Proposed Placing of New Ordinary Shares
23 January 2013
NOT FOR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN OR SOUTH AFRICA
Big Yellow Group PLC
("Big Yellow" or the "Company" and, together with its subsidiaries, the "Group")
PROPOSED Placing of new ordinary Shares
Big Yellow announces today its intention to place up to 10 million new ordinary shares of 10 pence each in the capital of the Company (the "Placing").
Highlights
§ Big Yellow is the market leading brand in the UK self storage sector
§ Placing of up to 10 million new ordinary shares
- The proceeds will be used specifically to reduce debt and accelerate the achievement of the previously stated objective of the Group enjoying four times interest cover at the pre-interest cash flow level;
- This will enable the Company to rebase its dividend policy. The intention is to move to an increased payout of 80% of adjusted EPS commencing with the year ending 31 March 2014, a proportion of which will be payable at the interim stage;
- Following the Placing, the Group will also be in a position to proceed with the phased development of three existing sites with planning consent that it has previously acquired (expected capital expenditure of £14.3 million). We anticipate that this will be largely funded out of free cash flow; and
- The Group continues to track other site acquisition opportunities across the market, focusing on London.
§ Members of the Board (Nicholas Vetch, James Gibson, Richard Cotton and Mark Richardson) intend to invest in aggregate up to £320,000 in the Placing
Introduction
The Board of Big Yellow announces today its intention to raise additional equity capital through a placing of up to 10 million new ordinary shares of 10 pence each in the capital of Big Yellow (the "Placing Shares"), representing approximately 7.5% of the Company's existing issued share capital, with both existing shareholders and new institutional investors.
The Placing is being conducted through an accelerated book-build process which will be launched immediately following this announcement, in accordance with the terms and conditions set out in the Appendix to this announcement.
J.P. Morgan Securities plc (which conducts its UK investment banking business under the name J.P. Morgan Cazenove) ("JPMC") has been appointed sole bookrunner in respect of the Placing.
Background to and reasons for the Placing
For some time, the Company has set out a clear financial strategy to reduce debt and achieve pre-interest cash flow cover of at least four times the annual interest cost, with the objective of achieving a dividend step up to 80% of adjusted EPS after that has been achieved, which would take approximately two years. The Placing allows the Group to accelerate that plan.
Since April 2008, the Group has spent £83 million on acquiring and developing new stores. The Group has also invested £10 million through equity contributions towards developing stores within Big Yellow Limited Partnership over the same period. The Group has three remaining stores with planning consent that have been previously acquired and, following the Placing, the Group will also be in a position to proceed with the development of these stores with an estimated cost to complete of £14.3 million. The three stores are:
· Gypsy Corner, West London, highly visible site on the A40 in Acton, West London with planning consent for a 70,000 sq ft store;
· Enfield, North London, prominent site on the A10 Great Cambridge Road, London with planning consent for a 60,000 sq ft store; and
· Guildford Central, prime location in the centre of Guildford on Woodbridge Meadows with planning consent for a 56,000 sq ft store.
At 75% occupancy, these three stores are expected to produce a cash yield on the incremental capital that is required to be deployed, of in excess of 20%.
In addition, the Group continues to track other site acquisition opportunities across the market, particularly in London.
Current Trading
As set out in the recent interim management statement on 14 January 2013, January has started positively with a return to more normal trading and an encouraging book of reservations. Management now look forward to the seasonally busier period.
Details of the Placing
Under the terms of the Placing, Big Yellow intends to place up to 10 million Placing Shares, representing approximately 7.5% of the current issued ordinary share capital of the Company, with existing shareholders and new institutional investors.
Members of the Board (Nicholas Vetch, James Gibson, Richard Cotton and Mark Richardson) intend to invest in aggregate up to £320,000 in the Placing. Members of the public are not entitled to participate in the Placing.
The timing of the closing of the book, pricing and allocations is at the discretion of JPMC. The number of Placing Shares and the price at which the Placing Shares are to be placed (the "Placing Price") are subject to agreement between the Company and JPMC at the close of the book-building process. Details of the number of Placing Shares and the Placing Price will be announced as soon as practicable after the close of the book-building process.
