Placing, Investment by Snam and Open Offer
The information contained in this announcement is inside information for the purposes of article 7 of Regulation (EU) 596/2014.
THIS ANNOUNCEMENT, INCLUDING THE APPENDIX AND THE INFORMATION CONTAINED IN IT, IS RESTRICTED AND IS NOT FOR RELEASE, DISTRIBUTION OR PUBLICATION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES OF AMERICA (INCLUDING ITS TERRITORIES AND POSSESSIONS, ANY STATE OF THE UNITED STATES AND THE DISTRICT OF COLUMBIA) (THE UNITED STATES), AUSTRALIA, CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA, THE REPUBLIC OF IRELAND OR ANY OTHER JURISDICTION WHERE IT IS UNLAWFUL TO RELEASE, PUBLISH OR DISTRIBUTE THIS ANNOUNCEMENT.
22 October 2020
ITM POWER PLC
Proposed fundraising of at least £150m
(i) a strategic investment of £30m by Snam
(ii) a proposed Firm Placing of £120m; and
(iii) an Open Offer of up to c.£7m,
each at 235 pence per share
Entry into Commercial Partnership Agreement with Snam
ITM Power plc (AIM: ITM) (ITM Power, the Company or the Group) is pleased to announce its intention to raise a minimum of £150.0 million (before expenses) through (i) a strategic investment of £30.0 million at 235 pence per share by Snam S.p.A. (Snam) (the Share Subscription); (ii) a conditional placing of £120.0 million at 235 pence per share with certain existing and new institutional investors (the FirmPlacing); and a non-underwritten open offer of up to £7.0 million at 235 pence per share (the Open Offer) (the Share Subscription, Firm Placing and Open Offer together being the Fundraising).
The Firm Placing is being conducted through an accelerated bookbuild process (the Bookbuilding Process) which will be launched immediately following this Announcement and is subject to the terms and conditions set out in the Appendix to this announcement (such announcement and its appendix together being the Announcement).
The Group has also entered into a Commercial Partnership Agreement with Snam (the Commercial Partnership), conditional upon successful completion of the Share Subscription, under which the Group will be the preferred supplier for the first 100 Megawatts (MW) of Polymer Electrolyte Membrane (PEM) electrolysis projects ordered by Snam, which are intended to be deployed in the period 2021 to 2025. The Commercial Partnership also includes the potential for collaboration on a global pipeline of further projects.
Snam is one of the world's leading energy infrastructure operators with operations in Europe, China and the UAE. It has an extensive gas transportation network and storage capacity in Europe of over 41,000km and c.20 billion cubic metres. It is heavily committed to decarbonisation and innovation in energy transition, including the hydrogen market, and in 2019 announced the establishment of a business unit dedicated to the development of hydrogen energy systems.
The net proceeds of the Fundraising will be used by the Group principally to enable an acceleration of the Group's technology, manufacturing and operational capabilities in response to the rapidly growing global demand for large-scale electrolysis, particularly:
· £47 million to accelerate the Group's development and production of large scale 5MW electrolyser stack platforms and modular 20MW electrolyser trains;
· £37 million to accelerate product standardisation and maximisation of manufacturing capacity at the Group's Bessemer Park facility, and to support the potential future development of a new European gigafactory should additional future manufacturing capacity be required;
· £32 million to invest in the group's operational capabilities, including developing the Group's after-sales support and commissioning functions; and
· £30 million for the injection of funding into ITM Power's refuelling division in order to identify and develop potential new large-MW capacity refuelling hubs
The Group has also today published its results for the year ended 30 April 2020 in a separate announcement. A copy of the final results announcement will be available on the Group's website at www.itm-power.com.
Highlights of the Fundraising and Commercial Partnership Agreement
· ITM Power intends to raise a minimum of £150.0 million pursuant to the conditional Fundraising at a price of 235 pence per New Ordinary Share (the Issue Price).
· Strategic investment of £30m by Snam, a leading energy infrastructure operator, via a Share Subscription for 12,765,957 New Ordinary Shares at the Issue Price. On completion, Snam will hold approximately 2.35% of the Group's enlarged share capital.
· Certain of the directors of the Company (the Directors or the Board) intend to subscribe for, in aggregate, 174,038 Firm Placing Shares in the Firm Placing
· Entry into the Commercial Partnership Agreement alongside Snam's strategic investment. Under the Commercial Partnership Agreement the Group will be the preferred supplier for the first 100 MW of PEM electrolysis projects ordered by Snam, which are intended to be deployed in the period 2021 to 2025.
· The Issue Price represents a discount of approximately 6.75% per cent to the closing mid-market price of an Existing Ordinary Share on 21 October 2020, being the latest practicable date prior to the publication of this announcement.
· The Firm Placing is being conducted, subject to the satisfaction of certain conditions, on the Group's behalf by Investec Bank plc (Investec). The Firm Placing and the Open Offer are not being underwritten by Investec.
· The Firm Placing is subject to the terms and conditions set out in the Appendix to this Announcement. Investec will commence the Bookbuilding Process and the book will open immediately following the release of this Announcement. The timing of the closing of the book, the number of Firm Placing Shares to be issued and allocations are at the absolute discretion of Investec and the Company. The results of the Firm Placing will be announced as soon as practicable after the close of the Bookbuilding Process.
· The New Ordinary Shares, if issued, will be fully paid and will rank pari passu in all respects with the existing issued ordinary shares of the Company, including, without limitation, the right to receive all dividends and other distributions declared, made or paid in respect of the ordinary shares after Admission (as defined below).
· The Share Subscription, the Firm Placing and the Open Offer are inter-conditional. In particular, they are conditional on (amongst other things): (i) the passing by the requisite majority of shareholders of resolutions to grant authorities to Directors to allot further shares for cash on a non-pre-emptive basis; and (ii) admission of the New Ordinary Shares to trading on AIM on or before 8.00 a.m. on 12 November 2020 (or such later time and/or date as may be agreed between the Group and Investec, being no later than 8.00 a.m. on 20 November 2020) (Admission).
The Fundraising is subject to shareholder approval. The Group expects to publish a circular in connection with the Fundraising tomorrow. Shareholders should read the Circular and the Group's full year results in full before making any application for Open Offer Shares. Further details of the Open Offer will be published on completion of the Firm Placing.
Graham Cooley, Chief Executive Officer of ITM Power plc, said:
"Our agreement and preferred supplier status with Snam more than doubles our contract backlog, a signpost of future revenue measuring amounts under contract and in the latter stages of negotiations, to £118 million while our tender opportunity pipeline, where we have provided written quotations over the last 12 months, now stands at some £325 million. Raising additional funds allows us to accelerate our response to the growing worldwide demand for green hydrogen as a key tool in meeting net zero targets. I am delighted to add Snam to our roster of partners. Snam is one of the world's leading energy infrastructure operators and is committed to supporting our industry, showcased by our preferred supplier status for 100MW of PEM electrolysis equipment."
Marco Alverà, Chief Executive Officer of Snam S.p.A, said:
"The agreement with one of the main global producers of electrolysers is Snam's first external investment in the hydrogen sector and stands alongside those we are already advancing to make our infrastructure ready for the transport of this new clean energy carrier. The partnership with ITM Power allows us to build on our know-how in technologies for the production of green hydrogen in a way that is functional to business development and to become a player along the value chain. We want to develop new projects and contribute to enabling the supply chain, both internationally and in particular in Italy, which has the opportunity to become a green hydrogen hub between Europe and North Africa. Our goal is to help establish hydrogen and renewable gases, together with renewable electricity, as decisive solutions to achieve the international climate neutrality goals"
There will be a call for analysts and investors at 10.30 am BST on Friday 23 October 2020 on the Investor Meet Company platform. Those wishing to attend should register at:
https://www.investormeetcompany.com/itm-power-plc/register-investor
For further information please visit www.itm-power.com or contact:
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ITM Power plc |
+44 (0)114 263 7646 |
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Graham Cooley, CEO |
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Investec Bank plc (Nominated Adviser, Financial Adviser and Broker) |
+44 (0)20 7597 4000 |
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Jeremy Ellis / Chris Sim / Ben Griffiths / Will Fenby |
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Tavistock (Financial PR and IR) |
+44 (0)20 7920 3150 |
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Simon Hudson / Edward Lee / Barney Hayward |
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The person responsible for arranging the release of this Announcement on behalf of the Company is James Collins, Head of Investor Relations.
Background to and reasons for the Fundraising and use of proceeds
Hydrogen market growth
ITM Power is seeing a rapid acceleration in demand for green hydrogen for large scale projects. The European Commission announced in July 2020 a transformative green hydrogen package across the European Union, alongside the publication of ambitious gigawatt-scale targets for electrolyser capacity to 2030 and beyond. The Group has market leading PEM electrolyser technology and believes that additional capital will enable it to accelerate development of its technology, manufacturing and operations in order to position itself to capture this global opportunity for green hydrogen.
The growth in green hydrogen markets is being driven by a reduction of cost alongside volume deployment of renewable power generation, and a growing role for hydrogen in grid balancing in the energy system. Furthermore, the adoption of net zero targets across the UK and Europe has led to hydrogen being recognised as a key part of the energy transition to a net zero future, with the European Commission's Hydrogen Strategy recognising that "Hydrogen and carbon capture and storage must be deployed for net zero. Industrial scale demonstration projects need to be operational this decade".
The Group is already recognised as one of the market leaders in green hydrogen, with global technology leadership through the Group's development of the 5MW stack platform and manufacturing scale in the Company's new Bessemer Park factory, the world's first 1GW capacity hydrogen electrolyser factory. The Group welcomes the opportunity to add Snam to its roster of strong existing global partners alongside Shell, Linde, Orsted and Scottish Power Renewables (Iberdrola) and believes with the support of these partners that it stands well placed to benefit from the rapid acceleration in the green hydrogen market.
Snam strategic investment into ITM Power and Commercial Partnership Agreement between ITM Power and Snam
The Group has entered into an agreement with Snam under which the Group will be the preferred supplier for the first 100 MW of PEM electrolysis projects ordered by Snam up to 2025, which (subject to the availability of suitable projects and agreement of terms) ITM Power and Snam intend to be deployed between the period 2021 to 2025. The Commercial Partnership Agreement also provides for further collaboration opportunities between the Group and Snam as regards the right to make an offer on future potential PEM projects identified by Snam above the 100 MW initial preferred supplier projects.
