28 Feb 2017 07:00
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA, THE REPUBLIC OF IRELAND, NEW ZEALAND OR ANY OTHER JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL.
THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE OR CONTAIN ANY INVITATION, SOLICITATION, RECOMMENDATION, OFFER OR ADVICE TO ANY PERSON TO SUBSCRIBE FOR, OTHERWISE ACQUIRE OR DISPOSE OF ANY SECURITIES IN ACTUAL EXPERIENCE PLC OR ANY OTHER ENTITY IN ANY JURISDICTION. NEITHER THIS ANNOUNCEMENT NOR THE FACT OF ITS DISTRIBUTION, SHALL FORM THE BASIS OF, OR BE RELIED ON IN CONNECTION WITH ANY INVESTMENT DECISION IN RESPECT OF ACTUAL EXPERIENCE PLC.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION FOR THE PURPOSES OF ARTICLE 7 OF REGULATION 2014/596/EU. IN ADDITION, MARKET SOUNDINGS WERE TAKEN IN RESPECT OF THE MATTERS CONTAINED IN THIS ANNOUNCEMENT, WITH THE RESULT THAT CERTAIN PERSONS BECAME AWARE OF SUCH INSIDE INFORMATION. UPON THE PUBLICATION OF THIS ANNOUNCEMENT, THIS INSIDE INFORMATION IS NOW CONSIDERED TO BE IN THE PUBLIC DOMAIN AND SUCH PERSONS SHALL THEREFORE CEASE TO BE IN POSSESSION OF INSIDE INFORMATION.
28 February 2017
Actual Experience plc
("Actual Experience" or the "Company")
Proposed Placing
Actual Experience (AIM: ACT), the analytics as a service company, is pleased to announce a proposed fundraising of £18 million by way of the conditional Placing of 7,200,000 Placing Shares at a price of £2.50 per share with existing and new investors. The Placing is expected to raise at least £17.5 million (before expenses) for the Company. In addition, the Placing is expected to raise up to £500k (before expenses) for the Selling Shareholders.
The Placing is conditional, inter alia, upon the Company obtaining approval from its Shareholders to disapply statutory pre-emption rights and to grant the Board authority to allot the New Ordinary Shares. The Placing, which has been arranged by N+1 Singer (pursuant to the terms of the Placing Agreement) and by Baden Hill, is also conditional upon Admission and has not been underwritten. The Placing proceeds payable to the Company will be used to progress the Group's technology development, expand sales and support capabilities and further strengthen the Group's balance sheet; further details of which are set out below.
A further announcement will be made on the closing of the Bookbuild Process, which is expected later today.
Dave Page, CEO of Actual Experience, commented:
"Actual Experience has continued to make strong progress against our stated strategy of focusing on channel partners. We have recently received our first production order from a channel partner for one of its major customers and expect to receive further orders in the near future.
The proceeds of this Placing will enable the Company to put in place the resources to support our channel partners as they commence the deployment of our technology into their global enterprise customer base.
I believe that Actual Experience is on the right path to building a business of scale."
Enquiries:
Actual Experience plc | |
Dave Page, Chief Executive Officer Steve Bennetts, Chief Financial Officer | Via Alma PR |
N+1 Singer Advisory LLP | |
Shaun Dobson Lauren Kettle | Tel: +44 (0)207 496 3000 |
Alma PR | |
Josh Royston Robyn McConnachie | Tel: +44 (0)7780 901979 Tel: +44 (0)7540 706191 |
History and overview of the technology
Actual Experience, which was founded in 2009 to commercialise research originally undertaken at Queen Mary University of London, is an analytics-as-a-service company with a primary focus on analysing and evaluating the impact of digital supply chain behaviour on perceived human experience. The Company's goal is to ensure a consistent digital experience for digital products and services by significantly reducing the time it takes to pinpoint digital experience issues.
In June 2015, the Company completed a fundraising of £16 million via a placing of Ordinary Shares (the "2015 Fundraise"), having announced the signing in May 2015 of the Group's first multi-year channel partner framework agreement.
The Group has since made commercial progress, successfully signing three further multi-year channel partner agreements with Verizon Enterprise Solutions, Vodafone and Accenture, and there is ongoing progress towards commercialisation within these channel partners.
Recent progress and strategic overview
Since completion of the 2015 Fundraise, the Company's efforts have focused around ensuring its readiness for its channel partners to enter the revenue generation phase, including augmenting the leadership team, introducing enhanced structures and processes, moving to a new headquarters, investing in 24x7 customer support, scaling datacentre operations and creating an international sales structure.
In addition, the Group has strengthened its operational infrastructure to support its growth ambitions. The focus is now intended to be on execution through its existing current partner relationships, developing the pipeline of additional channel partners and the emergence of key business metrics against which the Group can be measured.
The Company's digital analytics-as-a-service is being embedded into channel partners' processes and products, enabling service providers to deliver a consistent and reliable digital experience across complex global digital supply chains for enterprises, their customers and employees. Following the free installation of Actual Experience's digital user software, the Group sells its service providers analytic capacity in either a dedicated or shared cloud; the greater the required capacity, the greater the charge. For a single service provider's multinational enterprise customer, the analytic capacity has the potential to generate in excess of $500k per annum for the Group.
The Company's channel partners typically have hundreds of multinational customers and thousands of small and medium-sized business customers. Whilst the opportunity is significant, these channel partners can take time to reach commercial maturity. A channel partner's customers may achieve full maturity within six to eighteen months, with some rolling out faster than others and some more slowly.
In recent years, the Company's strategy transitioned from targeting direct customer engagements to a focus of achieving market penetration via its channel partner relationships. The 2015 Fundraise enabled the Group to build an operational infrastructure to support such relationships. The Directors believe that the relationships with its current channel partners are now at a stage where further investment is needed in specific client teams to fully support these relationships, as channel partners take the Company's products to market with their enterprise customers.
