Conditional Acquisition and Placing
THIS ANNOUNCEMENT, AND THE INFORMATION CONTAINED HEREIN, IS RESTRICTED AND NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM THE UNITED STATES OF AMERICA, CANADA, THE REPUBLIC OF SOUTH AFRICA, AUSTRALIA, JAPAN OR ANY OTHER JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL. PLEASE SEE THE IMPORTANT NOTICE AT THE END OF THIS ANNOUNCEMENT.
13 October 2015
EMPRESARIA GROUP PLC
("Empresaria" or "Group")
Conditional acquisition and £3.3m placing by way of an accelerated bookbuild
Empresaria (AIM: EMR), the international specialist staffing group, is pleased to announce the conditional acquisitions of Pharmaceutical Strategies, LLC, Recruitment Strategies, LLC, Medical Recruitment Strategies, LLC and Recruitment Strategies Group, LLC (together "PS") in conjunction with a proposed placing to raise approximately £3.3 million before expenses ("Placing").
Acquisition highlights
· Empresaria has conditionally agreed to acquire the entire issued and outstanding membership interests in PS for an aggregate consideration expected to be approximately $12.11 million ("Acquisition")
· PS is a specialist recruitment group in the United States ("US") healthcare market focussing primarily on pharmacy benefit managers ("PBM") with 100% of its revenues generated from temporary sales
· PS is profitable and cash generating. During the financial year ended 31 December 2014, PS achieved total unaudited revenues of approximately $7.6 million, unaudited net fee income ("NFI") of approximately $1.9 million and unaudited EBITDA of $0.6 million
· PS CEO tied in with second generation equity incentive, in line with the Group's management equity philosophy
· The board of directors of Empresaria (the "Directors") believe that the Acquisition will be earnings enhancing on an adjusted basis2 in the first full year of ownership and will boost the Group's temporary net fee income when compared to permanent NFI
· PS represents the Group's first acquisition in the US and will significantly increase the Group's exposure in the healthcare sector
1. Based on management expectations regarding deferred and earn-out payments for FY16 and FY17
2. Excluding amortisation of intangible assets, gains or losses on business disposals and exceptional items
Placing highlights
· Empresaria intends to raise approximately £3.3 million before expenses through a placing (the "Placing") arranged by Arden Partners plc ("Arden") of no more than 4,456,285 new ordinary shares of the Group of 5 pence each ("Placing Shares") at a price of no less than 75 pence per share with new and existing shareholders
· Based on a price of no less than 75 pence, this represents a discount of approximately 6 per cent. to the average closing price last week and a discount of approximately 12 per cent. to the closing price on 12 October 2015, being the last practicable date before this announcement
· The Placing is conditional upon, amongst other things, admission of the Placing Shares occurring ("Admission") by no later than 23 October 2015
· The Placing Shares represent approximately 9.1 per cent. of the Group's enlarged share capital following Admission (assuming a price of 75 pence per Placing Share)
· Further details of the Placing are set out below and in the appendix to this announcement
PS overview
PS is based in Stoneham (Boston), Massachusetts and has approximately 20 employees. PS has performed well in the 2015 financial year with strong demand for temporary staffing in the US healthcare sector. It is currently on track to grow revenues to an estimated $11 million, NFI to $3 million and EBITDA to $1.3m during the current financial year ending 31 December 2015.
The US healthcare market is experiencing higher patient volumes due to a variety of factors including the Affordable Care Act ("ACA"), increasing obesity levels, ageing population and improving economy points. After a slow start, ACA has picked up and the US Department of Health and Human Services projects growth in health expenditures to average 5.8% per annum between 2014 and 2024.
Summary of the acquisition terms
Under the terms of the Securities Purchase Agreement relating to the Acquisition ("SPA"), Empresaria USA Inc (a subsidiary of the Company) has conditionally agreed to acquire the entire issued and outstanding membership interests in PS ("Subject Interests") from their existing members.
The consideration for the Subject Interests ("Consideration") will be payable in cash as follows:
Initial Consideration: approximately $7.3m is payable on completion of the Acquisition ("Closing") based on (i) 100% of the estimated net assets of PS ("Net Assets Payment") and (ii) 60% of the budgeted financial performance of PS for 2015 ("T1 Payment"). The Net Assets Payment will be subject to adjustment to reflect the actual net assets of PS at Closing ("Net Assets Adjustment").
Deferred Consideration, will be payable (by 1 April 2016) based on 100% of the audited financial performance of PS for 2015 less the T1 Payment.
First earn-out Consideration, will be payable (by 1 April 2017) based on any increase in the audited financial performance of PS in 2016 over 2015.
Second earn-out Consideration, will be payable (by 1 April 2018) based on any increase in the audited financial performance of PS in 2017 over 2015.
