Xeros Tech Grp plc - Proposed Placing, Open Offer & General Meeting
For immediate release
THIS ANNOUNCEMENT, INCLUDING THE INFORMATION CONTAINED HEREIN, IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM
THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND SHALL NOT CONSTITUTE AN OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY, SUBSCRIBE FOR OR OTHERWISE ACQUIRE ANY NEW ORDINARY SHARES OF XEROS TECHNOLOGY GROUP PLC IN
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION AS DEFINED IN ARTICLE 7 OF THE MARKET ABUSE REGULATION NO. 596/2014 ("MAR"). UPON THE PUBLICATION OF THIS ANNOUNCEMENT, THIS INSIDE INFORMATION IS NOW CONSIDERED TO BE IN THE PUBLIC DOMAIN.
Xeros Technology Group plc
("Xeros", the "Group" or the "Company")
Placing to raise
Open Offer to raise up to
Notice of General Meeting
· The Fundraising will raise gross proceeds of up to
· The net proceeds are intended to be used to fund the Group's operations through to the end of 2020 and the Directors will seek to raise further funds at the end of 2020, if not sooner. The Directors believe the Group will be generating sufficient cashflows to be break-even by the end of 2021.
· The Fundraising is conditional upon the granting of shareholder authorities to issue new Ordinary Shares and to dis-apply pre-emption rights, such authorities are to be sought at a general meeting of the Company's shareholders ("General Meeting"), details of which are within this announcement;
· As previously announced, the Company aims to achieve the above plan by becoming a pure-play licensing business. The Company believes this is achievable in three main areas: firstly, signing and executing license agreements with acceptable levels of royalties with selected partners in target markets/geographies; secondly, exiting operational business once market and product viability is proven; and lastly, reducing its cost and asset base to that of a pure-play licensing company.
· Admission of the 505,000,000 Ordinary Shares ("Placing Shares") is expected to be on 20 November 2019, although this is conditional on the passing of resolutions (the "Resolutions") to be put to shareholders at the General Meeting.
· Admission of up to 199,932,635 Ordinary Shares ("Open
· General Meeting to be held at the offices of
Commenting on the Placing,
"Xeros' products help reduce the increasing pressures on the world's supply of water. Testament to this are the development and license agreements we have signed in
This funding, provided by both existing and new shareholders, will enable us to complete our full migration to becoming a high-margin royalty business delivering sustainability and cost benefits to our licensees' customers.
Having completed much of the development and protection of our products, we are now well-positioned to continue the commercialisation of our intellectual property with major OEMs across multiple large-scale markets."
Details of the Placing
finnCap Ltd ("finnCap") acted as nominated adviser, broker and bookrunner in connection with the Placing. No part of the Placing is underwritten.
The Placing of the Placing Shares is conditional upon admission to trading on AIM becoming effective ("Admission") and the placing agreement between the Company and finnCap (the "Placing Agreement") not being terminated in accordance with its terms.
The Placing Shares, when issued, will represent approximately 196.5 per cent. of the Company's issued share capital prior to the Placing. The Issue Price of 1 pence per new Ordinary Share represents a discount of approximately 81 per cent. to the closing mid-market price of 5.17 pence per Ordinary Share on
Details of the Open Offer
At the same time as the Placing, the Company also proposes to raise up to a further
Neither the Placing nor the Open Offer are being underwritten.
The New Ordinary Shares, when issued, will be fully paid and will rank pari passu in all respects with the existing Ordinary Shares, including the right to receive all dividends and other distributions declared, made or paid in respect of such New Ordinary Shares after the date of their admission to trading on AIM.
General Meeting and Shareholder Approval
For the New Ordinary Shares to be admitted to trading on AIM, Shareholder approval is required:
a) by way of ordinary resolution to give the Directors authority to allot the New Ordinary Shares; and
b) by way of a special resolution to dis-apply statutory pre-emption rights in respect thereof.
The authorities referred to above are in addition to the Company's existing general shareholder authorities to allot Ordinary Shares for cash on a non-pre-emptive basis.
In order to obtain the necessary shareholder approval, a General Meeting of the Company is to be held at the offices of
Expected Timetable of Principal Events
Record Date for Open Offer
30 October 2019
Announcement of Placing and Open Offer
31 October 2019
Posting of the Circular and the Forms of Proxy
1 November 2019
Ex-entitlement date for Open Offer
Open Offer entitlements credited to CREST accounts
Recommended latest time and date for depositing Open Offer entitlements into CREST
Recommended latest time and date for requesting withdrawal of Open Offer entitlements from CREST
Latest time and date for splitting Application forms (to satisfy bona fide market claims only)
Latest time and date for receipt of completed application forms and payment in full under the Open Offer
Announcement of results of the Open Offer
18 November 2019
Placing and General Meeting
Latest time and date for receipt of CREST proxy instructions and registration of online votes from Shareholders for General Meeting
Latest time and date for receipt of Forms of Proxy
Trade Date in respect of the Placing
18 November 2019
Settlement Date in respect of the Placing
20 November 2019
Admission of New Ordinary Shares and commencement of dealings on AIM
Despatch of share certificates for Open Offer shares
Week commencing 25 November 2019
On Admission of the Placing Shares and the Open
Tel: 0114 321 6328
+44 (0) 20 7220 0500
+44 (0) 20 7457 2020
Notes for editors:
Xeros' patented XOrbTM technologies significantly reduce the amount of water used in the washing or dyeing of soft substrates such as garments and fabrics. It enables the remaining water to become far more efficient and effective in either affixing or removing molecules, the result being improvements in economic, operational, product and sustainability outcomes. The Group is applying its technology in the fields of cleaning, tanning and textiles.
