Proposed placing
THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE, TRANSMISSION DISTRIBUTION OR FORWARDING, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN OR THE REPUBLIC OF SOUTH AFRICA OR ANY JURISDICTION IN WHICH SUCH PUBLICATION, RELEASE OR DISTRIBUTION WOULD BE UNLAWFUL.
FURTHER, THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND IS NOT AN OFFER OF SECURITIES IN ANY JURISDICTION.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION.
For immediate release
24 June 2020
Young & Co.'s Brewery, P.L.C.
("Young's" or the "Company")
Proposed placing of new A ordinary shares and new non-voting ordinary shares
Young's, a leading premium pub group, today announces its intention to conduct a placing of new A ordinary shares in the capital of the Company ("A Placing Shares") and new non-voting ordinary shares in the capital of the Company ("NV Placing Shares" and together with the A Placing Shares, the "Placing Shares" ) (the "Placing").
The Placing is being conducted through an accelerated bookbuild which will be launched immediately following the release of this announcement (the "Announcement") and will be made available to new and existing eligible institutional investors (the "Bookbuild"). J.P. Morgan Securities plc, which conducts its UK investment banking activities as J.P. Morgan Cazenove ("J.P. Morgan") and Panmure Gordon (UK) Limited ("Panmure Gordon") are acting as joint bookrunners in connection with the Placing (the "JointBookrunners"). The price at which the A Placing Shares are to be placed (the "APlacing Price") and the price at which the NV Placing Shares are to be placed (the "NV Placing Price") will be determined at the close of the Bookbuild.
In conjunction with the Placing, there will be an offer made by Young's on the PrimaryBid platform of new A ordinary shares in the capital of the Company (the "Retail Offer Shares") at the A Placing Price (the "Retail Offer") to provide retail investors with an opportunity to participate in the equity fundraising alongside institutional investors. A separate announcement will be made shortly regarding the Retail Offer and its terms.
In addition, in conjunction with the Placing and the Retail Offer, certain directors of the Company and/or persons closely associated with them intend to subscribe for new A ordinary shares in the capital of the Company and new non-voting ordinary shares in the capital of the Company (the "Subscription Shares") at the A Placing Price and the NV Placing Price respectively (the "Subscription").
Together, the total number of Placing Shares, Subscription Shares and Retail Offer Shares will not exceed 19.9% of the Company's existing ordinary share capital.
The Company's Board of Directors (the "Board") has concluded the Placing is in the best interests of shareholders and wider stakeholders and is expected to drive the continued success and faster growth of Young's.
Background to the Placing:
Following the outbreak of the COVID-19 pandemic and following the UK Government's instructions in March 2020, Young's closed all of its pub estate. This led to a significant impact on the Company's FY 2020 financial results (March year-end). For FY 2020, Young's delivered adjusted EBITDA of £71.8 million (on a pre-IFRS 16 basis), which was negatively impacted by an estimated £7.7 million loss of operating profit from COVID-19 and also did not reflect the full financial benefit of investments and acquisitions made in FY 2019 and FY 2020. FY 2020 EBITDA adjusted for the impact of COVID-19 on March 2020 trading and pro-forma for investments and acquisitions in the last two years (assuming 50% of which not yet realised, at c.10% ROCE1)2 would be £86.4 million.
Since the closure of its pubs, Young's has undertaken various operational measures aimed at preserving cash in the business. These included postponing all but essential maintenance capital investments, furloughing the vast majority of pub and support teams and reducing operating expenses.
Young's has also strengthened its liquidity position to secure its business. The Company refinanced the £50.0 million of term loan that was due to expire in March 2021, with a new five-year facility expiring in 2025. Furthermore, Young's issued £30.0 million in commercial paper under the Covid Corporate Financing Facility and also entered into an additional revolving credit facility of £20.0 million with one of its existing lending banks. The Company has successfully negotiated with its existing lender group to waive certain of its existing financial covenants until June 2021 and has replaced these with a monthly minimum liquidity test until then. However, certain facilities recently put in place restrict the Company's ability to invest freely in its estate and make acquisitions. The Board has also decided to suspend the final dividend for FY 2020 and the interim dividend for FY 2021.
As of 18 June 2020, Young's had in place £285.0 million of cash and committed facilities and net debt of £227 million (on a pre-IFRS 16 basis).
1 ROCE defined as EBITDA / capex spend.
2 £6.9m - assuming 50% of FY 2019 and FY 2020 investments in estate and acquisitions (£138m) and c.10% ROCE
Reasons for the Placing:
The net proceeds of the Placing will provide Young's with the financial flexibility to drive its continued success and faster growth, including:
1) Restart investments in Young's estate
Young's strategy is to operate premium, well-invested and individually managed houses across prime locations in London and southern England. The Company has an active investment strategy aimed at growing the business through the combination of investing in its existing pub estate and opportunity-led acquisitions. The estate investments include significant refurbishments to maintain the high standards Young's customers expect as well as new developments to increase and make more efficient each pub's trading spaces. Over the past five years, Young's has invested £131 million in its existing estate. Such investments have generated attractive returns for Young's, delivering, on average, approximately a 17% return on capital employed from key development projects3. The Company believes that continued investment in its estate enables industry-leading growth, having achieved an average 5% like-for-like growth over the period FY 2011 - FY 2019 from managed houses.
The COVID-19 related shutdown has impacted Young's investment plans with £36 million of planned capex being suspended. The proceeds from the Placing will allow the Company to re-start such investments once its pub estate reopens. In the medium term, the Company expects to continue its investments at a rate of approximately £40 million per annum in the medium term, with a targeted return on capital deployed of no less than 15%.
3 Based on key estate development projects between FY-2015 and FY-2019.
2) Strengthen the balance sheet
Young's has historically kept a conservative financial profile. Over the last five years, Young's leverage was maintained at a low 2x net debt / EBITDA (pre-IFRS 16) whilst at the same time investing £274 million in its estate and in acquisitions and returning £47 million to shareholders by way of dividends. On average for the past five years, the Company's net debt stood at £152 million. Despite the cash conservation measures outlined above, Young's has continued to see a cash outflow during the period in which the Covid-19 pandemic has forced its pubs to close. At the end of FY 2020, the Company's net debt increased to £199 million, implying a leverage ratio of 2.8x net debt / EBITDA (pre-IFRS16); significantly higher than its historical average. As of 18 June 2020, Young's net debt was £227 million.
3) Pursue opportunistic acquisitions
Selective opportunistic acquisitions are part of Young's achieving its growth strategy. Acquisitions are focused on the locations of the pubs as well attractive economics, with investment criteria targeting at least a 10% return on acquisitions. In the past five years, Young's has invested approximately £140 million through disciplined bolt-on acquisitions. Most recently, these include the acquisition of 15 Redcomb pubs in 2019 and five managed pubs in and around Surrey in 2020. These acquisitions complement the existing Young's managed house estate both in and around London, as well as build on a growing presence in the South West.
Details of the Placing
The Placing is subject to the terms and conditions set out in the Appendix to this announcement (which forms part of this announcement, such announcement and the Appendix together being this "Announcement"). The Joint Bookrunners will today commence the Bookbuild.
The book will open with immediate effect following this Announcement. The timing of the closing of the book, pricing and allocations are at the absolute discretion of the Joint Bookrunners and the Company. Details of the A Placing Price, the NV Placing Price and the number of Placing Shares will be announced as soon as practicable after the close of the bookbuild process.
