TIDMUBI
RNS Number : 4928U
Ubisense Group PLC
07 April 2016
Ubisense Group plc
GBP4.8 million placing
Ubisense Group plc (AIM: UBI) ("Ubisense" or the "Company"), a
global leader in Enterprise Location Intelligence solutions, is
pleased to announce it has raised GBP4.8 million from a placing
(the "Placing") in order to strengthen its balance sheet.
Highlights
-- Placing of 19,230,000 new ordinary shares (the "Placing
Shares") at a price of 25 pence per Placing Share raising gross
proceeds of GBP4.8 million.
-- The Placing Shares represent 34.4% per cent. of the enlarged share capital of the Company.
-- Net proceeds will be used to repay a portion of existing
working capital facilities and to strengthen the financial position
of the Company (further details are set out in the "Use of
Proceeds" section below).
-- Certain of the Directors and the interim Chief Financial
Officer intend to subscribe for an aggregate of 2,200,000
shares.
-- The Placing is conditional upon the passing of certain
resolutions. A circular, (the "Circular") will be posted on or
before 8 April 2016 notifying shareholders of a general meeting
which is being convened for the purpose of considering the relevant
resolutions, at the registered office of the Company at St.
Andrew's House, 90 St. Andrew's Road, Chesterton, Cambridge,
Cambridgeshire CB4 1DL on 25 April 2016 at 2.00 pm.
-- Numis Securities Limited ("Numis"), the Company's nominated
adviser and broker, is acting as sole bookrunner in relation to the
Placing.
-- Appendix 2 to this announcement contains the detailed terms
and conditions applicable to the Placing and a copy of this
announcement is also available on the Company's website.
For further information, please contact:
Ubisense Group plc +44 (0)1223 535170
Peter Harverson
Richard Green
Tim Gingell
Numis Securities Limited +44 (0)20 7260 1000
Simon Willis (Corporate Finance)
Jamie Lillywhite (Corporate Finance)
Toby Adcock (Corporate Broking)
Redleaf Communications +44 (0)20 7382 4730
Rebecca Sanders-Hewett
David Ison
Harriet Lynch
Background to and reasons for the Placing
As set out in the Company's 2015 preliminary results
announcement released today, 2015 proved to be a disappointing year
for the business as it was hit by weaker than expected demand which
coincided with the expense of investment to grow the organisation
and expand its geographical reach. In response, the Board took the
decision during 2015 to undertake a strategic restructuring of the
Company's business. That restructuring is now largely complete and
the business has been restructured into two divisions, RTLS and
Geospatial. In addition, an increased emphasis has been placed on
sales leadership and pipeline conversion. The annualised
controllable cost base (which excludes costs directly linked to
revenues) has been reduced by approximately GBP5.8 million from its
peak to approximately GBP21.7 million. The Company's next
generation products have been developed and tested in anticipation
of future sales and its geographic focus has been concentrated on
its priority markets of North America, Europe and Japan.
The Company's opening order book at 1 January 2016 was GBP9.6
million of which GBP6.8 million represents recurring revenue.
Trading for the first quarter of 2016 was slightly ahead of the
corresponding period in 2015. The Company announced on 17 March
2016 three new contracts in North America for its Geospatial
division, valued at a combined $2.9 million (GBP2.0m), with Tier 1
broadband communications and entertainment providers and one of the
largest power companies in the United States. Since that
announcement the Company has signed another significant contract
renewal with a value of GBP1.6 million to be recognised over a
three year period.
Notwithstanding these developments, the Company is in a position
where the Board believes it is necessary to strengthen the
Company's balance sheet in order to provide the stability required
to further develop the business. The Company had a net debt
position of approximately GBP2.4 million at 31 March 2016 (GBP0.2
million at 31 December 2016) following the impact of restructuring
costs of approximately GBP0.8m, trading losses incurred in the
first quarter of the current financial year and working capital
outflows. This net debt position of GBP2.4 million comprised GBP2.1
million of cash and a GBP4.5 million loan provided by HSBC Bank plc
("HSBC"). The Company repaid its GBP1.2 million facility with
Mizuho during March 2016.
