TIDMHVO
RNS Number : 9991G
hVIVO plc
26 November 2015
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS NOT
FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY,
IN OR INTO THE UNITED STATES, CANADA, AUSTRALIA, NEW ZEALAND, JAPAN
OR THE REPUBLIC OF SOUTH AFRICA OR ANY JURISDICTION IN WHICH SUCH
PUBLICATION OR DISTRIBUTION IS PROHIBITED.
For immediate release 7.00 a.m: 26 November 2015
hVIVO PLC
("hVIVO" or "the Company")
CONDITIONAL PLACING TO RAISE GBP20.5 MILLION
hVIVO plc (AIM: HVO), the pioneer of human challenge models of
disease, announces today that it has raised, subject to certain
conditions, GBP20.5 million (before expenses) by way of a placing
of 9,111,111 new Ordinary Shares (the "New Ordinary Shares") with
existing institutional shareholders at a price of 225 pence per
Ordinary Share.
The Placing Price is at a discount of 11.6 per cent. to the
closing middle market price of 254.50 pence per Ordinary Share on
25 November 2015, the latest date prior to this Announcement.
The New Ordinary Shares will, upon Admission, rank pari passu in
all respects with the Ordinary Shares in issue as at the date of
this Announcement, including as regards the right to receive all
dividends or other distributions declared, made or paid after
Admission. The New Ordinary Shares will represent 11.7 per cent. of
the Company's enlarged issued ordinary share capital immediately
following completion of the Placing.
The net proceeds of the Placing are expected to be approximately
GBP20.0 million and will be principally used by the Company to
progress PrEP-001 to Phase IIb, commence the stratification of
asthma and advance the flu pathomics outputs into product
candidates.
A general meeting of the Company to approve the Placing will be
held at the Group's registered office at Queen Mary BioEnterprises
Innovation Centre, 42 New Road, London E1 2AX at 10.00 a.m. on 15
December 2015.
Kym Denny, Chief Executive Officer, commented: "We are delighted
at the response and immense support we have received from our
shareholders to raise these funds. This has been a remarkable year,
one where the growing recognition regarding the value of the hVIVO
platform culminated in our PrEP Biopharm announcement and we gained
access to an innovative Phase IIa compound, PrEP-001. It heralds a
transformational time for our organisation as we build upon our
achievements in asthma and flu."
Further details of the Placing are below.
For further information please contact:
hVIVO plc +44 207 756 1300
Kym Denny (Chief Executive Officer)
Graham Yeatman (Chief Financial & Business Officer)
Media Enquiries +44 203 021 3933 / +44 7854 979 420
Colin Paterson (Director of Marketing, Communication and Public
Relations)
Numis Securities Limited +44 207 260 1000
Michael Meade / Freddie Barnfield (Nominated Adviser)
James Black / Michael Burke (Corporate Broking)
Notes to Editors:
hVIVO is a life sciences company pioneering a technology
platform of human disease models to accelerate drug discovery and
development in respiratory and infectious diseases.
Through its illumination of the entire disease life cycle from
healthy to sick and back to health, the hVIVO platform captures
disease in motion and promotes rational selection of drug targets
and biomarkers in respiratory and infectious diseases, such as flu
and colds. It brings together a set of capabilities in product
validation testing and the mining of biological insights, in order
to tackle the long timeline, significant costs and high risks to
market facing drug development and diagnostic organisations
today.
A market leader in human disease models and challenge studies,
hVIVO has commercialised four disease models, successfully enrolled
over 2,000 subjects and conducted over 40 product validation
studies for a wide range of industry, government and academia
clients and collaborators.
1. BACKGROUND TO THE PLACING
hVIVO is a life sciences company pioneering a technology
platform of human disease models to accelerate drug discovery and
development in respiratory and infectious diseases.
The hVIVO business (formerly Retroscreen Virology) was
established in 1989 and over the last 25 years has established
itself as a market leader in providing clinical services to third
party study sponsors using human disease models. To date, hVIVO has
conducted more than 40 clinical studies, involving more than 2,000
volunteers for a range of leading industry, government and academic
clients.