The Placing Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing ordinary shares of 10 pence each in the capital of the Company (the "Ordinary Shares"), including the right to receive all dividends and other distributions declared, made or paid on or in respect of such shares after the date of issue of the Placing Shares. The Placing will be made on a non-pre-emptive basis.
The Company has made an application to the Financial Services Authority (the "FSA") for admission of the Placing Shares to the Official List of the UK Listing Authority (the "Official List") and to the London Stock Exchange for admission to trading on its main market for listed securities (together, "Admission"). It is expected that Admission will become effective on or around 28 January 2013 and that dealings in the Placing Shares will commence at that time.
The Placing is conditional upon, amongst other things, Admission becoming effective and the Placing Agreement between the Company and JPMC becoming unconditional and not being terminated, in accordance with its terms.
The Appendix to this announcement (which forms part of the announcement) sets out the terms and conditions of the Placing.
Commenting on the Placing, Nicholas Vetch, Big Yellow's Executive Chairman, said:
"We hold the view that, on a long term basis, lower leveraged businesses produce higher returns to shareholders, whilst enjoying less volatility.
This equity raise allows the Board to accelerate its stated strategy of deleveraging whilst giving the Company some flexibility to expand its portfolio of stores and consolidate its brand dominance in London and the South East. It also enables us to increase the dividend pay-out ratio as we believe that income is viewed by our shareholders as an important component of their total return."
For further information, please contact:
Big Yellow 01276 477 811
Nicholas Vetch (Executive Chairman)
James Gibson (Chief Executive)
John Trotman (Chief Financial Officer)
Address: 2 The Deans, Bridge Road, Bagshot GU19 5AT
Fax: 01276 470 191
Website: www.bigyellow.co.uk
J.P. Morgan Cazenove 020 7742 4000
Robert Fowlds
Bronson Albery
Barry Meyers
Weber Shandwick 020 7067 0700
Nick Oborne
John Moriarty
Disclaimer
This announcement has been issued by and is the sole responsibility of the Company. This announcement is for information only and does not constitute an offer or invitation to underwrite, subscribe for or otherwise acquire or dispose of any securities or investment advice in any jurisdiction in which such an offer or solicitation is unlawful, including without limitation, the United Kingdom, Australia, Canada, Japan or South Africa. No prospectus will be made available in connection with the matters contained in this announcement. Persons needing advice should consult an independent financial adviser.
This announcement, including the appendix and the information contained herein is not an offer of securities for sale in the United States. The securities discussed herein have not been and will not be registered under the US Securities Act of 1933, as amended (the "US Securities Act") and may not be offered or sold in the United States absent registration or an exemption from registration under the US Securities Act. No public offering of the securities discussed herein is being made in the United States and the information contained herein does not constitute an offering of securities for sale in the United States, Australia, Canada, Japan, South Africa or any jurisdiction in which the same would be unlawful. This announcement is not for distribution directly or indirectly in or into the United States, Australia, Canada, Japan or South Africa. No money, securities or other consideration is being solicited and, if sent in response to the information herein, will not be accepted. There will be no public offer of Ordinary Shares in the United States, the United Kingdom or elsewhere.
The distribution of this announcement and the Placing of the Placing Shares as set out in this announcement in certain jurisdictions may be restricted by law. No action has been taken that would permit an offering of such shares or possession or distribution of this announcement or any other offering or publicity material relating to such shares in any jurisdiction where action for that purpose is required. Persons into whose possession this announcement comes are required to inform themselves about, and to observe, such restrictions. Any failure to comply with these restrictions may constitute a violation of the securities laws of any such jurisdiction.
This announcement is directed only at persons (i) having professional experience in matters relating to investments who fall within the definition of "investment professionals" in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the "Order") or (ii) who are high net worth entities falling within Article 49(2)(a) to (d) of the Order, and other persons to whom it may otherwise lawfully be communicated (all such persons together being referred to as "relevant persons"). This announcement must not be acted or relied on in the United Kingdom by persons who are not relevant persons.