Channel Partner WebEx
On 15 February 2017, the Company was pleased to host a production validation conference call with a senior executive of a channel partner and certain of its existing and proposed investors, in which the executive provided insight into the channel's relationship with the Company and an update on how this relationship was progressing. The executive also discussed the benefits the channel gained from Actual Experience's technology and the executive's views on the potential of the Company's technology.
Current trading and prospects
On 19 January 2017, the Company announced its preliminary results for the year ended 30 September 2016, in which it reported revenues of £720k (2015: £700k), of which 60 per cent. was derived from channel partners (2015: 33 per cent.); a shift from the prior year reflecting the Group's changing business model. The Group reported a loss for the year of £5.67m (2015: loss of £2.23m), which was in line with management expectations and reflects the significant investment made during the 2016 financial year in the Group's operational infrastructure. The Group maintained a strong balance sheet, ending the year with cash and cash equivalents of £9.42m (2015: £15.28m).
The Company believes that one or more of its channel partners is likely to generate significant revenues within the current calendar year. The Company also expects the expanding sales force to accelerate the pace of signing further channel partner framework agreements in the quarters ahead.
The channel partner agreements signed and the size of the pipeline for potential customers that each represents, in the opinion of The Board, supports the Group's decision to focus sales efforts primarily on channel partners rather than through selling direct to individual customers. Revenues to date bear no resemblance to the market opportunity or to the progress being made within each of the agreements. It is this progress that underlines the Board's belief that the Group is on the right path towards building a business of real scale.
Indeed, this belief has been bolstered recently by the first order from a channel to begin production roll-out of a major customer.
The Placing Agreement
Pursuant to the terms of the Placing Agreement, N+1 Singer, as agent for the Company, together with Baden Hill, as agent for N+1 Singer, have conditionally agreed to use their reasonable endeavours, to place the Placing Shares with certain institutional and other investors. The Placing has not been underwritten. The Placing Agreement is conditional upon, inter alia, the Placing Resolution being duly passed at the General Meeting and Admission becoming effective on or before 8.00 a.m. on 21 March 2017 (or such later time and/or date as the Company and N+1 Singer may agree, but in any event by no later than 8.00 a.m. on 7 April 2017).
The Placing Agreement contains warranties from the Company in favour of N+1 Singer in relation to, inter alia, the accuracy of the information in this document and other matters relating to the Group and its business. In addition, the Company has agreed to indemnify N+1 Singer in relation to certain liabilities it may incur in respect of the Placing. N+1 Singer has the right to terminate the Placing Agreement in certain circumstances prior to Admission, in particular, in the event of a material breach of the warranties given to N+1 Singer in the Placing Agreement, the failure of the Company to comply in any material respect with its obligations under the Placing Agreement, the occurrence of a force majeure event or a material adverse change affecting the condition, or the earnings or business affairs or prospects of the Group as a whole, whether or not arising in the ordinary course of business.
Selling Shareholders
Subject to the finalisation of the Bookbuild Process, the Selling Shareholders have been offered the opportunity to sell up to 200,000 Sale Shares pursuant to the Placing. Of this allocation, two Directors and one PDMR of the Company have already indicated a willingness to sell the following number of Ordinary Shares:
Director | Number of Ordinary Shares |
Dave Page (Chief Executive Officer) | 40,000 |
Dr. Mark Reilly (Non-Executive Director) | 20,000 |
PDMR | |
Professor Jonathan Pitts (Co-founder) | 40,000 |
The balance of 100,000 Sale Shares proposed to be sold pursuant to the Placing is expected to comprise the Employee Shares. The proposed breakdown of Employee Shares between Employee Option Shares and Employee Existing Shares proposed to be sold pursuant to the Placing will be confirmed in the Results Announcement.
Settlement and dealings
Application will be made to the London Stock Exchange for the New Ordinary Shares to be admitted to trading on AIM. It is expected that Admission will become effective on 21 March 2017.
The New Ordinary Shares will, when issued, rank pari passu in all respects with the Existing Ordinary Shares including the right to receive dividends and other distributions declared following Admission.
The Director Shares and the Employee Existing Shares are already admitted to trading on AIM.
Use of proceeds
The Directors intend that the net proceeds of the Placing received by the Company (being at least £16.9 million) will be used by the Group primarily for the following purposes:
· Expand channel facing teams in Europe and North America
· Increase the size and skill base of the Group's technology development team
· Scale the operational support environment to support channel partners as they increase their deployment
· Fund general working capital requirements
Furthermore, the Board believes that in strengthening the Group's balance sheet it is able to demonstrate to global channel partners that it has the financial resources to engage with them in a broadly-based multi-year commercial relationship.
The General Meeting
The proposed Placing is conditional upon Shareholder approval of the Placing Resolution at the General Meeting. The Circular, which will contain further details of the Placing and Notice of General Meeting, is expected to be posted to Shareholders shortly.
Recommendation
The Independent Directors consider the Placing to be in the best interests of the Company and its Shareholders as a whole and accordingly recommend unanimously Shareholders to vote in favour of the Resolutions to be proposed at the General Meeting as they intend to do in respect of their beneficial holdings amounting, in aggregate, to 2,260,568 Existing Ordinary Shares, representing approximately 6.02 per cent. of the existing issued ordinary share capital of the Company.
Market Soundings
This announcement contains inside information for the purposes of MAR. In addition, market soundings (as defined in MAR) were taken in respect of the Placing with the result that certain persons became aware of inside information (as defined in MAR), as permitted by MAR. This inside information is set out in this Announcement. Therefore, those persons that received inside information in a market sounding are no longer in possession of such inside information relating to the Company and its securities.
