AUREUS MINING INC. ENTERS INTO A C$35.1 MILLION UNDERWRITING AGREEMENT
May 13, 2011Back
May 13, 2011
Aureus Mining Inc.
TSX : AUE
AIM : AUE
AUREUS MINING INC. enters into a C$35.1 million underwriting agreement
TORONTO, May 13, 2011 — Aureus Mining Inc. (“Aureus Mining” or the “Company”) (TSX: AUE)(AIM: AUE) is pleased to announce that it has entered into an underwriting agreement for C$35.1 (Canadian Dollars) million with a syndicate of underwriters led by RBC Capital Markets and GMP Securities L.P. and including Clarus Securities Inc., Jennings Capital Inc. and Raymond James Ltd. (collectively, the “Underwriters”), with respect to its previously announced offering of the Company’s common shares (the “Offering”). Pursuant to the Offering, the Company will issue 27,000,000 common shares at a price of C$1.30 (c.£0.83) per common share and receive aggregate net proceeds of C$32,994,000 (c.£21.0 million).
The closing of the Offering is expected to occur on or about May 19, 2011, or such other date as the Company and the Lead Underwriters may agree in writing (the “Closing Date”).
In addition, the Company has granted to the Underwriters an option (the “Over-Allotment Option”) to purchase, at the Underwriters’ election, up to an additional number of common shares that is equal to 15% of the number of common shares sold under the Offering. Such Over-Allotment Option is exercisable, in whole or in part, at any time during the 30 day period immediately following the Closing Date.
A final prospectus containing important information relating to the Offering will be filed with the securities commissions or similar authorities in each of the provinces and territories of Canada except Québec. The Company has also applied for admission of the common shares to be issued pursuant to the Offering to trading on AIM. It is expected that such admission will become effective and that dealings will commence on May 19, 2011. The Offering is subject to certain conditions including, but not limited to, the receipt of all necessary approvals, including regulatory approval and the approval of the Toronto Stock Exchange.
The Company intends to use the net proceeds of the offering, together with its existing cash resources to, among other things, complete a definitive feasibility study on the New Liberty Gold Project and undertake the priority drilling and follow-up exploration programs with the Bea Mountain mining licence as well as exploration work in Cameroon .
Commenting on the offering, David Reading, Chief Executive Officer of Aureus Mining, said: “The fund raising received a strong endorsement from a broad range of quality investors who recognise the potential of the Company’s assets and growth strategy. We are delighted by this encouraging response, which will provide additional liquidity in the Toronto and London markets, as well as providing sufficient working capital to significantly advance the development of our New Liberty Gold Project and focused exploration programs in Liberia and Cameroon.”
Pursuant to the terms of the underwriting agreement, the Underwriters have agreed to purchase, as principals, all of the 27,000,000 common shares qualified under the final prospectus for sale (which does not include any common shares issued pursuant to the Over-Allotment Option), subject to the Underwriting Restriction (as described below). The Underwriters have the right to obtain substitute purchasers for such 27,000,000 common shares and, to the extent that less than all of the common shares are sold to such substitute purchasers, then, subject to the Underwriting Restriction, the Underwriters shall purchase, as principals, the balance of such common shares. The “Underwriting Restriction” provides that each of the Underwriters will not, is not obliged to and will not in any way be liable to, acquire and pay for as principal, any common shares qualified under the final prospectus for sale which would result in such Underwriter, and persons with which it does not deal at arm’s length, holding 10% or more of the outstanding common shares upon completion of the Offering, after taking into account such acquisition by such Underwriter. The application of the Underwriting Restriction to the Offering means that, in the event that gross proceeds of less than $30,000,000 are raised from such substitute purchasers and from the Underwriters purchasing as principals, the Offering will terminate and all of the subscription proceeds received from such substitute purchasers will be promptly returned to subscribers by the Underwriters, without interest or deduction.
About Aureus Mining Inc.
Aureus Mining is a TSX and AIM listed gold mining company (AUE). Its assets include the New Liberty gold deposit in western Liberia (the “New Liberty Gold Project”), which has an estimated Indicated Mineral Resource of 751,000 ounces of gold grading 4.17 g/t (contained in 5,599,000 tonnes) and an estimated Inferred Mineral Resource of 762,000 ounces of gold grading 3.40 g/t (contained in 7,040,000 tonnes). The New Liberty Gold Project is being advanced through to a definitive feasibility study. The Company is also focused on multi-phased exploration programs within the Bea Mountain mining licence which include the priority exploration targets of Ndablama, Weaju, Silver Hills and Gondoja. The Company also has a portfolio of exploration projects in Sierra Leone and Cameroon.
|Aureus Mining Inc.