The hVIVO platform puts humans at the heart of disease
modelling. It functions in the following way: volunteers are
recruited for research studies in which a viral challenge agent is
administered to elicit a self-limiting infection, such as 'flu', or
to trigger a disease episode or exacerbation, such as in asthma
patients. The studies are conducted under tightly controlled,
quarantine conditions with full medical supervision. The benefits
of this approach, compared to field-based studies where patients
are only recruited when they become symptomatic, are that (a) the
healthy or pre-challenge subject acts as an internal control by
providing a pre-disease baseline; (b) the laboratory-like
conditions means the presentation of symptoms together with
cellular and molecular changes in response to the challenge agent
can be tightly correlated; and (c) multiple, high quality samples
can be taken from a range of body compartments throughout the
course of the disease, or disease episode. The Directors believe
that combining these benefits in one platform creates a powerful
R&D tool for product discovery and development.
In recent years, it has become increasingly clear to the
Directors that the hVIVO platform has the potential to become a
powerful tool for understanding human disease itself. Research into
the mechanisms of disease at present relies heavily on analysing
individual tissue samples taken from patients in an attempt to
understand the pathways involved. These samples are typically
obtained from hospitals or tissue biobanks that have been assembled
by academics and organisations over many years. However, these
heterogeneous samples provide only isolated cellular 'snapshots'
and do not provide the biological context of the disease or
information on what the cell looked like prior to the disease.
Efforts are additionally hampered by the variable quality and
limited availability of samples, including from tissue biobanks.
The Directors believe that hVIVO's ability to generate a range of
high quality samples over the course of a disease or exacerbation
will help to capture a full picture of the continuum of the
disease, a process it calls 'Pathomics'. Armed with a full picture
of the disease lifecycle, the Directors believe that hVIVO will be
in a proprietary, informed position to select the right drug
targets at which to aim compounds, select the right biomarkers in
which to develop diagnostics, power consumer health products, and
provide the biological evidence needed to simplify and streamline
the clinical trial process itself.
By rationally selecting drug targets and leveraging hVIVO's
biological insight to simplify and streamline the clinical trial
process, the Directors believe that hVIVO can substantially reduce
the cost, time and risks it takes to develop regulated medicinal
products. The reason why can be found within the current
limitations of the drug development process: traditional drug
development typically relies on clinical development itself to
provide a verified link to human biology. Given the challenges of
learning about disease via traditional snapshot samples, the
industry tends to go into drug development with a hypothesis,
rather than verified fact, about the relevance of a given drug
target to a disease. The process of drug development, in the human
clinical stage, thus also becomes the process to 'prove' the
biology, seeking to confirm both that the drug itself is
functioning safely and is successful at hitting that target, and
also showing that altering the target has a meaningful positive
impact on the disease itself. Combining both objectives in a
clinical programme of work requires enough subjects to come to a
statistically meaningful conclusion. As such, the Directors believe
that in areas of medicine where the biological mechanics of a
disease are poorly understood, the cost, time and resources
required are higher than they would be if the biology was verified
and established at the start. Currently only about 8 per cent. of
new molecular entities make it all the way through clinical trials,
taking between 10 and 20 years with estimated costs of delivering a
drug being more than $2 billion, up from $800 million just a few
years ago.
Realising hVIVO
hVIVO's recent investment in the newly formed biotech company,
PrEP Biopharm Limited ("PrEP"), signals a transformational moment
in the Company's growth and development. Over the last five years,
data from hVIVO's platform has helped to underpin a number of
M&A transactions in the infectious disease sector, totalling
nearly $2 billion in investments. Indeed, in a Johnson &
Johnson (J&J) press release in May 2015, the company cited two
of hVIVO's client products, claiming that, "... Late stage products
expected to drive growth in the next several years, following
regulatory approvals, include AL 8176 for respiratory syncytial
virus (RSV); ... JNJ-872 (VX-787) for influenza A." To reflect the
value of hVIVO's contribution to the products that go through its
platform, to pave the way for co-development opportunities with
hVIVO's R&D products down the road, and ultimately to realise
shareholder value, hVIVO took the strategic decision to expand its
services and licensing options to include a variety of
collaborative joint ventures with select customers and products.