In member states of the European Economic Area, this announcement is only addressed to and directed at persons who are "qualified investors" within the meaning of Article 2(1)(e) of the Prospectus Directive (Directive 2003/71/EC and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) and including any relevant implementing measure in each Relevant Member State) (the "Prospectus Directive") ("Qualified Investors").
J.P. Morgan Securities plc (which conducts its UK investment banking business under the name J.P. Morgan Cazenove) ("JPMC"), which is authorised and regulated in the United Kingdom by the Financial Services Authority, is acting for the Company in connection with the Placing and no-one else and will not be responsible to anyone other than the Company for providing the protections afforded to clients of JPMC nor for providing advice in relation to the Placing. 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 the Company or JPMC or by any of their respective affiliates or agents 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 therefor is expressly disclaimed.
Certain statements in this announcement are forward-looking statements which are based on the Company's expectations, intentions and projections regarding its future performance, anticipated events or trends and other matters that are not historical facts. These forward-looking statements, which may use words such as "aim", "anticipates", "believe", "intend", "estimate", "expect" and words of similar meaning, include all matters that are not historical facts. These forward-looking statements involve risks and uncertainties that could cause the actual results of operations, financial condition, liquidity, dividend policy and the development of the industry in which the Company's business operates to differ materially from the impression created by the forward-looking statements. These statements are not guarantees of future performance and are subject to known and unknown risks, uncertainties and other factors that could cause actual results to differ materially from those expressed or implied by such forward-looking statements. Given these risks and uncertainties, prospective investors are cautioned not to place undue reliance on forward-looking statements. Forward-looking statements speak only as of the date of such statements and, except as required by the FSA, the London Stock Exchange or applicable law, the Company undertakes no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise.
Any indication in this announcement of the price at which Ordinary Shares have been bought or sold in the past cannot be relied upon as a guide to future performance. No statement in this announcement is intended to be a profit forecast and no statement in this announcement should be interpreted to mean that earnings per share of the Company for the current or future financial years would necessarily match or exceed the historical published earnings per share of the Company. The price of Ordinary Shares and the income from them may go down as well as up and investors may not get back the full amount invested on disposal of the Placing Shares.
The Placing Shares to be issued pursuant to the Placing will not be admitted to trading on any stock exchange other than the London Stock Exchange plc.
Neither the content of the Company's website (or any other website) nor the content of any website accessible from hyperlinks on the Company's website (or any other website) is incorporated into, or forms part of, this announcement.
APPENDIX
TERMS AND CONDITIONS
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING
Details of the Placing Agreement and of the Placing Shares
J.P. Morgan Securities plc (which conducts its UK investment banking business under the name J.P. Morgan Cazenove) ("JPMC") and the Company have today entered into a placing agreement (the "Placing Agreement") under which, on the terms and subject to the conditions set out therein, JPMC has agreed to use reasonable endeavours to procure placees (the "Placees") for up to 10,000,000 new ordinary shares in the capital of the Company of nominal value 10 pence each (the "Placing Shares") at a price determined following completion of an accelerated bookbuild process (the "Placing"). In accordance with the terms of the Placing Agreement and a subscription and transfer agreement between the Company, JPMC and a Jersey incorporated subsidiary of the Company (the "Subscription and Transfer Agreement"), JPMC has agreed, subject to agreement with the Company as to the number and price of the Placing Shares to be placed with Placees, to underwrite the settlement risk in the event that any Placees fail to take up their allocation of the Placing Shares. The issue of the Placing Shares is to be effected by way of a cashbox placing.
The Placing Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing ordinary shares in the Company (the "Ordinary Shares"), including the right to receive all dividends and other distributions declared, made or paid in respect of the Ordinary Shares after the date of admission of the Placing Shares. The allotment and issue of the Placing Shares will be made by the Company to Placees in consideration for the transfer to the Company of certain shares in a Jersey incorporated subsidiary of the Company by JPMC.
Application for listing and admission to trading
Application will be made to the Financial Services Authority (the "FSA") for admission of the Placing Shares to the Official List of the UK Listing Authority (the "Official List") and to the London Stock Exchange for admission to trading on its main market for listed securities (together, "Admission"). It is expected that Admission will become effective on or around 28 January 2013 and that dealings in the Placing Shares will commence at that time.