Snam is a leading energy infrastructure operator with a market capitalization of over €15bn at the end of 2019 and a presence in Europe, China and the UAE. It has an extensive gas transportation network in Europe at over 41,000km, and natural gas storage capacity in Europe of c.20bn cubic metres. It is heavily committed to decarbonisation and innovation in energy transition, including the hydrogen market. In 2019 Snam announced the establishment of a business unit dedicated to hydrogen and is engaged in research and development in the sector.
The award of preferred supplier status by Snam will have a transformative effect on the Group's contract backlog, which measures amounts under contract and in the final stages of negotiation and which is a signpost of potential future revenue. Approximately £70m of contract backlog has been attributed to the Group's status as preferred PEM electrolyser supplier for the first 100MW PEM electrolysis projects order by Snam under the Commercial Partnership Agreement. The potential for future tender opportunities available to the Group through the Commercial Partnership Agreement is further expected to support continued growth in the Group's pipeline.
The Directors believe that through the commercial partnership, Snam's recognised leadership in hydrogen and extensive global network can support the Group in its positioning to capture the global green hydrogen opportunity. The Directors also recognise the opportunity that Snam's extensive energy network experience and commitment to a sustainable energy transition present to identify and deliver future projects through both the Group and ITM Linde Electrolysis GmbH (ILE), the Group's joint venture with Linde Group incorporated earlier this year.
Acceleration of the Group's activities - technology
The Group continues to accelerate development of its proprietary electrolyser stack technology with a focus on developing a superior offering for the extra-large electrolyser market through a focus on standardisation of products and modularity at scale.
The fourth generation two-stack 5MW Gigastack platform builds on the Group's market-leading experience in large electrolyser systems gained through the 10MW Shell Refhyne project and is designed for the extra-large market. The Group's work with other strategic partners on the UK's Gigastack project supports this development, through a 100MW FEED study focussed on pre-engineering the fourth generation stack platforms into modular 20MW packages for rapid deployment.
The acceleration of the Group's solutions for extra-large electrolyser systems will enable the Group to gain exposure to larger projects faster by reducing design time as well as minimising on-site works to reduce complexity and lead times.
The Directors intend to use the proceeds of the Fundraising to support the acceleration of the Group's technology with an allocation of £47m of raised amounts to be applied to acceleration of technologies, split as follows:
· £22m in order to support the next-generation 5MW stack platform and the 20MW pre-engineered modular packages;
· £19m to support the Group's development of its integrated "plug and play" electrolyser products; and
· £6m to support the Group's work in developing global compliance frameworks.
Acceleration of the Group's activities - manufacturing
Earlier this year the Group took occupation of its new Bessemer Park electrolyser factory in Sheffield. The facility is designed with a total maximum manufacturing capability of 1GW of electrolysers per annum, which will be realised through product standardisation, semi-automation within the factory as well as increasing the minimum levels of stock held in order to reduce lead times (through securing framework agreements with key suppliers) and maximise throughput. Bessemer Park is scheduled to reach a manufacturing capacity of 1GW per annum by the end of 2023.
The design and fit-out of Bessemer Park has given the Group a replicable blueprint that the Group can use in order to establish a new factory of equivalent capacity in other locations. The Group intends to raise funds as working capital in order to support the potential identification and deployment of a new "gigafactory" in a strategic European location based on the Bessemer Park model, should ITM Power's order volumes and project pipeline indicate that additional manufacturing capacity will be necessary. The location of the new factory remains to be determined, however the opening of a new factory in a strategic location will present opportunities to optimise cost, quality and supply in the locality of the new factory, as well as to optimise the opportunity for localised experience while maintaining an existing and familiar blueprint across factories.
In both optimising Bessemer Park and (subject to demand) targeting a new European gigafactory, the Group has identified that a rapid increase in manufacturing capacity will be necessary in order to meet the predicted market demand through to 2030 and beyond. Opening a second gigafactory to ultimately double the potential electrolyser manufacturing capacity to a maximum of 2GW per annum would send a strong signal that the Group is preparing for the expected continued increase in demand for green hydrogen.
The increase in manufacturing capacity will be realised in part through a reduction in lead times, with the Group working towards halving lead times from order to completed factory acceptance testing. This reduction will be facilitated in a number of ways, principally by increasing key stock items at Bessemer Park to reduce procurement lead times, semi-automation of manufacturing processes to reduce production lead times and product standardisation to reduce engineering and production lead times. Through this, the Group believes that a reduction in lead times from 14 months today to less than 8 months as Bessemer Park's manufacturing capacity is achievable.
The Directors intend to use the proceeds of the Fundraising to support the acceleration of the Group's manufacturing capabilities through an allocation of £37m of raised amounts to be applied as follows:
· £22m as working capital to support the potential development of a new European gigafactory; and
· £15m for the holding of stock in order to reduce manufacturing lead times.
Acceleration of the Group's activities - operations
The expected increase in manufacturing and orders has resulted in the Group identifying a need to develop high quality after-sales services in order to ensure the necessary capacity is available in order to install and commission projects in step with order intake.
The Group is therefore targeting the development and implementation of world-class after sales support packages in order to maximise the availability of the Group's systems and offer improved reliability and efficiency though customer support packages.
In order to facilitate these ambitions, the Group intends to increase the volume of critical spares held in strategic locations to reduce lead times for supported electrolyser systems and to develop partnerships with maintenance and support organisations where this can ensure local support in new geographies and territories (and by extension increase the availability of deployed systems). The development of tiered after sales support packages will also support the growth of a recurring revenue stream in supporting deployed equipment throughout its design life.
ITM Power will also increase its business development activities in key areas of market growth in order to position the Group to benefit from the increased opportunities in these markets.
The Directors intend to use the proceeds of the Fundraising to support the acceleration of the Group's operations in this area with an allocation of £32m of raised funds as follows:
· £24m working capital;
· £3m to conduct reliability, availability, maintainability analyses;
· £3m towards the holding of critical spares and increasing the after sales and commissioning teams; and
· £2m to upgrade the existing control centre and towards the use of additional support technologies.
Targeting 50% electrolyser cost reduction within 5 years
Progress in the key areas of product standardisation, reduction of lead times and increase of manufacturing capacity and purchasing power are key drivers of the Group's target of reducing the capital cost of its electrolysers by 50% between 2020 and 2025 from €1000 per kilowatt today (at the megawatt scale) to less than €500 per kilowatt by the mid-2020s. The Group is currently tracking ahead of its cost reduction targets for some projects.
In order to realise these reductions, the Group will need to leverage its increased manufacturing volume (through semi-automation and improved procurement lead times) as well as apply technology improvements (including standard and modular systems). The Group's projections also anticipate an increased average order size which is expected to the benefits of economies of scale. The Group also benefits from the advantage of having full product control over its electrolyser stacks, and the Group's design work for new products is focussed not only on product quality but also the manufacturability of the design.
ITM Motive
The Group has been an early pioneer for hydrogen refuelling stations and, with Shell, delivered the first UK forecourt hydrogen refuelling station.
During the past year, the Group has appointed a new managing director for the refuelling assets of the Group. As a result of the evaluation of the existing asset base, there is a refocusing of the Group's refuelling strategy, which is focussed on larger scale plant where there is greater medium-term potential for sustainable and attractive financial returns. The Group believes it is well positioned to deliver this strategy as a result of its experience to date and support of its partners Shell, Linde, Toyota, Orsted and a collaborative relationship with the UK government. The Group's recent involvement with Scottish Power Renewables and BOC (a Linde company) in the 10MW Green Hydrogen for Glasgow project is expected to supply hydrogen to the commercial market within the next two years .
Hydrogen refuelling has the potential to bring in long term recurring income and the Group is targeting future multi-MW refuelling hubs such as the Glasgow project with tied fleets, and sites with the potential for multiple heavy vehicle applications (such as buses, trucks and trains) in order to improve profitability.
The Directors intend to use the proceeds of the Fundraising to support the acceleration of the Group's refuelling operations in this area with an allocation of £30m of raised funds to be applied within the refuelling business to identify opportunities and to develop new profitable refuelling sites. The Company also expects to benefit further from grant funding which will have the effect of providing further leverage on capital available for deployment.
Details of the Fundraising
Structure
The Directors have given careful consideration as to the structure of the proposed Fundraising and have concluded that the Firm Placing, the Open Offer and the Share Subscription is the most suitable option available to the Group and its shareholders at this time.
It is intended that approximately 51,063,830 Firm Placing Shares will be issued through the Firm Placing at 235 pence per New Ordinary Share to raise gross proceeds of £120,000,000. Assuming full take up of the Open Offer, up to 2,984,132 New Ordinary Shares will be issued through the Open Offer at 235 pence per New Ordinary Share to raise gross proceeds of approximately £7 million.
Principal terms of the Firm Placing
In accordance with the terms of the Firm Placing and Open Offer Agreement, Investec has agreed to use reasonable endeavours to procure placees for the Firm Placing Shares at the Firm Placing Price.
The Firm Placing is not being underwritten.
The Firm Placing Shares are not subject to clawback and are not part of the Open Offer.
Under the Firm Placing and Open Offer Agreement, the Group has agreed to pay to Investec a fixed sum together with a commission based on the aggregate value of certain of the Firm Placed Shares placed at the Issue Price and the costs and expenses of the Firm Placing together with any applicable VAT.
As part of the Firm Placing, the Company has agreed that it will not issue or sell any Ordinary Shares for a period of 180 days after Admission without the prior written consent of Investec (subject to certain customary exceptions).