Capitalising on a growing trend to leverage off-balance sheet
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R&D, the Directors believe that hVIVO is well positioned to
explore equity sharing arrangements in lieu of service fees,
particularly in light of the Company's status as the only
commercial provider of multiple human disease models, of which the
Directors are aware. In structuring the Group's work in this way,
the Directors believe that hVIVO will be able to position itself to
share in the significant upside value that it may be instrumental
in making.
The prophylactic compound, PrEP-001 (previously known as
JNJ-43260295) serves as an example of the potential this
collaborative approach is expected to provide to the Company. hVIVO
conducted a proof of concept study for the compound on behalf of
Janssen in 2013-14, with encouraging data showing the product
achieved a threefold reduction in clinical illness and an eightfold
reduction in common cold symptoms compared to placebo. To complete
the Phase IIa programme, additional challenge studies were
envisioned, involving multiple virus types and patient populations,
a combination of capabilities that hVIVO, as a market leader, could
deliver. The resulting UK-based start-up company, PrEP, provides
hVIVO the opportunity to continue to play an integral role in the
compound's further clinical development, as well as to take a
significant stake in a potentially ground-breaking new drug that
the Company has already helped to advance and is well placed to
transition into later phase trials in at-risk patient groups.
In addition to hVIVO, other lead investors in PrEP include
Johnson & Johnson Innovation - JJDC, Inc. and US-based angel
investors. hVIVO holds two out of the current four PrEP Board
positions. Janssen has granted a worldwide license of PrEP-001 to
PrEP in exchange for equity in PrEP, together with downstream
milestones and royalties. hVIVO has acquired equity in PrEP for
GBP14.0 million cash consideration and PrEP has contracted with
hVIVO Services Limited to conduct a GBP10.0 million Phase IIa
clinical programme of work in 2015 and 2016. hVIVO's investment
will be accounted for as an investment in an associate in its
balance sheet and, in the application of the equity method as an
associate, the GBP10.0 million Phase IIa clinical programme of work
will be recognised as revenue. hVIVO commenced the Phase IIa work
in September 2015 and the programme is expected to be significantly
progressed by the 2015 year end. As a consequence of this work now
being a part of a licence arrangement, the Company has been advised
that, due to accounting technicalities of IFRS, the revenue and
costs attributable to this work will most likely have to be
accounted for on a "completed" basis in 2016, rather than on a
"work done" basis as is currently the case for the revenue
recognition of hVIVO's standard clinical trials agreements with
clients. The Phase IIa clinical programme of work for PrEP is
forecast to complete during 2016 and revenue of GBP10.0 million
recognised in full by the 2016 year end.
The Phase IIa programme will investigate whether PrEP-001 is
effective against the flu virus, how long the product's protection
lasts, and if it is effective in preventing colds in asthma
patients. The Directors believe that these studies will further
leverage the hVIVO platform's speed of trial conduct and ability to
generate clear efficacy signals, and will benefit from the
Company's pathomics insights to reduce the size, cost and
complexity of the compound's later phase field trials. When the key
factors of the platform's success rate, and its time and cost
savings are applied to PrEP-001, the Directors estimate that the
hVIVO platform could potentially boost the risk-adjusted net
present value of PrEP-001 by approximately 230 per cent. - further
highlighting the advantage that hVIVO could provide in de-risking
and in accelerating drug development.
Introducing PrEP-001
The Market
On average, each year worldwide, people suffer between 5 and 10
billion cold and flu infections, called upper respiratory viral
infections (URVI). Even though on average a person will typically
have one to three URVIs per year, there is little relief today from
these diseases. There is no cure for the common cold, flu vaccines
have limited efficacy (10 per cent. to 60 per cent. average
effectiveness over the last 10 years) and current flu therapies
require administration within a two-day window to be effective.
