EC;
'Securities Act' means the US Securities Act of 1933, as amended;
'United Kingdom' or 'UK' means the United Kingdom of Great Britain and
Northern Ireland; and
'United States' or 'US' means the United States of America, its territories
and possessions, any state of the United States and the District of Columbia.
This information is provided by RNS
The company news service from the London Stock Exchange
END
MSCFMGGLFNVGZZM -0- Sep/07/2012 13:39 GMT
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