The Consideration is subject to an aggregate minimum of approximately $9.6m and an aggregate maximum of approximately $16m (each subject to the Net Assets Adjustment).
The PS CEO has agreed to invest on Closing in the UK holding company of Empresaria USA Inc by acquiring 7.5% second generation equity ("2G Shares"). The valuation of the 2G Shares excludes the current year "threshold profits" of the underlying PS business so that, whilst the existing value of PS is retained by the Company, the PS CEO is incentivised to grow the PS business beyond the current year "threshold profits" level. In line with the Group's other management equity arrangements, the 2G shares are not subject to any put or call options; rather they must be held for five years before they can be voluntarily offered for sale over a minimum of a further three years.
The Group expects to use the proceeds of the Placing to part fund the Acquisition. The remainder of the Acquisition costs will be funded by a new debt facility agreement of £4.5 million entered into with HSBC Bank plc on 9 October 2015 and from future cash flows of the Group.
The Placing
Empresaria announces a placing of up to 4,456,285 Placing Shares. The Placing Shares represent approximately 9.1 per cent. of Empresaria's issued share capital immediately following Admission and the number of ordinary shares of Empresaria in issue would increase from 44,562,847 ordinary shares immediately prior to the Placing to 49,019,132 ordinary shares upon Admission (assuming a price of 75 pence per Placing Share).
The Placing will not be structured as a rights issue or open offer and the Placing Shares will not be offered generally to Group's existing shareholders ("Shareholders") on a pre-emptive basis. Participation in the Placing will be limited to certain institutional investors and the Chairman who have indicated their intention to participate. The Placing Shares are not being made available to the public and are not being offered or sold in, into or from the United States of America, Canada, the Republic of South Africa, Australia, Japan or any other jurisdiction where it would be unlawful to do so.
The Placing Shares will be issued credited as fully paid and will rank pari passu with the existing 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 conducted by way of an accelerated bookbuild process ("Bookbuild"). Arden will be acting as sole bookrunner in relation to the Bookbuild. The Bookbuild will commence with immediate effect following this announcement.
The number of Placing Shares and the aggregate proceeds to be raised through the Placing will be finally determined following completion of the Bookbuild process. A further announcement in respect of these details will be made following completion of the Bookbuild process. The timing of the closing of the book and allocations are at the discretion of Arden and the Group.
The Board believes that raising equity finance using the flexibility provided by a non pre-emptive placing is the most appropriate and optimal structure for the Group at this time. This allows both existing institutional Shareholders and new institutional investors the opportunity to participate in the Placing and avoids the requirement for a prospectus, which is a costly and time consuming process. This also enables the vendor of PS to complete the Acquisition in a prompt manner.
The Group has received an indication of intention to participate in the Placing from certain existing Shareholders and from the Chairman. Further details of the Placing and the Chairman's confirmed participation will be set out in the announcement to be made on the closing of the Bookbuild which is expected to be made later today.
Application will be made to the London Stock Exchange for the Placing Shares to be admitted to trading on AIM. It is expected that admission to AIM will become effective and that dealings on AIM will commence in, the Placing Shares, on or around 19 October 2015.
The Placing is being undertaken pursuant to a placing agreement entered into between the Company and Arden ("Placing Agreement"), whereby Arden has agreed to procure subscribers for the Placing Shares by way of the Bookbuild on a reasonable endeavours basis. The Placing is not being underwritten by Arden or any other person. The Placing is not conditional upon the Acquisition being completed. In the unlikely event that the Placing is completed and completion of the Acquisition does not take place, the Directors will apply the proceeds of the Placing towards the working capital of the Group. The Placing is subject to the terms and conditions which are set out in the Appendix and which form a part of this announcement. By choosing to participate in the Placing and by subscribing for Placing Shares, investors will be deemed to have read and understood this announcement in its entirety, including the Appendix, and to be making such offer subject to the terms and conditions contained herein.
The Placing is conditional upon, amongst other things, Admission becoming effective and the Placing Agreement between the Group and Arden becoming unconditional and not being terminated, in accordance with its terms.
Chief Executive Officer, Joost Kreulen said:
"We are very pleased to be announcing the acquisition of PS, a business that is a strong strategic fit and clearly complementary to our Group. This increases our presence in the healthcare sector with entry to the high growth US market. It also further diversifies the Group's geographic spread and is in line with our temporary recruitment bias. PS operates solely in the professional market, delivers strong operating KPIs and is expected to be earnings enhancing on an adjusted basis in its first full year."
"We look forward to welcoming the PS team and continuing to drive the wider Group's growth going forward."