As announced on 12 November 2015, the Board has been in regular
dialogue with its principal lender, HSBC, which has continued to be
supportive of the Company. HSBC has confirmed that it has waived
its right to take action in relation to certain notified covenant
defaults that existed at 31 December 2015 and 31 March 2016. The
Company has discussed its funding position with HSBC at length and
has agreed to use reasonable endeavours to finalise a revised loan
facility with HSBC by 31 May 2016. The Directors intend to ensure
that the new covenant package in the revised loan facility is more
appropriate for the Company's current circumstances. In this
context, the principles of a loan repayment schedule have been
agreed with HSBC with GBP0.5 million to be repaid on receipt of the
proceeds of the Placing, a further GBP0.75 million scheduled to be
repaid on 31 December 2016 and further repayments of GBP0.75
million annually on 31 December thereafter.
In the event that shareholder approval for the Placing is not
achieved at the general meeting, it is likely that the Company and
its subsidiaries (the "Group") will continue to be in covenant
breach on its debt facility at the subsequent quarterly covenant
test date and would therefore remain reliant on the continuing
support of its lending bank. Furthermore, it would be unlikely that
the new loan facility and repayment schedule described above could
be agreed. The Company would also be in a position whereby the
limited headroom under its existing facilities would likely impose
severe constraints over the Group's operations in the short and
medium term.
The Board therefore believes that the Placing is necessary to
strengthen the balance sheet and allow the Company to repay a
portion of its loan with HSBC and provide working capital headroom
required to stabilise and grow the business.
Following the completion of the Placing, the Group intends to
review its long-term incentive arrangements in order to ensure that
the Group is able to recruit and retain appropriate talent in key
management roles. The Board intends to consult with certain of its
major shareholders ahead of proposing any new incentive plan at the
Annual General Meeting to be convened for June 2016.
Use of the Proceeds from the Placing
The Company intends to raise gross proceeds of GBP4.8 million
pursuant to the Placing, equivalent to approximately GBP4.5 million
net of expenses, which will be used to repay a portion of existing
working capital facilities and strengthen the Company's financial
position as outlined above.
Details of the Placing and the Placing Agreement
The Placing
The Placing Shares will represent approximately 34.4 per cent.
of the Enlarged Share Capital following Admission assuming there is
no exercise of any options.
It is expected that Placing Shares to be held in uncertificated
form will be delivered in CREST on 26 April 2016 and that share
certificates for Placing Shares to be held in certificated form
will be despatched by first class post by as soon as practicable
after 26 April 2016.
Application will be made to the London Stock Exchange for the
Placing Shares to be admitted to trading on AIM and it is
anticipated that trading in the Placing Shares will commence on AIM
at 8.00 am on 25 April 2016.
The Placing Shares will, when issued and fully paid, rank in
full for any dividend or other distribution declared, made or paid
after Admission and otherwise equally in all respects with the
Existing Ordinary Shares.
The Placing is conditional, amongst other things, upon:
(i) the Resolutions to be proposed at the General Meeting being passed without amendment;
(ii) the Placing Agreement becoming unconditional in all
respects (save for Admission) and it not having been terminated;
and
(iii) admission of the Placing Shares to trading on AIM becoming
effective by not later than 8:00 am on 25 April 2016 (or such later
time and date as the Company and Numis may agree, not being later
than 8:30 am on 12 May 2016).
Related Party Transactions
Kestrel Partners LLP ("Kestrel") is a related party of the
Company as defined by the AIM Rules for Companies by virtue of its
status as a substantial shareholder. Kestrel has agreed to
subscribe for 6,840,000 Placing Shares as part of the Placing,
conditional on Admission.
In addition, Columbia Threadneedle Investments ("Columbia
Threadneedle") is a related party of the Company as defined by the
AIM Rules for Companies by virtue of its status as a substantial
shareholder. Columbia Threadneedle has agreed to subscribe for
5,000,000 Placing Shares as part of the Placing, conditional on
Admission.
Taking into account the related party transactions noted above,
the Directors consider, having consulted with the Company's
nominated adviser, Numis, that the terms of the Placing are fair
and reasonable insofar as the Company's shareholders are
concerned.
Details of the participation in the Placing by certain
directors, who also constitute related parties, are set out
below.