Bookbuild
JPMC will today commence the bookbuilding process to determine demand for participation in the Placing by Placees (the "Bookbuild"). 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.
JPMC shall be entitled to effect the Placing by such alternative method to the Bookbuild as it may, in its absolute discretion following consultation with the Company, determine.
Participation in, and principal terms of, the Placing
1. JPMC is acting as sole bookrunner and agent of the Company in connection with the Placing.
2. Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by JPMC. JPMC and its affiliates are entitled to enter bids in the Bookbuild as principal.
3. The Bookbuild will establish a single price payable to JPMC by all Placees whose bids are successful (the "Placing Price"). The Placing Price and the number of Placing Shares will be agreed between JPMC and the Company following completion of the Bookbuild and any discount to the market price of the Ordinary Shares will be determined in accordance with the Listing Rules published by the FSA. The Placing Price and the number of Placing Shares will be announced on a Regulatory Information Service ("RIS") following the completion of the Bookbuild (the "Pricing Announcement").
4. To bid in the Bookbuild, Placees should communicate their bid by telephone to their usual sales contact at JPMC. Each bid should state the number of Placing Shares which the prospective Placee wishes to acquire at either the Placing Price which is ultimately established by the Company and JPMC or at prices up to a price limit specified in its bid. Bids may be scaled down by JPMC on the basis referred to in paragraph 8 below.
5. A bid in the Bookbuild will be made on the terms and subject to the conditions in this announcement and will be legally binding on the Placee on behalf of which it is made and except with JPMC's consent will not be capable of variation or revocation after the time at which it is submitted. Each Placee will have an immediate, separate, irrevocable and binding obligation, owed to JPMC, to pay it (or as it may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares such Placee has agreed to acquire and the Company has agreed to allot. Each Placee's obligations will be owed to JPMC.
6. The Bookbuild is expected to close no later than 4.30 p.m. (GMT) on 23 January 2013 but may be closed earlier or later at the sole discretion of JPMC. JPMC may, in agreement with the Company, accept bids that are received after the Bookbuild has closed.
7. Each prospective Placee's allocation will be agreed between JPMC and the Company and will be confirmed orally by JPMC (as agent for the Company) following the close of the Bookbuild and a trade confirmation will be despatched thereafter. JPMC's oral confirmation to such Placee will constitute an irrevocable legally binding commitment upon that person (who will at that point become a Placee) in favour of JPMC and the Company to subscribe for 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. All obligations under the Bookbuild and Placing will be subject to fulfilment of the conditions referred to below under "Conditions of the Placing" and to the Placing not being terminated on the basis referred to below under "Right to terminate under the Placing Agreement". By participating in the Bookbuild, each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.
8. JPMC may choose to accept bids, either in whole or in part, on the basis of allocations determined in agreement with the Company and may scale down any bids for this purpose on such basis as they may determine. JPMC may also, notwithstanding paragraphs 4 and 5 above and subject to prior consent of the Company (i) allocate Placing Shares after the time of any initial allocation to any person submitting a bid after that time and (ii) allocate Placing Shares after the Bookbuild has closed to any person submitting a bid after that time. The Company reserves the right (upon agreement with JPMC) to reduce or seek to increase the amount to be raised pursuant to the Placing, in its absolute discretion.
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. Except as required by law or regulation, no press release or other announcement will be made by JPMC 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.
11. To the fullest extent permissible by law, neither JPMC nor any of its affiliates shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither JPMC nor any of its affiliates shall have any liability (including to the extent permissible by law, any fiduciary duties) in respect of JPMC's conduct of the Bookbuild or of such alternative method of effecting the Placing as JPMC and the Company may agree.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional and not having been terminated in accordance with its terms. The obligations of JPMC under the Placing Agreement in respect of the Placing Shares are conditional on, inter alia:
(a) agreement being reached between the Company and JPMC on the Placing Price and the number of Placing Shares to be issued pursuant to the Placing;
(b) the representations and warranties of the Company contained in the Placing Agreement being true and accurate and not misleading on the date of the Placing Agreement and at all times up to and including Admission (by reference to the facts and circumstances then existing);
(c) the Company complying with its obligations under the Placing Agreement to the same extent the same fall to be performed or satisfied prior to Admission;
(d) Admission taking place by 8.00 a.m. (GMT) on 28 January 2013 (or such later date as the Company and JPMC may otherwise agree); and
(e) the Company, allotting subject only to Admission, the Placing Shares in accordance with the Placing Agreement.