APPENDIX - TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR INVITED PLACEES ONLY REGARDING THE PLACING
THIS ANNOUNCEMENT, INCLUDING THIS APPENDIX AND THE INFORMATION CONTAINED HEREIN (TOGETHER THE "ANNOUNCEMENT") IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN OR INTO OR FROM THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL. THIS ANNOUNCEMENT HAS NOT BEEN APPROVED BY THE LONDON STOCK EXCHANGE, NOR IS IT INTENDED THAT IT WILL BE SO APPROVED.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND IS DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA ("EEA") WHO ARE QUALIFIED INVESTORS AS DEFINED IN SECTION 86(7) OF FSMA 2000, AS AMENDED ("QUALIFIED INVESTORS"), BEING PERSONS FALLING WITHIN THE MEANING OF ARTICLE 2(1)(e) OF DIRECTIVE 2003/71/EC AS AMENDED, INCLUDING BY THE 2010 PROSPECTUS DIRECTIVE AMENDING DIRECTIVE (DIRECTIVE 2010/73/EC) AND TO THE EXTENT IMPLEMENTED IN THE RELEVANT MEMBER STATE (THE "PROSPECTUS DIRECTIVE"); AND (B) IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE PERSONS WHO (I) HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS FALLING WITHIN ARTICLE 19(5) (INVESTMENT PROFESSIONALS) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMENDED (THE "ORDER"); (II) ARE PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D) (HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC.) OF THE ORDER; OR (III) ARE PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS" AND EACH BEING A "RELEVANT PERSON").
THIS ANNOUNCEMENT AND THE INFORMATION IN IT MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY. THIS ANNOUNCEMENT HAS BEEN ISSUED BY AND IS THE SOLE RESPONSIBILITY OF THE COMPANY.
THIS ANNOUNCEMENT AND THE INFORMATION REFERRED TO HEREIN IS NOT AN OFFER OF SECURITIES FOR SALE IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL UNDER THE SECURITIES LAW OF ANY JURISDICTION. THIS ANNOUNCEMENT AND THE INFORMATION REFERRED TO HEREIN IS NOT AN OFFER OF SECURITIES FOR SALE INTO THE UNITED STATES. THE PLACING SHARES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT 1933, AS AMENDED (THE "SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES. SUBJECT TO CERTAIN EXCEPTIONS AND AT THE SOLE DISCRETION OF THE COMPANY, THE PLACING SHARES ARE BEING OFFERED AND SOLD ONLY OUTSIDE THE UNITED STATES IN "OFFSHORE TRANSACTIONS" WITHIN THE MEANING OF, AND IN ACCORDANCE WITH, REGULATION S UNDER THE SECURITIES ACT AND OTHERWISE IN ACCORDANCE WITH APPLICABLE LAWS. NO PUBLIC OFFERING OF THE PLACING SHARES IS BEING MADE IN THE UNITED STATES, THE UNITED KINGDOM OR ELSEWHERE. NO MONEY, SECURITIES OR OTHER CONSIDERATION FROM ANY PERSON INSIDE THE UNITED STATES IS BEING SOLICITED AND, IF SENT IN RESPONSE TO THE INFORMATION CONTAINED IN THIS ANNOUNCEMENT, WILL NOT BE ACCEPTED.
EACH PLACEE SHOULD CONSULT WITH ITS ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF AN INVESTMENT IN PLACING SHARES. THE PRICE OF SHARES IN THE COMPANY AND THE INCOME FROM THEM (IF ANY) MAY GO DOWN AS WELL AS UP AND INVESTORS MAY NOT GET BACK THE FULL AMOUNT INVESTED ON A DISPOSAL OF SHARES. THE DISTRIBUTION OF THIS ANNOUNCEMENT, ANY PART OF IT OR ANY INFORMATION CONTAINED IN IT MAY BE RESTRICTED BY LAW IN CERTAIN JURISDICTIONS, AND ANY PERSON INTO WHOSE POSSESSION THIS ANNOUNCEMENT, ANY PART OF IT OR ANY INFORMATION CONTAINED IN IT COMES SHOULD INFORM THEMSELVES ABOUT, AND OBSERVE, SUCH RESTRICTIONS.
No action has been taken by the Company, N+1 Singer Advisory LLP ("N+1 Singer") or any of their respective affiliates, agents, directors, officers or employees that would permit an offer of the Placing Shares or possession or distribution of this Announcement or any other offering or publicity material relating to such Placing Shares in any jurisdiction where action for that purpose is required.
This Announcement 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 (including its territories and possessions, any state of the United States and the District of Columbia), Canada, Australia, the Republic of South Africa, 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.
All offers of the Placing Shares will be made pursuant to an exemption under the Prospectus Directive from the requirement to produce a prospectus. In the United Kingdom, this Announcement is being directed solely at persons in circumstances in which section 21(1) of the FSMA does not apply.
The Placing Shares have not been approved or disapproved by the US Securities and Exchange Commission, any state securities commission or other regulatory authority in the United States, nor have any of the foregoing authorities passed upon or endorsed the merits of the Placing or the accuracy or adequacy of this Announcement. Any representation to the contrary is a criminal offence in the United States. The relevant clearances have not been, nor will they be, obtained from the securities commission of any province or territory of Canada, no prospectus has been lodged with, or registered by, the Australian Securities and Investments Commission or the Japanese Ministry of Finance; the relevant clearances have not been, and will not be, obtained for the South Africa Reserve Bank or any other applicable body in the Republic of South Africa in relation to the Placing Shares and the Placing Shares have not been, nor will they be, registered under or offering in compliance with the securities laws of any state, province or territory of Australia, Canada, Japan or the Republic of South Africa. Accordingly, the Placing Shares may not (unless an exemption under the relevant securities laws is applicable) be offered, sold, resold or delivered, directly or indirectly, in or into Australia, Canada, Japan or the Republic of South Africa or any other jurisdiction outside the United Kingdom.
Persons (including, without limitation, nominees and trustees) who have a contractual right or other legal obligations to forward a copy of this Announcement should seek appropriate advice before taking any action.