The Placing Agreement
Pursuant to the terms of the Placing Agreement, Numis as agent
for the Company, has agreed conditionally to use its reasonable
endeavours to procure Placees for the Placing Shares at the Placing
Price.
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The Placing Agreement contains warranties from the Company in
favour of Numis in relation to, amongst other things, the accuracy
of the information contained in the documents relating to the
Placing and certain other matters relating to the Group and its
business. In addition, the Company has agreed to indemnify Numis in
relation to certain liabilities that it may incur in respect of the
Placing.
The obligations of Numis under the Placing Agreement in respect
of the Placing are conditional upon, amongst other things, (i)
Admission becoming effective on or before 8.00 a.m. on 26 April
2016 (or such later date as the Company and Numis may agree, but
not later than 8:30 am on 12 May 2016), (ii) there being prior to
Admission no material breach of the warranties given to Numis, and
(iii) Shareholders passing the Resolutions at the General
Meeting.
Numis may terminate the Placing Agreement in specified
circumstances (including for breach of warranty at any time prior
to Admission, if such breach is reasonably considered by Numis to
be material in the context of the Placing) and in the event of a
force majeure event occurring at any time prior to Admission. If
the conditions of the Placing Agreement which apply to the Placing
as a whole are not fulfilled on or before the relevant date in the
Placing Agreement, subscription monies will be returned to Placees
without interest as soon as possible thereafter.
In consideration for the services to be provided to the Company
by Numis in connection with Admission and the Placing, the Company
has agreed to pay Numis certain fees and commissions and certain
other costs and expenses incidental to Admission and/or the
Placing.
Importance of the Shareholder Vote
As described in further detail above, the Board believes that
the Group will operate under severe funding constraints if the
Placing does not proceed. The Group is in covenant breach on its
principal debt facilities and has received from its lending bank a
waiver, conditional on announcing an equity raise and pursuant to
which the Company has undertaken to use its reasonable endeavours
to agree a new loan facility with HSBC by 31 May 2016 containing
new covenant conditions and a repayment profile of GBP0.75 million
annually on 31 December, in addition to repaying GBP0.5 million of
the loan facility within 24 hours of receiving the net proceeds.
Consequently, if the Resolutions are not passed and the Placing
does not proceed, the Group will likely breach its covenants at
future quarterly testing dates, will continue to be reliant on the
ongoing support of its lending bank and may need to seek
alternative sources of financing which may not be available and (to
the extent available) may be on terms less favourable to the
Company.
Recommendation
The Directors believe that completion of the Placing and the
approval of the Resolutions are in the best interests of the
Company and Shareholders as a whole. Accordingly, the Directors
unanimously recommend that you vote in favour of the Resolutions at
the General Meeting, as they intend to do in respect of their own
beneficial holdings of Ordinary Shares amounting to, in aggregate,
4,930,856 Ordinary Shares, representing approximately 13.5 per
cent. of the Existing Ordinary Shares.
Participation of the Directors
Certain of the Directors, together with Tim Gingell, interim
Chief Financial Officer, have, conditional on Admission,
participated in the Placing by subscribing for an aggregate of
2,200,000 shares as set out below:
Number of Number of ordinary Percentage
ordinary shares to be of enlarged
shares in held on admission share capital
the Placing
Robert Sansom 2,000,000 4,985,899 8.9%
Peter Harverson 80,000 145,161 0.3%
Paul Taylor 80,000 113,334 0.2%
Tim Gingell 40,000 40,000 0.1%
The subscriptions by Robert Sansom, Peter Harverson and Paul
Taylor are a related party transaction under the AIM Rules for
Companies and accordingly the independent directors, being Ian
Kershaw and Richard Green, confirm that, having consulted with the
Company's nominated adviser, Numis, the terms of the Placing are
fair and reasonable insofar as the Company's shareholders are
concerned.
Expected timetable of principal events
Posting of the Circular On or before
8 April 2016
Latest time and date for receipt 2.00 pm 22 April
of Forms of Proxy 2016
General Meeting 2.00 pm 25 April
2016
Expected date for Admission and 8:00 am on 26
commencement of dealings in the April 2016
Placing Shares on AIM
Expected date for CREST accounts 8:00 am on 26
to be credited in respect of the April 2016
Placing Shares to be held in uncertificated
form
Expected date for the despatch as soon as practicable
of definitive certificates in respect after 26 April
of the Placing Shares to be held 2016
in certificated form
Appendix 1 - Risk Factors
An investment in Ordinary Shares involves a high degree of risk.