- Ends -
Enquiries:
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Empresaria Group plc Joost Kreulen, Chief Executive Officer Spencer Wreford, Group Finance Director
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via Redleaf |
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Arden Partners (Nominated Adviser and Broker) |
020 7614 5900 |
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Redleaf Communications (Financial PR) |
020 7382 4730 empresaria@redleafpr.com |
Notes for editors:
· Empresaria Group plc is an international specialist staffing group with 18 brands operating in 18 countries across the globe including UK, Germany, Japan, Indonesia, China, India, Chile, Thailand, Singapore, Finland, UAE and Australia.
· The Group offers both temporary and permanent staffing solutions in several sectors including Financial, IT Digital & Design, Technical & Industrial, Healthcare and Retail.
· Empresaria applies a multi brand, management equity philosophy and business model, with Group company management teams holding significant equity in their own business.
· The Group is listed on AIM under ticker EMR. For more information: http://www.empresaria.com/
APPENDIX - TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR PLACEES ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS DOCUMENT AND THE TERMS AND CONDITIONS SET OUT AND REFERRED TO HEREIN ARE DIRECTED ONLY AT PERSONS SELECTED BY ARDEN PARTNERS PLC (THE "BOOKRUNNER" OR "ARDEN") WHO ARE (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA WHO ARE "QUALIFIED INVESTORS", AS DEFINED IN ARTICLE 2.1(E) OF DIRECTIVE 2003/71/EC AS AMENDED (THE "PROSPECTIVE DIRECTIVE") AND (B) IF IN THE UNITED KINGDOM, PERSONS WHO (I) HAVE 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 AS AMENDED (THE "FPO") OR FALL WITHIN THE DEFINITION OF "HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS ETC" IN ARTICLE 49(2)(A) TO (D) OF THE FPO AND (II) ARE "QUALIFIED INVESTORS" AS DEFINED IN SECTION 86 OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 ("FSMA") OR (C) OTHERWISE TO PERSONS TO WHOM IT MAY OTHERWISE LAWFULLY BE COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). THIS DOCUMENT AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS.
DISTRIBUTION OF THIS DOCUMENT IN CERTAIN JURISDICTIONS MAY BE RESTRICTED OR PROHIBITED BY LAW OR REGULATION. PERSONS DISTRIBUTING THIS DOCUMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO.
Empresaria Group plc ("Empresaria" or the "Company") The new Ordinary Shares in the capital of the Company that are the subject of the Placing (the "Placing Shares") have not been and will not be registered under the United States Securities Act of 1933, as amended (the "Securities Act") or under the securities laws of any state or other jurisdiction of the United States and may not be offered, sold, resold or delivered, directly or indirectly, in or into the United States , except pursuant to an exemption from or in a transaction not subject to the registration requirements of the Securities Act . No public offering of the Placing Shares is being made in the United States. The Placing (as defined below) is being made solely outside the United States to persons in offshore transactions (as defined in Regulation S under the Securities Act ("Regulation S")) meeting the requirements of Regulation S. Persons receiving this document (including custodians, nominees and trustees) must not forward, distribute, mail or otherwise transmit it in or into the United States or use the United States mails, directly or indirectly, in connection with the Placing.
This document does not constitute an offer to sell or issue or a solicitation of an offer to buy or subscribe for Placing Shares in any jurisdiction including, without limitation, the United States, Canada, Australia, Japan, the Republic of South Africa or any other jurisdiction in which such offer or solicitation is or may be unlawful (a "Prohibited Jurisdiction"). This document and the information contained herein are not for publication or distribution, directly or indirectly, to persons in a Prohibited Jurisdiction unless permitted pursuant to an exemption under the relevant local law or regulation in any such jurisdiction. No action has been taken by the Company, the Bookrunner or any of their respective Affiliates (as defined below) that would permit an offer of the Placing Shares or possession or distribution of this document or any other publicity material relating to such Placing Shares in any jurisdiction where action for that purpose is required. Persons receiving this document are required to inform themselves about and to observe any such restrictions.
Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of this document should seek appropriate advice before taking any action.
Any indication in this document of the price at which the existing ordinary shares in the capital of the Company (the "Ordinary Shares") have been bought or sold in the past cannot be relied upon as a guide to future performance. Persons needing advice should consult an independent financial adviser. No statement in this document is intended to be a profit forecast and no statement in this document 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.
Arden, which is authorised and regulated in the United Kingdom by the FCA, is acting for Empresaria and for no one else in connection with the Placing and will not be responsible to anyone other than Empresaria for providing the protections afforded to clients of Arden or for affording advice in relation to the Placing, or any other matters referred to herein.
By participating in the Placing, each person who is invited to and who chooses to participate in the Placing (a "Placee") by making or accepting an oral offer to take up Placing Shares is deemed to have read and understood this document in its entirety (including this Appendix) and to be providing the representations, warranties, undertakings, agreements and acknowledgements contained herein.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, REGULATORY, TAX, BUSINESS AND RELATED ASPECTS OF A PURCHASE OF PLACING SHARES.