Xeros' XDrumTM technology is a patented, simple, low cost machine drum design which enables XOrbs to be introduced into and subsequently removed from process cycles in Xeros' chosen markets. The design enables rotating drum machine Original Equipment Manufacturers ("OEMs") in the fields of garment manufacture and cleaning, the ability to make simple and low cost changes in their production lines to incorporate the Company's XOrb technology.
The Group has signed multiple agreements to develop and license its XDrum and XOrb products in major commercial and domestic markets.
XFiltraTM is a patented in-machine filtration technology which is designed to prevent harmful micro-plastics generated by washing cycles from being released into the aquacycle. Plastics released from synthetic clothing during washing cycles is one of the single largest sources of primary micro-plastic pollution.
This announcement contains forward-looking statements. These statements relate to the Group's future prospects, developments and business strategies. Forward-looking statements are identified by their use of terms and phrases such as "potential", "estimate", "expect", "may", "will" or the negative of such terms and phrases, variations or comparable expressions, including references to assumptions. The forward-looking statements in this announcement are based on current expectations and are subject to risks and uncertainties that could cause actual results to differ materially from those expressed or implied by those statements. These forward-looking statements speak only as at the date of this announcement. No statement in this announcement is intended to constitute a profit forecast or profit estimate for any period. Neither the Directors nor the Company undertake any obligation to update forward-looking statements other than as required by the AIM Rules or by the rules of any other securities regulatory authority, whether as a result of new information, future events or otherwise.
Market Abuse Regulation
Market soundings, as defined in MAR, were taken in respect of the Placing, with the result that certain persons became aware of inside information, as permitted by MAR. That inside information is set out in this announcement and has been disclosed as soon as possible in accordance with paragraph 7 of article 17 of MAR. Therefore, those persons that received inside information in a market sounding are no longer in possession of inside information relating to the Company and its securities.
THE PROPOSED PLACING OF 505,000,000 NEW ORDINARY SHARES AT
THE PROPOSED OPEN OFFER OF UP TO 199,932,635 NEW ORDINARY SHARES AT
The Placing and Open Offer
Xeros intends to raise approximately
Qualifying Shareholders will be given the opportunity to subscribe for up to 199,932,635 new Ordinary Shares through an open offer to raise up to
The New Ordinary Shares will rank pari passu in all respects with the Existing Ordinary Shares. Application will be made to the
The Board has undertaken to appoint further non-executive directors to the Board within three months of Admission; new appointments will likely reflect the interests of key shareholders following Admission, whilst also satisfying the demands of good governance regarding the importance of maintaining appropriate levels of Board independence.
Related party transactions
The participation of
a. the Participating Directors (being independent of
b. the Independent Director considers, having consulted with finnCap (as the Company's nominated adviser) that the terms of the related party transactions in relation to the participation of the Participating Directors are fair and reasonable insofar as the Company's Shareholders are concerned.
Since the interim results trading has continued in line with the Director's expectations with the focus for the rest of 2019 and beyond firmly upon:
· successful implementation of joint development and licence agreements for the Group's products over the next 18 to 24 months, with the expectation that the Company will reach EBITDA cash break-even by the end of 2021;
· development and signature of additional licence agreements to provide wide geographic commercialisation of the Group's products; and
· management of the Group's cash position by completing the migration to a pure-play licensing business model by the end of 2019 thereby significantly reducing the Group's monthly cash burn run rate. Group cash reserves at the end of
Following its exit of direct operations, the Company expects to have a staffing level to execute its licensing activities of approximately 60 personnel at the end of 2019. This compares to 148 at the end of
Certain Directors are participating in the Placing, amounting to an aggregate subscription for 15,000,000 new Ordinary Shares or approximately 3 per cent. of the Placing. Following the Placing, the Participating Directors will beneficially own, in aggregate, 2.1 per cent. of the Enlarged Issued Share Capital, as follows:
Number of Existing Ordinary Shares held
Number of Placing Shares being acquired
Total number of Ordinary Shares held following the Placing
Percentage of Enlarged Issued Share Capital1
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TERMS AND CONDITIONS OF THE PLACING
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT IN THIS APPENDIX ARE DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA ("EEA") WHO ARE QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE EU PROSPECTUS DIRECTIVE (WHICH MEANS DIRECTIVE 2003/71/EC, AS AMENDED FROM TIME TO TIME, AND INCLUDES ANY RELEVANT IMPLEMENTING DIRECTIVE MEASURE IN ANY MEMBER STATE) (THE "PROSPECTUS DIRECTIVE") ("QUALIFIED INVESTORS"); AND (B) IN THE
THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. 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 AND THIS APPENDIX HAS BEEN ISSUED BY AND IS THE SOLE RESPONSIBILITY OF THE COMPANY.