The A Placing Shares, when issued, will be credited as fully paid and will rank pari passu in all respects with the existing A ordinary shares of 12.5 pence each in the capital of the Company, including as to the right to vote and the right to receive all dividends and other distributions declared, made or paid after the date of issue. The NV Placing Shares, when issued, will be credited as fully paid and will rank pari passu in all respects with the existing non-voting ordinary shares of 12.5 pence each in the capital of the Company, including as to the right to receive all dividends and other distributions declared, made or paid after the date of issue. In accordance with the Company's articles of association, holders of the A ordinary shares have the right to receive notices of general meetings and to attend, speak and vote at them; those rights do not apply to holders of the non-voting ordinary shares. Holders of the A ordinary shares and the non-voting ordinary have equal rights for all purposes with respect to participation in the profits or assets of the Company.
Application will be made to the London Stock Exchange plc (the "London Stock Exchange") for admission to trading of the Placing Shares, the Retail Offer Shares and the Subscription Shares on the AIM market operated by the London Stock Exchange ("AIM") ("Admission"). Settlement for the Placing Shares, the Retail Offer Shares and the Subscription Shares and Admission is expected to become effective not later than 8.00 a.m. (London time) on 29 June 2020 (or such later time and/or date as the Joint Bookrunners may agree with the Company) (the "Closing Date") and that dealings in the Placing Shares, the Retail Offer Shares and the Subscription Shares will commence at that time. The Placing, the Retail Offer and the Subscription are each conditional upon, amongst other things, Admission becoming effective and upon the placing agreement between the Company and the Joint Bookrunners not being terminated in accordance with its terms.
The Appendix sets out further information relating to the bookbuild process and the terms and conditions of the Placing.
Contacts:
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Young & Co.'s Brewery, P.L.C Patrick Dardis, Chief Executive / Mike Owen, Chief Financial Officer
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020 8875 7000 |
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J.P. Morgan Cazenove (AIM nominated adviser and joint broker) James Mitford / Anastasia Volnova Barry Meyers / Edward Digby
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020 7742 4000 |
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Panmure Gordon (joint broker) Erik Anderson / Daniel Norman Oliver Cardigan / Alex Penney
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020 7886 2500 |
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MHP Communications Tim Rowntree / Alistair de Kare-Silver youngs@mhpc.com
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07551 170 451/ 020 3128 8527 |
IMPORTANT NOTICES
This announcement including its Appendix (the "Announcement") and the information contained in it is not for publication, release, transmission distribution or forwarding, in whole or in part, directly or indirectly, in or into the United States, Australia, Canada, Japan or the Republic of South Africa or any other jurisdiction in which publication, release or distribution would be unlawful. This Announcement is for information purposes only and does not constitute an offer to sell or issue, or the solicitation of an offer to buy, acquire or subscribe for shares in the capital of the Company in the United States, Australia, Canada, Japan or the Republic of South Africa or any other state or jurisdiction. This Announcement has not been approved by the London Stock Exchange. Any failure to comply with these restrictions may constitute a violation of the securities laws of such jurisdictions.
The Placing Shares have not been and will not be registered under the U.S. Securities Act of 1933, as amended (the "Securities Act") or with any securities regulatory authority of any state or other jurisdiction of the United States and may not be offered, sold, pledged, taken up, exercised, resold, renounced, transferred or delivered, directly or indirectly, in or into the United States absent registration under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and in compliance with any applicable securities laws of any state or other jurisdiction of the United States. The Placing Shares have not been approved, disapproved or recommended by the U.S. Securities and Exchange Commission, any state securities commission in the United States or any other U.S. regulatory authority, nor have any of the foregoing authorities passed upon or endorsed the merits of the offering of the Placing Shares. Subject to certain exceptions, the securities referred to herein may not be offered or sold in the United States, Australia, Canada, Japan, the Republic of South Africa or to, or for the account or benefit of, any national, resident or citizen of the United States, Australia, Canada, Japan, the Republic of South Africa.
No public offering of securities is being made in the United States.
In Canada, t he Placing Shares may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the Placing Shares must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws. Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this Announcement (or any subsequent announcement amending or supplementing this Announcement) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser's province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser's province or territory for particulars of these rights or consult with a legal advisor. Pursuant to section 3A.3 of National Instrument 33-105 Underwriting Conflicts ("NI 33-105"), the Managers are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.
In Switzerland, the offering of the Placing Shares is exempt from the requirement to prepare and publish a prospectus under the Swiss Financial Services Act ("FinSA") because such offering is made to professional clients within the meaning of the FinSA only and the Placing Shares will not be admitted to trading on any trading venue (exchange or multilateral trading facility) in Switzerland. This Announcement does not constitute a prospectus pursuant to the FinSA, and no such prospectus has been or will be prepared for or in connection with the offering of the Placing Shares.
The relevant clearances have not been, nor will they be, obtained from the securities commission of any province or territory of Canada; no prospectus has been lodged with, or registered by, the Australian Securities and Investments Commission or the Japanese Ministry of Finance; the relevant clearances have not been, and will not be, obtained for the South Africa Reserve Bank or any other applicable body in the Republic of South Africa in relation to the Placing Shares; and the Placing Shares have not been, and nor will they be, registered under or offered in compliance with the securities laws of any state, province or territory of Canada, Australia, Japan or the Republic of South Africa. Accordingly, the Placing Shares may not (unless an exemption under the relevant securities laws is applicable) be offered, sold, resold or delivered, directly or indirectly, in or into Canada, Australia, Japan or the Republic of South Africa or any other jurisdiction outside the United Kingdom or to, or for the account or benefit of any national, resident or citizen of Australia, Japan or the Republic of South Africa or to any investor located or resident in Canada. No public offering of the Placing Shares is being made in the United States, United Kingdom or elsewhere. All offers of the Placing Shares will be made pursuant to an exemption under the Prospectus Regulation (EU) 2017/1129, as amended from time to time, and includes any relevant implementing measure in any member state (the "Prospectus Regulation") from the requirement to produce a prospectus. This Announcement is being distributed to persons in the United Kingdom only in circumstances in which section 21(1) of the Financial Services and Markets Act 2000, as amended ("FSMA") does not apply.
No prospectus will be made available in connection with the matters contained in this Announcement and no such prospectus is required (in accordance with the Prospectus Regulation) to be published. This Announcement and the terms and conditions set out herein are for information purposes only and are directed only at persons who are: (a) persons in Member States of the European Economic Area who are qualified investors (within the meaning of article 2(e) of the Prospectus Regulation ("Qualified Investors"); and (b) in the United Kingdom, Qualified Investors who are persons who (i) have professional experience in matters relating to investments falling 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 "Order"); (ii) are persons falling within article 49(2)(a) to (d) ("high net worth companies, unincorporated associations, etc") of the Order; or (iii) are persons to whom it may otherwise be lawfully communicated; (all such persons together being referred to as "Relevant Persons").
This Announcement and the terms and conditions set out herein must not be acted on or relied on by persons who are not Relevant Persons. Persons distributing this Announcement must satisfy themselves that it is lawful to do so. Any investment or investment activity to which this Announcement and the terms and conditions set out herein relates is available only to Relevant Persons and will be engaged in only with Relevant Persons.
This Announcement has been issued by, and is the sole responsibility of, the Company. 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 Managers (as defined below), or by any of its or 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 therefore is expressly disclaimed.