Direct costs from URVIs are $27 billion in the US and more than 189
million school days and approximately 200 million work days are
missed in the US each year due to colds and other non-influenza
related URVIs. While URVIs are typically self-limiting, they can be
life-threatening for high risk groups such as those 40 million
people suffering from asthma, chronic obstructive pulmonary disease
(COPD) and congestive heart failure (CHF). URVIs are the
predominant trigger of exacerbations in asthma patients and those
suffering from COPD, with asthma patients alone accounting for 10
per cent. to 20 per cent. of the total URVI direct costs, including
15 million health care provider visits and 1.4 million emergency
room visits annually.
PrEP-001: a novel paradigm in the prevention of colds and
flu
PrEP-001 (poly I:C) is a nasally administered, broad-spectrum
agent that leverages the innate immune system to prevent upper
respiratory tract viral infections (colds and flus). Poly I:C acts
as a benign viral surrogate. During a typical upper respiratory
infection, the virus enters into the nasal epithelium and
replicates rapidly, spreading throughout the upper respiratory
system in 24 to 72 hours. When poly I:C is administered, the body
recognises it as a virus, activating the receptors that release
interferon and affecting the innate immune response. This host
response pre-arms the immune system so that during a real infection
the immune system can react quickly and slow down the viral
replication, enabling the adaptive immune system to destroy the
virus. It creates a protective layer, preventing the viral
infection and acting as a prophylactic therapy.
The Director's believe that PrEP-001 (poly I:C) is a
prophylactic therapy with significant potential for addressing this
critical unmet need surrounding upper respiratory viral infections.
It would entail weekly dosing during the cold and flu season,
envisioned to last 12 weeks, and is designed to help the large
number of patients that suffer substantial morbidity and mortality
as a result of URVIs.
hVIVO Discovery and Development
With hVIVO's significant investment in PrEP, hVIVO gains an
exciting Phase IIa product in PrEP-001 to add value to the
Company's developing IP and emerging product pipeline. Fundamental
to the hVIVO premise of accelerating drug and diagnostic
development is the importance of establishing the biological
relevance of targets and biomarkers to the disease process before
product testing in humans commence. The Directors believe that,
through this proprietary vantage point, hVIVO can change the time,
cost and risk profile of clinical development, bringing forwards
the disease-relevance question out of later stage development and
into the hVIVO-created early development step of pathomics. The
Directors believe that 'taking the guess work out of the biology'
will yield investigational products with better risk profiles,
lower costs and shorter timelines to market.
hVIVO has significantly advanced two of its pathomics programmes
with funds raised by the Company since 2013. The first pathomics
programme is in flu. As flu was an established human disease model
for the Company, work commenced in 2014 to collect samples and
produce the first ever 'map' of the human host response to flu
infection. This map was a significant achievement for the Company,
which completed in the first half of 2015. At present, hVIVO is in
the drug target and biomarker qualification stage, with outputs
expected in the first half of 2016. The Company aims to advance
these discoveries to candidate status during 2016, which could
include drug candidates to treat flu, biomarker tests (trial tool
kits) to guide clinical product development, and predictive tests
to identify susceptibility and patients at risk of severe flu
illness.
The second of the Company's pathomics programmes is in asthma.
hVIVO developed and tested a new human disease model in asthma
exacerbation in 2014 and early 2015. While the new model provides a
much needed clinical testing tool in early stage asthma drug
development, where exacerbations can be examined in laboratory-like
conditions, the Directors believe that the platform has further
potential to revolutionise our understanding and categorisation of
asthma disease, and aims to commence this work in 2016.