If any of the conditions contained in the Placing Agreement are not fulfilled or waived by JPMC by the respective time or date specified (or such later time and/or date as the Company and JPMC may agree), the Placing will not proceed and the Placees' 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.
JPMC may, at its discretion and upon such terms as it thinks fit, waive 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 in the Placing Agreement 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.
None of JPMC nor the Company nor any of their respective affiliates 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 the 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 JPMC.
Lock-up
The Company has agreed with JPMC that it will not, and will procure that none of its subsidiaries will (save as required by law or the rules or standards of the London Stock Exchange or the Listing Rules), without the prior written consent of JPMC (such consent not to be unreasonably withheld or delayed), for a period beginning on the date of this announcement and ending 90 days later, (i) offer, pledge, sell, contract to sell, grant any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, any Ordinary Shares or other shares in the capital of the Company or any securities convertible into or exchangeable for Ordinary Shares or other shares in the capital of the Company or (ii) enter into any swap or other arrangement that transfers to another, in whole or part, any of the economic consequences of ownership of Ordinary Shares or other shares in the capital of the Company, whether any such transaction described in (i) or (ii) above is to be settled by delivery of Ordinary Shares or other shares in the capital of the Company or such other securities, in cash or otherwise, provided that the foregoing shall not prevent or restrict the grant of options under, or the allotment and issue of shares pursuant to options or other rights under, any employee share schemes, long term incentive plans, employee share options or bonus plans of the Company (in accordance with its normal practice) or the cancellation of the Company's treasury shares.
Right to terminate under the Placing Agreement
JPMC is entitled, at its absolute discretion, at any time before Admission to terminate the Placing Agreement by giving notice to the Company if, amongst other things. (i) any of the Company's warranties, representations or undertakings contained in the Placing Agreement are not or cease to be true and accurate or have become misleading, in respect of a matter which is material; or (ii) in the opinion of JPMC (acting in good faith), there is a breach by the Company of its obligations under the Placing Agreement, the Subscription and Transfer Agreement or the option agreement entered into between JPMC and the Company to give effect to the cashbox placing arrangements; or (iii) there has been a material adverse change in, or affecting, the operations, properties, condition (financial or other), trading position or prospects or results of operation or general affairs of the Company and its subsidiaries taken as a whole, since the date of the Placing Agreement; or (iv) the occurrence of a force majeure event as specified in the Placing Agreement which, in the opinion of JPMC, is of such severity or magnitude as to make it impracticable or inadvisable to proceed with the Placing.
Upon such termination, the parties to the Placing Agreement shall be released and discharged (except for any liability arising before or in relation to such termination) from their respective obligations under or pursuant to the Placing Agreement, subject to certain exceptions.
By participating in the Placing, Placees agree that the exercise by JPMC of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of JPMC and that it does not need to make any reference to Placees and that it shall have no liability to Placees whatsoever in connection with any such exercise or failure so to exercise.
No Prospectus
No offering document or prospectus has been or will be submitted to be approved by the FSA or submitted to the London Stock Exchange in relation to the Placing and Placees' commitments will be made solely on the basis of the information contained in this announcement (including this Appendix) released by the Company today and any information publicly announced to a RIS by or on behalf of the Company prior to the date of this announcement and subject to the further terms set forth in the contract note to be provided to individual prospective Placees.
Each Placee, by accepting a participation in the Placing, agrees that the content of this announcement (including this Appendix) is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of the Company or JPMC or any other person and none of the Company or JPMC nor any of their respective affiliates will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Placing. Nothing in this paragraph shall exclude or limit the liability of any person for fraudulent misrepresentation by that person.