J.P. Morgan and Panmure Gordon (together the "Managers") are each authorised by the Prudential Regulatory Authority and regulated in the United Kingdom by the Prudential Regulatory Authority and the Financial Conduct Authority (the "FCA"). Each of the Managers is acting solely for the Company and no one else in connection with the Placing and will not be responsible to anyone other than the Company for providing the protections afforded to their respective clients nor for providing advice in relation to the Placing and/or any other matter referred to in this Announcement. Apart from the responsibilities and liabilities, if any, which may be imposed on the Managers by FSMA or by the regulatory regime established under it, none of the Managers nor any of their respective affiliates accepts any responsibility whatsoever for the contents of the information contained in this Announcement or for any other statement made or purported to be made by or on behalf of the Managers or any of their respective affiliates in connection with the Company, the Placing Shares or the Placing. The Managers and each of their respective affiliates accordingly disclaim all and any responsibility and liability whatsoever, whether arising in tort, contract or otherwise (save as referred to above) in respect of any statements or other information contained in this Announcement and no representation or warranty, express or implied, is made by the Managers or any of their respective affiliates as to the accuracy, completeness or sufficiency of the information contained in this Announcement. The Managers are not acting for the Company with respect to the Retail Offer or the Subscription.
In connection with the Placing, the Managers may release communications to the market as to the extent to which the book is "covered". A communication that a transaction is, or that the books are, "covered" refers to the position of the order book at that time. It is not an assurance that the books will remain covered, that the transaction will take place on any terms indicated or at all, or that if the transaction does take place, the securities will be fully distributed by the Managers.
In connection with the Placing, each of the Managers and any of their affiliates, acting as investors for their own account, may take up a portion of the shares in the Placing as a principal position and in that capacity may retain, purchase, sell, offer to sell for their own accounts such shares and other securities of the Company or related investments in connection with the Placing or otherwise. Accordingly, references to Placing Shares being offered, acquired, placed or otherwise dealt in should be read as including any issue or offer to, or acquisition, placing or dealing by, each of the Managers and any of their affiliates acting in such capacity. In addition, each of the Managers and any of their affiliates may enter into financing arrangements (including swaps, warrants or contracts for differences) with investors in connection with which each of the Managers and any of their respective affiliates may from time to time acquire, hold or dispose of shares. None of the Managers intend to disclose the extent of any such investment or transactions otherwise than in accordance with any legal or regulatory obligations to do so.
Each of the Managers and their respective affiliates may have engaged in transactions with, and provided various commercial banking, investment banking, financial advisory transactions and services in the ordinary course of their business with the Company and/or its affiliates for which they would have received customary fees and commissions. Each of the Managers and their respective affiliates may provide such services to the Company and/or its affiliates in the future.
The distribution of this Announcement and/or the offering of the Placing Shares in certain jurisdictions may be restricted by law. No action has been taken by the Company or the Managers or any of their respective affiliates that would, or which is intended to, permit an offering of the Placing Shares in any jurisdiction or result in the possession or distribution of this Announcement or any other offering or publicity material relating to Placing Shares in any jurisdiction where action for that purpose is required.
Persons distributing any part of this Announcement must satisfy themselves that it is lawful to do so. Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of this Announcement should seek appropriate advice before taking any such action. Persons into whose possession this Announcement comes are required by the Company and the Managers to inform themselves about, and to observe, such restrictions.
This Announcement contains (or may contain) certain forward-looking statements with respect to certain of the Company's current expectations and projections about future events. These statements, which sometimes use words such as "aim", "anticipate", "believe", "intend", "plan", "estimate", "expect" and words of similar meaning, reflect the directors' beliefs and expectations and involve a number of risks, uncertainties and assumptions which may occur in the future, are beyond the Company's control and could cause actual results and performance to differ materially from any expected future results or performance expressed or implied by the forward-looking statement. Statements contained in this Announcement regarding past trends or activities should not be taken as a representation that such trends or activities will continue in the future. The information contained in this Announcement is subject to change without notice and, except as required by applicable law, the Company does not assume any responsibility or obligation to update publicly or review any of the forward-looking statements contained in it, nor do they intend to. You should not place undue reliance on forward-looking statements, which speak only as of the date of this Announcement. No statement in this Announcement is or is intended to be a profit forecast or profit estimate or to imply that the earnings of the Company for the current or future financial years will necessarily match or exceed the historical or published earnings of the Company. As a result of these risks, uncertainties and assumptions, the recipient should not place undue reliance on these forward-looking statements as a prediction of actual results or otherwise.
This Announcement does not identify or suggest, or purport to identify or suggest, the risks (direct or indirect) that may be associated with an investment in the Placing Shares. Any investment decision to buy Placing Shares in the Placing must be made solely on the basis of publicly available information, which has not been independently verified by the Managers.
The information in this Announcement may not be forwarded or distributed to any other person and may not be reproduced in any manner whatsoever. Any forwarding, distribution, reproduction or disclosure of this information in whole or in part is unauthorised. Failure to comply with this directive may result in a violation of the Securities Act or the applicable laws of other jurisdictions.
This Announcement does not constitute an invitation to underwrite, subscribe for or otherwise acquire or dispose of any securities in any jurisdiction. This Announcement does not constitute a recommendation concerning any investor's option with respect to the Placing. Each investor or prospective investor should conduct his, her or its own investigation, analysis and evaluation of the business and data described in this Announcement and publicly available information. The price and value of securities can go down as well as up. Past performance is not a guide to future performance.
The Placing Shares to be issued pursuant to the Placing will not be admitted to trading on any stock exchange other than the AIM market operated by the London Stock Exchange.
Neither the content of the Company's website nor any website accessible by hyperlinks on the Company's website is incorporated in, or forms part of, this Announcement.
Information to Distributors
Solely for the purposes of the product governance requirements contained within: (a) EU Directive 2014/65/EU on markets in financial instruments, as amended ("MiFID II"); (b) Articles 9 and 10 of Commission Delegated Directive (EU) 2017/593 supplementing MiFID II; and (c) local implementing measures (together, the "MiFID II Product Governance Requirements"), and disclaiming all and any liability, whether arising in tort, contract or otherwise, which any "manufacturer" (for the purposes of the MiFID II Product Governance Requirements) may otherwise have with respect thereto, the Placing Shares have been subject to a product approval process, which has determined that such securities are: (i) compatible with an end target market of retail investors and investors who meet the criteria of professional clients and eligible counterparties, each as defined in MiFID II; and (ii) eligible for distribution through all distribution channels as are permitted by MiFID II (the "Target Market Assessment"). Notwithstanding the Target Market Assessment, distributors should note that: the price of the Placing Shares may decline and investors could lose all or part of their investment; the Placing Shares offer no guaranteed income and no capital protection; and an investment in the Placing Shares is compatible only with investors who do not need a guaranteed income or capital protection, who (either alone or in conjunction with an appropriate financial or other adviser) are capable of evaluating the merits and risks of such an investment and who have sufficient resources to be able to bear any losses that may result therefrom. The Target Market Assessment is without prejudice to the requirements of any contractual, legal or regulatory selling restrictions in relation to the Placing. Furthermore, it is noted that, notwithstanding the Target Market Assessment, the Managers will only procure investors who meet the criteria of professional clients and eligible counterparties.
For the avoidance of doubt, the Target Market Assessment does not constitute: (a) an assessment of suitability or appropriateness for the purposes of MiFID II; or (b) a recommendation to any investor or group of investors to invest in, or purchase, or take any other action whatsoever with respect to the Placing Shares.
Each distributor is responsible for undertaking its own target market assessment in respect of the Placing Shares and determining appropriate distribution channels.