Asthma is a complex disease that affects over 300 million people
and, like colds and flu, still has no effective cure. Experts in
the field have hypothesised that asthma is not one homogeneous
disease but rather consists of different phenotypes, each with
differing characteristics and potentially different therapeutic
demands. By watching asthma exacerbation 'in motion' (i.e., as an
asthma patient goes from their baseline state to an exacerbation
state), the Directors believe that the hVIVO platform is well
positioned to classify these subtypes by molecular, clinical and
cellular criteria to arrive at the specific endotypes (phenotypes
plus specific pathophysiological mechanisms) for stratifying asthma
patients. Doing so would yield, for the first time, a way to
differentiate asthma patients (stratification tools) and create the
biological insights to select the right drug targets for each
asthma subtype, allowing hVIVO subsequently to develop new drugs
and to test existing ones for sub-type effectiveness.
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In order to undertake the stratification of asthma, hVIVO
intends to expand its disease model reach into the community, with
two new model versions being developed in 2016. In addition to the
Company's current fully controlled in-patient facility asthma
model, hVIVO plans to launch an out-patient model, where subjects
are inoculated by hVIVO and then released to their home environment
for remote monitoring while they recover. The second new version,
aimed at securing samples from the most severe asthma patients,
entails the severe asthma patients registering their baseline data
with hVIVO, and then returning to hVIVO's quarantine unit if and
when they contract a cold or flu naturally. All of these scenarios
enable continuous monitoring through the combination of sample
collection plus digital data and/or patient reported information.
The Directors believe that as diagnostic markers become available,
they will enable more targeted recruitment in product validation
studies, both quarantine and field-based, and promote further
evolution of the hVIVO platform - establishing the hVIVO platform
as the definitive clinical development benchmark for developing new
asthma therapies.
In addition to hVIVO's pathomics programmes in flu and asthma,
work has commenced to define and calibrate the Company's second new
respiratory model in COPD. The Company also intends to progress the
creation of a human host response map for respiratory syncytial
virus (RSV) in 2016.
2. CURRENT TRADING AND OUTLOOK
The PrEP transaction signals that the hVIVO platform has
successfully evolved from a services delivery only application to a
comprehensive drug discovery and development platform with both
services and product development engine capabilities, enabling the
Company to exploit the power and value generation of its human
disease models. Key to this ambition is the Company's strategy to
differentiate itself from other drug and diagnostic groups by
turning biological verification on its head and positioning it
early on in a product's lifecycle, rather than waiting until the
final human testing phase (Phase III) to confirm the right targets
and biomarkers have been selected.
The goal of the Company is to 'get the biology right from the
start', leveraging its insight to produce the right drugs and to
reduce the time, cost and complexity of clinical development
itself. As a Phase IIa product, the Directors believe PrEP-001 will
benefit from the emerging biological insights that the Company is
pioneering in flu and in asthma, and will potentially increase the
product's value substantially over what it might otherwise have
achieved from using traditional clinical testing methods alone.
As such, the Directors believe that during the remainder of
2015, the PrEP programme is expected to advance significantly in
hVIVO's quarantine unit, followed by the Company's first flu client
since the stalling of flu programmes in late 2014. Quarantines are
planned right up to the Christmas period with the intention of
pushing hVIVO's quarantine unit utilisation to its maximum. Small
variances in the expected number of volunteers inoculated during
this time could have a small reduction in the Company's forecasts
for 2015 revenue of "not less than GBP8.0 million", which is also
subject, as always, to the December client meeting its overall
trial timelines this year. For 2016 the focus will be on
progressing PrEP-001 to Phase IIb, commencing the stratification of
asthma and advancing the flu pathomics outputs into product
candidates, whilst also delivering against a building client
engagement pipeline of work.
The Directors believe that the Company has reached the next
chapter in the evolution of the hVIVO platform, where it now seeks
to achieve a best balance of client engagements (generating
revenue, gross profit and contribution to cash flow) with
collaboration engagements such as PrEP and the Group's own internal
R&D engagements, to maximise the utilisation and investment of
its resources and drive value creation for Shareholders.
3. USE OF PROCEEDS
The Placing is intended to allow hVIVO to further utilise the
skills, resources and expertise that it has developed over the last
three years, to build out bioinformatics analysis and disease
stratification capabilities as hVIVO works to identify novel
biomarkers and drug targets in areas of high unmet medical
need.