This Announcement may contain and the Company may make verbal statements containing "forward-looking statements" with respect to certain of the Company's plans and its current goals and expectations relating to its future financial condition, performance, strategic initiatives, objectives and results. Forward-looking statements sometimes use words such as "aim", "anticipate", "target", "expect", "estimate", "intend", "plan", "goal", "believe", "seek", "may", "could", "outlook" or other words of similar meaning. By their nature, all forward-looking statements involve risk and uncertainty because they relate to future events and circumstances which are beyond the control of the Company, including amongst other things, United Kingdom domestic and global economic business conditions, market-related risks such as fluctuations in interest rates and exchange rates, the policies and actions of governmental and regulatory authorities, the effect of competition, inflation, deflation, the timing effect and other uncertainties of future acquisitions or combinations within relevant industries, the effect of tax and other legislation and other regulations in the jurisdictions in which the Company and its respective affiliates operate, the effect of volatility in the equity, capital and credit markets on the Company's profitability and ability to access capital and credit, a decline in the Company's credit ratings; the effect of operational risks; and the loss of key personnel. As a result, the actual future financial condition, performance and results of the Company may differ materially from the plans, goals and expectations set forth in any forward-looking statements. Any forward-looking statements made in this Announcement by or on behalf of the Company speak only as of the date they are made. Except as required by applicable law or regulation, the Company expressly disclaims any obligation or undertaking to publish any updates or revisions to any forward-looking statements contained in this Announcement to reflect any changes in the Company's expectations with regard thereto or any changes in events, conditions or circumstances on which any such statement is based.
No statement in this Announcement is intended to be a profit forecast or estimate, and no statement in this Announcement should be interpreted to mean that earnings per share of the Company for the current or future financial years would necessarily match or exceed the historical published earnings per share of the Company.
The price of Ordinary Shares and 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 shares. Past performance is no guide to future performance, and persons needing advice should consult an independent financial adviser.
This Announcement should be read in its entirety. In particular, you should read and understand the information provided in this "Important Information" section of this Announcement.
By participating in the Placing, each person who is invited to and who chooses to participate in the Placing (a "Placee") 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 herein and to be providing the representations, warranties, indemnities, acknowledgements and undertakings contained in this Appendix.
In particular, each such Placee represents, warrants, undertakes, agrees and acknowledges (amongst other things) that:
1 it is a Relevant Person and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business;
2 in the case of a Relevant Person (as defined above) in a member state of the EEA which has implemented the Prospectus Directive (each, a "Relevant Member State") who acquires any Placing Shares pursuant to the Placing:
2.1 it is a Qualified Investor within the meaning of Article 2(1)(e) of the Prospectus Directive;
2.2 in the case of any Placing Shares acquired by it as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive:
2.2.1 the Placing Shares acquired by it in the 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 Relevant Member State other than Qualified Investors or in circumstances in which the prior consent of N+1 Singer has been given to the offer or resale; or
2.2.2 where Placing Shares have been acquired by it on behalf of persons in any member state of the EEA other than Qualified Investors, the offer of those Placing Shares to it is not treated under the Prospectus Directive as having been made to such persons;
3 it is acquiring the Placing Shares for its own account or is acquiring the Placing Shares for an account with respect to which it exercises sole investment discretion and has the authority to make and does make the representations, warranties, indemnities, acknowledgements, undertakings and agreements contained in this Announcement;
4 it understands (or if acting for the account of another person, such person has confirmed that such person understands) the resale and transfer restrictions set out in this Appendix; and
5 except as otherwise permitted by the Company and subject to any available exemptions from applicable securities laws, it (and any account referred to in paragraph 3 above) is outside the United States acquiring the Placing Shares in offshore transactions as defined in and in accordance with Regulation S under the Securities Act.
The Company and N+1 Singer will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
No prospectus
The Placing Shares are being offered to a limited number of specifically invited persons only and will not be offered in such way as to require a prospectus in the United Kingdom or in any other jurisdiction. No prospectus or other offering document has been or will be submitted to be approved by the FCA or submitted to the London Stock Exchange in relation to the Placing or the Placing Shares and Placees' commitments will be made solely on the basis of the information contained in this Announcement and any information publicly announced through a Regulatory Information Service (as defined in the AIM Rules) by or on behalf of the Company on or prior to the date of this Announcement (the "Publicly Available Information") and subject to any further terms set forth in the form of confirmation to be sent to individual Placees.
Each Placee, by participating in the Placing, agrees that the content of this Announcement is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any information (other than the Publicly Available Information), representation, warranty or statement made by or on behalf of N+1 Singer, the Company or any other person and none of N+1 Singer, the Company or any other person acting on such person's behalf nor any of their respective affiliates has or shall have any liability for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Placing. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation. Each Placee should not consider any information in this Announcement to be legal, tax or business advice. Each Placee should consult its own solicitor, tax adviser and financial adviser for independent legal, tax and financial advice regarding an investment in the Placing Shares.
Bookbuilding Process
N+1 Singer will today commence the Bookbuilding Process to determine demand for participation in the Placing by Placees and the price at which the Placing Shares are to be issued. This Appendix gives details of the terms and conditions of, and the mechanics of participation in, the Placing. No commissions will be paid to Placees or by Placees in respect of any Placing Shares.
N+1 Singer and the Company shall be entitled to effect the Placing by such alternative method to the Bookbuilding Process as they may, in their sole discretion, determine. The book will open with immediate effect.
Details of the Placing Agreement and the Placing Shares
N+1 Singer has today entered into the Placing Agreement with the Company and the Director Sellers under which, on the terms and subject to the conditions set out in the Placing Agreement, N+1 Singer, as agent for and on behalf of the Company and the Selling Shareholders, has agreed to use its reasonable endeavours to procure Placees for the Placing Shares at the Placing Price.
The New Ordinary Shares will, when issued, be subject to the articles of association of the Company and credited as fully paid and will rank pari passu in all respects with the Existing Ordinary Shares in the capital of the Company, including the right to receive all dividends and other distributions declared, made or paid in respect of such Ordinary Shares after the date of issue of the New Ordinary Shares.