Details of the Placing Agreement and the Placing Shares
The Company has today entered into a placing agreement (the "Placing Agreement") with the Bookrunner. Pursuant to the Placing Agreement, Arden has, subject to the terms set out therein, agreed to use reasonable endeavours, as agents of the Company, to procure Placees for the Placing Shares (the "Placing").
The Placing Shares will, when issued be subject to the articles of association of the Company, be credited as fully paid and will rank pari passu in all respects with each other and with 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 issue of the Placing Shares.
The Placing Shares will be issued free of any encumbrance, lien or other security interest.
Application for listing and admission to trading
Application will be made to London Stock Exchange plc ("London Stock Exchange") for admission to trading ("Admission") of the Placing Shares on AIM, a market operated by the London Stock Exchange ("AIM"). It is anticipated that Admission will become effective on or around 8.00 a.m. on 19 October 2015 and that dealings in the Placing Shares will commence at that time.
Bookbuild
Commencing today, the Bookrunner will be conducting an accelerated bookbuilding process (the "Bookbuilding Process") to determine demand for participation in the Placing by Placees. This document gives details of the terms and conditions of, and the mechanics of participation in, the Placing.
Participation in, and principal terms of, the Bookbuilding Process
Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by the Bookrunner. The Bookrunner and its Affiliates is entitled to participate as a Placee in the Bookbuilding Process.
The Bookbuilding Process will establish a single price in Pounds Sterling (the "Placing Price") payable to the Bookrunner by all Placees whose bids are successful.
The books will open with immediate effect. The Bookbuilding Process is expected to close not later than 4.30 p.m. London time on 13 October 2015, but may be closed earlier at the discretion of the Bookrunner. A further announcement will be made following the close of the Bookbuilding Process detailing the Placing Price at which the Placing Shares are being placed along with the precise number of shares to be subscribed for by the Placees at the Placing Price (the "Pricing Announcement"). The Bookrunner may, in agreement with the Company, accept bids that are received after the Bookbuilding Process has closed.
A bid in the Bookbuilding Process will be made on the terms and conditions in this document and will be legally binding on the Placee on behalf of which it is made and, except with the Bookrunner's consent, will not be capable of variation or revocation after the close of the Bookbuilding Process.
A Placee who wishes to participate in the Bookbuilding Process should communicate its bid by telephone to its usual sales contact at the Bookrunner. Each bid should state the number of Placing Shares which the prospective Placee wishes to subscribe for at either the Placing Price which is ultimately established by the Company and the Bookrunner or at prices up to a price limit specified in its bid. If successful, the Bookrunner will re-contact and confirm orally to Placees following the close of the Bookbuilding Process the size of their respective allocations and a trade confirmation will be despatched as soon as possible thereafter. The Bookrunner's oral confirmation of the size of allocations and each Placee's oral commitments to accept the same will constitute an irrevocable legally binding agreement in favour of the Company and the Bookrunner pursuant to which each such Placee will be required to accept the number of Placing Shares allocated to the Placee at the Placing Price set out in the Pricing Announcement and otherwise on the terms and subject to the conditions set out herein and in accordance with the Company's articles of association. Each Placee's allocation and commitment will be evidenced by a trade confirmation issued to such Placee by the Bookrunner. The terms of this Appendix will be deemed incorporated in that trade confirmation. Each such Placee will have an immediate, separate, irrevocable and binding obligation, owed to the Bookrunner, to pay it or (as it may direct) one of its Affiliates in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares allocated to such Placee.
The Bookrunner reserves the right to scale back the number of Placing Shares to be subscribed by any Placee in the event of an oversubscription under the Placing. The Bookrunner also reserves the right not to accept offers to subscribe for Placing Shares or to accept such offers in part rather than in whole. The acceptance of offers shall be at the absolute discretion of the Bookrunner. The Bookrunner shall be entitled to effect the Placing by such alternative method to the Bookbuilding Process as they shall in their absolute discretion determine. The Company reserves the right (upon agreement with the Bookrunner) to reduce or seek to increase the amount to be raised pursuant to the Placing.
To the fullest extent permissible by law, none of Arden, any holding company of Arden, any subsidiary of Arden, any subsidiary of any such holding company, any branch, affiliate or associated undertaking of any such company nor any of their respective directors, officers and employees (each an "Affiliate") nor any person acting on their behalf 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 Bookrunner, any of its Affiliates nor any person acting on their behalf shall have any liability (including, to the extent legally permissible, any fiduciary duties), in respect of its conduct of the Bookbuilding Process or of such alternative method of effecting the Placing as the Bookrunner and the Company may determine. No commissions will be paid to Placees or by Placees in respect of any Placing Shares.