NOTWITHSTANDING ANYTHING IN THE FOREGOING, NO PUBLIC OFFERING OF THE PLACING SHARES IS BEING MADE BY ANY PERSON ANYWHERE AND THE COMPANY HAS NOT AUTHORISED OR CONSENTED TO ANY SUCH OFFERING IN RELATION TO THE PLACING SHARES.
APPENDIX
FURTHER DETAILS OF THE PLACING
TERMS AND CONDITIONS
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE, TRANSMISSION, DISTRIBUTION OR FORWARDING, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN, INTO OR FROM THE UNITED STATES, AUSTRALIA, CANADA, JAPAN OR THE REPUBLIC OF SOUTH AFRICA OR ANY JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL (EACH A "RESTRICTED TERRITORY").
IMPORTANT INFORMATION ON THE PLACING (AS DEFINED BELOW) FOR INVITED PLACEES (AS DEFINED BELOW) ONLY.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT (WHICH IS FOR INFORMATION PURPOSES ONLY) AND THE TERMS AND CONDITIONS SET OUT IN THIS APPENDIX ARE DIRECTED ONLY AT PERSONS WHOSE ORDINARY ACTIVITIES INVOLVE THEM IN ACQUIRING, HOLDING, MANAGING AND DISPOSING OF INVESTMENTS (AS PRINCIPAL OR AGENT) FOR THE PURPOSES OF THEIR BUSINESS AND WHO HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS AND ARE: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA ("EEA") WHO ARE QUALIFIED INVESTORS; OR (B) IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE PERSONS WHO (I) HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS FALLING WITHIN ARTICLE 19(5) OF THE ORDER; OR (II) ARE PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER; OR (C) ARE PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) MUST NOT BE ACTED OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS.
THIS APPENDIX DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OR UNDER ANY SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED, TAKEN UP, EXERCISED, RESOLD, TRANSFERRED OR DELIVERED, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES ABSENT REGISTRATION UNDER THE SECURITIES ACT EXCEPT PURSUANT TO AN APPLICABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES. THERE WILL BE NO PUBLIC OFFER OF THE SECURITIES MENTIONED HEREIN IN THE UNITED KINGDOM, THE UNITED STATES, ANY OTHER RESTRICTED TERRITORY OR ELSEWHERE.
THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE U.S. SECURITIES AND EXCHANGE COMMISSION (THE "SEC"), ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY IN THE UNITED STATES, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THE PLACING OR THE ACCURACY OR ADEQUACY OF THIS ANNOUNCEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENCE IN THE UNITED STATES.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS, FINANCIAL AND RELATED ASPECTS OF AN ACQUISITION OF PLACING SHARES.
The distribution of this Announcement and the Placing and/or the offer or sale of the Placing Shares in certain jurisdictions may be restricted by law. No action has been taken by the Company or by the Managers (as defined below) or any of its or their respective affiliates or any of its or their respective agents, directors, officers or employees which would permit an offer of the Placing Shares or possession or distribution of this Announcement or any other offering or publicity material relating to such Placing Shares in any jurisdiction where action for that purpose is required.
This Announcement is being distributed and communicated to persons in the United Kingdom only in circumstances to which section 21(1) of FSMA does not apply.
Subject to certain exceptions, the securities referred to in this Announcement may not be offered or sold in any Restricted Territory or to, or for the account or benefit of, a citizen or resident, or a corporation, partnership or other entity created or organised in or under the laws of a Restricted Territory.
NOTICE TO CANADIAN INVESTORS
The Placing Shares may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the Placing Shares must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.
Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this Announcement (or any subsequent announcement amending or supplementing this Announcement) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser's province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser's province or territory for particulars of these rights or consult with a legal advisor.
Pursuant to section 3A.3 of NI 33-105, the Managers are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.
NOTICE TO SWISS INVESTORS
In Switzerland, the Placing Shares may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are professional clients within the meaning of FinSA. This Announcement does not constitute a prospectus pursuant to FinSA, and no such prospectus has been or will be prepared for or in connection with the offering of the Placing Shares.
None of the Company, the Managers, or any of its or their respective affiliates or any of its or their respective agents, directors, officers or employees makes any representation or warranty, express or implied to any Placees regarding any investment in the securities referred to in this Announcement under the laws applicable to such Placees.
Persons who are invited to and who choose to participate in the placing (the "Placing") of new A ordinary shares ("A Placing Shares") and/or new non-voting ordinary shares ("Non-Voting Placing Shares", and together with the A Placing Shares, "Placing Shares") in the capital of the Company, by making an oral or written offer to acquire Placing Shares, including any individuals, funds or others on whose behalf a commitment to acquire Placing Shares is given (the "Placees"), will be deemed: (i) to have read and understood this Announcement, including this Appendix, in its entirety; and (ii) to be making such offer on the terms and conditions contained in this Appendix, including being deemed to be providing (and shall only be permitted to participate in the Placing on the basis that they have provided) the representations, warranties, acknowledgements, agreements and undertakings set out herein.
In particular, each such Placee represents, warrants and acknowledges that:
(a) it is a Relevant Person 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; or
(b) it is and, at the time the Placing Shares are acquired, will be either: (i) outside the United States and is acquiring the Placing Shares in an "offshore transaction" in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act ("Regulation S"); or (ii) a "qualified institutional buyer" (a "QIB") as defined in Rule 144A under the Securities Act, which is acquiring the Placing Shares for its own account or for the account of one or more QIBs, each of which is acquiring beneficial interests in the Placing Shares for its own account, in a transaction that is exempt from, or not otherwise subject to, the registration requirements of the Securities Act; and if acquiring the Placing Shares for the account of one or more other persons, it has full power and authority to make the representations, warranties, acknowledgments, agreements and undertakings herein on behalf of each such person ; or
(c) if it is a financial intermediary, as that term is used in Article 2(d) of the Prospectus Regulation, that it understands the resale and transfer restrictions set out in this Appendix and that any Placing Shares acquired 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 circumstances which may give rise to an offer of securities to the public other than an offer or resale in a member state of the EEA to Qualified Investors, or in circumstances in which the prior consent of the Managers (as defined below) has been given to each such proposed offer or resale.
The Company and the Managers will rely on the truth and accuracy of the foregoing representations, warranties and acknowledgements.
The Placing Shares are being offered and sold outside the United States in accordance with Regulation S. Any offering to be made in the United States will be made to a limited number of QIBs pursuant to an exemption from registration under the Securities Act in a transaction not involving any public offering.
Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of this Appendix or this Announcement of which it forms part should seek appropriate advice before taking any action. Persons into whose possession this Announcement comes are required by the Company and the Managers to inform themselves about, and to observe, any such restrictions.