Accordingly, prospective investors should carefully consider the
specific risks set out below in addition to all of the other
information set out in this document before investing in Ordinary
Shares.
The Directors believe the following risks to be among the most
significant risks for potential investors. However, the risks
listed do not necessarily comprise all those associated with an
investment in the Company and are not set out in any particular
order of priority. Additional risks and uncertainties not currently
known to the Directors or which the Directors currently deem
immaterial may also have an adverse effect on the Group and the
information set out below does not purport to be an exhaustive
summary of the risks affecting the Group. In particular, the
Company's performance may be affected by changes in market or
economic conditions and in legal, regulatory and tax
requirements.
If any of the following risks were to materialise, the Company's
business, financial condition, results or future operations could
be materially adversely affected. In such cases, the market price
of the Company's shares could decline and an investor may lose part
or all of his or her investment.
Technological risks
The Group operates in an industry where competitive advantage is
heavily dependent on technology. It is possible that technological
development may reduce the importance of the Group's function in
the market or render the patents on which it relies redundant. For
instance, the Group's enterprise location systems rely on
ultra-wideband radio signals to operate. There is no guarantee that
technological advances will not render systems based on
ultra-wideband radio obsolete.
Staff recruitment and retention
The contribution made by Ubisense's highly skilled and
experienced staff is vital to the Group's success. Any inability to
recruit and/or retain staff to fill key management roles would
likely adversely impact the Group's future development and
financial performance.
Reliance on third parties, including manufacturers
The Group relies on certain key third party equipment
manufacturers in the completion of its products, and therefore does
not always have complete control over the supply of the equipment
and materials it requires to comply with its obligations under
customer contracts. To the extent that the Group cannot acquire
equipment or materials according to its plans and budgets, its
ability to complete its work for its customers within the timetable
laid down by the contract or at a profit may be impaired. If a
manufacturer is unable to deliver the products for any reason, the
Group may be required to purchase such equipment or materials from
another source at a higher price. The resulting additional costs
may be substantial and the Group may be in breach of its contracts
with customers, which may result in a financial loss on a
particular contract or a loss of business. In addition, any
resulting failure to fulfil contracts with customers and other
business partners may have an adverse effect on the Group's future
profitability and reputation.
Dependence on key customers
The Group has a concentrated customer base, many of which are
substantially larger enterprises than the Group. As such, the
purchasing power of the Group's customers is often significant,
which may impact the ability of the Group to negotiate terms which
are favourable to it in contracts. The Group is reliant on
significant projects with its key customers to deliver its
projected financial results. Changes to the timing and/or terms of
significant projects, to the investment decisions of key customers
or failure by the Group to retain key customers may have a
significant adverse effect on the Group's business and financial
results. The loss of a major customer would likely result in a
decrease in Group revenues, margins and profitability.
Contracts
Some of the Group's commercial contracts include terms where
revenues and/or invoicing are related to customer acceptance. Other
contracts contain terms whereby the timing of cash collections is
contingent on the customer re-selling the Group's products to end
users.
Credit
The main credit risk is attributable to trade receivables owed
by customers. As the majority of the Group's customers are very
large, blue chip utilities, telecoms and manufacturing companies,
the risk of non-payment tends to be less of a traditional credit
nature and more related to customer satisfaction.
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Credit exposure by customer is reviewed regularly by the
executive management team and the main Board with provision made
for doubtful receivables when there are circumstances which, based
on experience, are evidence of a likely reduction in the
recoverability of the receivable.
Financial profile
The Group has suffered from declining revenues and increased
losses and resultant cash burn during 2015, which the Group did not
anticipate. Although the Board has taken actions to address the
controllable cost base in order to prevent this from reoccurring, a
failure to arrest the decline in revenues and/or to control costs
could give rise to the Group needing to raise further equity
finance in the future.
Bank covenants
The Group is required to meet certain financial criteria agreed
as covenants for its bank. The financial measures are regularly
reviewed against covenant requirements to ensure the Group's
obligations can be met.