Each Placee's obligations will be owed to the Company and to the Bookrunner. Following the oral confirmation referred to above, each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to the Company and the Bookrunner as agent of the Company, to pay to the Bookrunner (or as the Bookrunner 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. The Bookrunner will procure the allotment of the Placing Shares by the Company to each Placee.
All obligations of the Bookrunner under the Placing will be subject to fulfilment of the conditions referred to below under "Conditions of the Placing".
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 the Bookrunner under the Placing Agreement are conditional, amongst other things, on:
1. the warranties on the part of the Company contained in the Placing Agreement being true and accurate and not misleading on and as of the date of the Placing Agreement and on the date of Admission, as though they had been given and made on such date by reference to the facts and circumstances then subsisting;
2. the performance by the Company of its obligations under the Placing Agreement to the extent that they fail to be performed prior to Admission;
3. the acquisition agreement dated 12 October 2015 relating to the acquisition by the Company of the whole of the membership interests of PS. (the "Acquisition Agreement") having been entered into by the parties thereto and remaining in full force and effect and having not lapsed or been terminated prior to Admission; (ii) so far as the Company is aware, there being no condition to completion of the Acquisition Agreement which is incapable of being satisifed; and (iii) no event having arisen at any time prior to Admission which gives any party to the Acquisition Agreement a right to terminate it
4. the facilities agreement between the Company and HSBC Bank plc dated 9 October 2015 (the "Facilities Agreement") having been entered into by the parties and remaining in full force and effect and having not lapsed or been terminated prior to Admission; (ii) each condition to drawdown under the Facilities Agreement having been satisfied or unconditionally waived and (iii) no event having arisen at any time prior to Admission which gives any party to the Facilities Agreement a right to terminate it; and
5. Admission occurring not later than 8.00 a.m. on 19 October 2015 or such later time as the Bookrunner may agree in writing with the Company (but in any event not later than 8.00 a.m. on 23 October 2015).
If (a) the conditions are not fulfilled (or to the extent permitted under the Placing Agreement waived by the Bookrunner), or (b) the Placing Agreement is terminated in the circumstances specified below, the Placing will lapse and each Placee's rights and obligations hereunder shall cease and determine at such time and no claim may be made by a Placee in respect thereof. None of the Bookrunner, 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 it may make as to whether or not to waive or to extend the time and/or date for the satisfaction of any condition in the Placing Agreement or in respect of the Placing generally.
By participating in the Placing, each Placee agrees that its rights and obligations hereunder terminate only in the circumstances described below under "Right to terminate under the Placing Agreement".
Right to terminate under the Placing Agreement
The Bookrunner may, at any time before Admission and in its absolute discretion, terminate the Placing Agreement with immediate effect if, amongst other things:
1. any of the Warranties was, when given, untrue, inaccurate or misleading; or
2. the Company has failed to comply with any of its obligations under the Placing Agreement; or
3. there has occurred, in the Bookrunner's opinion, acting in good faith, a material adverse change or any event or circumstance which might reasonably result in such material adverse change in, or affecting, the business, management, operations, assets, liabilities, solvency, credit rating, position or prosepects (financial trading or otherwise) or profits of the Company or the Group (as the case may be) whether or not arising in the ordinary course of business.
By participating in the Placing, each Placee agrees with the Bookrunner that the exercise by the Bookrunner of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of the Bookrunner and that the Bookrunner needs make any reference to the Placees in this regard and that, to the fullest extent permitted by law, neither of the Bookrunner shall have any liability whatsoever to the Placees in connection with any such exercise.
No Prospectus
No offering document or prospectus has been or will be prepared in relation to the Placing and no such prospectus is required (in accordance with the Prospectus Directive) to be published and Placees' commitments will be made solely on the basis of the information contained in this document and any information previously published by or on behalf of the Company by notification to a Regulatory Information Service. Each Placee, by accepting a participation in the Placing, agrees that the content of this document is exclusively the responsibility of the Company and confirms to the Bookrunner and the Company that it has neither received nor relied on any information, representation, warranty or statement made by or on behalf of the Bookrunner (other than the amount of the relevant Placing participation in the oral confirmation given to Placees and the trade confirmation referred to below), any of its Affiliates, any persons acting on its behalf or the Company and none of the Bookrunner, any of its Affiliates, any persons acting on their behalf, nor the Company will be liable for the decision of any Placee to participate in the Placing based on any other information, representation, warranty or statement which the Placee may have obtained or received (regardless of whether or not such information, representation, warranty or statement was given or made by or on behalf of any such persons). By participating in the Placing, each Placee acknowledges to and agrees with the Bookrunner for itself and as agent for the Company that, except in relation to the information contained in this document, it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placing. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
Registration and settlement
Settlement of transactions in the Placing Shares following Admission will take place within the CREST system, using the DVP mechanism, subject to certain exceptions. The Bookrunner reserves the right to require settlement for and delivery of the Placing Shares to Placees by such other means that they deem necessary, if delivery or settlement is not possible or practicable within the CREST system within the timetable set out in this document or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
The expected timetable for settlement will be as follows:
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Trade Date |
14 October 2015 |
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Settlement Date |
19 October 2015 |
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ISIN Code |
GB00B0358N07 |
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SEDOL |
B0358N0 |
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Deadline for input instruction into CREST |
3.00p.m. on 15 October 2015 |
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CREST ID for Arden |
DAQAQ |
Each Placee allocated Placing Shares in the Placing will be sent a trade confirmation stating the number of Placing Shares allocated to it, the Placing Price, the aggregate amount owed by such Placee to the Bookrunner and settlement instructions. Placees should settle against the Arden CREST ID shown above. It is expected that such trade confirmation will be despatched on the expected trade date shown above. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions which it has in place with the Bookrunner.