Details of the Placing Agreement and the Placing Shares
J.P. Morgan Securities plc, which conducts its United Kingdom investment banking activities as J.P. Morgan Cazenove ("J.P. Morgan"), and Panmure Gordon (UK) Limited (together with J.P. Morgan, the "Managers") have entered into a placing agreement (the "Placing Agreement") with the Company, under which the Managers have severally (and not jointly or jointly and severally) agreed, on the terms and subject to the conditions set out therein, to use their reasonable endeavours to procure Placees to take up the Placing Shares in such number and at such price, if any, as may be agreed between the Managers and the Company and set out in the executed terms of subscription (the "Terms of Subscription") or to the extent that, following the execution of the Terms of Subscription, any Placee defaults in paying the relevant Placing Price (as defined below) in respect of any of the Placing Shares allotted to it, the Managers have severally (and not jointly or jointly and severally) agreed to subscribe for such Placing Shares at the relevant Placing Price. 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 A ordinary shares of 12.5 pence each in the capital of the Company and existing non-voting ordinary shares of 12.5 pence each in the capital of the Company (as applicable) (the A ordinary shares and non-voting ordinary shares being "Ordinary Shares"), including the right to receive all dividends and other distributions declared, made or paid on or in respect of the Ordinary Shares after the date of issue of the Placing Shares, and will on issue be free of all claims, liens, charges, encumbrances and equities. The allotment and issue of the Placing Shares will be effected by way of a placing of new Ordinary Shares in the Company for non-cash consideration. J.P. Morgan will subscribe for ordinary shares and redeemable preference shares in Project Uppercase No. 1 Limited ("JerseyCo"), a Jersey incorporated wholly owned subsidiary of the Company, for an amount approximately equal to the net proceeds of the Placing. The Company will allot and issue the Placing Shares on a non-pre-emptive basis to Placees in consideration for the transfer of the ordinary shares and redeemable preference shares in JerseyCo that will be issued to J.P. Morgan.
The net proceeds raised through the Placing will be retained for the benefit of the Company.
Application for admission to trading
Application will be made to the London Stock Exchange plc (the "London Stock Exchange") for admission to trading of the Placing Shares on the AIM market operated by the London Stock Exchange ("AIM) ("Admission").
It is expected that Admission will become effective not later than 8.00 a.m. (London time) on 29 June 2020 (or such later time and/or date as the Managers may agree with the Company) (the "Closing Date") and that dealings in the Placing Shares will commence at that time.
Bookbuild
The Managers will today commence the bookbuilding process in respect of the Placing (the "Bookbuild") to determine demand for participation in the Placing by Placees. The book will open with immediate effect. 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.
The Managers and the Company shall be entitled to effect the Placing by such alternative method to the Bookbuild as they may, in their sole discretion, determine.
Participation in, and principal terms of, the Placing
1. The Managers are acting as joint bookrunners in relation to the Placing severally, and not jointly, or jointly and severally, as agents of the Company. Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by either of the Managers. Each of the Managers and its respective affiliates is entitled to enter bids as principal in the Bookbuild.
2. The Bookbuild, if successful, will establish a price in respect of the A Placing Shares and a price in respect of the Non-Voting Placing Shares (each, a "Placing Price") payable in each case to the Managers by the relevant Placees whose bids are successful. Each Placing Price and the aggregate proceeds to be raised through the Placing will be agreed between the Managers and the Company following completion of the Bookbuild. Each Placing Price and the number of Placing Shares to be issued will be announced through a Regulatory Information Service (as defined in the AIM Rules for Companies (the "AIM Rules")) following the completion of the Bookbuild.
3. To bid in the Bookbuild, prospective Placees should communicate their bid by telephone or in writing to their usual sales contact at one of the Managers. Each bid should state the number of A Placing Shares and/or Non-Voting Placing Shares which the prospective Placee wishes to acquire at the relevant Placing Price ultimately established by the Company and the Managers or at prices up to a price limit specified in its bid. Bids may be scaled down by the Managers on the basis referred to in paragraph 6 below.
4. The Bookbuild is expected to close no later than 6:00 a.m. (London time) on 25 June 2020, but may be closed earlier or later, at the discretion of the Managers. The Managers may, in agreement with the Company, accept bids that are received after the Bookbuild has closed.
5. Each prospective Placee's allocation will be agreed by the Managers and the Company and will be confirmed to prospective Placees orally by the relevant Manager following the close of the Bookbuild, and a trade confirmation will be dispatched as soon as possible thereafter. The relevant Manager's oral confirmation to such prospective Placee will constitute an irrevocable legally binding commitment upon such person (who will at that point become a Placee) in favour of such Manager and the Company, under which such Placee agrees to acquire the number of Placing Shares allocated to it and to pay the relevant Placing Price for each such Placing Share on the terms and conditions set out in this Appendix and in accordance with the Company's constitutional documents.
6. The Managers will, in effecting the Placing, agree with the Company the identity of the Placees and the basis of allocation of the Placing Shares. The Managers 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. The Managers may also, notwithstanding paragraphs 3 and 5 above, in agreement with 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 the Managers) to reduce or seek to increase the amount to be raised pursuant to the Placing or to issue only A Placing Shares or only Non-Voting Placing Shares, at its absolute discretion. The acceptance of the bids shall be at the relevant Manager's absolute discretion, subject to agreement with the Company.
7. A bid in the Bookbuild will be made on the terms and subject to the conditions in this Appendix and will be legally binding on the prospective Placee on behalf of which it is made and except with the relevant Manager's consent will not be capable of variation or revocation after the time at which it is submitted. Each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to the relevant Manager, to pay to it (or as it may direct) in cleared funds an amount equal to the product of the relevant Placing Price and the number of Placing Shares that such Placee has agreed to acquire. Each Placee's obligations will be owed to the relevant Manager.
8. Except as required by law or regulation, no press release or other announcement will be made by the Managers or the Company using the name of any Placee (or its agent), in its capacity as Placee (or agent), other than with such Placee's prior written consent.
9. Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all Placing Shares to be acquired pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement".
10. All obligations under the Bookbuild and Placing will be subject to fulfilment or (where applicable) waiver 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".
11. By participating in the Bookbuild, each Placee agrees 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 after confirmation (oral or otherwise) by a Manager.
12. To the fullest extent permissible by law, none of the Managers, the Company, any of their or its respective directors, officers, employees, agents or affiliates nor any person acting on their or its respective behalves shall have any responsibility or liability (whether in contract, tort or otherwise) to any actual or prospective Placee (or to any other person whether acting on behalf of any actual or prospective Placee or otherwise). In particular, none of the Managers, the Company, any of their or its respective directors, officers, employees, agents or affiliates nor any person acting on their or its respective behalves shall have any responsibility or liability (whether in contract, tort or otherwise and including to the fullest extent permissible by law, any fiduciary duties) in respect of the Managers' conduct of the Bookbuild or of such alternative method of effecting the Placing as the Managers 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 Managers' obligations under the Placing Agreement are conditional on customary terms and conditions, including among others:
(a) the warranties of the Company contained in the Placing Agreement being true and accurate and not misleading as of the date of the Placing Agreement and the Closing Date save to the extent in the good faith opinion of the Managers not materially adverse in the context of the Company together with its subsidiaries and subsidiary undertakings taken as a whole (the "Group") and/or the Placing and/or Admission;
(b) Admission occurring at or before 8:00 a.m. (London time) on the Closing Date (or such later time and/or date the Managers may agree with the Company);
(c) the Company not being in breach of any of its obligations under the Placing Agreement and the terms and conditions of the Placing which fall to be performed on or prior to the Closing Date save to the extent not materially adverse in the context of the Placing and/or Admission;
(d) the Terms of Subscription having been executed by the Company and the Managers;
(e) the publication by the Company of, among other announcements, the results of the Placing through a Regulatory Information Service;
(f) the Company allotting, subject only to Admission, the relevant Placing Shares in accordance with the Placing Agreement;
(g) the option agreement and the subscription and transfer agreement (each relating to the subscription for, and transfer of, shares in JerseyCo) having been duly executed and delivered by the Company and JerseyCo and remaining in full force and effect and not having been terminated, and there having occurred no material default or breach by the Company or JerseyCo of their terms by the time immediately prior to Admission; and
(h) since the date of the Placing Agreement, there having been, in the good faith opinion of the Managers, no material adverse change in relation to the Group taken as a whole at any time prior to Admission.