David Reading, CEO
Tel: +44 (0) 20 7257 2930
|Evolution Securities Limited
Jeremy Ellis / Neil Elliot / Tim Redfern
Tel: +44 (0) 20 7071 4300
|RBC Capital Markets
Tel: +44 (0) 20 7653 4000
|GMP Securities Europe LLP
Richard Greenfield / Mark Wellings
Tel: +44 (0) 20 7647 2800
Bobby Morse / Katharine Sutton
Tel: +44 (0) 20 7466 5000
The technical information contained in this press release relating to the New Liberty Gold Project is from the technical report entitled “New Liberty Gold Project, Liberia, West Africa, Amended and Restated Technical Report on Additional Drilling, Estimated Mineral Resources and Preliminary Economic Assessment” dated effective December 21, 2010 and prepared by Christopher G. Arnold and Martin Staples, each an employee of AMC Consultants (UK) Limited (“AMC”) and a “qualified person” within the meaning of NI 43-101. A copy of such technical report is available under Aureus Mining’s SEDAR profile at www.sedar.com.
Mr. Christopher G. Arnold, BSC(Hons),MSc, MAusIMM (CP) of AMC consents to the inclusion in this press release of the matters relating to gold in the form and context in which they appear and confirms that the information is accurate and not false or misleading.
United States Advisory
The securities referred to herein have not been and will not be registered under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), and may not be offered or sold in the United States unless the securities are registered under the U.S. Securities Act, or an exemption from the registration requirements of the U.S. Securities Act is available. This press release shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any state in the United States in which such offer, solicitation or sale would be unlawful.
This press release contains certain forward-looking information. All information, other than information regarding historical fact, that addresses activities, events or developments that Aureus Mining believes, expects or anticipates will or may occur in the future is forward-looking information. Forward-looking information contained in this press release includes, but may not be limited to, mineral resource estimates and the anticipated exploration and development activities of Aureus Mining, the gross proceeds raised under the Offering, the filing of a final prospectus, the timing of completion of the Offering obtaining requisite approvals for the Offering including but not limited to obtaining a receipt for the final prospectus, the development of the Company’s New Liberty Gold Project and future exploration plans. The foregoing and any other forward-looking information contained in this press release reflects the current expectations, assumptions or beliefs of Aureus Mining based on information currently available to Aureus Mining. With respect to the forward-looking information contained in this press release, Aureus Mining has made assumptions regarding, among other things: general business conditions; and it has also been assumed that no significant events occur outside of the normal course of Aureus Mining’s business.
Such forward-looking information is subject to a number of risks and uncertainties that may cause actual results or events to differ materially from current expectations, including: risks normally incidental to exploration and development of mineral properties; uncertainties in the interpretation of results from drilling and test work; uncertainty of mineral resources estimates; and future unforeseen liabilities and other factors.
Any mineral resource figures referred to in this press release are estimates and no assurances can be given that the indicated levels of minerals will be produced. Such estimates are expressions of judgment based on knowledge, mining experience, analysis of drilling results and industry practices. Valid estimates made at a given time may significantly change when new information becomes available. While Aureus Mining believes that the mineral resource estimates in respect of the New Liberty Gold Project are well established, by their nature mineral resource estimates are imprecise and depend, to a certain extent, upon statistical inferences which may ultimately prove unreliable. If such mineral resource estimates are inaccurate or are reduced in the future, this could have a material adverse impact on Aureus Mining. Due to the uncertainty that may be attached to inferred mineral resources, it cannot be assumed that all or any part of an inferred mineral resource will be upgraded to an indicated or measured mineral resource as a result of continued exploration.
Forward-looking information speaks only as of the date on which it is made and, except as may be required by applicable law, Aureus Mining disclaims any obligation to update or modify such forward-looking information, either as a result of new information, future events or for any other reason.
The Common Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing common shares of Aureus Mining Inc. (“Aureus Mining”), including the right to receive all dividends and other distributions declared after the date of their issue.
Application has been made or will be made, as the case may be, to the London Stock Exchange and the Toronto Stock Exchange (the “TSX”) for the common shares (the “Common Shares”) to be admitted to trading on AIM and TSX, with admission of the Common Shares expected to occur on 19 May, 2011 (the “Offering”).
The Appendix to this Announcement (which forms part of this Announcement) sets out certain terms and conditions applicable to the Placing.
This press release contains forward-looking statements concerning the projects in which Aureus Mining has an interest. Forward-looking statements are not statements of historical fact, and actual events or results may differ materially from those described in the forward-looking statements, as the result of a variety of risks, uncertainties and other factors, involved in the mining industry generally and the particular properties in which Aureus Mining has an interest, such as fluctuation in gold prices; uncertainties involved in interpreting drilling results and other tests; the uncertainty of financial projections and cost estimates; the possibility of cost overruns, accidents, strikes, delays and other problems in development projects, the uncertain availability of financing and uncertainties as to terms of any financings completed; uncertainties relating to environmental risks and government approvals, and possible political instability or changes in government policy in jurisdictions in which properties are located. Forward-looking statements are based on management’s beliefs, opinions and estimates as of the date they are made, and no obligation is assumed to update forward-looking statements if these beliefs, opinions or estimates should change or to reflect other future developments.