It is expected that settlement will take place on the Settlement Date shown above on a DVP basis in accordance with the instructions set out in the trade confirmation unless otherwise notified by the Bookrunner.
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 the base rate of Barclays Bank Plc.
Each Placee is deemed to agree that if it does not comply with these obligations, the Bookrunner may sell any or all of the Placing Shares allocated to the Placee on such Placee's behalf and retain from the proceeds, for the Bookrunner's own account and profit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The Placee will, however, remain liable for any shortfall below the aggregate amount owed by such Placee and it 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, the Placee 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 the Placee's name or that of its nominee or in the name of any person for whom the Placee is contracting as agent or that of a nominee for such person, such Placing Shares will, subject as provided below, be so registered free from any liability to PTM levy, stamp duty or stamp duty reserve tax. If there are any circumstances in which any other stamp duty or stamp duty reserve tax is payable in respect of the issue of the Placing Shares, neither the Bookrunner nor the Company shall be responsible for the payment thereof. Placees will 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):
1. represents and warrants that it has read and understood this document in its entirety (including this Appendix) and acknowledges that its participation in the Placing will be governed by the terms of this document (including this Appendix);
2. acknowledges that no prospectus or offering document has been or will be prepared in connection with the Placing and it has not received and will not receive a prospectus or other offering document in connection with the Bookbuilding Process, the Placing or the Placing Shares;
3. agrees to indemnify on an after-tax basis and hold harmless each of the Company, the Bookrunner, their respective Affiliates and any person acting on their behalf 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 document and further agrees that the provisions of this document shall survive after completion of the Placing;
4. acknowledges that the Placing Shares of the Company will be admitted to AIM and the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the London Stock Exchange (the "Exchange Information") and that the Placee is able to obtain or access this Exchange Information without undue difficulty;
5. acknowledges that none of the Bookrunner, any of its Affiliates or any person acting on their behalf has provided, and will not provide it with any material or information regarding the Placing Shares or the Company; nor has it requested any of the Bookrunner, nor any of its Affiliates nor any person acting on their behalf to provide it with any such material or information;
6. acknowledges that the content of this document is exclusively the responsibility of the Company and that none of the Bookrunner, nor any of its Affiliates nor any person acting on their behalf will be responsible for or shall have any liability for any information, representation or statement relating to the Company contained in this document or any information previously published by or on behalf of the Company and none of the Bookrunner, nor any of its Affiliates nor any person acting on their behalf will be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this document 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 to subscribe for the Placing Shares is contained in this document 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 relied on its own investigation with respect to the Placing Shares and the Company in connection with its decision to subscribe for the Placing Shares and acknowledges that it is not relying on any investigation that the Bookrunner, any of its Affiliates or any person acting on their behalf may have conducted with respect to the Placing Shares or the Company and none of such persons has made any representations to it, express or implied, with respect thereto;
7. acknowledges that it 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 is aware that it may be required to bear, and is able to bear, the economic risk of, and is able to sustain, a complete loss in connection with the Placing. It has had sufficient time to consider and conduct its own investigation with respect to the offer and subscription for the Placing Shares, including the tax, legal and other economic considerations and has relied upon its own examination and due diligence of the Company and its affiliates taken as a whole, and the terms of the Placing, including the merits and risks involved;
8. represents and warrants that it has neither received nor relied on any confidential price sensitive information concerning the Company in accepting its invitation to participate in the Placing;
9. acknowledges that it has not relied on any information relating to the Company contained in any research reports prepared by the Bookrunner, its Affiliates or any person acting on their or any of its Affiliates' behalf and understands that (i) none of the Bookrunner, nor any of its Affiliates nor any person acting on their behalf has or shall have any liability for public information or any representation; (ii) none of the Bookrunner, nor any of its Affiliates, nor any person acting on their behalf has or shall have any liability for any additional information that has otherwise been made available to such Placee, whether at the date of publication, the date of this document or otherwise; and that (iii) none of the Bookrunner, nor any of its Affiliates, nor any person acting on their behalf makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of such information, whether at the date of publication, the date of this document or otherwise;