Investec's obligations under the Firm Placing and Open Offer Agreement are conditional on, inter alia: the Company complying with its material obligations under the Firm Placing and Open Offer Agreement to the extent that they fall to be performed prior to Admission; the warranties given by the Company in the Firm Placing and Open Offer Agreement being true, accurate and not misleading at all times from the date of the Firm Placing and Open Offer Agreement and before Admission, by reference to the facts and circumstances then subsisting; the General Meeting having taken place and the Resolutions having been passed without amendment (save for any such amendments as the Firm Placing Agent may agree); and Admission occurring no later than 08.00 a.m. on 12 November 2020 (or such later time and/or date as may be agreed between the Group and Investec, being no later than 8.00 a.m. on 20 November 2020).
Principal terms of the conditional Share Subscription
Pursuant to a subscription agreement dated on or about the date of this announcement, Snam has agreed to subscribe for 12,765,957 New Ordinary Shares at a price of 235 pence per New Ordinary Share, raising £30.0m. The Share Subscription is conditional on (amongst other things):
(a) the Firm Placing and Open Offer Agreement having not lapsed or been terminated in accordance with its terms and the Open Offer Shares and the Firm Placing Shares (if any) having been admitted to trading on AIM in accordance with the AIM Rules;
(b) the Group successfully raising, pursuant to the Fundraising, £100,000,000 (before expenses); and
(c) Admission of the Subscription Shares.
The Subscription Agreement contains customary warranties given by the Company in favour of Snam.
Pursuant to the Subscription Agreement:
(a) Snam will have the right, following completion of the Share Subscription and for so long as it holds at least 6,382,978 Ordinary Shares (adjusted to allow for any future sub-division, consolidation or other relevant reorganisation of the Group's ordinary share capital which is effected after Admission) to appoint and maintain a representative to the Group's existing Technology Management Committee and a new strategic advisory committee to be established by the Board; and
(b) Snam has agreed, other than in certain limited circumstances, not (for a period of 12 months following completion of the Share Subscription) to sell any of the Subscription Shares or acquire shares which would increase Snam's shareholding to more than 29.99% of the Group's issued ordinary share capital.
Conditionality
The Fundraising is conditional, among other things, upon the following:
(a) the passing, without amendment, of the Resolutions at the General Meeting;
(b) Admission occurring by no later than 8.00 a.m. on 12 November 2020 (or such later time and/or date as may be agreed between the Group and Investec, being no later than 8.00 a.m. on 20 November 2020);
(c) the Firm Placing and Open Offer Agreement and the Subscription Agreement and the Commercial Partnership Agreement becoming unconditional in all respects and not having been terminated in accordance with their terms; and
(d) the Commercial Partnership Agreement with Snam not having been terminated
If the conditions set out above are not satisfied or waived (where capable of waiver), the Firm Placing, the Share Subscription and the Open Offer will lapse; and
(a) the Firm Placing Shares will not be issued and all monies received from investors in respect of the Firm Placing Shares will be returned to them (at the investors' risk and without interest) as soon as possible thereafter; and
(b) any Basic Entitlements and Excess CREST Open Offer Entitlements admitted to CREST will, after that time and date, be disabled and application monies under the Open Offer will be refunded to the applicants, by cheque (at the applicant's risk) in the case of Qualifying Non-CREST Shareholders and by way of a CREST payment in the case of Qualifying CREST Shareholders, without interest, as soon as practicable thereafter.
Application for Admission
Application will be made to the London Stock Exchange for the New Ordinary Shares to be admitted to trading on AIM. Admission is expected to take place, and dealings on AIM are expected to commence, at 8.00 a.m. on 12 November 2020 (or such later time and/or date as may be agreed between the Group and Investec, being no later than 8.00 a.m. on 20 November 2020). No temporary document of title will be issued.
The New Ordinary Shares will, following Admission, rank pari passu in all respects with the Existing Ordinary Shares and will carry the right to receive all dividends and distributions declared, made or paid on or in respect of the Ordinary Shares after Admission.
Effect of the Firm Placing and the Open Offer
Upon completion of the Fundraising, the New Ordinary Shares will represent approximately 13.99 per cent. of the Enlarged Share Capital (assuming the Open Offer is subscribed in full).
Total voting rights
Following Admission, the Group will have a total of 544,269,768 Ordinary Shares in issue (assuming the Open Offer is subscribed in full). With effect from Admission, this figure may (assuming the Open Offer is subscribed in full) be used by Shareholders as the denominator for the calculations by which they will determine if they are required to notify their interest in, or a change to their interest in the Group, under the Disclosure Guidance and Transparency Rules of the Financial Conduct Authority.
Intentions of the Directors in relation to the Firm Placing
The following Directors intend to subscribe for in aggregate 174,038 Firm Placed Shares, as follows:
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Name |
Number of Firm Placed Shares |
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Sir Roger Bone |
21,276 |
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Dr Graham Cooley |
106,382 |
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Dr Simon Bourne |
10,638 |
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Dr Rachel Smith |
6,382 |
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Andrew Allen |
6,382 |
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Martin Green |
15,319 |
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Katherine Roe |
7,659 |
Irrevocable voting commitments from certain Directors
Certain Directors have irrevocably undertaken to vote (and where the Existing Ordinary Shares are registered in the name of any other persons have irrevocably undertaken to use reasonable endeavours to procure that those persons will vote) in favour of the Resolutions at the General Meeting in respect of, in aggregate, 1,072,692 Existing Ordinary Shares, representing approximately 0.22 per cent. of the Existing Issued Share Capital.
Irrevocable voting commitments from certain shareholders
Certain shareholders of the Company (other than the Directors) have irrevocably undertaken to vote (and where the Existing Ordinary Shares are registered in the name of any other persons have irrevocably undertaken to use reasonable endeavours to procure that those persons will vote) in favour of the Resolutions at the General Meeting in respect of, in aggregate, 168,228,017 Existing Ordinary Shares, representing approximately 35.23 per cent. of the Existing Issued Share Capital.
General Meeting and Circular to Shareholders
A General Meeting of the Group is planned to be held at 10.00 a.m. on 11 November 2020.
The health of its employees, shareholders and stakeholders is of extreme importance to the Company. In view the COVID-19 pandemic and provisions of The Corporate Insolvency and Governance Act 2020 and associated legislation, which have permitted greater flexibility regarding the manner in which companies can hold general meetings, the General Meeting will not be held at a physical venue. However, in order to ensure that Shareholders are able to follow the proceedings of the General Meeting, the Company will provide access to an online audio and presentation link, details of which will follow in the circular to be sent to Shareholders in connection with the Fundraising on or around 24 October 2020. Please note that shareholders will not be able to vote at the General Meeting via the online presentation link.
The Board will continue to monitor the COVID-19 situation as it evolves (including the UK Government's measures in response to it) and, if the situation or applicable restrictions change in advance of the General Meeting such that the Board determines that it is safe to make alternative arrangements for the General Meeting, it will announce these via RNS and the Company's website: https://www.itm-power.com/investors-news .
The General Meeting is being held for the purpose of considering and, if thought fit, passing the Resolutions necessary for the implementation of the Fundraising.
A summary and explanation of the Resolutions will be set out in the Circular to be sent out shortly.
This announcement should be read in its entirety. In particular, you should read and understand the information provided in the "Important Notices" section of this announcement.
IMPORTANT NOTICES
No action has been taken by the Company, Investec, any of their respective affiliates or any person acting on its or their behalf that would permit an offer of the Firm 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. Persons into whose possession this announcement comes are required by the Company and Investec to inform themselves about, and to observe, such restrictions.
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. Persons needing advice should consult a qualified independent legal adviser, business adviser, financial adviser or tax adviser for legal, financial, business or tax advice.
THIS ANNOUNCEMENT, INCLUDING THE APPENDIX AND THE INFORMATION CONTAINED IN IT, IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR INTO THE UNITED STATES OF AMERICA, ITS TERRITORIES AND POSSESSIONS, ANY STATE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA (COLLECTIVELY, THE "UNITED STATES"), AUSTRALIA, CANADA, THE REPUBLIC OF SOUTH AFRICA OR JAPAN OR ANY OTHER 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 HAS NOT BEEN APPROVED BY THE LONDON STOCK EXCHANGE, NOR IS IT INTENDED THAT IT WILL BE SO APPROVED.
This announcement or any part of it does not constitute or form part of any offer to issue or sell, or the solicitation of an offer to acquire, purchase or subscribe for, any securities in the United States, Canada, Australia, the Republic of South Africa or Japan or any other jurisdiction in which the same would be unlawful. No public offering of the placing shares is being made in any such jurisdiction.
The securities referred to herein have not been and will not be registered under the United States Securities Act of 1933, as amended (the "Securities Act"), or under the securities laws of any state or other jurisdiction of the United States, and may not be offered or sold directly or indirectly in or into the United States absent registration under the Securities Act or pursuant to an 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 any other jurisdiction of the United States. The Firm Placing Shares are being offered and sold by the Company (a) outside the United States in offshore transactions as defined in, and pursuant to, Regulation S under the Securities Act ("Regulation S") or (b) in the in the United States only to persons reasonably believed to be "qualified institutional buyers" (as defined in Rule 144A of the Securities Act) ("QIBs") in transactions not involving any "public offering" within the meaning of Section 4(a)(2) of the Securities Act and/or pursuant to an exemption from, or transaction not subject to, the registration requirements of the Securities Act. It and the prospective beneficial owner of the Firm Placing Shares is, and at the time the Firm Placing Shares are subscribed for will be, (i) outside the United States and subscribing for the placing shares in an "offshore transaction" as defined in, and in accordance with, Regulation S; or (ii) (a) a QIB and (b) subscribing for the Firm Placing Shares pursuant to an exemption from, or in a transaction not subject to, the registration requirements under the Securities Act. No public offering of securities is being made in the United States. No money, securities or other consideration from any person inside the United States is being solicited and, if sent in response to the information contained in this announcement, will not be accepted.
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 Firm Placing Shares and the Firm Placing Shares have not been, nor will they be, registered under or offering in compliance with the securities laws of any state, province or territory of Australia, the Republic of South Africa or Japan. 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 Australia, the Republic of South Africa, or Japan or any other jurisdiction in which such activities would be unlawful.