No representation or warranty, express or implied, is or will be made as to, or in relation to, and no responsibility or liability is or will be accepted by any of the syndicate members or by any of their respective affiliates or agents or brokers as to or in relation to, the accuracy or completeness of this Announcement or any other written or oral information made available to or publicly available to any interested party or its advisers, and any liability therefore is expressly disclaimed.
RBC Dominion Securities Inc. (“RBCD”) is acting for Aureus Mining and for no-one else in connection with the Offering, and will not be responsible to anyone other than Aureus Mining for providing the protections afforded to customers of RBCD nor for providing advice to any other person in relation to the Offering or any other matter referred to herein. Royal Bank of Canada Europe Limited is authorised and regulated in the United Kingdom by the Financial Services Authority (the “FSA”).
GMP Securities L.P. (“GMP”) is acting for Aureus Mining and for no-one else in connection with the Offering, and will not be responsible to anyone other than Aureus Mining for providing the protections afforded to customers of GMP nor for providing advice to any other person in relation to the Offering or any other matter referred to herein.
Clarus Securities Inc. (“Clarus”) is acting for Aureus Mining and for no-one else in connection with the Offering, and will not be responsible to anyone other than Aureus Mining for providing the protections afforded to customers of Clarus nor for providing advice to any other person in relation to the Offering or any other matter referred to herein.
Jenning Capital Inc. (“Jennings”) is acting for Aureus Mining and for no-one else in connection with the Offering, and will not be responsible to anyone other than Aureus Mining for providing the protections afforded to customers of Jennings nor for providing advice to any other person in relation to the Offering or any other matter referred to herein.
Raymond James Ltd. (“RJ”) is acting for Aureus Mining and for no-one else in connection with the Offering, and will not be responsible to anyone other than Aureus Mining for providing the protections afforded to customers of RJ nor for providing advice to any other person in relation to the Offering or any other matter referred to herein.
The distribution of this Announcement and the Offering in certain jurisdictions may be restricted by law. No action has been taken by Aureus Mining, RBCD, GMP, Clarus, Jennings and RJ that would permit the Offering or possession or distribution of this Announcement or any other offering or publicity material relating to the Offering in any jurisdiction where action for that purpose is required. Persons into whose possession this Announcement comes are required by Aureus Mining, RBCD, GMP, Clarus, Jennings and RJ to inform themselves about, and to observe, such restrictions.
The price of the Common 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 Common Shares.
With respect to the United Kingdom, the Offering is only being, and may only be, made to and is directed at persons in the United Kingdom who are both (a) a “Qualified Investor” within the meaning of Section 86(7) of the Financial Services and Markets Act 2000 (“FSMA”) and (b) within the categories of persons referred to in Article 19(5) (Investment professionals) or Article 49(2)(a) to (d) (High net worth companies, unincorporated associations, etc.) of the Financial Services and Markets Act 2000 (Financial Promotions) Order 2005, or persons in the United Kingdom to whom the Offering may otherwise be made or to whom the Offering may otherwise be directed in the United Kingdom without an approved prospectus having been made available to the public in the United Kingdom before the Offering is made, and without making an unlawful financial promotion, all such persons together being referred to as “Relevant Persons”. The securities being offered are only available to, and any invitation, offering or agreement to subscribe, purchase or otherwise acquire such securities will be engaged in only with, Relevant Persons. Any person who is not a Relevant Person should not act or rely on this Announcement or any of its contents. This Announcement does not contain an offer or constitute any part of an offer to the public within the meaning of Sections 85 and 102B of FSMA or otherwise. This Announcement is not an “approved prospectus” within the meaning of Section 85(7) of FSMA and a copy of it has not been, and will not be, delivered to the FSA in accordance with the Prospectus Rules or delivered to any other authority which could be a competent authority for the purpose of the Prospectus Directive. Its contents have not been examined or approved by the London Stock Exchange plc, nor has it been approved by an “authorised person” for the purposes of Section 21 of FSMA.
The Common Shares have not been and will not be registered under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), or any state securities laws, and may not be offered, sold or delivered within the United States except in transactions exempt from the registration requirements of the U.S. Securities Act and applicable state securities laws. The Underwriters have agreed that, except as permitted by the Underwriting Agreement and as expressly permitted by applicable laws of the United States, they will not offer or sell the Common Shares within the United States. The Underwriting Agreement permits the Underwriters, through certain of their U.S. broker-dealer affiliates, to (i) offer and sell the Common Shares in the United States to qualified institutional buyers (as such term is defined in Rule 144A and the U.S. Securities Act) and (ii) offer the Common Shares in the United States to “accredited investors” (as defined in Rule 501(a)(1), (2), (3), (4), (5), (6) and (7) of Regulation D under the U.S. Securities Act, as modified by the Dodd-Frank Wall Street Reform and Consumer Protection Act) that will purchase Common Shares from the Company pursuant to Rule 506 of Regulation D under the U.S. Securities Act. This Announcement does not constitute an offering to sell, or a solicitation of an offering to buy, any Common Shares in the United States. Moreover, the Underwriting Agreement provides that the Underwriters will offer and sell the Common Shares outside the United States only in accordance with Regulation S under the U.S. Securities Act. Until 40 days after the commencement of the Offering, an offer or sale of the Common Shares within the United States by a dealer (whether or not participating in the Offering) may violate the registration requirements of the U.S. Securities Act unless such Offering or sale is made pursuant to an exemption from registration under the U.S. Securities Act.