10. represents and warrants that (i) it is entitled to acquire the Placing Shares under the laws and regulations of all relevant jurisdictions which apply to it; (ii) it has fully observed such laws and regulations and obtained all such governmental and other guarantees and other consents and authorities which may be required thereunder and complied with all necessary formalities; (iii) it has all necessary capacity to commit to participation in the Placing and to perform its obligations in relation thereto and will honour such obligations; (iv) it has paid any issue, transfer or other taxes due in connection with its participation in any territory; and (v) it has not taken any action which will or may result in the Company, either of the Bookrunner, any of its Affiliates or any person acting on their behalf being in breach of the legal and/or regulatory requirements of any territory in connection with the Placing;
11. represents and warrants that it understands that the Placing Shares have not been and will not be registered under the Securities Act or under the securities laws of any state or other jurisdiction of the United States and are not being offered or sold within the United States , except pursuant to an exemption from, or in a transaction not subject to the registration requirements of the Securities Act;
12. represents and warrants that its acquisition of the Placing Shares has been or will be made in an "offshore transaction" as defined in and pursuant to Regulation S;
13. represents and warrants that it will not offer or sell, directly or indirectly, any of the Placing Shares in the United States except in accordance with Regulation S or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act;
14. represents and warrants that, if it is a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, 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" as defined in Article 2.1(e) of the Prospectus Directive, or in circumstances in which the prior consent of the Bookrunner has been given to the offer or resale;
15. represents and warrants 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 the Prospectus Directive;
16. 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 FSMA) relating to the Placing Shares in circumstances in which it is permitted to do so pursuant to section 21 of FSMA;
17. represents and warrants 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;
18. represents and warrants that it has complied with its obligations in connection with money laundering and terrorist financing under the Criminal Justice Act 1993, section 118 of FSMA, the Proceeds of Crime Act 2002 (as amended), the Terrorism Act 2000, the Terrorism Act 2006, the Anti-terrorism Crime and Security Act 2001 ,the Money Laundering Regulations (2007) (the "Regulations") and the Money Laundering Sourcebook of the FCA and, if it is 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;
19. if in the United Kingdom, represents and warrants that it is (a) a person falling within Article 19(5) of the FPO or (b) a person falling within Article 49(2)(a) to (d) of the FPO 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;
20. if in the United Kingdom, represents and warrants that it is a qualified investor as defined in section 86(7) of FSMA, being a person falling within Article 2.1(e)(i), (ii) or (iii) of the Prospectus Directive;
21. represents and warrants that its participation in the Placing would not give rise to an offer being required to be made by it or any person with whom it is acting in concert pursuant to Rule 9 of the City Code on Takeovers and Mergers;
22. undertakes that it (and any person acting on its behalf) will pay for the Placing Shares acquired by it in accordance with this document on the due time and date set out herein against delivery of such Placing Shares to it, failing which the relevant Placing Shares may be placed with other Placees or sold as the Bookrunner may, in its absolute discretion, determine and it will remain liable for any shortfall below the net proceeds of such sale and the placing proceeds of such Placing Shares and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties due pursuant to the terms set out or referred to in this document) which may arise upon the sale of such Placee's Placing Shares on its behalf;
23. acknowledges that none of the Bookrunner, nor any of its Affiliates nor any person acting on their behalf is making any recommendations to it or advising it regarding the suitability or merits of any transaction it may enter into in connection with the Placing, and acknowledges that none of the Bookrunner, nor any of its Affiliates nor any person acting on their behalf has any duties or responsibilities to it for providing advice in relation to the Placing or in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement or for the exercise or performance of any of the Bookrunner's rights and obligations thereunder, including any right to waive or vary any condition or exercise any termination right contained therein;
24. undertakes that (i) the person whom it specifies for registration as holder of the Placing Shares will be (a) the Placee or (b) the Placee's nominee, as the case may be, (ii) neither the Bookrunner 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 and (iii) the Placee and any person acting on its behalf agrees to acquire the Placing Shares on the basis that the Placing Shares will be allotted to the CREST stock account of the Bookrunner which will hold them as settlement agent as nominee for the Placee until settlement in accordance with its standing settlement instructions with payment for the Placing Shares being made simultaneously upon receipt of the Placing Shares in the Placee's stock account on a delivery versus payment basis;
25. acknowledges that 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 courts of England and Wales as regards any claim, dispute or matter arising out of any such contract;
26. acknowledges that it irrevocably appoints any director of the Bookrunner as its agent for the purposes of executing and delivering to the Company and/or its registrars any documents on its behalf necessary to enable it to be registered as the holder of any of the Placing Shares agreed to be taken up by it under the Placing;