Application for admission to trading
The expected timetable for settlement will be as follows:
Trade Date: | 17 March 2017 |
Settlement Date: | 21 March 2017 |
CREST counterparty: | ATMAY |
ISIN Code: | GB00BJ05QC14 |
SEDOL Code (GB): | BJ05QC1 |
Trade System of Origin: | Blank |
Stamp Status: | W |
Stamp Consideration: | Nil |
Settlement Currency: | GBP |
Deadline for input instruction into CREST: | 3:00 p.m. on 17 March 2017 |
Application will be made to the London Stock Exchange for the admission of the New Ordinary Shares to trading on AIM. The Employee Existing Shares and the Director Shares are already admitted to trading on AIM.
Subject to, amongst other things, the Placing Resolution being passed by the requisite majorities at the General Meeting, it is expected that Admission will take place no later than 21 March 2017 and that dealings in the New Ordinary Shares on AIM will commence at the same time.
Principal terms of the Placing
1 N+1 Singer is acting as nominated adviser, financial adviser and broker to the Placing, as agent for and on behalf of the Company and the Selling Shareholders. N+1 Singer is authorised and regulated in the United Kingdom by the FCA and is acting exclusively for the Company and no one else in connection with the matters referred to in this Announcement and will not be responsible to anyone other than the Company for providing the protections afforded to the customers of N+1 Singer or for providing advice in relation to the matters described in this Announcement.
2 N+1 Singer is receiving a corporate finance fee and certain commission on the Placing. Baden Hill are receiving certain commission on the Placing.
3 Participation in the Placing will only be available to persons who may lawfully be, and are, invited by N+1 Singer to participate. N+1 Singer and any of its respective affiliates are entitled to participate in the Placing as principal.
4 The price per Placing Share is the Placing Price and is payable to N+1 Singer by all Placees
5 To bid in the Bookbuilding Process, Placees should communicate their bid by telephone to their usual sales contact at N+1 Singer or Baden Hill. Each bid should state the number of Placing Shares which the prospective Placee wishes to acquire at either the Placing Price which is ultimately established by the Company and N+1 Singer or at prices up to a price limit specified in the bid. Bids may be scaled down by N+1 Singer on the basis referred to in paragraph 10 below. N+1 Singer is arranging the Placing as agent for the Company.
6 The Bookbuilding Process is expected to close no later than 5.00 p.m. on today's date but may close earlier or later at the discretion of N+1 Singer. N+1 Singer may, in agreement with the Company, accept bids that are received after the Bookbuilding Process has closed.
7 Each Placee's allocation is determined by N+1 Singer in its discretion following consultation with the Company and has been or will be confirmed orally by N+1 Singer and a form of confirmation will be dispatched as soon as possible thereafter. That oral confirmation will give rise to an irrevocable, legally binding commitment by that person (who at that point becomes a Placee), in favour of N+1 Singer and the Company, under which it agrees to acquire the number of Placing Shares allocated to the Placee at the Placing Price and otherwise on the terms and subject to the conditions set out in this Appendix and in accordance with the Company's articles of association.
8 The Company will release the Results Announcement following the close of the Bookbuilding Process, detailing the aggregate number of Placing Shares to be issued and the Placing Price.
9 N+1 Singer may choose to accept bids, either in whole or in part, on the basis of allocations determined at N+1 Singer's discretion and may scale down any bids for this purpose on such basis as it may determine or be directed. N+1 Singer may also, notwithstanding paragraphs 6 to 8 above, (a) allocate Placing Shares after the time of any initial allocation to any person submitting a bid after that time and (b) allocate Placing Shares after the Bookbuilding Process has closed to any person submitting a bid after that time.
10 Each Placee's allocation and commitment will be evidenced by a form of confirmation issued to such Placee by N+1 Singer. The terms of this Appendix will be deemed incorporated in that form of confirmation.
11 Each Placee will have an immediate, separate, irrevocable and binding obligation, owed to N+1 Singer (as agent for the Company and Selling Shareholders), to pay to it (or as it may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares such Placee has agreed to acquire and (i) the Company has agreed to allot and issue to that Placee, or (ii) the Selling Shareholders have agreed to sell to that Placee pursuant to the Placing.
12 Irrespective of the time at which a Placee's allocation(s) pursuant to the Placing is/are confirmed, settlement for all Placing Shares to be acquired pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement".
13 All obligations of N+1 Singer under the Placing will be subject to fulfilment of the conditions referred to below under "Conditions of the Placing" and to the Placing not being terminated on the basis referred to below under "Termination of the Placing".
14 By participating in the Placing, each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.
15 To the fullest extent permissible by law and applicable FCA rules, none of (a) N+1 Singer, (b) any of N+1 Singer's affiliates, agents, directors, officers, consultants, (c) to the extent not contained within (a) or (b), any person connected with N+1 Singer as defined in FSMA ((b) and (c) being together "affiliates" and individually an "affiliate" of N+1 Singer), (d) any person acting on N+1 Singer's behalf, shall have any liability (including to the extent permissible by law, any fiduciary duties) to Placees or to any other person whether acting on behalf of a Placee or otherwise. In particular, neither N+1 Singer nor any of its respective affiliates shall have any liability (including, to the extent permissible by law, any fiduciary duties) in respect of their conduct of the Placing or of such alternative method of effecting the Placing as N+1 Singer and the Company may agree.
16 The allotment of the Placing Shares will require the passing of the Placing Resolution at the General Meeting. If passed, the Placing Resolution will grant authorities to Directors to allot further shares for cash on a non pre-emptive basis. Allotment of the Placing Shares will take place as soon as practicable following the General Meeting, conditional on Admission.
Registration and Settlement
If Placees are allocated any Placing Shares in the Placing they will be sent a form of confirmation or electronic confirmation by N+1 Singer, as soon as it is able which will confirm the number of Placing Shares allocated to them, the Placing Price and the aggregate amount owed by them to N+1 Singer.
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 N+1 Singer in accordance with either the standing CREST or certificated settlement instructions which they have in place with N+1 Singer.