The Group notified its bank, HSBC Bank plc, of a breach of
certain covenants as at 31 December 2015 and 31 March 2016, against
which HSBC has provided a waiver, conditional on announcing an
equity raise and pursuant to which the Company has undertaken to
use its reasonable endeavours to agree a new loan facility with
HSBC by 31 May 2016 containing new covenant conditions and a
repayment profile of GBP0.75 million annually on 31 December, in
addition to repaying GBP0.5 million of the loan facility within 24
hours of receiving the net proceeds of the Placing.
If the Group is unable to agree such a new loan facility, there
is a risk that it would be unable to meet covenant tests under the
existing facility, particularly in the event that the Group is not
in a net cash position as at upcoming quarter ends, or in the event
that adjusted EBITDA for the 12 months to 31 December 2016 is less
than zero. The Group and HSBC have agreed to use reasonable
endeavours to agree and finalise a new loan facility on or before
31 May 2016 which will have new covenant conditions.
Intellectual property
The Group has a number of trademarks registered, and is pursuing
registration of a number of trademarks, in the major territories in
which it operates. The Group also has a patent portfolio comprising
a number of patents filed in territories worldwide. Should a third
party successfully demonstrate priority over any of these rights,
it could inhibit the Group, or the Group's customers, from selling
products in certain territories.
Any failure to protect the Group's intellectual property may
result in another party copying or otherwise obtaining and using
its proprietary technology without authorisation. There may not be
adequate protection for the intellectual property in every country
in which the Group's products are made available and policing
unauthorised use of proprietary information is difficult and
expensive. Due to the Group's size and limited cash resources, it
may not be able to detect and prevent infringement of its
intellectual property.
The Group has received (and expects to continue to receive in
its normal course of business) communications from third parties
alleging breach and/or infringement of their intellectual property
rights. The Group's policy is to diligently investigate all
intellectual property rights allegations made against it by third
parties. These third parties range from non-practising entities,
whose sole focus is to generate income from licensing their
intellectual property rights, to corporations with competing and/or
adjacent trading activities, including a large, multinational
corporation. No such communications have been received for over 18
months. The Directors, having taken expert advice, believe that the
allegations of infringement made in such communications are
unjustified. However, the timeframes under which third parties can
allege breach of their intellectual property rights are potentially
prolonged, and the Directors cannot exclude the possibility that
third party assertions which the Directors believe to be
unjustified require the Group to incur significant expenditure to
defend against such assertions, or ultimately that such assertions
may subsequently be upheld by the competent authorities resulting
in a material negative impact on the Group.
In addition, some of the Group's patents are licensed from a
third party. The terms of that licence are on relatively standard
commercial terms. However, there can be no guarantee that such
third party will adequately maintain such patents and therefore the
protection and benefit afforded to the Company by such patents
cannot be guaranteed.
The steps which the Group has taken to protect its intellectual
property may be inadequate to prevent the misappropriation of its
proprietary technology. Any misappropriation of the Group's
intellectual property could have an adverse impact on the Group's
business and its operating results. Furthermore, the Group may need
to take legal action to enforce its intellectual property, to
protect trade secrets or to determine the validity or scope of the
proprietary rights of others. Litigation relating to the Group's
intellectual property, whether instigated by the Group to protect
its rights or arising out of alleged infringement of third party
rights, may result in substantial costs and the diversion of
resources and management attention and there can be no guarantees
as to the outcome of any such litigation.
Digital infrastructure and cybersecurity
Breaches of the Group's digital security, through cyber attacks
or otherwise, or failure of the Group's digital infrastructure,
could seriously disrupt operations and result in the loss or misuse
of data or sensitive information, legal or regulatory breaches and
potentially legal liability. These could result in significant
costs or have reputational consequences.
Following a review of the resilience and disaster recovery
capability of the Group's critical systems and exchanges in 2015,
the Group has invested resources in enhancing site resilience and
defences, improving network monitoring and reviewing the incident
response processes to mitigate the impact of a security breach.
The risks noted above do not necessarily comprise all those
potentially faced by the Group and are not intended to be presented
in any assumed order of priority.