By participating in the Bookbuilding Process and the Firm Placing, each person who is invited to and who chooses to participate in the Firm Placing (each a "placee") by making an oral or written and legally binding offer to acquire Firm Placing Shares will be deemed to have read and understood this announcement in its entirety, to be participating, making an offer and acquiring placing shares on the terms and conditions contained in the Appendix to this announcement and to be providing the representations, warranties, indemnities, acknowledgements and undertakings contained in the Appendix to this announcement.
A variety of factors may cause the Company's and its subsidiaries' (the "group's") actual results to differ materially from the forward‐looking statements contained in this announcement. Certain statements included or incorporated by reference within this announcement may constitute "forward-looking statements" in respect of the group's operations, performance, prospects and/or financial condition. These forward‐looking statements may be identified by the use of forward‐looking terminology, including the terms "believes", "estimates", "plans", "anticipates, "expects", "intends", "may", "will", or "could" or words of similar substance or the negative thereof, or by discussions of strategy, plans, objectives, goals, economic performance, dividend policy, future events or intentions. By their nature, forward-looking statements involve a number of risks, uncertainties and assumptions because they relate to events and depend on circumstances that may or may not occur in the future or are beyond the group's control. Actual results or events may and often do differ materially from those expressed or implied by those statements. Any forward‐looking statements reflect the Company's current view with respect to future events and are subject to risks relating to future events and other risks, uncertainties and assumptions relating to the group's business, results of operations, financial position, liquidity, prospects, growth and strategies. Forward‐looking statements speak only as of the date they are made. The group's actual operating results and financial condition and the development of the industry in which it operates may differ materially from the impression created by the forward‐looking statements contained in this announcement. Important factors that could cause these differences include, but are not limited to, the ongoing national and international impact of the Covid-19 pandemic, general economic and business conditions, industry trends, foreign currency rate fluctuations, competition, changes in government and other regulation, including in relation to the environment, health and safety and taxation, labour relations and work stoppages, changes in political and economic stability and changes in business strategy or development plans and other risks.
Accordingly, no assurance can be given that any particular expectation will be met and reliance shall not be placed on any forward-looking statement. Additionally, forward-looking statements regarding past trends or activities shall 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 no responsibility or obligation is accepted to update or revise any forward-looking statement resulting from new information, future events or otherwise.
In particular, no statement in this announcement is intended to be a profit forecast and no statement of a financial metric (including estimates of EBITDA, profit before tax, free cash flow or net debt) should be interpreted to mean that any financial metric for the current or future financial years would necessarily match or exceed the historical published position of the group. The estimates set out in this announcement have been prepared based on numerous assumptions and forecasts, including those set out in this announcement, some of which are outside of the Company's influence and/or control, and is therefore inherently uncertain and there can be no guarantee or assurance that it will be correct. The estimates have not been audited, reviewed, verified or subject to any procedures by our auditors. You should not place undue reliance on them and there can be no guarantee or assurance that they will be correct. Investec is authorised by the Prudential Regulatory Authority and regulated in the United Kingdom by the Prudential Regulation Authority and the FCA.
Investec is acting exclusively for the Company and no one else in connection with the Firm Placing, the content of this announcement and other matters described in this announcement. Investec will not regard any other person as its respective client in relation to the placing, the content of this announcement and other matters described in this announcement and will not be responsible to anyone (including any placees) other than the Company for providing the protections afforded to its clients or for providing advice to any other person in relation to the placing, the content of this announcement or any other matters referred to in this announcement.
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 Investec, any of its affiliates or any person acting on its or their behalf 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.
This announcement does not constitute a recommendation concerning any investor's investment decision with respect to the Firm Placing. The price of Ordinary Shares and any income expected from them may go down as well as up and investors may not get back the full amount invested upon disposal of the Ordinary Shares. Past performance is no guide to future performance. The contents of this announcement are not to be construed as legal, business, financial or tax advice. Each investor or prospective investor should consult his, her or its own legal adviser, business adviser, financial adviser or tax adviser for legal, financial, business or tax advice.
Any indication in this announcement of the price at which Ordinary Shares have been bought or sold in the past cannot be relied upon as a guide to future performance. No statement in this announcement is intended as a profit forecast or estimate for any period and no statement in this announcement should be interpreted to mean that earnings, earnings per share or income, cash flow from operations or free cash flow for the Company, as appropriate, for the current or future years would necessarily match or exceed the historical published earnings, earnings per share or income, cash flow from operations or free cash flow for the Company.
In connection with the Firm Placing, Investec, its affiliates and any person acting on its or their behalf may take up a portion of Ordinary Shares in the Firm Placing as a principal position and in that capacity may retain, purchase or sell for its own account such shares and other securities of the Company or related investments and may offer or sell such shares, securities or other investments otherwise than in connection with the Firm Placing. Accordingly, references in this announcement to Firm Placing Shares being issued, offered or placed should be read as including any issue, offering or placement of such shares in the Company to Investec, any of its affiliates or any person acting on its or their behalf as, acting in such capacity. In addition, Investec, any of its affiliates or any person acting on its or their behalf may enter into financing arrangements (including swaps, warrants or contracts for difference) with investors in connection with which Investec, any of its affiliates or any person acting on its or their behalf may from time to time acquire, hold or dispose of such securities of the Company, including the placing shares. Neither Investec, any of its affiliates nor any person acting on its or their behalf intends to disclose the extent of any such investment or transactions otherwise than in accordance with any legal or regulatory obligation to do so.
The Firm Placing Shares to be issued or sold pursuant to the Firm Placing will not be admitted to trading on any stock exchange other than the London Stock Exchange.
Neither the content of the Company's website (or any other website) nor the content of any website accessible from hyperlinks on the Company's website (or any other website) is incorporated into or forms part of this announcement.
This announcement has been prepared for the purposes of complying with applicable law and regulation in the United Kingdom and the information disclosed may not be the same as that which would have been disclosed if this announcement had been prepared in accordance with the laws and regulations of any jurisdiction outside the United Kingdom.
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 placing shares 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 Firm Placing Shares may decline and investors could lose all or part of their investment; the Firm Placing Shares offer no guaranteed income and no capital protection; and an investment in the Firm 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 Firm Placing. Furthermore, it is noted that, notwithstanding the target market assessment, Investec 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 Firm Placing Shares. Each distributor is responsible for undertaking its own target market assessment in respect of the placing shares and determining appropriate distribution channels.
APPENDIX
TERMS AND CONDITIONS OF THE FIRM PLACING
IMPORTANT INFORMATION FOR INVITED PLACEES ONLY
THIS ANNOUNCEMENT AND THE INFORMATION IN IT IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN, OR INTO, OR FROM THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, NEW ZEALAND OR THE REPUBLIC OF SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH SUCH PUBLICATION, RELEASE OR DISTRIBUTION WOULD BE UNLAWFUL.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE FIRM PLACING. THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT: (A) IN A MEMBER STATE OF THE EUROPEAN ECONOMIC AREA ("EEA") AND THE UNITED KINGDOM, PERSONS WHO ARE, UNLESS OTHERWISE AGREED BY THE FIRM PLACING AGENT, "QUALIFIED INVESTORS" AS DEFINED IN ARTICLE 2(E) OF THE EU PROSPECTUS REGULATION (WHICH MEANS REGULATION (EU) 2017/1129 AS AMENDED AND/OR SUPPLEMENTED FROM TIME TO TIME AND INCLUDES ANY RELEVANT IMPLEMENTING MEASURE IN ANY MEMBER STATE AND THE UNITED KINGDOM) (THE "PROSPECTUS REGULATION"); AND (B) IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE: (I) "INVESTMENT PROFESSIONALS" WITHIN THE MEANING OF ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER"); (II) PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC.") OF THE ORDER; OR (III) PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. PERSONS INTO WHOSE POSSESSION THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) COMES ARE REQUIRED BY THE COMPANY AND THE FIRM PLACING AGENT TO INFORM THEMSELVES ABOUT AND TO OBSERVE ANY SUCH RESTRICTIONS.
THIS ANNOUNCEMENT IS NOT AN OFFER FOR SALE OF, OR A SOLICITATION TO PURCHASE OR SUBSCRIBE FOR, SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL UNDER THE SECURITIES LAWS OF ANY JURISDICTION. THIS ANNOUNCEMENT DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OF, OR A SOLICITATION TO PURCHASE OR SUBSCRIBE FOR, ANY SECURITIES IN THE COMPANY.
THIS ANNOUNCEMENT IS NOT FOR PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES OF AMERICA. THIS ANNOUNCEMENT IS NOT AN OFFER OF SECURITIES FOR SALE IN THE UNITED STATES. THE SECURITIES REFERRED TO HEREIN HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE " SECURITIES ACT"), OR UNDER ANY SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD, RESOLD, TRANSFERRED OR DELIVERED, DIRECTLY OR INDIRECTLY, IN OR INTO, THE UNITED STATES, 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. THE SECURITIES REFERRED TO HEREIN MAY ONLY BE PLACED IN THE UNITED STATES PURSUANT TO SECTION 4(A)(2) OF THE SECURITIES ACT, RULE 506 OF REGULATION D UNDER THE SECURITIES ACT AND/OR RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), WITH CERTAIN LIMITED EXCEPTIONS, ONLY TO INSTITUTIONS THAT ARE "QUALIFIED INSTITUTIONAL BUYERS" AS DEFINED IN RULE 144A ("QIBs"). NO PUBLIC OFFERING OF SECURITIES IS BEING MADE IN THE UNITED STATES, THE UNITED KINGDOM OR ELSEWHERE.
THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN AND WILL NOT BE APPROVED, DISAPPROVED OR RECOMMENDED 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 FIRM PLACING, THE OFFERING OF FIRM PLACING SHARES OR THE ACCURACY OR ADEQUACY OF THIS ANNOUNCEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENCE IN THE UNITED STATES.
NEITHER THE COMPANY NOR THE FIRM PLACING AGENT MAKES ANY REPRESENTATION TO PERSONS WHO ARE INVITED TO AND WHO CHOOSE TO PARTICIPATE IN THE FIRM PLACING REGARDING AN INVESTMENT IN THE SECURITIES REFERRED TO IN THIS ANNOUNCEMENT UNDER THE LAWS APPLICABLE TO SUCH PLACEES. EACH PLACEE SHOULD CONSULT ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF AN INVESTMENT IN FIRM PLACING SHARES. THE PRICE OF THE FIRM PLACING SHARES AND THE INCOME FROM THEM (IF ANY) MAY GO DOWN AS WELL AS UP AND INVESTORS MAY NOT GET BACK THE FULL AMOUNT INVESTED ON DISPOSAL OF THE FIRM PLACING SHARES.