If: (i) any of the conditions contained in the Placing Agreement, including those described above, are not fulfilled or (where applicable) waived by the Managers by the relevant time and/or date specified (or such later time and/or date as the Company and the Managers may agree); or (ii) the Placing Agreement is terminated in the circumstances specified below, the Placing will lapse 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 it in respect thereof.
The Managers may, at their discretion and upon such terms as they think fit, waive compliance by the Company with the whole or any part of any of the Company's obligations in relation to the conditions contained in the Placing Agreement save that conditions (b), (d), (e) and (f) above may not be waived. Any such waiver will not affect Placees' commitments as set out in this Announcement.
By participating in the Placing, each Placee agrees that none of the Managers, nor any of their respective directors, officers, employees, agents or affiliates, shall have any liability (whether in contract, tort or otherwise) 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 to the Placing 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 the Managers.
By participating in the Bookbuild, each Placee agrees that its rights and obligations hereunder terminate only in the circumstances described above and under "Right to terminate under the Placing Agreement" below, and will not be capable of rescission or termination by the Placee.
Right to terminate under the Placing Agreement
The Managers are entitled, at any time before Admission, to terminate the Placing Agreement in accordance with its terms in certain circumstances, including (among others): (i) breach of the warranties of the Company contained in the Placing Agreement, save to the extent in the good faith opinion of the Managers not materially adverse in the context of the Group taken as a whole and/or the Placing and/or Admission; or (ii) breach of the undertakings or other obligations of the Company contained in the Placing Agreement save to the extent not materially adverse in the context of the Placing and/or Admission; (iii) upon the occurrence, in the good faith opinion of the Managers, of certain material adverse changes in the financial condition or prospects of the Company; (iv) the appointment of J.P. Morgan as nominated adviser is terminated for whatever reason; (v) in the event of certain force majeure events; or (v) if the application for Admission is refused by the London Stock Exchange.
Upon termination of the Placing Agreement, the parties to the Placing Agreement shall be released and discharged 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 or non-exercise by the Managers of any right of termination or other discretion arises under the Placing Agreement and neither the Company nor the Managers need to make any reference to, or consultation with, Placees and neither the Company nor the Managers nor any of its or their respective directors, officers, employees, agents or affiliates shall have any liability to Placees whatsoever in connection with any such exercise or failure to exercise.
Lock-up
The Company has undertaken to the Managers that, between the date of the Placing Agreement and 180 calendar days after the Closing Date (inclusive), it will not, without the prior written consent of the Managers, enter into certain transactions involving or relating to the Ordinary Shares, subject to certain carve-outs agreed between the Managers and the Company.
By participating in the Placing, Placees agree that the exercise by the Managers of any power to grant consent to the undertaking by the Company of a transaction which would otherwise be subject to the lock-up under the Placing Agreement shall be within the discretion of the Managers and that the Managers need not make any reference to, or consultation with, Placees and that the Managers shall have no liability to Placees whatsoever in connection with any such exercise of the power to grant consent or failure to exercise such power.
No Prospectus
No offering document or prospectus has been or will be submitted to be approved by the FCA (or any other authority) in relation to the Placing or Admission and no such prospectus is required (in accordance with the Prospectus Regulation) to be published.
Placees' commitments will be made solely on the basis of the information and terms and conditions contained in this Announcement. Each Placee, by accepting a participation in the Placing, agrees that the content of this Announcement (including this Appendix) and all other publicly available information previously or simultaneously published by the Company by notification to a Regulatory Information Service or otherwise filed by the Company is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of the Company or the Managers or any other person and none of the Company, the Managers, any of its or their respective affiliates, nor any other person will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received (regardless of whether or not such information, representation, warranty or statement was given or made by or on behalf of any such persons). 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 the liability of any person for fraudulent misrepresentation.
Registration and Settlement
Settlement of transactions in the Placing Shares (ISIN for the A Placing Shares: GB00B2NDK765; ISIN for the Non-Voting Placing Shares: GB00B2NDK989) following Admission will take place in CREST, subject to certain exceptions. The Managers and the Company reserve the right to require settlement of, and delivery of, some or all of the Placing Shares to Placees by such other means that they deem necessary if delivery or settlement is not practicable in CREST within the timetable set out in this Announcement 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 trade confirmation in accordance with the standing arrangements in place with the relevant Manager stating the number of Placing Shares allocated to it at the relevant Placing Price, the aggregate amount owed by such Placee to the Managers 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 in respect of the Placing Shares that it has in place with the relevant Manager (unless otherwise agreed).
It is expected that settlement will be on 29 June 2020 in accordance with the instructions set out in the trade confirmation.
In the event of any difficulties or delays in the admission of the Placing Shares to CREST or the use of CREST in relation to the Placing, the Company and the Managers may agree that the Placing Shares should be issued in certificated form. The Managers reserve the right to require settlement for the Placing Shares, and to deliver the Placing Shares to Placees, by such other means as they deem necessary if delivery or settlement to Placees is not practicable within the CREST system or would not be consistent with regulatory requirements in a Placee's jurisdiction.
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 the Managers.
Each Placee is deemed to agree that, if it does not comply with these obligations, the Managers may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for the Managers' 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 or other stamp, securities, transfer, registration, execution, documentary or other similar impost, duty or tax imposed in any jurisdiction (together with any interest, fines or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf. By communicating a bid for Placing Shares, each Placee confers on the Managers all such authorities and powers necessary to carry out any such sale and agrees to ratify and confirm all actions which the Managers lawfully take in pursuance of such sale.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation.
Insofar as Placing Shares are settled 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 settled free from any liability to United Kingdom stamp duty or stamp duty reserve tax. If there are any circumstances in which any other stamp duty or stamp duty reserve tax (and/or any interest, fines or penalties relating thereto) is payable in respect of the allocation, allotment, issue or delivery of the Placing Shares (or for the avoidance of doubt if any stamp duty or stamp duty reserve tax is payable in connection with any subsequent transfer of or agreement to transfer Placing Shares), neither the Managers nor the Company shall be responsible for the payment thereof.