Although the Directors will seek to minimise the impact of the
Risk Factors, investment in the Company should only be made by
investors able to sustain a total loss of their investment.
Investors are strongly recommended to consult an investment adviser
authorised under the FSMA who specialises in investments of this
nature before making any decision to invest.
Appendix 2 - Terms and conditions of the placing
IMPORTANT INFORMATION FOR 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,
CANADA, AUSTRALIA, NEW ZEALAND, JAPAN OR THE REPUBLIC OF SOUTH
AFRICA OR ANY OTHER JURISDICTION IN WHICH SUCH PUBLICATION OR
DISTRIBUTION WOULD BE UNLAWFUL.
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES
ONLY.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THIS 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, AS AMENDED (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.
THIS 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.
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. THIS 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 OFFENCE IN THE UNITED
STATES. NO PUBLIC OFFERING OF SECURITIES IS BEING MADE IN THE
UNITED STATES. NO MONEY,
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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 IN THE COMPANY 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 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 ("EEA") 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/or
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 under the
Securities Act; 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, Canada, Australia, New Zealand, Japan
or the Republic of South Africa or in any 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.
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 Canada, Australia, New Zealand, 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 Canada, Australia, New Zealand, 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
otherwise) by whom or on whose behalf a commitment to subscribe for
Placing Shares has been given.
Details of the Placing
Numis has entered into 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 at the Placing Price.
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. The Placing is conditional upon, amongst other things, the
Resolutions being passed by the requisite majorities.
A circular explaining the background to and reasons for the
Placing, and containing the Notice of General Meeting will be sent
to shareholders. A copy of the Circular and the Notice of General
Meeting will also be available from the Company's website at:
www.ubisense.net.
The Placing is also conditional upon Admission becoming
effective and the Placing Agreement not being terminated in
accordance with its terms.
The Placing Shares will, when issued, be credited as fully paid
and will rank pari passu in all respects with the existing issued
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 120 days from the date of Admission without the
prior written consent of Numis (such consent not to be unreasonably
withheld or delayed).
Application for admission to trading
Application will be made to the London Stock Exchange for
Admission. Subject to, amongst other things, the Resolutions being
passed by the requisite majorities at the General Meeting, it is
expected that settlement of any such shares and Admission will
become effective on or around 26 April 2016 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 25 pence per Placing Share.
5. Each Placee's allocation will be confirmed to Placees orally
by Numis, and a trade confirmation or contract note will be
despatched 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".
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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 Company allotting, subject only to Admission, the
Placing Shares in accordance with the Placing Agreement;
(b) Admission taking place not later than 8.00 a.m on 26 April 2016; and
(c) the passing (without any amendment, save as agreed by Numis)
of the Resolutions at the General Meeting.
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 8.30 a.m. on 12 May 2016 (the "Final Date"), 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.
Numis may, at its absolute discretion and upon such terms as it
thinks fit, waive, or extend the period (up to the Final Date) 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 the passing of the
Resolutions and 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) in the opinion of Numis (acting in good faith), the
warranties given by the Company to Numis are not true and accurate
or have become misleading (or would not be true and accurate or
would be misleading if they were repeated at any time before
Admission) by reference to the facts subsisting at the time when
the notice referred to above is given, in each case in a way that
is material in the context of the Placing; or
(b) in the opinion of Numis (acting in good faith), the Company
fails to comply with any of its obligations under the Placing
Agreement and that failure is material in the context of the
Placing; or
(c) in the opinion of Numis (acting in good faith), there has
been a development or event (or any development or event involving
a prospective change of which the Company is, or might reasonably
be expected to be, aware) which will or is reasonably likely to
have a material adverse effect on or affecting the operations, the
condition (financial or otherwise), prospects, management, results
of operations, financial position, business or general affairs of
the Company or of the Company's group (taken as a whole)
respectively whether or not foreseeable and whether or not arising
in the ordinary course of business, which in each case is material
in the context of the Placing;
(d) there has been a change in national or international
financial, political, economic or stock market conditions (primary
or secondary); an incident of terrorism, outbreak or escalation of
hostilities, war, declaration of martial law or any other calamity
or crisis; a suspension or material limitation in trading of
securities generally on any stock exchange; any change in currency
exchange rates or exchange controls or a disruption of settlement
systems or a material disruption in commercial banking, in each
case as would be likely in the opinion of Numis (acting in good
faith) to materially prejudice the success of the Placing; or
(e) the HSBC Waiver ceasing to be in full force and effect, a
breach having occurred of it or it having been terminated or
repudiated by any party to it.