THIS ANNOUNCEMENT, INCLUDING THIS APPENDIX, IS NOT AN OFFER FOR SALE OR SUBSCRIPTION IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL UNDER THE SECURITIES LAWS OF ANY SUCH JURISDICTION. THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF
THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN, NOR WILL BE, APPROVED OR DISAPPROVED BY THE
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, REGULATORY, TAX, BUSINESS, FINANCIAL AND RELATED ASPECTS OF AN ACQUISITION OF PLACING SHARES.
No statement in this announcement is intended to be a profit forecast and no statement in this announcement should be interpreted to mean that the earnings per share of the Company for the current or future financial years would necessarily match or exceed the historical published earnings per share of the Company.
The price of Ordinary Shares and the income from them may go down as well as up and investors may not get back the full amount invested on disposal of the Placing Shares.
Neither the content of the Company's website (or any other website) nor the content of any website accessible from hyperlinks on the Company's website (or any other website) is incorporated into, or forms part of, this announcement.
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING
1. Details of the Placing
finnCap Limited ("finnCap") has entered into an agreement with the Company (the "Placing Agreement") under which, subject to the terms and conditions set out in that agreement, finnCap has agreed, as agent for and on behalf of the Company, to use its reasonable endeavours to procure placees (the "Placees") for the Placing Shares at a price of 1p per Placing Share (the "Issue Price"), where 505,000,000 Ordinary Shares (the "Placing Shares") shall be allocated and issued to new and existing shareholders of the Company in accordance with such allocation determined by agreement between the Company and finnCap pursuant to the bookbuilding process (the "Bookbuild"), described in this announcement and set out in the Placing Agreement. The placing of the Placing Shares (the "Placing") is not underwritten by finnCap.
1.1. In addition to the Placing, the Company proposes to make the Open Offer to Qualifying Shareholders on the terms and subject to the conditions set out in the Circular and (in the case of Qualifying Shareholders who do not hold their Ordinary Shares in CREST) the Application. The Placing is not conditional upon the Open Offer and the Placing Shares are not part of the Open Offer, although it should be noted that both the Placing and the Open Offer are conditional on the passing of the Resolutions, as more specifically set out at 1.2 below.
1.2. The Placing Shares will be issued conditional on, amongst other things, the approval by Shareholders of the Resolutions which will (i) grant authority to the Directors to allot the Placing Shares and (ii) dis-apply pre-emption rights in respect of the Placing Shares.
1.3. The Placing Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the Existing Ordinary Shares of the Company including the right to receive all dividends and other distributions declared, made or paid on or in respect of such Ordinary Shares after the date of issue of the relevant Placing Shares.
1.4. As a term of the Placing, the Company has agreed that it will not issue or sell any Ordinary Shares (other than the Placing Shares and the Open
2. Application for admission to trading
Application will be made to the
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. finnCap shall be entitled to effect the Placing by such alternative method to the Bookbuild as may be agreed between the Company and finnCap.
4. Participation in, and principal terms of, the Placing
4.1. finnCap is acting as nominated adviser and sole broker of the Company in respect of the Placing.
4.2. Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by finnCap.
4.3. finnCap and its affiliates and partners are entitled to enter bids in the Bookbuild as principal.
4.4. The Bookbuild has been carried out on the basis of the Issue Price of 1p per Placing Share payable by all Placees whose bids are successful in accordance with this Appendix and the settlement instructions contained in the Placee's contract note. The number of the Placing Shares to be allocated and issued to each Placee will be determined by agreement between the Company and finnCap following the Bookbuild.
4.5. The Bookbuild has now closed. finnCap may, in agreement with the Company, accept bids that are received after the Bookbuild has closed. The Company reserves the right (upon the agreement of finnCap) to reduce or seek to increase the amount to be raised pursuant to the Placing.
4.6. Each prospective Placee's allocation will be determined by agreement between the Company and finnCap, and will be confirmed orally by finnCap, as agent of the Company. That oral confirmation will constitute an irrevocable legally binding commitment upon that person (who will at that point become a Placee) in favour of finnCap and the Company to subscribe for the number of Placing Shares allocated to it at the Issue Price on the terms and conditions set out in this Appendix and in accordance with the Company's articles of association.