The Directors intend that the net proceeds of the Placing, being
approximately GBP20.0 million, will be used by the Company
principally for the following:
-- Complete Phase IIa clinical programme of work for PrEP
-- Initiate asthma stratification
-- Complete flu target qualification and define a lead
compound
-- The Company's general working capital requirements.
The Company anticipates that the proceeds will be invested in
these R&D programmes over the next 24 months.
4. DETAILS OF THE PLACING
The Company proposes to raise approximately GBP20.5 million,
approximately GBP20.0 million net of expenses, by way of a
conditional, non-pre-emptive placing of 9,111,111 New Ordinary
Shares at the Placing Price. The New Ordinary Shares have been
placed by Numis as agent for the Company pursuant to the Placing
Agreement with institutional and other professional investors. The
Directors had considered whether the Company would be able to
extend the offer of New Ordinary Shares to all existing
Shareholders but, having discussed this with its professional
advisers, decided that the expense of doing so could not be
justified and would not be in the best interests of the
Company.
The Placing Price represents a discount of approximately 11.6
per cent. to the closing mid-market price of the Ordinary Shares of
254.50 pence on 25 November 2015 (being the last practicable
dealing day prior to the date of this document). The New Ordinary
Shares will represent approximately 11.7 per cent. of the Ordinary
Share capital as enlarged by the Placing (assuming no other
Ordinary Shares are issued) and will, when issued, rank pari passu
in all respects with the other Ordinary Shares then in issue,
including all rights to all dividends and other distributions
declared, made or paid following Admission.
The Placing Agreement is conditional upon (amongst other things)
the Placing Agreement not having been terminated, the passing of
the Resolutions at the General Meeting and Admission occurring on
or before 8.00 a.m. on 16 December 2015 (or such later date as
Numis and the Company may agree, being not later than 8.30 a.m. on
31 December 2015).
The Placing Agreement contains warranties from the Company in
favour of Numis in relation to (amongst other things) the Group and
its business. In addition, the Company has agreed to indemnify
Numis in relation to certain liabilities it may incur in
undertaking the Placing. Numis has the right to terminate the
Placing Agreement in certain circumstances prior to Admission, in
particular, it may terminate in the event that there has been a
material breach of any of the warranties or for force majeure.
Application will be made for the New Ordinary Shares to be
admitted to trading on AIM. It is expected that dealings in the New
Ordinary Shares will commence on AIM at 8:00 a.m. on 16 December
2015.
5. RESOLUTIONS
The Company currently does not have sufficient authority to
allot the New Ordinary Shares pursuant to the Placing. Accordingly
the Resolutions, summarised below, are being proposed at the
General Meeting to ensure that the Directors have sufficient
authority to allot the New Ordinary Shares on a non-pre-emptive
basis.
Resolution 1
Resolution 1 is an ordinary resolution to grant authority to the
Directors under section 551 of the Act to allot shares in the
Company or to grant rights to subscribe for, or to convert any
security into, shares in the Company up to an aggregate nominal
amount of GBP455,556, such authority expiring on 15 January
2016.
If Resolution 1 is passed the Directors will have the authority,
under the Act, to allot Ordinary Shares up to the maximum aggregate
nominal amount of GBP455,556 (being the maximum required for the
purposes of issuing the New Ordinary Shares). This is in addition
to the authority granted by the Company at its annual general
meeting held on 21 May 2015.
Resolution 2
Resolution 2 is a special resolution, conditional upon the
passing of Resolution 1, which, if passed, will empower the
Directors, pursuant to section 570(1) of the Act, to allot equity
securities for cash pursuant to the authority conferred by
Resolution 1 up to an aggregate nominal amount of GBP455,556 on a
non-preemptive basis, such authority expiring on 15 January 2016.
This is in addition to the authority granted by the Company at its
annual general meeting held on 21 May 2015.