Registration and settlement
Settlement of transactions in the Placing Shares following Admission will take place within the system administered by Euroclear UK & Ireland Limited ("CREST"), subject to certain exceptions. JPMC and the Company reserve the right to require settlement for and delivery of the Placing Shares (or a portion thereof) to Placees in certificated form if delivery or settlement is not possible or practicable within the CREST system or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Following the close of the Bookbuild for the Placing, each Placee allocated Placing Shares in the Placing will be sent a contract note stating the number of Placing Shares to be allocated to it at the Placing Price and settlement instructions. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with the standing CREST or certificated settlement instructions that it has in place with JPMC.
The Company will deliver the Placing Shares to a CREST account operated by JPMC as the Company's agent and JPMC will enter its delivery (DEL) instruction into the CREST system. The input to CREST by a Placee of a matching or acceptance instruction will then allow delivery of the relevant Placing Shares to that Placee against payment.
It is expected that settlement will be on 28 January 2013 on a delivery versus payment basis in accordance with the instructions set out in the trade confirmation.
Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out above at the rate of two percentage points above LIBOR as determined by JPMC.
Each Placee is deemed to agree that, if it does not comply with these obligations, JPMC may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for JPMC's account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the trade confirmation 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. Placees shall not be entitled to receive any fee or commission in connection with the Placing.
Representations and warranties
By participating in the Placing each Placee (and any person acting on such Placee's behalf) irrevocably acknowledges, confirms, undertakes, represents, warrants and agrees (as the case may be) with JPMC (in its capacity as bookrunner and placing agent of the Company, in each case as a fundamental term of their application for Placing Shares), the following:
(a) it has read and understood this announcement, including this Appendix, in its entirety and that its subscription of Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, acknowledgements, agreements and undertakings and other information contained herein;
(b) that no offering document or prospectus has been or will be prepared in connection with the Placing and it has not received a prospectus or other offering document in connection with the Bookbuild, the Placing or the Placing Shares;
(c) that the Ordinary Shares in the capital of the Company are listed on the Official List of the UK Listing Authority and admitted to trading on the Main Market of the London Stock Exchange, and that the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the FSA and that it is able to obtain or access such information, or comparable information concerning any other publicly traded company, in each case without undue difficulty;
(d) that neither JPMC nor the Company nor any of their respective affiliates nor any person acting on behalf of either of them has provided, and none of them will provide, it with any material regarding the Placing Shares or the Company or any other person other than this announcement; nor has it requested JPMC, the Company, any of their respective affiliates or any person acting on behalf of either of them to provide it with any such information;
(e) unless otherwise specifically agreed with JPMC, that neither it nor the beneficial owner of the Placing Shares is, or at the time the Placing Shares are acquired, neither it nor the beneficial owner of the Placing Shares will be, a resident of Australia, Canada, Japan or South Africa and further acknowledges that the Placing Shares have not been and will not be registered under the securities legislation of the United States, Australia, Canada, Japan or South Africa and, subject to certain exceptions, may not be offered, sold, transferred, delivered or distributed, directly or indirectly, in or into those jurisdictions;
(f) that:
(i) it (i) is not within the United States, has not been in the United States at the time of any communication regarding the Placing Shares and will not be within the United States at the time that any buy order for Placing Shares is originated by it or (ii) is a "qualified institutional buyer" as defined in Rule 144A under the Securities Act or (iii) is excluded from the definition of "US person" under paragraph (k)(2)(iv) of Rule 902 under the Securities Act or is holding accounts excluded from the definition of "US person" under paragraph (k)(2)(i) of the Securities Act and is acting solely in its capacity as holder of such accounts;
(ii) it is not within Australia, Canada, Japan, South Africa or any other jurisdiction in which it is unlawful to make or accept an offer to acquire the Placing Shares; and
(iii) it is not acquiring the Placing Shares with a view to the offer, sale, resale, transfer, delivery or distribution, directly or indirectly, of any such Placing Shares into the United States, except in reliance on Rule 144 or Rule 144A (to the extent at that time available), or into any other jurisdiction referred to in (ii) above;