Representations, Warranties and Further Terms
By participating in the Placing, each Placee (and any person acting on such Placee's behalf) irrevocably acknowledges, confirms, undertakes, represents, warrants and agrees (for itself and for any such prospective Placee) with the Managers and the Company, in each case as a fundamental term of its application for Placing Shares, the following:
1 it has read and understood this Announcement in its entirety (including this Appendix), and that its subscription for and purchase of Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, indemnities, acknowledgements, agreements and undertakings and other information contained herein and undertakes not to redistribute or duplicate this Announcement;
2 it has made its investment decision based solely upon its own judgement, due diligence and analysis and not upon any view expressed or information provided by or on behalf of the Managers or any other person otherwise than as set out in this Announcement;
3 no offering document, offering memorandum, admission document or prospectus has been prepared in connection with the Placing or is required under the AIM Rules, FSMA, the Prospectus Regulation or any other applicable law and it has not received and will not receive a prospectus or other offering document in connection therewith;
4 none of the Managers, the Company, any of their or its respective affiliates nor any person acting on behalf of any of them has provided, nor will provide, it with any information regarding the Placing Shares, the Bookbuild, the Placing or the Company other than this Announcement; nor has it requested any of the Managers, the Company, any of their or its respective affiliates or any person acting on behalf of any of them to provide it with any such information;
5 the Company's Ordinary Shares are listed on the AIM market of the London Stock Exchange (the "Exchange") and the Company is therefore required to publish certain business and financial information in accordance with the Market Abuse Regulation (EU) No.596/2014 ("MAR") and the rules and practices of the Exchange (including the AIM Rules) (collectively, the "Exchange Information"), which includes a description of the Company's business and the Company's financial information, including balance sheets and income statements, and similar statements for preceding financial years and that it is able to obtain or access the Exchange Information and that it has reviewed such Exchange Information;
6 the content of this Announcement is exclusively the responsibility of the Company and that neither of the Managers, any of its or their respective affiliates nor any person acting on behalf of any of them has or shall have any liability for any information, representation or statement contained in, or omission from, this Announcement or any information previously published by or on behalf of the Company, including, but not limited to, 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 acquire Placing Shares is contained in this Announcement and any information previously or simultaneously published by the Company by notification to a Regulatory Information Service, such information being all that such Placee deems necessary or appropriate and sufficient 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 any of the Managers, the Company or any of its or their respective affiliates and none of the Managers or 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, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
7 it may not rely, and has not relied, on any investigation that the Managers, any of their affiliates or any person acting on their behalf, may or may not have conducted with respect to the Placing Shares or the Company, and none of such persons has made any representation, express or implied, with respect to the Company, the Placing Shares or the accuracy, completeness or adequacy of the Exchange Information or any other information; each Placee further acknowledges that it has conducted its own investigation of the Company and the Placing Shares and has received all information it believes necessary or appropriate in connection with its investment in the Placing Shares;
8 it has conducted its own investigation with respect to the Company and the Placing Shares, received and reviewed all information that it believes is necessary or appropriate in connection with its purchase of Placing Shares and made its own assessment and has satisfied itself concerning the relevant tax, legal, regulatory, currency and other economic considerations relevant to its investment in the Placing Shares;
9 neither of the Managers, any of their respective affiliates nor any person acting on behalf of any of them has or shall have any liability for any information made publicly available by or in relation to the Company or any representation, warranty or statement relating to the Company or the Group contained therein or otherwise, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
10 it is and, at the time the Placing Shares are acquired, will be either: (i) outside the United States and is acquiring the Placing Shares in an "offshore transaction" in accordance with Rule 903 or Rule 904 of Regulation S; or (ii) a QIB, which is acquiring the Placing Shares for its own account or for the account of one or more QIBs, each of which is acquiring beneficial interests in the Placing Shares for its own account, in a transaction that is exempt from, or not otherwise subject to, the registration requirements of the Securities Act; and if acquiring the Placing Shares for the account of one or more other persons, it has sole investment discretion with respect to each such account and full power and authority to make the representations, warranties, acknowledgements, agreements and undertakings herein on behalf of each such account;
11 it: (i) has such knowledge and experience in financial, business and international investment matters to be capable of evaluating the merits and risks of an investment in the Placing Shares; (ii) will not look to the Managers for all or part of any such loss it may suffer; (iii) is able to bear the economic risk of an investment in the Placing Shares for an indefinite period of time; (iv) is able to sustain a complete loss of an investment in the Placing Shares; and (v) has no need for liquidity with respect to its investment in the Placing Shares;
12 unless otherwise specifically agreed with the Managers, they are not, and at the time the Placing Shares are acquired, neither it nor the beneficial owner of the Placing Shares will be, a resident of a Restricted Territory or any other jurisdiction in which it would be unlawful to make or accept an offer to acquire the Placing Shares, subject to certain restrictions;
13 the Placing Shares have not been and will not be registered under the Securities Act or the securities laws of any state or jurisdiction of the United States, a prospectus will not be published in respect of any of the Placing Shares under the securities laws or legislation of the United States or any state or jurisdiction thereof, the Placing Shares have not been and will not be registered and a prospectus will not be published in respect of any of the Placing Shares under the securities laws or legislation of Australia, Canada, South Africa or Japan and, subject to certain exceptions, may not be offered, sold, or delivered or transferred, directly or indirectly, in or into any of these jurisdictions or any other jurisdiction where to do so would be unlawful;
14 the Placing Shares are being subscribed for investment purposes, and not with a view to offer, resell or distribute, directly or indirectly, within the meaning of the United States securities laws;
15 it is not acquiring any of the Placing Shares as a result of any form of general solicitation or general advertising (within the meaning of Rule 502(c) of Regulation D under the Securities Act) or directed selling efforts (as defined in Regulation S);
16 it is not an affiliate (as defined in Rule 501(b) under the Securities Act) of the Company, and is not acting on behalf of an affiliate of the Company;
17 no representation has been made as to the availability of any exemption under the Securities Act for the reoffer, resale, pledge or transfer of the Placing Shares;
18 the Placing Shares offered and sold in the United States are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act and, for so long as the Placing Shares are restricted securities, it will segregate such Placing Shares from any other shares in the Company that it holds that are not restricted securities, will not deposit the Placing Shares into any depositary receipt facility maintained by any depositary bank in respect of the Company's ordinary shares and will notify any subsequent transferee of such Placing Shares of the applicable transfer restrictions;
19 if the Placing Shares were offered to it in the United States, it has consulted its own independent advisors or otherwise has satisfied itself concerning, without limitation, the effects of United States federal, state and local income tax laws (including as to the consequences of the Company being or becoming a "passive foreign investment company" (as defined in Section 1297 of the U.S. Internal Revenue Code of 1986, as amended (the "Code")) and foreign tax laws generally and the U.S. Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the U.S. Investment Company Act of 1940, as amended, and the Securities Act;
20 either: (a) it is not and for so long as it holds the Placing Shares (or any interests therein) will not be a "benefit plan investor" as defined in Section 3(42) of ERISA, or a governmental, church or non-U.S. plan which is subject to any federal, state, local or non-U.S. law that is substantially similar to Section 406 of ERISA or Section 4975 of the Code ("Similar Law"); or (b) its acquisition, holding and disposition of the Placing Shares will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, or, in the case of such a governmental, church or non-U.S. plan, a violation of any Similar Law;
21 the allocation, allotment, issue and delivery to it of Placing Shares or to the person specified by it as the person to whom such Placing Shares are allocated will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depositary receipts and clearance services) and that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer Placing Shares into a clearance service for the purposes of those sections;
22 it has complied with its obligations under the Criminal Justice Act 1993, MAR, Section 118 of FSMA and in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2000, the Anti-Terrorism Crime and Security Act 2001, the Terrorism Act 2006, the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and the Money Laundering Sourcebook of the FCA and any related or similar rules, regulations or guidelines, issued, administered or enforced by any government agency having jurisdiction in respect thereof (the "Regulations") and, if making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the Regulations;
23 its commitment to acquire Placing Shares on the terms set out herein will continue notwithstanding any amendment that may in future be made to the terms and conditions of the Placing and Placees will have no right to be consulted or require that their consent be obtained with respect to the Company's or the Managers' conduct of the Placing;
24 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 representations, warranties, acknowledgements, agreements and undertakings herein on behalf of each such person; and (ii) it is and will remain liable to the Company and/or the Managers 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);