THE CONTENTS OF THIS ANNOUNCEMENT HAVE NOT BEEN REVIEWED BY ANY REGULATORY AUTHORITY IN THE UNITED KINGDOM OR ELSEWHERE. YOU ARE ADVISED TO EXERCISE CAUTION IN RELATION TO THE FIRM PLACING. IF YOU ARE IN ANY DOUBT ABOUT ANY OF THE CONTENTS OF THIS ANNOUNCEMENT, YOU SHOULD OBTAIN INDEPENDENT PROFESSIONAL ADVICE.
By participating in the Firm Placing, Placees will be deemed to have read and understood this Announcement in its entirety and to be participating in the Firm Placing on the terms and conditions, and to be providing the representations, warranties, acknowledgements and undertakings, contained in this Announcement. In particular, each Placee represents, warrants, acknowledges and agrees that:
1. it is a Relevant Person (as defined above) and undertakes that it will acquire, hold, manage or dispose of any Firm Placing Shares that are allocated to it for the purposes of its business; and
2. it is and, at the time the Firm Placing Shares are acquired, will be either (i) outside the United States and acquiring the Firm 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 QIB, which is acquiring the Firm Placing Shares for its own account or for a discretionary account or accounts, each of which is a QIB and each of which is acquiring beneficial interests in the Firm Placing Shares for its own account; if acquiring the Firm Placing Shares for the account of one or more other persons, it has full power and authority to make the representations, warranties, agreements and acknowledgements herein on behalf of each such person.
The Company and Investec (the "Placing Agent") will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and agreements. Each Placee hereby agrees with the Firm Placing Agent and the Company to be bound by these terms and conditions as being the terms and conditions upon which Firm Placing Shares will be issued. A Placee shall, without limitation, become so bound if the Firm Placing Agent confirms to such Placee its allocation of Firm Placing Shares.
Upon being notified of its allocation of Firm Placing Shares, a Placee shall be contractually committed to subscribe for the number of Firm Placing Shares allocated to it at the Firm Placing Price and, to the fullest extent permitted by law, will be deemed to have agreed not to exercise any rights to rescind or terminate or otherwise withdraw from such commitment.
Details of the Firm Placing and Open Offer Agreement and the Firm Placing Shares
The Company and the Firm Placing Agent have entered into a Placing Agreement, under which the Firm Placing Agent has undertaken, on the terms and subject to the conditions set out therein, to use its reasonable endeavours to procure subscribers for the Firm Placing Shares.
The Firm Placing Agent shall be under no obligation to itself subscribe as principal for: (i) any Firm Placing Shares for which it is unable to procure Placees; or (ii) any Firm Placing Shares to the extent that any Placee procured by the Firm Placing Agent fails to subscribe for any or all of the Firm Placing Shares which have been allocated to it in the Firm Placing.
The Firm Placing Shares will, when issued, be subject to the articles of association of the Company, will be credited as fully paid and will rank pari passu in all respects with the existing Shares, including the right to receive all dividends and other distributions (if any) declared, made or paid on or in respect of Shares after the date of issue of the Firm Placing Shares.
The Firm Placing Shares will trade on AIM under ITM POWER PLC, symbol ITM, with ISIN GB00B0130H42.
Lock-up
As part of the Firm Placing, the Company has agreed that it will not issue or sell any Shares for a period of 180 days after Admission without the prior written consent of the Firm Placing Agent. This agreement is subject to certain customary exceptions.
Application for admission to trading of the Firm Placing Shares
Application will be made to the London Stock Exchange for the Firm Placing Shares to be admitted to trading on AIM. It is expected that Admission will take place on or before 08.00 a.m. on 12 November 2020 and that dealings in the Firm Placing Shares will commence at the same time.
Placing and Bookbuild
The Firm Placing Agent will today commence an accelerated bookbuilding process to determine demand for participation in the Firm Placing by Placees. This Announcement gives details of the terms and conditions of, and the mechanics of participation in, the Firm Placing. No commissions will be paid to Placees or by Placees in respect of any Firm Placing Shares.
The Firm Placing Agent and the Company shall be entitled to effect the Firm Placing by such alternative method to the Bookbuild as they may agree between them.
Principal terms of the Bookbuild and Placing
1. The Firm Placing Agent is arranging the Firm Placing as sole broker and sole bookrunner and agent of the Company.
2. Participation in the Firm Placing is only available to persons who are lawfully able to, and have been invited to, participate by the Firm Placing Agent. The Firm Placing Agent and its affiliates and/or their agents are entitled, acting for their own account, to participate in the Firm Placing as principal.
3. The number of Placing Shares to be issued will be agreed between the Firm Placing Agent and the Company following completion of the Bookbuild. The results of the Bookbuild will be released via a Regulatory Information Service ("RIS") following the completion of the Bookbuild.
4. The Bookbuild is expected to close no later than 7.00 a.m. on 23 October 2020 but may be closed earlier or later at the discretion of the Firm Placing Agent. The Firm Placing Agent may, in agreement with the Company, accept bids received after the Bookbuild has closed.
5. To bid in the Bookbuild, Placees should communicate their bid by telephone or in writing to their usual sales contact at the Firm Placing Agent. Each bid should state the number of Placing Shares which the prospective Placee wishes to subscribe for at the Firm Placing Price.
6. A bid in the Bookbuild will be made on the terms and subject to the conditions in this Announcement and will be legally binding on the Placee on behalf of which it is made and, except with the consent of the Firm Placing Agent, will not be capable of variation or revocation after the time at which it is submitted. Each Placee will have an immediate, separate, irrevocable and binding obligation, owed to the Firm Placing Agent (as agent of the Company), to pay to the Firm Placing Agent (or as the Firm Placing Agent may direct) in cleared funds an amount equal to the product of the Firm Placing Price and the number of Placing Shares such Placee has agreed to subscribe for and the Company has agreed to allot and issue to that Placee.
7. The Firm Placing Agent may choose to accept bids, either in whole or in part, on the basis of allocations determined in consultation with the Company and reserves the right (i) to scale back the number of Placing Shares to be subscribed for by any Placee in the event of the Firm Placing being oversubscribed; (ii) not to accept offers for Placing Shares or to accept such offers in part rather than in full; (iii) to allocate Placing Shares after the time of any initial allocation to any person submitting a bid after that time and/or (iv) to allocate Placing Shares after the Bookbuild has closed to any person submitting a bid after that time. The Company reserves the right to reduce the amount to be raised pursuant to the Firm Placing, in agreement with the Firm Placing Agent.
8. Each Placee's allocation of Placing Shares will be confirmed to Placees orally, or in writing (which may include email), by the Firm Placing Agent following the close of the Bookbuild and a trade confirmation or contract note has been or will be dispatched thereafter. The Firm Placing Agent's oral or written confirmation will give rise to an irrevocable, legally binding commitment by that person (who at that point becomes a Placee), in favour of the Firm Placing Agent and the Company, under which it agrees to acquire by subscription the number of Placing Shares allocated to it at the Firm Placing Price and otherwise on the terms and subject to the conditions set out in this Announcement and in accordance with the Company's articles of association. The terms and conditions of this Announcement will be deemed to be incorporated in that trade confirmation, contract note or such other (oral or written) confirmation and will be legally binding on the Placee on behalf of which it is made. All obligations under the Bookbuild and Placing will be subject to fulfilment of the conditions referred to below under "Conditions of the Firm Placing" and to the Firm Placing not being terminated on the basis referred to below under "Right to terminate under the Firm Placing and Open Offer Agreement". By participating in the Bookbuild, each Placee will agree that its rights and obligations in respect of the Firm Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.
9. Irrespective of the time at which a Placee's allocation pursuant to the Firm Placing is confirmed, settlement for all Placing Shares to be subscribed for pursuant to the Firm Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement".
10. Except as required by law or regulation, no press release or other announcement will be made by the Firm Placing Agent or the Company using the name of any Placee (or its agent), in its capacity as Placee (or agent), other than with such Placee's prior written consent.
11. Placees that are QIBs and in the United States will be required to execute an Investor Letter in customary form and scope prior to Admission. Placees who are resident in Canada will be required to provide a certificate attesting to the fact that they are "accredited investors" and "permitted clients" under applicable Canadian securities laws.
12. To the fullest extent permissible by law and the applicable rules of the FCA, neither the Firm Placing Agent nor the Company nor any of their affiliates shall have any liability to the Placees (or to any other person whether acting on behalf of a Placee or otherwise whether or not a recipient of these terms and conditions) in respect of the Firm Placing. Each Placee acknowledges and agrees that the Company is responsible for the allotment of the Firm Placing Shares to the Placees and the Firm Placing Agent and its affiliates shall have no liability to the Placees for the failure of the Company to fulfil those obligations. In particular, neither the Firm Placing Agent nor the Company nor any of their respective affiliates shall have any liability (including to the extent permissible by law, any fiduciary duties) in respect of the Firm Placing Agent's conduct of the Firm Placing.
Conditions of the Firm Placing
The Firm Placing Agent's obligations under the Firm Placing and Open Offer Agreement are conditional on, inter alia:
1. the Company complying with its material obligations under the Firm Placing and Open Offer Agreement to the extent that they fall to be performed prior to Admission;
2. the Firm Placing Results Announcement having been released to a RIS by no later than 8.00 a.m. on 23 October 2020;
3. the warranties given by the Company in the Firm Placing and Open Offer Agreement being true, accurate and not misleading at all times from the date of the Firm Placing and Open Offer Agreement and before Admission, by reference to the facts and circumstances then subsisting;
4. the General Meeting having taken place and the Resolutions having been passed without amendment (save for any such amendments as the Firm Placing Agent may agree); and
5. Admission occurring no later than 08.00 a.m. on 12 November 2020.
If: (i) any of the conditions contained in the Firm Placing and Open Offer Agreement, including those described above, is not fulfilled or (where applicable) waived by the Firm Placing Agent by the respective time and date (if any) specified (or such later time and/or date (if any) as the Firm Placing Agent and the Company may agree in writing, but in any event no later than 8.00 a.m. on 20 November 2020 (the "Long Stop Date"); (ii) any of such conditions becomes incapable of being fulfilled (subject to the Firm Placing Agent not exercising its rights to waive or extent the time for fulfilment of the relevant condition); or (iii) the Firm Placing and Open Offer Agreement is terminated in the circumstances specified below, the Firm Placing will not proceed and the Placees' rights and obligations as set out in this Announcement in relation to the Firm Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by or on behalf of the Placee (or any person on whose behalf the Placee is acting) in respect thereof.