(g) that the content of this announcement is exclusively the responsibility of the Company and that neither JPMC nor any person acting on its behalf has or shall have any liability for any information, representation or statement contained in this announcement or any information previously or subsequently published by or on behalf of the Company, including, without limitation, any information required to be published by the Company pursuant to applicable laws (the "Exchange Information") 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 subscribe for the Placing Shares is contained in this announcement and any information previously published by the Company by notification to a RIS, 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 JPMC or the Company and neither JPMC 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 has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placing. None of JPMC, the Company or any of their respective affiliates has made any representations to it, express or implied, with respect to the Company, the Placing and the Placing Shares or the accuracy, completeness or adequacy of the Exchange Information, and each of them express disclaims any liability in respect thereof. Nothing in this paragraph or otherwise in this announcement excludes the liability of any person for fraudulent misrepresentation made by that person;
(h) that it has complied with its obligations under the Criminal Justice Act 1993, section 118 of the Financial Services and Markets Act 2000 ("FSMA") and in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002 (as amended), the Terrorism Act 2000, the Terrorism Act 2006, the Money Laundering Regulations 2007 (the "Regulations") and the Money Laundering Sourcebook of the FSA 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;
(i) that it is acting as principal only in respect of the Placing or, if it is acting for any other person: (i) it is duly authorised to do so and has full power to make the acknowledgments, representations and agreements herein on behalf of each such person; and (ii) it is and will remain liable to the Company and/or JPMC for the performance of all its obligations as a Placee in respect of the Placing (regardless of the fact that it is acting for another person);
(j) if a financial intermediary, as that term is used in Article 3(2) of the EU Prospectus Directive (which shall mean Directive 2003/71/EC and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) (the "Prospectus Directive"), that the Placing Shares subscribed by it in the Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in a member state of the European Economic Area other than qualified investors, or in circumstances in which the prior consent of JPMC has been given to the proposed offer or resale;
(k) that it has not offered or sold and will not offer or sell any Placing Shares to the public in any member state of the European Economic Area except in circumstances falling within Article 3(2) of the Prospectus Directive which do not result in any requirement for the publication of a prospectus pursuant to Article 3 of that Directive;
(l) that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) relating to the Placing Shares in circumstances in which section 21(1) of FSMA does not require approval of the communication by an authorised person;
(m) that it has complied and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving, the United Kingdom;
(n) if in a Member State of the European Economic Area, unless otherwise specifically agreed with JPMC in writing, that it is a "qualified investor" within the meaning of Article 2(1)(e) of the Prospectus Directive;
(o) if in the United Kingdom, that it is a person (i) having professional experience in matters relating to investments who falls within the definition of "investment professionals" in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the "Order") or (ii) who falls 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 lawfully be communicated;
(p) that no action has been or will be taken by either the Company or JPMC or any person acting on behalf of the Company or JPMC 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;
(q) that it and any person acting on its behalf is entitled to acquire the Placing Shares under the laws of all relevant jurisdictions which apply to it and that it has fully observed such laws and obtained all such governmental and other guarantees, permits, authorisations, approvals and consents which may be required thereunder and complied with all necessary formalities and that it has not taken any action or omitted to take any action which will or may result in JPMC, the Company or any of their respective directors, officers, agents, employees or advisers acting in breach of the legal or regulatory requirements of any jurisdiction in connection with the Placing;
(r) that it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to its participation in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this announcement) and will honour such obligations;
(s) 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 JPMC may in its absolute discretion determine and without liability to such Placee;
(t) that its allocation (if any) of Placing Shares will represent a maximum number of Placing Shares which it will be entitled, and required, to subscribe for, and that JPMC or the Company may call upon it to subscribe for a lower number of Placing Shares (if any), but in no event in aggregate more than the aforementioned maximum;
(u) 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 JPMC 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 indemnify the Company and JPMC in respect of the same on the basis that the Placing Shares will be allotted to the CREST stock account of JPMC who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions;