4.7. Each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to finnCap as agent of the Company, to pay in cleared funds, an amount equal to the product of the Issue Price and the number of Placing Shares that such Placee has agreed to subscribe for and the Company has agreed to allot and issue to that Placee, in accordance with this Appendix and the settlement instructions contained in the Placee's contract note.
4.8. finnCap may choose to accept bids, either in whole or in part, and may scale down any bids for this purpose on such basis as it determines. finnCap may also, notwithstanding paragraphs 4.6 and 4.7 above, subject to prior agreement with the Company: (i) allocate Placing Shares after the time of any initial allocation to any person submitting a bid after that time and (ii) allocate Placing Shares after the Bookbuild has closed to any person submitting a bid after that time.
4.9. A bid in the Bookbuild will be made on the terms and subject to the conditions in this Appendix and will be legally binding on the Placee on behalf of which it is made and, except with finnCap's written consent, will not be capable of variation or revocation after the time at which it is submitted. However, finnCap reserves the right (on agreement between the Company and finnCap) to amend the terms and conditions in this Appendix with respect to individual Placees, provided that no such amendment is made to the Issue Price.
4.10. Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all Placing Shares to be subscribed for pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement".
4.11. All obligations under the Bookbuild and the Placing will be subject to fulfilment or waiver (as applicable) of the conditions referred to below under "Conditions of the Placing" and to the Placing not being terminated on the basis referred to below under "Termination of the Placing Agreement".
4.12. By participating in the Bookbuild, each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.
4.13. To the fullest extent permissible by law, neither finnCap nor any of its affiliates, agents, advisers, directors, officers, partners or employees shall have any responsibility or liability (whether in contract, tort or otherwise) to Placees (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither finnCap nor any of its respective affiliates, agents, advisers, directors, officers, partners or employees shall have any responsibility or liability (whether in contract, tort or otherwise and including to the fullest extent permissible by law, any fiduciary duties) in respect of their conduct of the Bookbuild or of such alternative method of effecting the Placing as finnCap may determine.
4.14. Placees will have no rights against finnCap, the Company nor any of their respective directors, partners or employees under the Placing Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 (as amended).
5. Conditions of the Placing
5.1. The Placing is conditional upon the Placing Agreement becoming unconditional with respect to the Placing and not having been terminated in accordance with its terms prior to Admission. The obligations of finnCap under the Placing Agreement in respect of the Placing are conditional on, amongst other things:
5.1.1. the despatch by first class post of the Circular and (as applicable) the General Meeting proxy card to each person to whom notice of the General Meeting is required to be given on the date of the Placing Agreement;
5.1.2. the passing of the Resolutions (without amendment) on the date of the General Meeting;
5.1.3. the Company having fully complied with its obligations under the Placing Agreement to the extent that such obligations are required to be performed before Admission;
5.1.4. neither the admission of any existing Ordinary Shares to trading on AIM, nor the admission of existing Ordinary Shares as a Participating CREST Security to CREST, being suspended or cancelled or withdrawn prior to Admission;
5.1.5. finnCap's obligations under the Placing Agreement not having been terminated pursuant to clause 10 of the Placing Agreement;
5.1.6. the delivery by the Company to finnCap of a signed certificate as set out in Schedule 2 of the Placing Agreement (Warranty certificate), and a payment direction letter in respect of the Placing proceeds as set out in Schedule 3 of the Placing Agreement (Payment direction letter), with effect immediately before Admission; and
5.1.7. Admission taking place by
5.2. Any Placing Condition at Clause 5.1 (other than those at clauses 5.1.2 (Resolutions), 5.1.6 (Termination) and 5.1.7 (Admission)) may be waived, in whole or in part, and the time for satisfaction of the Placing Condition may be extended by finnCap (without any obligation to make any such waiver or extension) by express written notice to the Company. Any such extension or waiver will not affect Placees' commitments as set out in this announcement.
5.3.1. any of the conditions contained in the Placing Agreement (including those listed at clause 5.1 above) (the "Placing Conditions") are not fulfilled or waived by finnCap, by the time or date where specified; or
5.3.2. the Placing Agreement is terminated in the circumstances specified at clause 6 below prior to Admission,
the Placing will not proceed and the Placee's rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by the Placee in respect thereof.
5.4. None of finnCap, the Company nor any other person shall have any liability (whether in contract, tort or otherwise) to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision they may make as to whether or not to waive or to extend the time and/or the date for the satisfaction of the Placing Conditions 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 finnCap.