Settlement of transactions in the Placing Shares (ISIN: GB00BJ05QC14) following Admission will take place within the CREST system, subject to certain exceptions. Settlement through CREST is expected to take place on 21 March 2017 unless otherwise notified by N+1 Singer and Admission is expected to occur no later than 8.00 a.m. on 7 April 2017 unless otherwise notified by N+1 Singer. Admission and Settlement may occur at an earlier date, which if achievable, will be set out in the Circular. Settlement will be on a delivery versus payment basis. However, in the event of any difficulties or delays in the admission of the New Ordinary Shares to CREST or the use of CREST in relation to the Placing, the Company and N+1 Singer may agree that the New Ordinary Shares should be issued in certificated form. N+1 Singer reserves the right to require settlement for the Placing Shares, and to deliver the Placing Shares to Placees, by such other means as they deem necessary if delivery or settlement to Placees is not practicable within the CREST system or would not be consistent with regulatory requirements in a Placee's jurisdiction.
Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out above, in respect of either CREST or certificated deliveries, at the rate of 2 percentage points above prevailing LIBOR as determined by N+1 Singer.
Each Placee is deemed to agree that if it does not comply with these obligations, N+1 Singer may sell any or all of their Placing Shares on their behalf and retain from the proceeds, for N+1 Singer's own account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the amount owed by it and for any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon the sale of their Placing Shares on their behalf.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees must ensure that, upon receipt, the conditional 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 United Kingdom stamp duty or stamp duty reserve tax. Placees will not be entitled to receive any fee or commission in connection with the Placing.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional and not having been terminated in accordance with its terms.
The obligations of N+1 Singer under the Placing Agreement are, and the Placing is, conditional upon, inter alia:
(a) the posting of the Circular and Form of Proxy to those persons entitled to receive the notice of General Meeting in accordance with the articles of association of the Company on or around 2 March 2017;
(b) the passing of the Placing Resolution at the General Meeting without amendment;
(c) the Company having complied with all its obligations and having satisfied all conditions to be performed or satisfied under the Placing Agreement which fall to be performed or satisfied on or prior to Admission
(d) the completed application to be made to the London Stock Exchange for Admission in the form specified by the AIM Rules (and all documents to be submitted therewith) being delivered to the London Stock Exchange by not later than 1.00 p.m. on 15 March 2017;
(e) the delivery to N+1 Singer, on the day of (but prior to) Admission, with effect from 00.00.01 a.m. on the day of Admission, of the confirmation certificate (the form of which is set out in Schedule 4 of the Placing Agreement) signed by a Director or duly authorised officer for and on behalf of the Company;
(f) each of the warranties in the Placing Agreement being true and accurate and not misleading on and as at (i) the date of the Placing Agreement; and (ii) (in all material respects) Admission, as though they had been given and made on such dates by reference to the facts and circumstances at the relevant time;
(g) the New Ordinary Shares having been allotted, subject only to Admission, pursuant to the Placing Agreement;
(h) the delivery to N+1 Singer of the documents required to be delivered under the Placing Agreement to the extent that they are required to be delivered prior to Admission;
(i) the release of the Results Announcement through the Regulatory Information Service by not later than 5.00 p.m. on 1 March 2017;
(j) Admission occurring by not later than 8.00 a.m. on 21 March 2017 (or such later date as the Company and the N+1 Singer may agree in writing, in any event being not later than 7 April 2017),
(all conditions to the obligations of N+1 Singer included in the Placing Agreement being together, the "conditions").
If any of the conditions set out in the Placing Agreement are not fulfilled or, where permitted, waived in accordance with the Placing Agreement within the stated time periods (or such later time and/or date as the Company and N+1 Singer may agree, provided that the time for satisfaction of the condition set out in (e) above shall not be extended beyond 8.00 a.m. on 7 April 2017), or the Placing Agreement is terminated in accordance with its terms, the Placing will lapse and the Placee's rights and obligations 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.
By participating in the Placing, each Placee agrees that its rights and obligations cease and terminate only in the circumstances described above and under "Termination of the Placing" below and will not be capable of rescission or termination by it.
Certain conditions may be waived in whole or in part by N+1 Singer, in its absolute discretion by notice in writing to the Company and N+1 Singer may also agree in writing with the Company to extend the time for satisfaction of any condition. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement.
N+1 Singer may terminate the Placing Agreement in certain circumstances, details of which are set out below.
Neither N+1 Singer, the Company nor any of their respective affiliates, agents, directors, officers, employees 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 any of them may make as to whether or not to waive or to extend the time and/or date for the satisfaction of any condition to the Placing nor for any decision any of them may make as to the satisfaction of any condition or in respect of the Placing generally and by participating in the Placing each Placee agrees that any such decision is within the absolute discretion of N+1 Singer.
Termination of the Placing
N+1 Singer may terminate the Placing Agreement, in accordance with its terms, at any time prior to Admission if, inter alia:
1 the Company or any Selling Shareholder fails to comply with any of their respective obligations under the Placing Agreement or under the terms of the Placing which, in any such case, N+1 Singer considers (acting in good faith) to be material in the context of the Placing, Admission or any of the transactions contemplated by the Placing Agreement; or
2 any of the warranties and undertakings contained in the Placing Agreement are untrue and inaccurate in any material respect by reference to the facts or circumstances subsisting at that time or that a matter has arisen that might reasonably be expected to give rise to a claim under clause 13 of the Placing Agreement; or
3 any statement contained in Announcement, the Circular, the investor presentation or the form of certificate (the "Placing Documents") is or has become untrue, incorrect or misleading in any material respect, or any matter has arisen, which would, if the Placing were made at that time, constitute a material omission from the Placing Documents or any of them; or
4 in the opinion of N+1 Singer (acting in good faith), there shall have been any material adverse change (whether or not foreseeable at the date of the Placing Agreement) in, or any development reasonably likely to involve a prospective material adverse change in the condition (financial, operational, legal or otherwise) or the earnings, business affairs or business prospects of the Group taken as a whole, whether or not arising in the ordinary course of business; or
5 there shall develop, occur or come into effect:
(a) any law or governmental or other regulation applicable to the Group which in the opinion of N+1 Singer in its absolute discretion (acting in good faith) materially and adversely affects (or is so likely to affect) the business of the Group or the Placing;(b) any outbreak or escalation of hostilities, any attack on, act of terrorism involving, or declaration of a national emergency or war by, the United Kingdom, any other EU Member State or the United States of America which in the opinion of N+1 Singer in its absolute discretion (acting in good faith) make it impractical or inadvisable to proceed with the Placing;(c) any other calamity, crisis or material change in the financial, political, economic or market conditions in the United Kingdom, any other EU Member State, the United States of America or elsewhere or in currency exchange rates or controls which in the opinion of N+1 Singer in its absolute discretion (acting in good faith) makes it impractical or inadvisable to proceed with the Placing;(d) any other crisis of national or international effect which in the opinion of N+1 Singer in its absolute discretion (acting in good faith) makes it impracticable or inadvisable to proceed with the Placing,If the Placing Agreement is terminated in accordance with its terms, the rights and obligations of each Placee in respect of the Placing as described in this Announcement shall cease and terminate at such time and no claim can be made by any Placee in respect thereof.