Certificates representing any Common Shares that are sold in the United States will bear a legend to the effect that the securities represented thereby are not registered under the U.S. Securities Act and applicable state securities laws and may only be offered, sold, pledged, transferred or otherwise disposed of, directly or indirectly, within the United States pursuant to an exemption from the registration requirements of the U.S. Securities Act and in accordance with applicable state securities laws.
Persons (including individuals, funds or otherwise) by whom or on whose behalf a commitment to acquire Common Shares under the Offering has been given (the “Purchasers”) will be deemed to have read and understood this Announcement, including the Appendix, in its entirety and to be participating in such Offering on the terms and conditions, and to be providing the representations, warranties, acknowledgements, and undertakings contained in the Appendix. In particular each such Purchaser represents, warrants and acknowledges that it is: (i) a Relevant Person (as defined above) and undertakes that it will acquire, hold, manage or dispose of any Common Shares that are allocated to it under the Offering for the purposes of its business; and (ii) outside the United States and is subscribing for the Common Shares under the Offering in an “offshore transaction” (within the meaning of Regulation S under the Securities Act).
This Announcement, including the Appendix, is not for distribution directly or indirectly in or into the United States (including its territories and possessions, any State of the United States and the District of Columbia) or any jurisdiction into which the same would be unlawful. No public offering of securities of Aureus Mining will be made in connection with the Offering in the United Kingdom, the United States or elsewhere.
The Common Shares under the Offering may not (unless an exemption under the relevant securities laws is applicable) be offered, sold, resold or delivered, directly or indirectly, in or into the United States, Australia, Hong Kong or Singapore or any other jurisdiction.
Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of the Appendix or this Announcement should seek appropriate advice before taking any action.
The Common Shares to be issued pursuant to the Offering will not be admitted to trading on any stock exchange other than the London Stock Exchange and the Toronto Stock Exchange. Neither the content of Aureus Mining’s website nor any website accessible by hyperlinks on Aureus Mining’s website is incorporated in, or forms part of, this Announcement.
TERMS AND CONDITIONS – IMPORTANT INFORMATION FOR RELEVANT PERSONS ONLY REGARDING THE OFFERING
As agents and brokers on behalf of Aureus Mining (company number: 776831-1), a company incorporated pursuant to the Canadian Business Corporations Act 1985 (AIM: AUE, TSX: AUE) (the “Company”), Royal Bank of Canada (“RBC”), or its broker dealers, affiliates or agents in applicable jurisdictions, including RBCD and GMP, its broker dealers, affiliates or agents in applicable jurisdictions (RBCD and GMP are individually a “Joint Lead Underwriter”), have undertaken an institutional bookbuild (“Bookbuild”) for the Offering by the Company of Common Shares.
The Company expects to file with the regulators in Canada a prospectus prepared under the rules of the securities laws of all the Canadian provinces and territories, except Quebec (the “Final Canadian Prospectus”) dated 12 May 2011.
2. Allocation and conditions to Offering a name=”_DV_M10″>2.1 Common Shares under the Offering will be issued on the Settlement Date (as defined below). 2.2 The allocation of Common Shares to prospective purchasers in respect of bids made by prospective purchasers, including the subscription amount payable, has been agreed between the Joint Lead Underwriters and the Company following the Bookbuild. 2.3 Acceptances of the Offering and allocations of Common Shares (including the subscription amount payable) will be as:
2.3.1 confirmed (orally) with prospective Purchasers who are in the United Kingdom or any other member state of the European Union (or at the absolute discretion of a Joint Lead Underwriter in any other jurisdiction) by one of the Joint Lead Underwriters (or their agents as agent of the Company). That confirmation constitutes an irrevocable legally binding commitment of that person (who will at that point become a purchaser (“Purchaser”)) to subscribe for the number of Common Shares allocated to it on the terms and conditions set out in this Appendix (a copy of the terms and conditions having been provided to the Purchaser prior to or at the same time as such confirmation) and in accordance with the Company’s articles of incorporation; or
2.3.2 (unless paragraph 2.4.1 applies) by the completion and return of such letter of confirmation and registration or other forms as one of the Joint Lead Underwriters or their agents may in their absolute discretion require and in that event the terms and conditions set out in such letter of confirmation and registration or other form shall apply to the exclusion of this Appendix.