6. Termination of the Placing Agreement
6.1. finnCap may at any time prior to Admission terminate the Placing Agreement (by giving notice in writing to the Company if, in finnCap's reasonable opinion, amongst other things:
6.1.1. the Company is in breach of any of its obligations under the Placing Agreement, or is likely to be so in breach, or cannot comply with any such obligation, or is unlikely to able to do so; or
6.1.2. any Warranty is or if repeated at any time up to Admission (by reference to the facts and circumstances then existing) would be untrue, inaccurate or misleading; or
6.1.3. there has been an adverse development or other adverse occurrence relating to any Director or any Group Member (whether or not occurring or arising before or after the date of the Placing Agreement) of which finnCap was unaware when entering into the Placing Agreement,
(in any case by itself or together with any other such occurrence) to an extent which finnCap reasonably regards as material; or
6.2. on or after the date of the Placing Agreement there happens, develops or comes into effect:
6.2.1. a general moratorium on commercial banking activities in
6.2.2. the declaration, outbreak or escalation of war or other hostilities, or the occurrence of any acts of terrorism, involving the
6.2.3. any calamity, disaster, natural event or other occurrence of any kind which (by itself or together with any other such occurrence) in finnCap's reasonable opinion is likely to materially and adversely affect or prejudice the market's perception of the Company or the financial position or trading position or prospects of the Group taken as a whole; or
6.2.4. a change, or any development likely to involve a prospective change (in each case whether or not foreseeable at the date of the Placing Agreement) in or affecting the condition (financial or other), business prospects, earnings, business affairs or results of the Group, whether or not arising in the ordinary course of business which, in any such case, in finnCap's reasonable opinion is materially adverse; or
6.2.5. any crisis of international or national effect or any change in any currency exchange rates or controls or in any financial, political, economic or market conditions (including disruption to trading on any stock exchange, multilateral trading facility or over-the-counter market) or in market sentiment or any other calamity or crisis which, in any such case, in finnCap's reasonable opinion is materially adverse; or
6.2.6. the suspension or limitation of trading generally on the
6.2.7. a change or development involving a prospective change in taxation affecting any Group Member, the Placing or the holding or ownership or transfer of any Ordinary Shares which, in any such case, in finnCap's reasonable opinion is materially adverse; or
6.2.8. the imposing of exchange controls by the
finnCap may terminate its rights under the Placing Agreement with immediate effect.
6.3. In addition, finnCap's obligations under the Placing Agreement may be terminated prior to Admission by written agreement between the Company and finnCap.
6.4. Upon such termination of the Placing Agreement, the parties to the Placing Agreement shall be released and discharged (except for any liability arising before or in relation to such termination) from their respective obligations under or pursuant to the Placing Agreement subject to certain exceptions. For the avoidance of doubt, the Placing cannot be terminated after Admission has occurred to the extent it relates to the Placing Shares.
6.5. The rights and obligations of the Placees shall terminate only in the circumstances described in these terms and conditions and in the Placing Agreement and will not be subject to termination by the Placee or any prospective Placee at any time or in any circumstances. By participating in the Placing, Placees agree that the exercise by finnCap of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of finnCap and that it need not make any reference to, or consult with, Placees and that it shall have no responsibility or liability to Placees whatsoever in connection with any such exercise and neither the Company nor finnCap nor any of their respective directors, officers, employees, agents or affiliates shall have any liability to Placees whatsoever in connection with any such exercise or failure to exercise or otherwise.
7. No prospectus
7.1. The Placing Shares are being offered to a limited number of specifically invited persons only and will not be offered in such a way as to require a prospectus in the
7.2. Each Placee, by accepting a participation in the Placing, agrees that the content of this announcement (including this Appendix) is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information representation, warranty, or statement made by or on behalf of the Company, finnCap or any other person and none of finnCap or the Company nor any other person will be liable for any Placee's decision to participate in the Placing based on any other information representation, warranty or statement which the Placees may have obtained or received. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Placing. Nothing in this paragraph shall exclude or limit the liability of any person for fraudulent misrepresentation by that person.
8. Registration and Settlement
8.1. Settlement of transactions in the Placing Shares following Admission will take place within the system administered by CREST, subject to certain exceptions. finnCap and the Company reserve the right to require settlement for and delivery of the Placing Shares (or a portion thereof) to Placees in certificated form if, in their opinion, delivery or settlement is not possible or practicable within the CREST system or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
8.2. Each Placee to be allocated Placing Shares in the Placing will be sent a contract note stating the number of Placing Shares allocated to it at the Issue Price and settlement instructions. The number of Placing Shares allocated to each Placee will be allocated in a manner determined by agreement between the Company and finnCap, and Placees will be notified of their relevant allocation in the contract note.
8.3. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with the standing CREST or certificated settlement instructions that it has in place with finnCap.
8.4. The Company will deliver the Placing Shares to a CREST account operated by finnCap as agent for the Company and finnCap will enter its delivery (DEL) instruction into the CREST system. The input to CREST by a Placee of a matching or acceptance instruction will then allow delivery of the relevant Placing Shares to that Placee against payment.
8.5. It is expected that settlement of the Placing Shares will take place on
8.6. Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out above at the rate of two percentage points above LIBOR as determined by finnCap.
8.7. Each Placee is deemed to agree that, if it does not comply with these obligations, finnCap may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for finnCap's account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties thereon) or other similar taxes imposed in any jurisdiction which may arise upon the sale of such Placing Shares on such Placee's behalf. By communicating an intention to subscribe for Placing Shares, each Placee confers on finnCap all such authorities and powers necessary to carry out any such sale and agrees to ratify and confirm all actions which finnCap lawfully takes in pursuance of such sale.