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 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 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 FCA 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:
GB00B3NCXX73) 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.
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Each Placee allocated Placing Shares in the Placing will be sent
a trade confirmation or contract note stating the number of Placing
Shares allocated to it at the Placing Price, the aggregate amount
owed by such Placee to Numis (as agent for the Company) 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 CREST or certificated settlement
instructions that it has in place with Numis.
It is expected that settlement in respect of the Placing Shares
will be on 26 April 2016 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, namely
that, each Placee (and any person acting on such Placee's
behalf):
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 and has read and understood
the Exchange 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 on this Announcement 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 FCA'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 of its affiliates or any
person acting on behalf of it or them 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 FCA), 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 Placees 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 Placees 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 is or will be a resident of Canada, Australia,
New Zealand, Japan or the Republic of South Africa;
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13. acknowledges that the Placing Shares have not been and will
not be registered under the securities legislation of Canada,
Australia, New Zealand, 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 and Part VIII of
FSMA; (ii) in connection with money laundering and terrorist
financing, it has complied with its obligations under the Proceeds
of Crime Act 2002 (as amended), the Terrorism Act 2000 (as
amended), the Terrorism Act 2006 and the Money Laundering
Regulations 2007; and (iii) 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 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 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;
(MORE TO FOLLOW) Dow Jones Newswires
April 07, 2016 05:40 ET (09:40 GMT)
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; and
36. 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 FCA 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 to the Announcement and, as the context shall
admit, in the Announcement:
'Act' means the Companies Act 2006;
'Admission' means the admission of the Placing Shares to trading
on AIM becoming effective in accordance with the AIM Rules for
Companies;
'AIM' means the market of that name operated by the London Stock
Exchange;
'AIM Rules for Companies' means the provisions of the London
Stock Exchange's AIM Rules for Companies as amended from time to
time governing, inter alia, admission to AIM and the continuing
obligations of AIM companies;
'Announcement' means this announcement (including the appendix
to this announcement);
'Company' means Ubisense Group plc;
'Circular' means the circular to be issued by the Company to the
holders of Ordinary Shares containing, inter alia, further details
of the Placing and the Notice of General Meeting;
'CREST' means the relevant system (as defined in the CREST
Regulations) in respect of which Euroclear UK & Ireland Limited
is the Operator (as defined in the CREST Regulations);
'CREST Regulations' means the Uncertificated Securities
Regulations 2001 (SI 2001/3755) as amended from time to time;
'FCA' means the Financial Conduct Authority of the United
Kingdom;
'FSMA' means the Financial Services and Markets Act 2000 (as
amended);
'General Meeting' means the general meeting of the Company to be
convened at 2.00 pm on 25 April 2016 (or any adjournment
thereof);
'Group' means the Company and its subsidiaries;
'HSBC' means HSBC Bank plc;
'HSBC Waiver' means the letter of waiver from HSBC Bank PLC
addressed to the Company waiving certain breaches of Ubisense's
existing bank facilities;
'London Stock Exchange' means London Stock Exchange plc;
'Notice of General Meeting' means the notice of the General
Meeting which is set out at the end of the Circular;
'Numis' means Numis Securities Limited, registered in England
and Wales with number 2285918, whose registered office is at 10
Paternoster Square, London EC4M 7LT;
'Ordinary Shares' means the ordinary shares of 2 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 Placees;
'Placing Agreement' means the placing agreement dated 7 April
2016 between the Company and Numis in respect of the Placing;
'Placing Price' means 25 pence per Placing Share;
'Placing Shares' means the 19,230,000 Ordinary Shares to be
issued pursuant to the Placing;
'Resolutions' means the resolutions to be proposed at the
General Meeting as set out in the Notice of General Meeting;
'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
IOEUGURWCUPQUBM
(END) Dow Jones Newswires
April 07, 2016 05:40 ET (09:40 GMT)
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