25 it is a Relevant Person 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;
26 it understands that any investment or investment activity to which this Announcement relates is available only to Relevant Persons and will be engaged in only with Relevant Persons, and further understands that this Announcement must not be acted on or relied on by persons who are not Relevant Persons;
27 if it is a person in a member state of the EEA, it is a Qualified Investor and, to the extent applicable, any funds on behalf of which it is acquiring the Placing Shares that are located in a member state of the EEA are each such a Qualified Investor;
28 if it is a person in the United Kingdom, it is a Qualified Investor: (i) having professional experience in matters relating to investments who falls within the definition of "investment professionals" in Article 19(5) of 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;
29 if it is a person in Canada: (i) it is purchasing (or deemed to be purchasing) as principal for its own account and not as agent for the benefit of another person and is an "accredited investor" as such term is defined in section 1.1 of National Instrument 45-106 Prospectus Exemptions or, in Ontario, as such term is defined in section 73.3(1) of the Securities Act (Ontario), and in either case was not created and is not being used solely to purchase or hold securities as an "accredited investor"; and (ii) it is a "permitted client" as such term is defined in section 1.1 of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations;
30 if it is a person in Switzerland, it is a professional client within the meaning of FinSA;
31 if a financial intermediary, as that term is used in Article 2(d) of the Prospectus Regulation, 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 EEA or the United Kingdom other than Qualified Investors, or in circumstances in which the prior consent of the Managers has been given to the offer or resale;
32 it has not offered or sold and, prior to the expiry of a period of six months from Admission, will not offer or sell any Placing Shares to persons in the United Kingdom, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted and which will not result in an offer to the public in the United Kingdom within the meaning of section 85(1) of FSMA;
33 it has not offered or sold and will not offer or sell any Placing Shares to persons in the EEA prior to Admission except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted in and which will not result in an offer to the public in any member state of the EEA within the meaning of the Prospectus Regulation and will not result in a requirement for the publication of a prospectus pursuant to Article 3 of the Prospectus Regulation;
34 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;
35 it has complied and will comply with all applicable laws with respect to anything done by it in relation to the Placing Shares (including all relevant provisions of FSMA in the United Kingdom);
36 it and any person acting on its behalf is entitled to acquire the Placing Shares under the laws of all relevant jurisdictions and that it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to this participation in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this Appendix) and will honour such obligations;
37 it and any person acting on its behalf has the funds available to pay for, and will make payment in respect of the Placing Shares allocated to it, in accordance with this Appendix on the due time and date set out herein (unless otherwise agreed), failing which the relevant Placing Shares may be placed with other acquirers or sold as the Managers may in their sole discretion determine and without liability to such Placee, who will remain liable for any amount by which the net proceeds of such sale fall short of the product of the relevant Placing Price and the number of Placing Shares allocated to it and may be required to bear any stamp duty, stamp duty reserve tax or other similar taxes (together with any interest, fines or penalties) which may arise upon the sale of such Placee's Placing Shares;
38 it and any person acting on its behalf is entitled to purchase the Placing Shares under the laws of all relevant jurisdictions which apply to it and 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 it has not taken any action or omitted to take any action which will or may result in the Managers, 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;
39 neither of the Managers, any of their respective affiliates nor any person acting on behalf of any of them, is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Placing and participation in the Placing is on the basis that it is not and will not be a client of either Manager and the Managers have no duties or responsibilities to it for providing the protections afforded to its respective clients or customers or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of the Managers' rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
40 the person whom it specifies as the person to whom the Placing Shares are allocated will be: (i) itself; (ii) its nominee, as the case may be; or (iii) a person for whom it is contracting as agent or nominee. None of the Managers nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax or other similar taxes resulting from a failure to observe this requirement ("Indemnified Taxes"). Each Placee and any person acting on behalf of such Placee agrees to participate in the Placing and it agrees to indemnify the Company and the Managers on an after-tax basis in respect of any Indemnified Taxes;
41 any agreements entered into by it pursuant to the terms and conditions set out in this Appendix, and all non-contractual or other obligations arising out of or in connection with them, 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 agreement (including any dispute regarding the existence, validity or termination of such agreement or relating to any non-contractual or other obligation arising out of or in connection with such agreement), 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 either the Company or the Managers 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;
42 to indemnify on an after tax basis and hold the Company, the Managers and their respective directors, officers, employees, agents and 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;
43 if it has received any inside information about the Company in advance of the Placing, it has not: (i) dealt in the securities of the Company; (ii) encouraged or required another person to deal in the securities of the Company; or (iii) disclosed such information to any person, prior to such information being made publicly available;
44 the Placing Shares are expected to be issued to it through CREST;
45 where it is acquiring the Placing Shares for one or more managed accounts, it is authorised in writing by each managed account to acquire the Placing Shares for each managed account and it has full power to make the acknowledgements, representations, warranties, confirmations, agreements and undertakings herein on behalf of each such account;
46 if it is a pension fund or investment company, its purchase of Placing Shares is in full compliance with applicable laws and regulations; and
47 the Company, the Managers and their respective affiliates and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements, agreements and undertakings which are given to each Manager on its own behalf and on behalf of the Company and are irrevocable.
The foregoing representations, warranties, confirmations, acknowledgements, agreements and undertakings are given for the benefit of the Company as well as the Managers and are irrevocable.
Each Placee not acquiring the Placing Shares in an "offshore transaction" pursuant to Regulation S (each a "U.S. Placee") shall make specific representations, warranties, agreements and acknowledgements pursuant to a U.S. investor representation letter. Each U.S. Placee acknowledges that it will not be permitted to purchase, subscribe for or otherwise take up Placing Shares unless it has signed and returned such representation letter in accordance with the terms thereof.
The agreement to settle a Placee's acquisition of Placing Shares (and/or the acquisition by a person for whom such Placee is contracting as agent or nominee) free of United Kingdom stamp duty and stamp duty reserve tax depends on the settlement relating only to an acquisition by it and/or such person for whom it is contacting as agent or nominee direct from the Company for the Placing Shares in question. Such agreement also 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 are any such arrangements, or the settlement relates to any other dealing in the Placing Shares, stamp duty or stamp duty reserve tax or other similar taxes may be payable, for which neither the Company nor the Managers will be responsible and the Placees shall indemnify the Company and the Managers on an after-tax basis for any stamp duty or stamp duty reserve tax paid by them in respect of any such arrangements or dealings. If this is the case, each Placee should seek its own advice and notify the Managers accordingly.
In addition, Placees should note that they will be liable for any stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the United Kingdom 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.
Each Placee, and any person acting on behalf of the Placee, acknowledges that the Managers do 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 either Manager or any of their respective affiliates may, at its 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 a Manager, any money held in an account with such Manager on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the FCA made under FSMA. Each 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 such Manager's money in accordance with the client money rules and will be used by such Manager in the course of its own business and the Placee will rank only as a general creditor of such Manager.
Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.
The rights and remedies of the Managers 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 of one will not prevent the exercise of others.
All times and dates in this Announcement may be subject to amendment. The Managers shall notify the Placees and any person acting on behalf of the Placees of any changes.
The information contained herein is not for publication or distribution, directly or indirectly, in or into the United States (including its territories and possessions, any State of the United States and the District of Columbia). This Announcement does not contain or constitute an offer for sale or the solicitation of an offer to purchase securities in the United States. The securities referred to herein have not been and will not be registered under the Securities Act, and may not be offered or sold in the United States absent registration under the Securities Act, except pursuant to an available exemption from, or in transaction not subject to, the registration requirements of the Securities Act.
This information is provided by RNS, the news service of the London Stock Exchange. RNS is approved by the Financial Conduct Authority to act as a Primary Information Provider in the United Kingdom. Terms and conditions relating to the use and distribution of this information may apply. For further information, please contact rns@lseg.com or visit www.rns.com.
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