The Firm Placing Agent may, at its absolute discretion and subject to any conditions it considers appropriate, waive the satisfaction of any condition (other than the occurrence of Admission) by giving notice to the Company. The Firm Placing Agent may also, in its absolute discretion, extend the period for compliance by the Company with the whole or any part of any of the Company's obligations in relation to the conditions in the Firm Placing and Open Offer Agreement save that the period for satisfaction of the condition relating to Admission shall not be extended beyond the Long Stop Date. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement.
Neither the Firm Placing Agent, nor the Company nor any of their respective affiliates shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision they may make as to whether or not to waive or to extend the time and/or date for the satisfaction of any condition to the Firm Placing nor for any decision they may make as to the satisfaction of any condition or in respect of the Firm Placing generally and by participating in the Firm Placing each Placee agrees that any such decision is within the absolute discretion of the Firm Placing Agent. Placees will have no rights against the Firm Placing Agent, the Company or any of their respective partners, members, directors or employees under the Firm Placing and Open Offer Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 (as amended) or otherwise.
Right to terminate the Firm Placing and Open Offer Agreement
The Firm Placing Agent is entitled in its absolute discretion to terminate the Firm Placing and Open Offer Agreement with immediate effect in certain circumstances, including, inter alia, if at any time before Admission:
1. the Firm Placing Agent becomes aware that any warranty in the Firm Placing and Open Offer Agreement was, when given, untrue, inaccurate or misleading; or
2. in the opinion of the Firm Placing Agent, a Material Adverse Change has occurred (as such term is defined in the Firm Placing and Open Offer Agreement).
In addition, if at any time before Admission there occurs any change, or development involving a prospective change, in national or international, military, diplomatic, monetary, economic, political, financial, industrial or market conditions or exchange rates or exchange controls, or any incident of terrorism or outbreak or escalation of hostilities or any declaration by the UK or the US of a national emergency or war or any other calamity or crisis or any material deterioration in, or material escalation in the response to, the Covid-19 pandemic, which, in the opinion of Placing Agent, acting in good faith, would or would be likely to prejudice materially the Company or the Firm Placing, or make the success of the Firm Placing doubtful or makes it impracticable or inadvisable to proceed with the Firm Placing, or render the creation of a market in the ordinary share capital of the Company temporarily or permanently impracticable, then the Firm Placing Agent may, in its absolute discretion, after consultation with the Company to the extent practicable, by notice in writing to the Company (or by orally communicating the same to the Company), terminate the Firm Placing and Open Offer Agreement with immediate effect.
If the Firm Placing and Open Offer Agreement is terminated prior to Admission then the Firm Placing will not occur and the Company and the Firm Placing Agent shall be released and discharged (except for any liability arising before or in relation to such termination) from their respective obligations under or pursuant to the Firm Placing and Open Offer Agreement, subject to certain exceptions.
The rights and obligations of the Placees will not be subject to termination by the Placees or any prospective Placees at any time or in any circumstances. By participating in the Firm Placing, Placees agree that the exercise by the Firm Placing Agent of any right of termination or other discretion under the Firm Placing and Open Offer Agreement shall be within the absolute discretion of the Firm Placing Agent and that the Firm Placing Agent need not make any reference to Placees in this regard and that neither the Firm Placing Agent nor any of its affiliates shall have any liability to Placees whatsoever in connection with any such exercise or failure so to exercise.
No Admission Document or Prospectus
The Firm Placing Shares are being offered to a limited number of specifically invited persons only and have not been nor will be offered in such a way as to require the publication of an admission document or prospectus in the United Kingdom or any equivalent document in any other jurisdiction. No offering document, admission document or prospectus has been or will be submitted to be approved by the FCA or the London Stock Exchange in relation to the Firm Placing, and Placees' commitments will be made solely on the basis of the information contained in this Announcement, the announcement of the results of the Firm Placing through a RIS and the business and financial information that the Company is required to publish in accordance with the AIM Rules (the "Exchange Information") or has published via an RIS ("Publicly Available Information") (save that in the case of Exchange Information and Publicly Available Information, a Placee's right to rely on that information is limited to the right that such Placee would have as a matter of law in the absence of this paragraph). Each Placee, by accepting a participation in the Firm Placing, agrees that the content of this Announcement is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information (other than the Exchange Information and/or Publicly Available Information), representation, warranty or statement made by or on behalf of the Company or the Firm Placing Agent or any other person and neither the Firm Placing Agent, nor the Company nor any other person will be liable for any Placee's decision to participate in the Firm Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received and, if given or made, such information, representation, warranty or statement must not be relied upon as having been authorised by the Firm Placing Agent, the Company or any of their respective officers, directors, partners, employees or agents. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Firm Placing. Neither the Company nor the Firm Placing Agent are making any undertaking, representation or warranty to any Placee regarding the legality of an investment in the Firm Placing Shares by such Placee under any legal, investment or similar laws or regulations. Each Placee should not consider any information in this Announcement to be legal, tax or business advice. Each Placee should consult its own solicitor, tax adviser and financial adviser for independent legal, tax and financial advice regarding an investment in the Firm Placing Shares. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
Registration and Settlement
Settlement of transactions in the Firm Placing Shares will, unless otherwise agreed, take place on a delivery versus payment basis within CREST. Each Placee will be deemed to agree that it will do all things necessary to ensure that delivery and payment is completed as directed by the Firm Placing Agent in accordance with the standing CREST settlement instructions which they have in place with the Firm Placing Agent.
Settlement of transactions in the Firm Placing Shares (ISIN: GB00B0130H42) following Admission will take place within the CREST system provided that, subject to certain exceptions, the Firm Placing Agent reserves the right to require settlement for, and delivery of, the Firm Placing Shares (or a portion thereof) to Placees by such other means as it deems necessary if delivery or settlement is not possible or practicable within CREST within the timetable set out in this Announcement or would not be consistent with the regulatory requirements in any Placee's jurisdiction.
It is expected that settlement of the Firm Placing Shares will be on 12 November 2020 unless otherwise notified by the Firm Placing Agent. Admission is expected to occur by 12 November 2020 or otherwise at such later time as may be agreed between the Company and the Firm Placing Agent, not being later than the Long Stop Date.
Each Placee is deemed to agree that, if it does not comply with these obligations, the Firm Placing Agent may sell any or all of the Firm Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for the Firm Placing Agent's account and benefit (as agent for the Company), an amount equal to the aggregate amount owed by the Placee plus any interest due (chargeable daily on payments not received from Placees on the date due). The relevant Placee will, however, remain liable and shall indemnify the Firm Placing Agent on demand for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax or securities transfer tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf. By communicating a bid for Placing Shares, each Placee confers on the Firm Placing Agent such authorities and powers necessary to carry out any such sale and agrees to ratify and confirm all actions which the Firm Placing Agent lawfully takes in pursuance of such sale. Legal and/or beneficial title in and to any Placing Shares shall not pass to the relevant Placee until it has fully complied with its obligations hereunder.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees must ensure that any form of confirmation is copied and delivered immediately to the relevant person within that organisation.
Insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such Placing Shares should, subject as provided below, be so registered free from any liability to UK stamp duty or stamp duty reserve tax or securities transfer tax. Neither the Firm Placing Agent nor the Company will be liable in any circumstances for the payment of stamp duty, stamp duty reserve tax or securities transfer tax in connection with any of the Firm Placing Shares. Placees will not be entitled to receive any fee or commission in connection with the Firm Placing.