8.8. If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the trade confirmation or contract note is copied and delivered immediately to the relevant person within that organisation. Insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee of such person, such Placing Shares should, subject as provided below, be so registered free from any liability to
8.9. Each Placee acknowledges and agrees that the Company is responsible for the allotment of the Placing Shares to the Placees and finnCap shall have no liability to the Placees for the failure of the Company to fulfil those obligations.
9. Representations and warranties
9.1. By participating in the Placing, each Placee (and any person acting on such Placee's behalf) irrevocably acknowledges, confirms, undertakes, represents, warrants and agrees (as the case may be) with finnCap as agent of the Company, as a fundamental term of their application for relevant Placing Shares), the following:
9.1.1. it has read and understood this announcement (including this Appendix) in its entirety and that its subscription of Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, acknowledgements, agreements and undertakings and other information contained herein;
9.1.2. the Placing does not constitutes a recommendation or financial product advice and finnCap has not had regard to its particular objectives, financial situation or needs;
9.1.3. unless paragraph 9.1.4 below applies, it has neither received nor relied on any 'inside information' (for the purposes of MAR) and section 56 of the Criminal Justice Act 1993) concerning the Company in accepting this invitation to participate in the Placing;
9.1.4. if it has received any 'inside information' (for the purposes of MAR and section 56 of the Criminal Justice Act 1993) in relation to the Company and its securities, it confirms that it has received such information within the market soundings regime provided for in article 11 of MAR and associated delegated regulations and it has not: (i) dealt (or attempted to deal) in the securities of the Company; (ii) encouraged, recommended or induced another person to deal in the securities of the Company; or (iii) unlawfully disclosed inside information to any person, prior to the information being made publicly available;
9.1.5. its participation in the Placing would not give rise to an offer being required to be made by it or any person with whom it is acting in concert pursuant to Rule 9 of the Takeover Code;
9.1.6. it has the power and authority to carry on the activities in which it is engaged, to subscribe for and/or acquire the Placing Shares and to execute and deliver all documents necessary for such acquisition and/or subscription;
9.1.7. that no offering document listing particulars, prospectus or admission document has been or will be prepared in connection with the Placing and it has not received and will not receive a prospectus, admission document or other offering document in connection with the Bookbuild, the Placing or the Placing Shares;
9.1.8. that the Existing Ordinary Shares in the capital of the Company are admitted to trading on AIM and that the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of AIM which includes a description of the nature of the Company's business and its most recent balance sheet and profit and loss account and that it is able to obtain or access such information and such information or comparable information concerning any other publicly traded company, in each case without undue difficulty;
9.1.9. that neither finnCap nor the Company nor any of their respective affiliates, agents, directors, officers, advisers, partners or employees nor any person acting on behalf of any of them has provided, and none of them will provide it, with any material regarding the Placing Shares or the Company or any other person other than this announcement nor has it requested finnCap, the Company, any of their respective affiliates, agents, directors, officers, partners, advisers or employees nor any person acting on behalf of any of them to provide it with any such information;
9.1.10. unless otherwise specifically agreed with finnCap, that neither it nor the beneficial owner of the Placing Shares is, or at the time the Placing Shares are acquired, neither it nor the beneficial owner of the Placing Shares will be, a resident of, or otherwise located in,
9.1.11. that: (i) it is outside
9.1.12. neither it, nor the person specified by it for registration as holder of Placing Shares is, or is acting as nominee or agent for, and the Placing Shares will not be allotted to, a person who is or may be liable to stamp duty or stamp duty reserve tax under any of sections 67, 70, 93 and 96 of the Finance Act of 1986 (depositary receipts and clearance services);
9.1.13. that it has complied with its obligations under the Criminal Justice Act 1993, MAR and in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002 (as amended), the Terrorism Act 2000, the Terrorism Act 2006, the Money Laundering Regulations 2007 and the Money Laundering Sourcebook of the
9.1.14. that it is acting as principal only in respect of the Placing or, if it is acting for any other person (i) it is duly authorised to do so and has full power to make the acknowledgments, representations and agreements herein on behalf of each such person; and (ii) it is and will remain liable to the Company and finnCap for the performance of all its obligations as a Placee in respect of the Placing (regardless of the fact that it is acting for another person);
9.1.15. if it is a financial intermediary, as that term is used in Article 3(2) of the EU Prospectus Directive (which shall mean Directive 2003/71/EC and amendments thereto, including the 2010 PD Amending Directive to the extent implemented in the relevant member state), that the Placing Shares subscribed by it in the Placing will not be acquired on a non-discretionary basis on behalf of nor will they be acquired with a view to their offer or resale to persons in a member state of the EEA other than qualified investors or in circumstances in which the prior consent of finnCap has been given to the proposed offer or resale;
9.1.16. that it has not offered or sold and will not offer or sell any Placing Shares to the public in any member state of the EEA except in circumstances falling within Article 3(2) of the Prospectus Directive which do not result in any requirement for the publication of a prospectus pursuant to Article 3 of that Directive;
9.1.17. that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) relating to the Placing Shares in circumstances in which section 21(1) of FSMA does not require approval of the communication by an authorised person;
9.1.18. that it has complied with and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving, the