2.4 For the avoidance of doubt, acceptance of the Offering constitutes your irrevocable legally binding agreement, subject to the Underwriting Agreement (as defined below) not having been terminated, to pay the aggregate settlement amount of the Common Shares regardless of the total number of Common Shares (if any) subscribed for by any other investor(s). 2.5 In the event that the Underwriters have procured acceptance from Purchasers in connection with the Offering prior to the date of the despatch of this Appendix or the Final Canadian Prospectus to such a Purchaser, the Underwriters will, prior to admission to trading on AIM and TSX, request confirmation from any such Purchaser that its participation as agreed in any earlier commitment remains firm and binding upon the terms and conditions of this document and referable to the contents of the Final Canadian Prospectus. Upon such confirmation being given (whether orally, in writing or by conduct (including without limitation by receipt of the relevant placing proceeds)) any earlier agreement made in respect of the Common Shares shall be varied, amended and/or ratified in accordance with the terms of this Appendix. 2.6 In making an investment decision, Purchasers must rely on their own examination of the Company and its prospects and the terms of the Offering, including the merits and risks involved in investing in the Common Shares. 2.7 Settlement will occur on a date to be advised but expected to be 19 May 2011 (“Settlement Date”). 3. Common Shares and Quotation
3.1 The Common Shares will rank equally, from the date of issue, in all respects with the Company’s existing issued Common Shares.
3.2 Application for admission of the Common Shares to trading on AIM (“AIM Admission”) will be made in accordance with the AIM Rules. It is anticipated that AIM Admission will occur in respect of the Common Shares on or about 8.00am (London time) on 19 May 2011.
4. Underwriting Agreement
4.1 The Company and each of RBC, GMP, Clarus, Jennings and RJ (collectively, the “Underwriters”) have entered into an underwriting agreement in connection with the Offering (“Underwriting Agreement”). The Underwriting Agreement provides that the Underwriters will purchase any Common Shares offered in the Offering for which they have not found purchasers, subject to certain limits. A summary of the terms of the Underwriting Agreement are set out in the Canadian Prospectus.
5. Relationship of the Underwriters
5.1 The obligations of each Underwriter in connection with the Offering (including any obligation to pay) are several, and not joint nor joint and several. A right of an Underwriter in connection with the Offering (including any rights under the Underwriting Agreement) is held by that Underwriter severally and each Underwriter may exercise its rights, powers and benefits in connection with the Offering separately and individually.
5.2 An Underwriter will not be responsible for the performance obligations of the other Underwriter and will not be liable for any claims, damages or liabilities arising out of the actions taken, omissions of or advice given by other Underwriters. Any breach, non-performance or default by an Underwriter will not constitute a breach, non-performance or default of the other.
5.3 Nothing contained or implied hereby or by acceptance of the Offering constitutes an Underwriter acting as the partner, agent or representative of the other Underwriters for any purpose or creates any partnership, agency or trust between the Underwriters, and neither Underwriter has any authority to bind the other in any way.
5.4 None of the Underwriters will be liable for any loss, damage or claim arising out of the actions taken or advice given by the other Underwriters. In addition, the rights of an Underwriter and the Beneficiaries (as defined below) in respect of that Underwriter under the representations, warranties, acknowledgements and undertakings set out below will in no way be affected by the actions taken or alleged to have been taken or advice given or alleged to have been given by the other Underwriters or their Beneficiaries.
The offering of Common Shares and the agreement arising from acceptance of the Offering is personal to each Purchaser and does not constitute an offering to any other person or to the public. A Purchaser may not assign, transfer, or in any other manner, deal with its Common Shares, or its rights or obligations under the agreement arising from the acceptance of the Offering, without the prior written agreement of the Joint Lead Underwriters in accordance with all relevant legal requirements.
No offer document or prospectus, including the Final Canadian Prospectus, has been or will be submitted to be approved by the FSA in relation to the Offering and a Purchaser’s commitments will be made solely on the basis of the information contained in this Announcement (including the Appendix) released by the Company today and the information in the Final Canadian Prospectus.
Each Purchaser, by accepting the Offering, agrees that the content of this Announcement (including the Appendix) and the Final Canadian Prospectus 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 or the Underwriters or any other person and none of the Company or the Underwriters nor any other person will be liable for any Purchaser’s decision to participate in the Offering based on any other information, representation, warranty or statement which Purchaser may have obtained or received. Each Purchaser 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 Offering. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
8. Registration and Settlement
Settlement of transactions in the Common Shares will when purchased in the UK/EU, unless otherwise agreed, take place outside the system administered by Euroclear UK and Ireland Limited (“CREST”).
Each Purchaser allocated Common Shares in the Offering will be sent a contract note stating the number of Common Shares and the subscription amount payable to be allocated to it and will be required to provide the Underwriters by the Payment Date (as set out below) with cleared funds sufficient to purchase such securities prior to the Settlement Date.