Representations, Warranties and Further Terms
By participating in the Firm Placing, each Placee (and any person acting on such Placee's behalf) will be deemed to make the following representations, warranties, acknowledgements, agreements and undertakings (as the case may be) to the Firm Placing Agent (for itself and on behalf of the Company), that:
1. it has read and understood this Announcement in its entirety and that its subscription for Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, indemnities, acknowledgements, agreements and undertakings and other information contained in this Announcement and undertakes not to redistribute or duplicate this Announcement;
2. it is relying solely on this Announcement and not on any other information given, or representation, warranty or statement made at any time, by any person concerning the Company, the Firm Placing Shares or the Firm Placing. It agrees that neither the Company nor the Firm Placing Agent, nor any of their respective officers, agents, employees or affiliates will have any liability for any other information, warranty or representation. It irrevocably and unconditionally waives any rights it may have in respect of any other information, warranty or representation;
3. the shares in the capital of the Company are admitted to trading on AIM, and the Company is therefore required to publish the Exchange Information, which includes a description of the nature of the Company's business and the Company's most recent balance sheet and profit and loss account, and that it is able to obtain access to such information or comparable information concerning any other publicly traded company without undue difficulty;
4. its obligations are irrevocable and legally binding and shall not be capable of rescission or termination by it in any circumstances;
5. the exercise by the Firm Placing Agent of any right or discretion under the Firm Placing and Open Offer Agreement shall be within the absolute discretion of the Firm Placing Agent and the Firm Placing Agent need not have any reference to it and shall have no liability to it whatsoever in connection with any decision to exercise or not to exercise any such right and each Placee agrees that it has no rights against the Firm Placing Agent or the Company, or any of their respective officers, directors, partners or employees, under the Firm Placing and Open Offer Agreement pursuant to the Contracts (Rights of Third Parties Act) 1999;
6. these terms and conditions represent the whole and only agreement between it, the Firm Placing Agent and the Company in relation to its participation in the Firm Placing and supersedes any previous agreement between any of such parties in relation to such participation. Accordingly, each Placee, in accepting its participation in the Firm Placing, is not relying on any information, representation or warranty in relation to the Company or any of its subsidiaries or any of the Firm Placing Shares other than as contained in this Announcement, the Exchange Information and the Publicly Available Information (save that in the case of Exchange Information and Publicly Available Information, a Placee's right to rely on that information is limited to the right that such Placee would have as a matter of law in the absence of this paragraph), such information being all that it deems necessary to make an investment decision in respect of the Firm Placing Shares. Each Placee agrees that neither the Company, nor the Firm Placing Agent nor any of their respective officers, directors, partners or employees will have any liability for any such other information, representation or warranty, express or implied;
7. it acknowledges that no person is authorised in connection with the Firm Placing to give any information or warranty or make any representation other than as contained in this document and, if given or made, any information, warranty or representation must not be relied upon as having been authorised by the Firm Placing Agent or the Company;
8. in the case of any Placing Shares acquired by it as a financial intermediary, as that term is used in Article 5(1) of the Prospectus Regulation: (i) the Firm Placing Shares acquired by it in the Firm Placing have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons in any Member State of the EEA which has implemented the Prospectus Regulation and the United Kingdom other than Qualified Investors or in circumstances in which the prior consent of the Firm Placing Agent has been given to the offer or resale; or (ii) where Placing Shares have been acquired by it on behalf of persons in any member state of the EEA or the United Kingdom other than Qualified Investors, the offer of those Placing Shares to it is not treated under the Prospectus Regulation as having been made to such persons;
9. neither it nor, as the case may be, its clients expect the Firm Placing Agent to have any duties or responsibilities to such persons similar or comparable to the duties of "best execution" and "suitability" imposed by the FCA's Conduct of Business Source Book, and that the Firm Placing Agent is not acting for it or its clients, and that the Firm Placing Agent will not be responsible for providing the protections afforded to customers of the Firm Placing Agent or for providing advice in respect of the transactions described in this Announcement;
10. it has made its own assessment of the Firm Placing Shares and has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Firm Placing and neither the Firm Placing Agent nor the Company nor any of their respective affiliates, agents, directors, officers, partners or employees or any person acting on behalf of any of them has provided, and will not provide, it with any material regarding the Firm Placing Shares or the Company or any other person other than the information in this Announcement or the Publicly Available Information; nor has it requested the Firm Placing Agent, the Company or any of their respective affiliates, agents, directors, officers, partners or employees or any person acting on behalf of any of them to provide it with any such information;
11. the only information on which it is entitled to rely on and on which it has relied in committing to subscribe for the Firm Placing Shares is contained in this Announcement, the Exchange Information and the Publicly Available Information (save that in the case of Exchange Information and Publicly Available Information, a Placee's right to rely on that information is limited to the right that such Placee would have as a matter of law in the absence of this paragraph), such information being all that it deems necessary to make an investment decision in respect of the Firm Placing Shares and it has made its own assessment of the Company, the Firm Placing Shares and the terms of the Firm Placing based on this Announcement, the Exchange Information and the Publicly Available Information;
12. neither the Firm Placing Agent nor the Company nor any of their respective affiliates, agents, directors, officers, partners or employees has made any representation or warranty to it, express or implied, with respect to the Company, the Firm Placing or the Firm Placing Shares or the accuracy, completeness or adequacy of this Announcement, the Exchange Information or the Publicly Available Information;
13. that it is and, at the time the Firm Placing Shares are acquired, will be either: (i) outside the United States and is acquiring the Firm 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 Firm Placing Shares for its own account or for a discretionary account or accounts, each of which is a QIB acquiring beneficial interests in the Firm Placing Shares for its own account; if acquiring the Firm 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, agreements and acknowledgements herein on behalf of each such account;
14. it and the person(s), if any, for whose account or benefit it is subscribing for the Firm Placing Shares is not subscribing for and/or purchasing Placing Shares as a result of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D or "directed selling efforts" as defined in Regulation S;
15. unless specifically agreed with the Firm Placing Agent, it is not and was not acting on a non-discretionary basis for the account or benefit of a person located within the United States at the time the undertaking to subscribe for and/or purchase Placing Shares was given and it is not acquiring Placing Shares with a view to the offer, sale, resale, transfer, delivery or distribution, directly or indirectly, of any Placing Shares into the United States and it will not reoffer, resell, pledge or otherwise transfer the Firm Placing Shares except pursuant to an exemption from the registration requirements of the Securities Act and otherwise in accordance with any applicable securities laws of any state or jurisdiction of the United States;
16. the Firm 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 U.S. federal securities laws;
17. 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;
18. it understands that 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 Firm Placing Shares;
19. it understands that the Firm 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 further agrees that so long as the Firm 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 Firm 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;
20. that either: (a) it is not and for so long as it holds the Firm Placing Shares (or any interests therein) will not be a "benefit plan investor" as defined in Section 3(42) of the U.S. Employee Retirement Income Security Act of 1974, as amended ("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 U.S. Internal Revenue Code of 1986, as amended (the "Code") (a "Similar Law"); or (b) its acquisition, holding and disposition of the Firm 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. it is not a national or resident of Australia, Canada, Japan, New Zealand or the Republic of South Africa or any other state or jurisdiction in which it is unlawful to make or accept an offer to acquire the Firm Placing Shares (a "Restricted Territory") or a corporation, partnership or other entity organised under the laws of any Restricted Territory and that it will not offer, sell, renounce, transfer or deliver, directly or indirectly, any of the Firm Placing Shares in any Restricted Territory or to or for the benefit of any person resident in any Restricted Territory and each Placee acknowledges that the relevant exemptions are not being obtained from the Securities Commission of any province of Canada, that no document has been or will be lodged with, filed with or registered by the Australian Securities and Investments Commission or Japanese Ministry of Finance or any other regulatory or other authority of a Restricted Territory and that the Firm Placing Shares have not been and will not be registered under the securities legislation of any Restricted Territory and are not being offered for sale and may not be, directly or indirectly, offered, sold, transferred or delivered in or into a Restricted Territory;
22. if it is outside the United Kingdom, neither this document nor any other offering, marketing or other material in connection with the Firm Placing constitutes an invitation, offer or promotion to, or arrangement with, it or any person whom it is procuring to subscribe for Placing Shares pursuant to the Firm Placing unless, in the relevant territory, such offer, invitation or other course of conduct could lawfully be made to it or such person and such documents or materials could lawfully be provided to it or such person and Placing Shares could lawfully be distributed to and subscribed and held by it or such person without compliance with any unfulfilled approval, registration or other regulatory or legal requirements;
23. it does not have a registered address in, and is not a citizen, resident or national of, any jurisdiction in which it is unlawful to make or accept an offer of the Firm Placing Shares and it is not acting on a non-discretionary basis for any such person;
24. it has not, directly or indirectly, distributed, forwarded, transferred or otherwise transmitted, and will not, directly or indirectly, distribute, forward, transfer or otherwise transmit, any presentation or offering materials concerning the Firm Placing or the Firm Placing Shares to any persons within the United States;
25. it (and any person acting on its behalf) will make payment for the Firm Placing Shares allocated to it in accordance with the terms and conditions of this Announcement on the due time and date set out in this Announcement, failing which the relevant Placing Shares may be placed with other subscribers or sold as the Firm Placing Agent may in its discretion determine and without liability to such Placee;
26. that its allocation (if any) of Placing Shares will represent a maximum number of Placing Shares which it will be entitled, and required, to subscribe for, and that the Firm Placing Agent or the Company may call upon it to subscribe for a lower number of Placing Shares (if any);
27. that its commitment to subscribe for Placing Shares on the terms set out in this Announcement and in the trade confirmation, contract note or other confirmation (as the case may be) will continue notwithstanding any amendment that may in future be made to the terms of the Firm Placing and that Placees will have no right to be consulted or require that their consent be obtained with respect to the Firm Placing;
28. it is entitled to subscribe for and/or purchase Placing Shares under the laws and regulations of all relevant jurisdictions which apply to it and that it has fully observed such laws and regulations and obtained all governmental and other consents which may be required thereunder or otherwise and complied with all necessary formalities and that it has not taken any action which will or may result in the Company or the Firm Placing Agent or any of their respective directors, partners, officers, employees or agents acting in breach of any regulatory or legal requirements of any territory in connection with the Firm Placing or its acceptance;
29. it has obtained all necessary consents and authorities to enable it to give its commitment to subscribe for and/or purchase the Firm Placing Shares and to perform its subscription and/or purchase obligations;