9.1.19. if in a member state of the EEA, unless otherwise specifically agreed with FinnCap in writing, that it is a qualified investor within the meaning of Article 2(l)(e) of the Prospectus Directive;
9.1.20. if in the
9.1.21. that no action has been or will be taken by either the Company or finnCap or any person acting on behalf of the Company or finnCap, which would or is intended to permit a public offer of the Placing Shares in any country or jurisdiction where any such action for that purpose is required;
9.1.22. that it and any person acting on its behalf is entitled to acquire the Placing Shares under the laws of all relevant jurisdictions which apply to it and that it has fully observed such laws and obtained all such governmental and other guarantees, permits authorisations, approvals and consents which may be required thereunder and complied with all necessary formalities and that it has not taken any action or omitted to take any action which will or may result in finnCap, the Company or any of their respective directors officers, partners, agents, employees or advisers acting in breach of the legal or regulatory requirements of any jurisdiction in connection with the Placing;
9.1.23. that it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to its participation in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this announcement) and will honour such obligations;
9.1.24. that it and any person acting on its behalf will make 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 finnCap may in its absolute discretion determine and without liability to it, but it will remain liable for any amount by which the net proceeds of such sale falls short of the product of the Issue Price and the number of Placing Shares allocated to it and may be required to bear and indemnify finnCap and its affiliates, directors, partners, officers, advisers and employees on an after-tax basis against any stamp duty, stamp duty reserve tax or other similar taxes (together with any interest or penalties due pursuant to the terms set out or referred to in this Announcement) which may arise upon the sale of its Placing Shares on its behalf;
9.1.25. that its allocation (if any) of Placing Shares will represent a maximum number of Placing Shares to which it will be entitled, and required, to subscribe for, and that finnCap (having agreed with the Company) may call upon it to subscribe for a lower number of Placing Shares (if any) but in no event in aggregate more than the aforementioned maximum;
9.1.26. that the person whom it specifies for registration as holder of the Placing Shares will be (i) itself or (ii) its nominee, as the case may be. Neither finnCap nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax or other similar taxes resulting from a failure to observe this requirement. It and any person acting on its behalf agrees to indemnify the Company and finnCap in respect of the same on the basis that the Placing Shares will be allotted to the CREST stock account of finnCap who will hold them as nominee on its behalf until settlement in accordance with standing settlement instructions;
9.1.27. that neither finnCap nor any of its affiliates, agents, directors, officers, partners advisers or employees, nor any person acting on their behalf is making any recommendations to it or advising it regarding the suitability of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be a client of finnCap and that finnCap has no duties or responsibilities to it for providing the protections afforded to its clients or customers or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
9.1.28. that in making any decision to subscribe for the Placing Shares, it has knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of subscribing for or purchasing the Placing Shares. It further confirms that it is experienced in investing in securities of this nature in this sector and is aware that it may be required to bear, and is able to bear the economic risk of participating in, and is able to sustain a complete loss in connection with, the Placing. It further confirms that it relied on its own examination and due diligence of the Company and its associates taken as a whole, and the terms of the Placing, including the merits and risks involved, and not upon any view expressed or information provided by or on behalf of finnCap;
9.1.29. that in connection with the Placing, finnCap and any of its affiliates acting as an investor for their own account may take up Placing Shares in the Company and in that capacity may retain, purchase or sell for its own account such Placing Shares in the Company and any securities of the Company or related investments and may offer or sell such securities or other investments otherwise than in connection with the Placing. finnCap does not intend to disclose the extent of any such investment or transactions otherwise than in accordance with any legal or regulatory obligation to do so;
9.1.30. that these terms and conditions and any agreements entered into by it pursuant to these terms and conditions and any non-contractual obligations arising out of or in connection with such agreements shall be governed by and construed in accordance with the laws of
9.1.31. that the Company, finnCap and its affiliates, agents, directors, officers, partners advisers or employees and others will rely upon the truth and accuracy of the representations, warranties and acknowledgements set forth herein and which are given to finnCap on their own behalf and on behalf of the Company and are irrevocable and it irrevocably authorises the Company and finnCap to produce this announcement, pursuant to or in connection with, or as may be required by any applicable law or regulation, administrative or legal proceeding or official inquiry with respect to, the matters set forth herein;
9.1.32. none of the Company or finnCap owes any fiduciary or other duties to any Placee in respect of any acknowledgements, confirmations, undertakings, representations, warranties or indemnities in the Placing Agreement;
9.1.33. its commitment to take up Placing Shares on the terms set out in this Announcement (including this Appendix) will continue notwithstanding any amendment that may or in the future be made to the terms and conditions of the Placing and that Placees will have no right to be consulted or require that their consent be obtained with respect to the Company or finnCap's conduct of the Placing; and
9.1.34. that it will indemnify and hold the Company, finnCap and their respective affiliates, agents, directors, officers, partners, advisers or employees harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in this announcement and further agrees that the provisions of this announcement shall survive after completion of the Placing.