If requested by the Purchaser, the Company will arrange for the Common Shares to be made available in the Purchaser’s CREST account as soon as reasonably practicable after issuance.
|Trade date:||13 May 2011|
|Payment Date||On or before 18 May 2011|
|Admission||19 May 2011|
|ISIN code for the Offering Shares:||CA0515471070|
9. Representations and Warranties
By participating in the Offering and accepting the Offering of Common Shares, each Purchaser (and each person acting on its behalf) represents, warrants, acknowledges and undertakes for the benefit of the Company, each of the Underwriters and their respective officers, employees and advisers, and any person acting on behalf of any of them (together the “Beneficiaries”) as follows:
(a) if it is a Purchaser in the United Kingdom it:
(i) is a “qualified investor” for the purposes of section 86(7) of the Financial Services and Markets Act 2000 (“FSMA”) who is purchasing the Common Shares as principal for its own account and not for others, except in circumstances, to section 86(2) of FSMA applies;
(ii) is also a person falling within one or more of the categories of persons referred to in article 19 (investment professionals) or 49 (high net worth companies, etc) of the Financial Services and Markets Act 2000 (Financial Promotions) Order 2005; and
(iii) understands, recognises and acknowledges that no prospectus has been or will be approved in connection with the Offering by the Financial Services Authority in the United Kingdom under section 87A of FSMA; or
(iv) if it is not in the United Kingdom but are acting for the account of a purchaser in the United Kingdom, that (i), (ii) and (iii) applies in respect of each such purchaser;
(b) If it is a purchaser in or otherwise subject to the laws of a member state of the European Union (other than, for the avoidance of doubt, the UK), (i) it is a “qualified investor” (as defined in Article 2(1)(e) of the Prospectus Directive 2003/71 EC) acting as a principal for its own account to whom an invitation or Offering to subscribe for Common Shares in the manner contemplated by this agreement and any communication or correspondence in connection therewith is permitted by the laws of that member state or (ii) if it is not in any such member state but are acting for the account of such person then (i) applies in respect of each such purchaser.
(c) if it is in a jurisdiction outside Canada, the United States, the United Kingdom or other member states of the European Union, it is a person to whom an invitation or Offering to subscribe for the Common Shares in the manner contemplated by this Appendix and any communication or correspondence therewith is permitted by the laws of the jurisdiction in which it is situated or from where the Purchaser submitted its bid to subscribe for Common Shares and it is a person to whom the Common Shares can lawfully be offered and issued under all applicable laws, without the need for any approval, registration, filing or lodgement of any kind, including a prospectus or other disclosure document;
(e) if it is not in the United States, nor a U.S. Person, or acting for the account or benefit of a person in the United States or a U.S. Person, it is acquiring the Common Shares in an offshore transaction in accordance with Regulation S under the U.S. Securities Act as such term is defined in Rule 903 under the U.S. Securities Act;
(e) it understands that the Offering and sale to it of the Common Shares has not been and will not be registered under the U.S. Securities Act or the laws of any state of the United States; Therefore, it agrees that it will not offer, sell or pledge any Common Shares in the United States unless and until the Common Shares are registered under the U.S. Securities Act (which you acknowledge the Company has no obligation to do) or offer, sold or pledged in a transaction exempt from, or not subject to, the registration requirements of the U.S. Securities Act and the laws of any state of the United States;
(f) it is purchasing the Common Shares for its account or for the account of one or more persons for investment purposes only and not with the purpose of, or with a view to, the resale, transfer or distribution or granting, issuing or transferring interests in, or options over, the Common Shares and in particular, neither the Purchaser nor any other person for whose account it is purchasing the Common Shares has any intention to distribute either directly or indirectly any of the Common Shares in the United States, provided, however, that the Common Shares may be offered, sold or otherwise disposed of pursuant to registration thereof pursuant to the U.S. Securities Act and any applicable state securities laws or under an exemption from such registration requirements;
(g) it has such knowledge and experience in financial and business matters and expertise in assessing credit and all other relevant risks that it is capable of evaluating independently, and have evaluated independently and conducted an in-depth detailed analysis on, the merits and risks of a purchase of the Common Shares for itself and each other person, if any, for whose account it is acquiring any Common Shares, and it has determined that the Common Shares are a suitable investment for itself and each other person, if any, for whose account it is acquiring any Common Shares, both in the nature and the number of the Common Shares being acquired;
(h) if applicable, it is, or any beneficial purchaser for whom it is contracting, acquiring the Common Shares pursuant to and in compliance with an exemption from the prospectus requirements of securities laws of the jurisdiction of residence and will provide the Company and the Underwriters, on request, whether before or after the Payment Date, with evidence of such compliance;
(i) it has received a copy of the Final Canadian Prospectus and has had access to all information that it believes is necessary or appropriate in connection with, and for an adequate time prior to, your purchase of the Common Shares. It acknowledges and agrees that it will not hold the Underwriters responsible for any misstatements in, or omissions from, the Final Canadian Prospectus or any publicly available information concerning the Company;
(j) it has made and relied entirely upon its own assessment of the Company, and have conducted its own independent investigation with respect to the Common Shares and the Company;
(k) it shall obtain its own advice regarding the tax consequences in any jurisdiction of purchasing, owning or disposing of any Common Shares;