30. where it is acquiring Placing Shares for one or more managed accounts, it is authorised in writing by each managed account: (a) to acquire the Firm Placing Shares for each managed account; (b) to make on its behalf the representations, warranties, acknowledgements, undertakings and agreements in this Appendix and this Announcement of which it forms part; and (c) to receive on its behalf any investment letter relating to the Firm Placing in the form provided to it by the Firm Placing Agent, provided that where the Placee is acting in its capacity as a discretionary investment manager on behalf of its underlying clients (who include individuals and/or retail clients), then it is the discretionary investment manager that is to be regarded as the Placee for the purpose of this Announcement and not the underlying client and, for the avoidance of doubt, the representations and warranties given are to be taken as made on behalf of the Placee itself and not their underlying client;
31. it is either: (a) a person of a kind described in paragraph 5 of Article 19 (persons having professional experience in matters relating to investments and who are investment professionals) of the Order; or (b) a person of a kind described in paragraph 2 (a) to (d) of Article 49 (high net worth companies, unincorporated associations, partnerships or trusts or their respective directors, partners, officers or employees) of the Order; or (c) a person to whom it is otherwise lawful for this Announcement to be communicated and in the case of (a) and (b) undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business;
32. unless otherwise agreed by the Firm Placing Agent, it is a "qualified investor" (as defined in section 86(7) of FSMA);
33. unless otherwise agreed by the Firm Placing Agent, it is a "professional client" or an "eligible counterparty" within the meaning of Chapter 3 of the FCA's Conduct of Business Sourcebook and it is purchasing Placing Shares for investment only and not with a view to resale or distribution;
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 Firm Placing Shares in circumstances in which section 21(1) of FSMA does not require approval of the communication by an authorised person;
35. any money held in an account with the Firm Placing Agent (or its nominees) on its behalf and/or any person acting on its behalf will not be treated as client money within the meaning of the relevant rules and regulations of the FCA. Each Placee further acknowledges that the money will not be subject to the protections conferred by the FCA's client money rules. As a consequence, this money will not be segregated from the Firm Placing Agent's (or its nominee's) money in accordance with such client money rules and will be used by the Firm Placing Agent in the course of its own business and each Placee will rank only as a general creditor of the Firm Placing Agent;
36. it will (or will procure that its nominee will) if applicable, make notification to the Company of the interest in its Shares in accordance with the Disclosure Guidance and Transparency Rules published by the FCA;
37. it is not, and it is not acting on behalf of, a person falling within subsections (6), (7) or (8) of sections 67 or 70 respectively or subsections (2) and (3) of section 93 or subsection (1) of section 96 of the Finance Act 1986;
38. it will not deal or cause or permit any other person to deal in all or any of the Firm Placing Shares which it is subscribing for and/or purchasing under the Firm Placing unless and until Admission of the relevant Placing Shares becomes effective;
39. it appoints irrevocably any officer, employee or representative of the Firm Placing Agent as its agent for the purpose of executing and delivering to the Company and/or its registrars any document on its behalf necessary to enable it to be registered as the holder of any of the Firm Placing Shares agreed to be taken up by it under the Firm Placing;
40. as far as it is aware it is not acting in concert (within the meaning given in The City Code on Takeovers and Mergers) with any other person in relation to the Company;
41. this Announcement does not constitute a securities recommendation or financial product advice and that neither the Firm Placing Agent nor the Company has considered its particular objectives, financial situation and needs;
42. it has sufficient knowledge, sophistication and experience in financial, business and investment matters as is required to evaluate the merits and risks of subscribing for or purchasing the Firm Placing Shares and is aware that it may be required to bear, and is able to bear, the economic risk of, and is able to sustain, a complete loss in connection with the Firm Placing;
43. it will indemnify and hold the Company, the Firm Placing Agent and each of their and their respective affiliates' agents, directors, officers and employees, 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 given by the Placee in this Announcement and further agrees that the Company and the Firm Placing Agent will rely on the truth and accuracy of the confirmations, warranties, acknowledgements and undertakings in this Announcement and, if any of the foregoing is or becomes no longer true or accurate, the Placee shall promptly notify the Firm Placing Agent and the Company. All confirmations, warranties, acknowledgements, agreements and undertakings given by the Placee, pursuant to this Announcement are given to the Firm Placing Agent for itself and on behalf of the Company and will survive completion of the Firm Placing and Admission;
44. time shall be of the essence as regards obligations pursuant to this Announcement;
45. it is responsible for obtaining any legal, financial, tax and other advice that it deems necessary for the execution, delivery and performance of its obligations in accepting the terms and conditions of the Firm Placing, and that it is not relying on the Company or the Firm Placing Agent to provide any legal, financial, tax or other advice to it;
46. all dates and times in this Announcement may be subject to amendment and that the Firm Placing Agent shall notify it of any such amendments;
47. (i) it has complied with its obligations under the Criminal Justice Act 1993, Part VIII of FSMA and MAR; (ii) in connection with money laundering and terrorist financing, it has complied with its obligations under the Proceeds of Crime Act 2002 (as amended), the Terrorism Act 2000 (as amended),the Terrorism Act 2006 and the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017; and (iii) it is not a person: (a) with whom transactions are prohibited under the applicable law or any economic sanction programmes administered by, or regulations promulgated by, the Office of Foreign Assets Control of the US Department of the Treasury; (b) named on the Consolidated List of Financial Sanctions Targets maintained by HM Treasury of the United Kingdom; or (c) subject to financial sanctions imposed pursuant to a regulation of the European Union or a regulation adopted by the United Nations (together, the "Regulations"); and, if making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the Regulations and has obtained all governmental and other consents (if any) which may be required for the purpose of, or as a consequence of, such purchase, and it will provide promptly to the Firm Placing Agent such evidence, if any, as to the identity or location or legal status of any person which the Firm Placing Agent may request from it in connection with the Firm Placing (for the purpose of complying with such Regulations or ascertaining the nationality of any person or the jurisdiction(s) to which any person is subject or otherwise) in the form and manner requested by the Firm Placing Agent on the basis that any failure by it to do so may result in the number of Placing Shares that are to be subscribed for and/or purchased by it or at its direction pursuant to the Firm Placing being reduced to such number, or to nil, as the Firm Placing Agent may decide in its absolute discretion;
48. that it will not make any offer to the public of those Placing Shares to be subscribed for and/or purchased by it for the purposes of the Prospectus Regulation Rules made by the FCA pursuant to Prospectus Regulation Rules Instrument 2019 (FCA 2019/80);
49. that it will not distribute any document relating to the Firm Placing Shares and it will be acquiring the Firm Placing Shares for its own account as principal or for a discretionary account or accounts (with respect to which it has the authority to make the statements set out in this Announcement) for investment purposes only and it does not have any contract, understanding or arrangement with any person to sell, pledge, transfer or grant a participation therein to such person or any third person with respect of any Placing Shares; save that if it is a private client stockbroker or fund manager it confirms that in purchasing the Firm Placing Shares it is acting under the terms of one or more discretionary mandates granted to it by private clients and it is not acting on an execution only basis or under specific instructions to purchase the Firm Placing Shares for the account of any third party;
50. that it acknowledges that these terms and conditions and any agreements entered into by it pursuant to these terms and conditions shall be governed by and construed in accordance with the laws of England and Wales and it submits (on behalf of itself and on behalf of any person on whose behalf it is acting) to the exclusive jurisdiction of the English courts as regards any claim, dispute or matter arising out of any such contract, except that enforcement proceedings in respect of the obligation to make payment for the Firm Placing Shares (together with any interest chargeable thereon) may be taken by the Company or the Firm Placing Agent in any jurisdiction in which the relevant Placee is incorporated or in which its assets are located or any of its securities have a quotation on a recognised stock exchange;
51. any documents sent to Placees will be sent at the Placee's risk and may be sent by post to a Placee at any address notified by it to the Firm Placing Agent;
52. the Firm Placing Agent owes no fiduciary or other duties to any Placee in respect of any representations, warranties, undertakings, acknowledgements, agreements or indemnities in the Firm Placing and Open Offer Agreement;
53. the Firm Placing Agent and the Company are entitled to exercise any of their rights under the Firm Placing and Open Offer Agreement or any other right in their absolute discretion without any liability whatsoever to the Placees;
54. any of the Placee's clients, whether or not identified to the Firm Placing Agent, will remain its sole responsibility and will not become clients of the Firm Placing Agent for the purposes of the rules of the FCA or for the purposes of any other statutory or regulatory provision;
55. the Firm Placing Agent or any of its affiliates may, at their absolute discretion, agree to become a Placee in respect of some or all of the Firm Placing Shares;
56. it acknowledges and agrees that its purchase of Placing Shares does not trigger, in the jurisdiction in which it is resident or located: (i) any obligation to prepare or file a prospectus or similar document or any other report with respect to such purchase; (ii) any disclosure or reporting obligation of the Company; or (iii) any registration or other obligation on the part of the Company.
57. no prospectus, admission document or other offering document has been or will be prepared in connection with the Firm Placing and it has not received and will not receive a prospectus, admission document or other offering document in connection with the Firm Placing or the Firm Placing Shares;
58. it understands that no action has been or will be taken by any of the Company, the Firm Placing Agent or any person acting on behalf of the Company or the Firm Placing Agent that would, or is intended to, permit a public offer of the Firm Placing Shares in any country or jurisdiction where any such action for the purpose; and
59. if it has received any inside information (as defined in MAR) about the Company in advance of the publication of this Announcement, it has not: (i) dealt in the securities of the Company; (ii) encouraged, required, recommended or induced 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.
The Company, the Firm Placing Agent and their respective affiliates will rely upon the truth and accuracy of each of the foregoing representations, warranties, acknowledgements and undertakings which are given to the Firm Placing Agent for itself and on behalf of the Company and are irrevocable.
The rights and remedies of the Firm Placing Agent and the Company under the terms and conditions in this Announcement 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.
The provisions of this Announcement may be waived, varied or modified as regards specific Placees or on a general basis by the Firm Placing Agent.
The agreement to settle a Placee's subscription and/or purchase (and/or the subscription of a person for whom such Placee is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to a subscription by it and/or such person direct from the Company for the Firm Placing Shares in question. Such agreement assumes that the Firm Placing Shares are not being subscribed for in connection with arrangements to issue depositary receipts or to transfer the Firm Placing Shares into a clearance service. If there are any such arrangements, or the settlement relates to any other subsequent dealing in the Firm Placing Shares, stamp duty or stamp duty reserve tax may be payable, for which neither the Company nor the Firm Placing Agent will be responsible, and the Placee to whom (or on behalf of whom, or in respect of the person for whom it is participating in the Firm Placing as an agent or nominee) the allocation, allotment, issue or delivery of Placing Shares has given rise to such UK stamp duty or stamp duty reserve tax undertakes to pay such UK stamp duty or stamp duty reserve tax forthwith and to indemnify on an after-tax basis and to hold harmless the Company and the Firm Placing Agent in the event that any of the Company and/or the Firm Placing Agent have incurred any such liability to UK stamp duty or stamp duty reserve tax. If this is the case, each Placee should seek its own advice and notify the Firm Placing Agent accordingly.
In addition, Placees should note that they will be liable for any stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by them or any other person on the subscription or purchase by them of any Placing Shares or the agreement by them to subscribe for or purchase any Placing Shares.
Each Placee not acquiring the Firm Placing Shares in an "offshore transaction" pursuant to Regulation S (each a "U.S. Placee") shall make specific representations, warranties, agreements and acknowledgements in the Investor 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.
This Announcement has been issued by, and is the sole responsibility, of the Company. No representation or warranty, expressed 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 Firm Placing Agent or by any of its 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.
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