If passed, these authorities will enable the Directors to effect
the Placing in respect of the New Ordinary Shares on a
non-pre-emptive basis.
Resolution 1 is an ordinary resolution and requires a majority
of more than 50 per cent. of the Shareholders voting to be passed.
Resolution 2 is a special resolution and requires the approval of
not less than 75 per cent. of the Shareholders voting to be passed.
If the Resolutions are not passed by the requisite majority, the
Placing will not proceed.
The Notice of General Meeting is contained at the end of this
document and sets out the Resolutions in full. The General Meeting
is to be held at the registered office of the Company at Queen Mary
BioEnterprises Innovation Centre, 42 New Road, London E1 2AX at
10.00 a.m. on 15 December 2015.
6. ACTION TO BE TAKEN
Enclosed with the Circular is a Form of Proxy for use at the
General Meeting. Whether or not Shareholders intend to be present
at the General Meeting, they are requested to complete, sign and
return the Form of Proxy to the Company's registrars, Equiniti
Limited at Aspect House, Spencer Road, Lancing, West Sussex BN99
6DA so as to be received as soon as possible and, in any event, not
later than 10.00 a.m. on 13 December 2015.
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Shareholders that do complete and return the Form of Proxy, may
still attend and vote at the General Meeting should wish to do so.
Shareholders who hold their Ordinary Shares through a nominee
should instruct their nominees to submit a Form of Proxy on their
behalf.
7. RECOMMENDATION
The Directors consider that the Placing and the Resolutions are
in the best interests of the Company and its Shareholders as a
whole and accordingly recommend that Shareholders vote in favour of
the Resolutions, as they intend to do in respect of their own legal
and/or beneficial shareholdings, amounting, in aggregate, to
3,828,298 Ordinary Shares (representing approximately 5.6 per cent.
of the Existing Ordinary Shares).
8. CIRCULAR TO SHAREHOLDERS
The Circular is being sent to Shareholders today and will be
available on the Investor Relations section of the Company's
website at www.hvivo.com.
APPENDIX
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, THE REPUBLIC OF IRELAND 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, 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, the Republic of
Ireland 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,
the Republic of Ireland 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.
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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.hvivo.com.
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 180 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 16 December 2015 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 225 pence per new Ordinary Share.
5. An offer to take up Placing Shares which has been
communicated by a prospective Placee to Numis which has not been
withdrawn or revoked prior to publication of this Announcement will
not be capable of variation or revocation following the publication
of this Announcement.
6. Each Placee's allocation will be confirmed to Placees orally
by Numis, and evidenced by a trade confirmation or contract note
which will be dispatched as soon as practicable thereafter. The
terms of this Appendix will be deemed incorporated by reference
therein. 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.
7. Each Placee will have an immediate, separate, irrevocable and
binding obligation, owed to Numis, to pay in cleared funds
immediately on the settlement date, in accordance with the
registration and settlement requirements set out below, an amount
equal to the product of the Placing Price and the number of Placing
Shares such Placee has agreed to take up and the Company has agreed
to allot.
8. 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.
9. 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".
10. 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".
11. 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.
12. 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). 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 16 December 2015; 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 31 December 2015 (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; or
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(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.
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 or
fraud.
Registration and settlement
Settlement of transactions in the Placing Shares (ISIN:
GB00B6ZM0X53) following Admission will take place within CREST
provided that, subject to certain exceptions, Numis reserves the
right to require settlement for, and delivery of, the Placing
Shares (or a portion thereof) to Placees by such other means that
it deems necessary if delivery or settlement is not possible or
practicable within CREST within the timetable set out in this
Announcement or would not be consistent with the regulatory
requirements in any Placee's jurisdiction.