27. represents and warrants that it is not a resident of any Prohibited Jurisdiction and acknowledges that the Placing Shares have not been and will not be registered nor will a prospectus be cleared in respect of the Placing Shares under the securities legislation of any Prohibited Jurisdiction and, subject to certain exceptions, may not be offered, sold, taken up, renounced, delivered or transferred, directly or indirectly, within any Prohibited Jurisdiction;
28. represents and warrants that any person who confirms to the Bookrunner on behalf of a Placee an agreement to subscribe for Placing Shares and/or who authorises the Bookrunner to notify the Placee's name to the Company's registrar, has authority to do so on behalf of the Placee;
29. acknowledges that the agreement to settle each Placee's acquisition of Placing Shares (and/or the acquisition of a person for whom it is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to an acquisition by it and/or such person direct from the Company of the Placing Shares in question. Such agreement assumes that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer the Placing Shares into a clearance service. If there were any such arrangements, or the settlement related to other dealing in the Placing Shares, stamp duty or stamp duty reserve tax may be payable, for which neither the Company nor the Bookrunner will be responsible. If this is the case, the Placee should take its own advice and notify the Bookrunner accordingly;
30. acknowledges that the Placing Shares will be issued and/or transferred subject to the terms and conditions set out in this document (including this Appendix);
31. acknowledges that when a Placee or any person acting on behalf of the Placee is dealing with the Bookrunner, any money held in an account with the Bookrunner 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 relevant rules and regulations of the FCA. 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 the Bookrunner money in accordance with the client money rules and will be used by the Bookrunner in the course of its business; and the Placee will rank only as a general creditor of the Bookrunner (as the case may be);
32. acknowledges and understands that the Company, the Bookrunner, and others will rely upon the truth and accuracy of the foregoing representations, warranties, agreements, undertakings and acknowledgements;
33. acknowledges that the basis of allocation will be determined by the Bookrunner at its absolute discretion. The right is reserved to reject in whole or in part and/or scale back any participation in the Placing;
34. irrevocably authorises the Company and the Bookrunner to produce this announcement pursuant to, in connection with, or as maybe required by any applicable law or regulation, administrative or legal proceeding or official inquiry with respect to the matters set forth herein; and
35. that its commitment to subscribe for Placing Shares on the terms set out herein 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.
The acknowledgements, agreements, undertakings, representations and warranties referred to above are given to each of the Company and the Bookrunner (for their own benefit and, where relevant, the benefit of their respective Affiliates and any person acting on their behalf) and are irrevocable.
No claim shall be made against the Company, the Bookrunner, their respective Affiliates or any other person acting on behalf of any of such persons by a Placee to recover any damage, cost, charge or expense which it may suffer or incur by reason of or arising from the carrying out by it of the work to be done by it pursuant hereto or the performance of its obligations hereunder or otherwise in connection with the Placing.
No UK stamp duty or stamp duty reserve tax should be payable to the extent that the Placing Shares are issued or transferred (as the case may be) into CREST to, or to the nominee of, a Placee who holds those shares beneficially (and not as agent or nominee for any other person) within the CREST system and registered in the name of such Placee or such Placee's nominee.
Any arrangements to issue or transfer the Placing Shares into a depositary receipts system or a clearance service or to hold the Placing Shares as agent or nominee of a person to whom a depositary receipt may be issued or who will hold the Placing Shares in a clearance service, or any arrangements subsequently to transfer the Placing Shares, may give rise to stamp duty and/or stamp duty reserve tax, for which neither the Company nor the Bookrunner 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 stamp duty or stamp duty reserve tax undertakes to pay such stamp duty or stamp duty reserve tax forthwith and to indemnify on an after-tax basis and to hold harmless the Company and the Bookrunner in the event that any of the Company and/or either of the Bookrunner has incurred any such liability to stamp duty or stamp duty reserve tax.
In addition, Placees should note that they will be liable for any capital duty, 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 acquisition by them of any Placing Shares or the agreement by them to acquire any Placing Shares.
All times and dates in this document may be subject to amendment. The Bookrunner shall notify the Placees and any person acting on behalf of the Placees of any such changes.
This document has been issued by the Company and is the sole responsibility of the Company.
Each Placee, and any person acting on behalf of the Placee, acknowledges that the Bookrunner 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 the Bookrunner 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.
The rights and remedies of the Bookrunner and the Company under these terms and conditions are in addition to any rights and remedies which would otherwise be available to each of them and the exercise or partial exercise or partial exercise of one will not prevent the exercise of others.
Each Placee may be asked to disclose in writing or orally to the Bookrunner:
(a) if he is an individual, his nationality; or
(b) if he is a discretionary fund manager, the jurisdiction in which the funds are managed or owned.
This information is provided by RNS
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