By participating in the Placing, each Placee agrees with the Company and N+1 Singer that the exercise by the Company or N+1 Singer of any right of termination or any other right or other discretion under the Placing Agreement shall be within the absolute discretion of the Company or N+1 Singer and that neither of the Company nor N+1 Singer need make any reference to such Placee and that neither N+1 Singer, the Company, nor any of their respective affiliates, agents, directors, officers or employees shall have any liability to such Placee (or to any other person whether acting on behalf of a Placee or otherwise) whatsoever in connection with any such exercise.
By participating in the Placing, each Placee agrees that its rights and obligations terminate only in the circumstances described above and under the "Conditions of the Placing" section above and will not be capable of rescission or termination by it after the issue by N+1 Singer of a form of confirmation confirming each Placee's allocation and commitment in the Placing.
Representations, warranties and further terms
By participating in the Placing, each Placee (and any person acting on such Placee's behalf) represents, warrants, acknowledges and agrees (for itself and for any such prospective Placee) that (save where N+1 Singer expressly agree in writing to the contrary):
1 it has read and understood this Announcement and the Circular in its entirety and that its subscription for or acquisition of the Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, indemnities, acknowledgements, agreements and undertakings and other information contained herein and that it has not relied on, and will not rely on, any information given or any representations, warranties or statements made at any time by any person in connection with Admission, the Placing, the Company, the Placing Shares or otherwise, other than the information contained in this Announcement and the Publicly Available Information and undertakes not to redistribute or duplicate this Announcement and the Circular;
2 it has not received a prospectus in connection with the Placing and acknowledges that no prospectus or other offering document: (a) is required under the Prospectus Directive; and (b) has been or will be prepared in connection with the Placing;
3 the Ordinary Shares are admitted to trading on AIM, and that the Company is therefore required to publish certain business and financial information in accordance with the AIM Rules, 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 or access such information without undue difficulty, and is able to obtain access to such information or comparable information concerning any other publicly traded company, without undue difficulty;
4 it has made its own assessment of the 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 Placing and neither N+1 Singer, the Company nor any of their respective affiliates, agents, directors, officers or employees or any person acting on behalf of any of them has provided, and will not provide, it with any material regarding the 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 neither of N+1 Singer, the Company, any of their respective affiliates, agents, directors, officers or employees or any person acting on behalf of any of them to provide it with any such information;
5 neither N+1 Singer, any person acting on behalf of them or any of their respective affiliates, agents, directors, officers or employees has or shall have any liability for any Publicly Available Information, or any representation relating to the Company, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
6 (a) the only information on which it is entitled to rely on and on which it has relied in committing to subscribe for or otherwise acquire Placing Shares is contained in the Publicly Available Information, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares and it has made its own assessment of the Company, the Placing Shares and the terms of the Placing based on Publicly Available Information; (b) neither N+1 Singer, the Company nor any of their respective affiliates, agents, directors, officers or employees has made any representation or warranty to it, express or implied, with respect to the Company, the Placing or the Placing Shares or the accuracy, completeness or adequacy of the Publicly Available Information; (c) it has conducted its own investigation of the Company, the Placing and the Placing Shares, satisfied itself that the information is still current and relied on that investigation for the purposes of its decision to participate in the Placing; and (d) has not relied on any investigation that N+1 Singer or any person acting on their behalf may have conducted with respect to the Company, the Placing or the Placing Shares;
7 the content of this Announcement and the Publicly Available Information has been prepared by and is exclusively the responsibility of the Company and that neither N+1 Singer nor any persons acting on behalf of it is responsible for or has or shall have any liability for any information, representation, warranty or statement relating to the Company contained in this Announcement or the Publicly Available Information nor will they be liable for any Placee's decision to participate in the Placing based on any information, representation, warranty or statement contained in this Announcement, the Publicly Available Information or otherwise. Nothing in this Appendix shall exclude any liability of any person for fraudulent misrepresentation;
8 the Placing Shares have not been registered or otherwise qualified, and will not be registered or otherwise qualified, for offer and sale nor will a prospectus be cleared or approved in respect of any of the Placing Shares under the securities laws of the United States, or any state or other jurisdiction of the United States, Australia, Canada, Republic of South Africa or Japan and, subject to certain exceptions, may not be offered, sold, taken up, renounced or delivered or transferred, directly or indirectly, within the United States, Australia, Canada, South Africa or Japan or in any country or jurisdiction where any such action for that purpose is required;
9 it and/or each person on whose behalf it is participating:
9.1 is entitled to acquire Placing Shares pursuant to the Placing under the laws and regulations of all relevant jurisdictions;
9.2 has fully observed such laws and regulations;
9.3 has capacity and authority and is entitled to enter into and perform its obligations as an acquirer of Placing Shares and will honour such obligations; and
9.4 has obtained all necessary consents and authorities (including, without limitation, in the case of a person acting on behalf of a Placee, all necessary consents and authorities to agree to the terms set out or referred to in this Appendix) under those laws or otherwise and complied with all necessary formalities to enable it to enter into the transactions contemplated hereby and to perform its obligations in relation thereto and, in particular, if it is a pension fund or investment company it is aware of and acknowledges it is required to comply with all applicable laws and regulations with respect to its subscription for or acquisition of Placing Shares;
10 it is not, and any person who it is acting on behalf of is not, and at the time the Placing Shares are subscribed for or acquired will not be, a resident of, or with an address in, or subject to the laws of, Australia, Canada, Japan, or the Republic of South Africa, and it acknowledges and agrees that the Placing Shares have not been and will not be registered or otherwise qualified under the securities legislation of Australia, Canada, Japan or the Republic of South Africa and may not be offered, sold, or acquired, directly or indirectly, within those jurisdictions;