(v) that neither JPMC, nor any of its affiliates, nor any person acting on its behalf, is making any recommendations to it or, advising it regarding the suitability of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be a client of JPMC and that JPMC does not have any duties or responsibilities to it for providing the protections afforded to JPMC's clients or customers or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
(w) that in making any decision to subscribe for the Placing Shares, it has knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of subscribing for or purchasing the Placing Shares. It further confirms that it is experienced in investing in securities of this nature in this sector and is aware that it may be required to bear, and is able to bear, the economic risk of participating in, and is able to sustain a complete loss in connection with, the Placing. It further confirms that it relied on its own examination and due diligence of the Company and its associates taken as a whole, and the terms of the Placing, including the merits and risks involved, and not upon any view expressed or information provided by or on behalf of JPMC ;
(x) that in connection with the Placing, JPMC and any of its affiliates acting as an investor for its own account may take up Placing Shares in the Company and in that capacity may retain, purchase or sell for its own account such Placing Shares in the Company and any securities of the Company or related investments and may offer or sell such securities or other investments otherwise than in connection with the Placing. JPMC does not intend to disclose the extent of any such investment or transactions otherwise than in accordance with any legal or regulatory obligation to do so;
(y) that these terms and conditions and any agreements entered into by it pursuant to these terms and conditions and any non-contractual obligations arising out of or in connection with such agreements shall be governed by and construed in accordance with the laws of 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 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 JPMC 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;
(z) that the Company, JPMC and their respective affiliates and others will rely upon the truth and accuracy of the representations, warranties and acknowledgements set forth herein and which are given to JPMC on its own behalf and on behalf of the Company and are irrevocable and it irrevocably authorises the Company and JPMC to produce this announcement, pursuant to, in connection with, or as may be required by any applicable law or regulation, administrative or legal proceeding or official inquiry with respect to the matters set forth herein; and
(aa) that it will indemnify and hold the Company and JPMC 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.
The foregoing representations, warranties and confirmations are given for the benefit of the Company as well as JPMC. Each Placee, and any person acting on behalf of the Placee, acknowledges that JPMC does not owe any fiduciary or other duties to any Placee in respect of any representations, warranties, undertakings or indemnities in the Placing Agreement.
By participating in the Placing, each Placee (and any person acting on the Placee's behalf) subscribing for Placing Shares acknowledges that the Placing Shares have not been and will not be registered under the Securities Act and that the Placing Shares are being offered and sold only (i) to "qualified institutional buyers" as defined in, and on reliance on, Rule 144A under the Securities Act or (ii) pursuant to Regulation S under the Securities Act in an "offshore transaction" as defined in Regulation S under the Securities Act.
Please also note that the agreement to allot and issue Placing Shares to Placees (or the persons for whom Placees are contracting as agent) free of stamp duty and stamp duty reserve tax in the UK relates only to their allotment and issue to Placees, or such persons as they nominate as their agents, direct from the Company for the Placing Shares in question. The Company and JPMC are not liable to bear any transfer taxes that arise on a sale of Placing Shares subsequent to their acquisition by Placees or for transfer taxes arising otherwise than under the laws of the United Kingdom. Each Placee should, therefore, take its own advice as to whether any such transfer tax liability arises. Furthermore, each Placee agrees to indemnify on an after-tax basis and hold JPMC and/or the Company and their respective affiliates harmless from any and all interest, fines or penalties in relation to stamp duty, stamp duty reserve tax and all other similar duties or taxes to the extent that such interest, fines or penalties arise from the unreasonable default or delay of that Placee or its agent.
Each Placee and any person acting on behalf of each Placee acknowledges and agrees that JPMC or any of its affiliates may, at their absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares.
When a Placee or person acting on behalf of the Placee is dealing with JPMC, any money held in an account with JPMC on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the FSA made under FSMA. The Placee acknowledges that the money will not be subject to the protections conferred by the client money rules; as a consequence, this money will not be segregated from JPMC's money in accordance with the client money rules and will be used by JPMC in the course of its own business; and the Placee will rank only as a general creditor of JPMC.
All times and dates in this announcement may be subject to amendment by JPMC (in its absolute discretion). JPMC shall notify the Placees and any person acting on behalf of the Placees of any changes.
This information is provided by RNS
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