(l) it has not relied on any investigation that any Beneficiary may have conducted with respect to the Common Shares or the Company. No Beneficiary has made any representation to it (including any representation that might be implied from the signature page of the Final Canadian Prospectus, which representation is not made to any Purchaser outside Canada), express or implied, with respect to the Common Shares or the Company;
(m) it acknowledges that the Offering does not constitute a securities recommendation or advice in relation to any securities, and that no securities recommendation or advice has been made or given to you by any Beneficiary in relation to the Offering;
(n) it acknowledges that an investment in the Common Shares involves a degree of risk;
(o) except to the extent that liability cannot by law be excluded, it acknowledges that none of the Beneficiaries accept any responsibility in relation to the Offering or for the accuracy or completeness of any information given to it in connection with the Offering;
(p) it acknowledges and agrees that it will accept the decisions and actions of the Joint Lead Underwriters in respect of the Offering and the acceptance of any Offering of Common Shares does not oblige the Joint Lead Underwriters to consult with it as to any matter or qualify the exercise or non-exercise of rights arising under or in relation to the Offering;
(q) it has been independently advised as to any resale restrictions under applicable securities laws in its own jurisdiction;
(r) it acknowledges and agrees that an Underwriter takes title to the Common Shares it does so only as agent for Purchaser for the purposes of effecting settlement and it agrees to release such Underwriter from any liability incurred by it in acting in such capacity (whether arising out of any act or omission by the Company in relation to the Offering or to the Common Shares or otherwise);
(s) if it is acquiring any Common Shares for an account of one or more persons, it has full power to make the acknowledgements, representations, warranties and agreements hereunder on behalf of each such person and it will take reasonable steps to ensure that each such person will comply with its obligations hereunder;
(t) it acknowledges that the Beneficiaries will rely upon the truth and accuracy of the foregoing acknowledgements, representations, warranties and agreements in conducting and undertaking the Offering;
(u) it has read this Announcement, including this Appendix, in its entirety;
(v) the exercise by the Underwriters of any right of termination or any right of waiver exercisable by them contained in the Underwriting Agreement, without limitation, the right to terminate the Underwriting Agreement, is within their absolute discretion and no Underwriter will have any liability to any Purchaser whatsoever in connection with any decision to exercise or not exercise any such rights;
(w) if (i) any of the conditions in the Underwriting Agreement are not satisfied (or, where relevant, waived), or (ii) the Underwriting Agreement is terminated or does not otherwise become unconditional in all respects prior to the admission of the Common Shares, the Offering will lapse and its rights shall cease and determine at such time and no claim shall be made by any Purchaser in respect thereof;
(x) no offer document or prospectus has been, or will be, prepared in connection with the Offering other than the Final Canadian Prospectus and represents and warrants that it has not received a prospectus or other offer document other than the Final Canadian Prospectus in connection therewith;
(y) the Common Shares are (and the Common Shares issued pursuant to the Offering will be) admitted to trading on AIM and listed on the TSX, and the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of AIM and the Canadian securities regulatory authorities and that it is able to obtain or access such information without undue difficulty, and is able to obtain access to such information or comparable information concerning any other AIM or TSX quoted or listed company, without undue difficulty;
(z) none of the Underwriters or the Company nor any of their affiliates nor any person acting on behalf of any of them has provided, and will not provide it, with any material regarding the Common Shares or the Company or any other person other than this Announcement and the Final Canadian Prospectus; nor has it requested any of the Underwriters or the Company nor any of their affiliates or any person acting on behalf of any of them to provide it with any such information;
(aa) the content of this Announcement and the Final Canadian Prospectus is exclusively the responsibility of the Company and that none of the Underwriters nor any person acting on their behalf has or shall have any liability for any information, representation or statement contained in this Announcement or any information previously published by or on behalf of the Company (except for any information or statements relating solely to the Underwriters and furnished by the Underwriters specifically for use in such documents) and will not be liable for any Purchaser’s decision to participate in the Offering based on any information, representation or statement contained in this Announcement, the Final Canadian Prospectus or otherwise. Each Purchaser further represents, warrants and agrees that the only information on which it is entitled to rely and on which such Purchaser has relied in committing itself to subscribe for the Common Shares is contained in this Announcement and any information previously published by the Company, such information being all that it deems necessary to make an investment decision in respect of the Common Shares and that it has neither received nor relied on any other information given or representations, warranties or statements made by any of the Underwriters or the Company and none of the Underwriters or the Company will be liable for any Purchaser’s decision to accept an invitation to participate in the Offering based on any other information, representation, warranty or statement. Each Purchaser further acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Offering;
(bb) neither it, nor the person specified by it for registration as a holder of Common Shares is, or is acting as nominee or agent for, and that the Common 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 1986 (depositary receipts and clearance services);