Each Placee allocated Placing Shares in the Placing will be sent
a trade confirmation or contract note 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 16 December 2015 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,
including this Appendix;
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
(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
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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 fraud or 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 they may have in
respect thereof;
10. represents and warrants that (i) it is not in the United
States and (ii) it is not acting for the account or benefit of a
person in the United States;
11. acknowledges that the Placing Shares are being offered and
sold only pursuant to Regulation S under the Securities Act in a
transaction not involving a public offering of securities in the
United States and the Placing Shares have not been and will not be
registered under the Securities Act or with any state or other
jurisdiction of the United States, nor approved or disapproved by
the US Securities and Exchange Commission, any state securities
commission in the United States or any other United States
regulatory authority, and that the offer and sale of the Placing
Shares to it has been made outside of the United States in an
'offshore transaction' (as such term is defined in Regulation S
under the Securities Act) and agrees not to reoffer, resell, pledge
or otherwise transfer the Placing Shares except pursuant to an
exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and otherwise in
accordance with any applicable securities laws of any state or
jurisdiction of the United States;
12. unless otherwise specifically agreed in writing with Numis,
represents and warrants that neither it nor the beneficial owner of
such Placing Shares will be a resident of Canada, Australia, New
Zealand, Japan, the Republic of Ireland or the Republic of South
Africa;
13. acknowledges that the Placing Shares have not been and will
not be registered under the securities legislation of Canada,
Australia, New Zealand, Japan, the Republic of Ireland 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;
(MORE TO FOLLOW) Dow Jones Newswires
November 26, 2015 02:01 ET (07:01 GMT)
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 and the Company on demand for any
shortfall below the net proceeds of such sale and the placing
proceeds of such Placing Shares and may be required to bear the
liability for any stamp duty or stamp duty reserve tax or security
transfer tax (together with any interest or penalties due pursuant
to or referred to in these terms and conditions) which may arise
upon the placing or sale of such Placee's Placing Shares on its
behalf;
25. acknowledges that none of Numis, any of its affiliates, or
any person acting on behalf of any of them, is making any
recommendations to it, advising it regarding the suitability of any
transactions it may enter into in connection with the Placing and
that participation in the Placing is on the basis that it is not
and will not be treated for these purposes as a client of Numis and
that Numis has no duties or responsibilities to it for providing
the protections afforded to their respective clients or customers
or for providing advice in relation to the Placing nor in respect
of any representations, warranties, undertakings or indemnities
contained in the Placing Agreement nor for the exercise or
performance of any of their rights and obligations thereunder
including any rights to waive or vary any conditions or exercise
any termination right;
26. undertakes that the person whom it specifies for
registration as holder of the Placing Shares will be (i) itself or
(ii) its nominee, as the case may be. Neither Numis nor the Company
will be responsible for any liability to stamp duty or stamp duty
reserve tax resulting from a failure to observe this requirement.
Each Placee and any person acting on behalf of such Placee agrees
to participate in the Placing and it agrees to indemnify the
Company and Numis in respect of the same on the basis that the
Placing Shares will be allotted to the CREST stock account of Numis
who will hold them as nominee on behalf of such Placee until
settlement in accordance with its standing settlement
instructions;
27. acknowledges that these terms and conditions and any
agreements entered into by it pursuant to these terms and
conditions and any non-contractual obligations arising out of or in
connection with such agreement shall be governed by and construed
in accordance with the laws of England and Wales and it submits (on
behalf of itself and on behalf of any person on whose behalf it is
acting) to the exclusive jurisdiction of the English courts as
regards any claim, dispute or matter (including non-contractual
matters) arising out of any such contract, except that enforcement
proceedings in respect of the obligation to make payment for the
Placing Shares (together with any interest chargeable thereon) may
be taken by the Company or Numis in any jurisdiction in which the
relevant Placee is incorporated or in which any of its securities
have a quotation on a recognised stock exchange;
28. acknowledges that time shall be of the essence as regards to
obligations pursuant to this Appendix;
29. agrees that the Company, Numis and their respective
affiliates and others will rely upon the truth and accuracy of the
foregoing representations, warranties, acknowledgements and
undertakings which are given to Numis on its own behalf and on
behalf of the Company and are irrevocable and are irrevocably
authorised to produce this Announcement, including this Appendix,
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.
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