9.2. By participating in the Placing, each Placee (and any person acting on the Placee's behalf) subscribing for Placing Shares acknowledges that the Placing Shares have not been and will not be registered under the Securities Act or with any securities regulatory authority of any state or other jurisdiction of
9.3. Please also note that the agreement to allot and issue Placing Shares to Placees (or the persons for whom Placees are contracting as agent) free of stamp duty and stamp duty reserve tax in the
9.4. Each Placee and any person acting on behalf of each Placee acknowledges and agrees that finnCap or any of its respective affiliates may, at their absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares.
9.5. When a Placee or person acting on behalf of the Placee is dealing with finnCap, any money held in an account with finnCap 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
9.6. All times and dates in this announcement may be subject to amendment. finnCap shall notify the Placees and any person acting on behalf of the Placees of any changes.
9.7. The rights and remedies of finnCap and the Company under these terms and conditions are in addition to any rights and remedies which would otherwise be available to each of them and the exercise or partial exercise of one will not prevent the exercise of others.
9.8. Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.
The following definitions apply throughout this announcement, unless the context requires otherwise:
Admission means the admission of the New Ordinary Shares to trading on AIM and such admission becoming effective in accordance with the AIM Rules.
AIM means the AIM market of the London Stock Exchange.
AIM Rules means the AIM rules for companies published by the London Stock Exchange.
Application means the application to be made by or on behalf of the Company to the London Stock Exchange for Admission.
Bookbuild means the process by which finnCap has determined the Issue Price.
Circular means the circular, to be published by the Company on 1 November 2019 in relation to the Placing and Open Offer which will include notice of convening the General Meeting at which the Resolution will be proposed.
Company or Xeros means
CREST means a relevant system (as defined in the CREST Regulations) in respect of which Euroclear is the Operator (as defined in the CREST Regulations).
CREST Regulations means the Uncertificated Securities Regulations 2001 (SI 2001 No. 3755) (as amended).
Directors means the board of directors of the Company.
EBITDA means earnings before interest, taxation, depreciation and amortisation.
EEA means The European Economic Area.
EU means the
Existing Ordinary Shares means the 257,056,245 Ordinary Shares in issue at the date of this document, all of which are admitted to trading on AIM and being the entire issued ordinary share capital of the Company.
finnCap means finnCap Ltd, Nominated Advisor, Broker and Bookrunner.
FSMA means Financial Services and Markets Act 2000.
Fundraising means the Placing and Open Offer together.
General Meeting means the general meeting of the Company to be convened by the Circular.
Independent Director means
Issue Price means 1 pence per New Ordinary Share.
London Stock Exchange means London Stock Exchange plc.
MAR means the EU Market Abuse Regulation (2014/596/EU).
New Ordinary Shares means the Placing Shares and the Open
Open Offer means the offer by the Company to Qualifying Shareholders, constituting an invitation to apply for the Open
Ordinary Shares means ordinary shares of 0.15 pence each in the capital of the Company.
Participating Directors means
Placing means the proposed placing by finnCap as agent for the Company, of the Placing Shares at the Issue Price on a non-pre-emptive basis, on the terms and conditions set out in the Placing Agreement.
Placee means the institutional investors participating in the proposed Placing.
Placing Agreement means the agreement to be entered into between the Company and finnCap in connection with the Placing.
Placing Conditions means as defined in Appendix 2.
Placing Shares means 505,000,000 Ordinary Shares which may, pursuant to the Placing, be allotted and issued fully paid up at the Issue Price and admitted to trading on AIM.
Prospectus Directive means directive 2003/71/EC on the requirements for a prospectus to be published when securities are offered to the public or admitted to trading.
Qualifying Shareholder means shareholders set out in the register of members of the Company on the Record Date (as defined in the Circular).
Relevant Persons means as defined in Appendix 2.
Resolutions means the resolutions relating to the Placing and the Open Offer in the approved terms set out in the notice convening the General Meeting contained in the Circular.
RNS means the regulatory information service approved by the London Stock Exchange for the distribution of AIM announcements.
Securities Act means the US Securities Act of 1933, as amended.
Shareholders means holders of Ordinary Shares.
Takeover Code means the City Code on Takeovers and Mergers.
All references in this announcement to "£", "pence" or "p" are to the lawful currency of the
This information is provided by RNS, the news service of the London Stock Exchange. RNS is approved by the
Quick facts: Xeros Technology Group PLC
Market Cap: £6.54 m
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