(cc) if in the United Kingdom, it has complied with its obligations in connection with the Criminal Justice Act 1993, money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2003 and the Money Laundering Regulations 2007 and Part VIII of the Financial Services and Markets Act 2000 (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. If within a reasonable time after a request for verification of identity the Underwriters have not received such satisfactory evidence, the Underwriters may, in their absolute discretion, terminate your Offering Participation in which event all funds delivered by you to the Underwriters (if any) will be returned without interest to the account of the drawee bank from which they were originally debited;
(dd) it has complied and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the Common Shares in, from or otherwise involving, the United Kingdom;
(ee) it and any person acting on its behalf is entitled to subscribe for and purchase the Common Shares under the laws of all relevant jurisdictions which would apply to it, and that it and any person acting on its behalf is in compliance with applicable laws in the jurisdiction of its residence, the residence of the Company, or otherwise;
(ff) it (and any person acting on its behalf) will make or procure payment for the Common Shares allocated to it in accordance with this Announcement on the due time and date set out herein, failing which the relevant Common Shares may be placed with other subscribers or sold as the Joint Lead Underwriters may in their discretion determine and without liability to such Purchaser;
(gg) the person whom it specifies for registration as holder of the Common Shares will be (i) itself or (ii) its nominee, as the case may be, neither of the Underwriters 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 Purchaser and any person acting on behalf of such Purchaser agrees to participate in the Offering and it agrees to indemnify the Company and the Underwriters in respect of the same on the basis that the Common Shares will be allotted to the account of the Underwriters who will hold them as nominee on behalf of such Purchaser until settlement in accordance with its standing settlement instructions;
(hh) the Company and the Underwriters 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 the Underwriters on its own behalf and on behalf of the Company and are irrevocable;
(ii) it will indemnify and hold the Company and the Underwriters 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 Offering;
(jj) its commitment to subscribe Common Shares on the terms set out herein will continue notwithstanding any amendment that may in future be made to the terms of the Offering and the Purchaser will have no right to be consulted or require that its consent be obtained with respect to the Company’s conduct of the Offering. The foregoing representations, warranties and confirmations are given for the benefit of the Company and the Underwriters. The agreement to settle a Purchaser’s subscription (and/or the subscription of a person for whom such Purchaser is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to the subscription by it and/or such person direct from the Company for the Common Shares in question. Such agreement assumes, and is based on the warranty above from each Purchaser, that neither it, nor the person specified by it for registration as holder, of Common Shares is, or is acting as nominee or agent for, and that the Common 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 1986 (depositary receipts and clearance services). If there are any such arrangements, or the settlement relates to any other dealing in the Common Shares, stamp duty or stamp duty reserve tax may be payable. In that event the Purchaser agrees that it shall be responsible for such stamp duty or stamp duty reserve tax, and neither the Company nor the Underwriters shall be responsible for such stamp duty or stamp duty reserve tax. If this is the case, each Purchaser should seek its own advice and notify the Underwriters accordingly;
(kk) no action has been or will be taken by any of the Company, the Underwriters or any person acting on behalf of the Company or the Underwriters that would, or is intended to, permit a public offering of the Common Shares in any country or jurisdiction where any such action for that purpose is required;
(ll) it 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 United Kingdom by them or any other person on the subscription by them of any Common Shares or the agreement by them to subscribe for any Common Shares;
(mm) the Underwriters or any of their affiliates may, at their absolute discretion, agree to become a purchaser in respect of some or all of the Common Shares;
(nn) when a Purchaser or person acting on behalf of the Purchaser is dealing with the Underwriters, any money held in an account with any of the Underwriters on behalf of the Purchaser and/or any person acting on behalf of the Purchaser will not be treated as client money within the meaning of the rules and regulations of the FSA made under FSMA;
(oo) it acknowledges that the money will not be subject to the protections conferred by the client money rules and as a consequence, this money will not be segregated from the relevant Underwriters’ money in accordance with the client money rules and will be used by the relevant Underwriter in the course of its own business; and the Purchaser will rank only as a general creditor of the Underwriter;
(pp) it acknowledges that all times and dates in this Announcement may be subject to amendment and the Underwriters shall notify the Purchasers and any person acting on behalf of the Purchasers of any changes;
(qq) that past performance is no guide to future performance and persons needing advice should consult an independent financial adviser;
(rr) all obligations entered into by the Purchaser pursuant hereto with the Underwriters are entered into with them as agent for the Company and are therefore enforceable directly by the Company;
(ss) if a company, it is a valid and subsisting company and has all the necessary corporate capacity and authority to execute its obligations in connection with the Offering participation; and
(tt) time shall be of the essence as regards obligations pursuant to this Appendix.
10. Entire Agreement
The terms set out in this Appendix and the allocation of Common Shares (including the subscription amount payable) as confirmed to a Purchaser, constitute the entire agreement to the terms of the Offering and a Purchaser’s participation in the Offering to the exclusion of prior representations, understandings and agreements between them. Any variation of such terms must be in writing.
11. Governing Law and Jurisdiction
The agreement arising out of acceptance of the Offering shall be governed by and construed in accordance with the laws of England and each Purchaser agrees to submit to the exclusive jurisdiction of the courts of England.