11 it is not in the United States and is not acting for the account or benefit of a person in the United States;
12 the Placing Shares have not been, and will not be, registered under the Securities Act and may not be offered, sold or resold in or into or from the United States except pursuant to an effective 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 accordance with applicable state securities laws; and no representation is being made as to the availability of any exemption under the Securities Act for the reoffer, resale, pledge or transfer of the Placing Shares;
13 it and the beneficial owner of the Placing Shares is, and at the time the Placing Shares are acquired will be, outside the United States and acquiring the Placing Shares in an "offshore transaction" as defined in, and in accordance with, Regulation S under the Securities Act;
14 it (and any account for which it is purchasing) is not acquiring the Placing Shares with a view to any offer, sale or distribution thereof within the meaning of the Securities Act;
15 it will not distribute, forward, transfer or otherwise transmit this Announcement or any part of it, or any other presentational or other materials concerning the Placing in or into or from the United States (including electronic copies thereof) to any person, and it has not distributed, forwarded, transferred or otherwise transmitted any such materials to any person;
16 neither N+1 Singer, its respective affiliates, agents, directors, officers or employees nor any person acting on behalf of any of them is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be a client of N+1 Singer and N+1 Singer has no duties or responsibilities to it for providing the protections afforded to its clients or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
17 it has the funds available to pay for the Placing Shares for which it has agreed to to subscribe or acquire and acknowledges and agrees that it will make payment to N+1 Singer for the Placing Shares allocated to it in accordance with the terms and conditions of this Announcement on the due times and dates set out in this Announcement, failing which the relevant Placing Shares may be placed with others on such terms as N+1 Singer may, in its absolute discretion determine without liability to the Placee and it will remain liable for any shortfall below the net proceeds of such sale and the placing proceeds of such Placing Shares and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties due pursuant to the terms set out or referred to in this Announcement) which may arise upon the sale of such Placee's Placing Shares on its behalf;
18 no action has been or will be taken by any of the Company, N+1 Singer or any person acting on their behalf that would, or is intended to, permit a public offer of the Placing Shares in the United States or in any country or jurisdiction where any such action for that purpose is required;
19 the person who it specifies for registration as holder of the Placing Shares will be: (a) the Placee; or (b) a nominee of the Placee, as the case may be. Neither N+1 Singer nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax resulting from a failure to observe this requirement. Each Placee and any person acting on behalf of such Placee agrees to acquire Placing Shares pursuant to the Placing and agrees to pay the Company and N+1 Singer in respect of the same (including any interest or penalties) on the basis that the Placing Shares will be allotted to a CREST stock account of N+1 Singer or transferred to a CREST stock account of N+1 Singer who will hold them as nominee on behalf of the Placee until settlement in accordance with its standing settlement instructions with it;
20 it is acting as principal only in respect of the Placing or, if it is acting for any other person, (a) it is duly authorised to do so and has full power to make the acknowledgments, representations and agreements herein on behalf of each such person and (b) it is and will remain liable to the Company and N+1 Singer for the performance of all its obligations as a Placee in respect of the Placing (regardless of the fact that it is acting for another person);
21 the allocation, allotment, issue and delivery to it, or the person specified by it for registration as holder, of Placing Shares will not give rise to a stamp duty or stamp duty reserve tax liability under (or at a rate determined under) any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depository receipts and clearance services) and that it is not participating in the Placing as nominee or agent for any person or persons to whom the allocation, allotment, issue or delivery of Placing Shares would give rise to such a liability;
22 it and any person acting on its behalf (if within the United Kingdom) falls within Article 19(5) and/or 49(2) of the Order and undertakes that it will acquire, hold, manage and (if applicable) dispose of any Placing Shares that are allocated to it for the purposes of its business only;
23 it is a person of a kind described in: (a) Article 19(5) (Investment Professionals) and/or 49(2) (High net worth companies etc.) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended, and/or an authorised person as defined in section 31 of FSMA; and (b) section 86(7) of FSMA ("Qualified Investor"), being a person falling within Article 2.1(e) the Prospectus Directive. For such purposes, it undertakes that it will acquire, hold, manage and (if applicable) dispose of any Placing Shares that are allocated to it for the purposes of its business only;
24 it has only communicated or caused to be communicated and it will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) relating to Placing Shares in circumstances in which section 21(1) of the FSMA does not require approval of the communication by an authorised person and it acknowledges;
24.1 it has complied and it will comply with all applicable laws with respect to anything done by it or on its behalf in relation to the Placing Shares (including all relevant provisions of the FSMA in respect of anything done in, from or otherwise involving the United Kingdom);
24.2 if it is a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive (including any relevant implementing measure in any member state), the Placing Shares acquired by it in the Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in a member state of the EEA which has implemented the Prospectus Directive other than Qualified Investors, or in circumstances in which the express prior written consent of N+1 Singer has been given to the offer or resale;
24.3 it has neither received nor relied on any confidential price sensitive information about the Company in accepting this invitation to participate in the Placing;
25 neither N+1 Singer nor any of its respective affiliates, agents, directors, officers or employees or any person acting on behalf of any of them has or shall have any liability for any information, representation or statement contained in this Announcement or for any information previously published by or on behalf of the Company or any other written or oral information made available to or publicly available or filed information or any representation, warranty or undertaking relating to the Company, and will not be liable for its decision to participate in the Placing based on any information, representation, warranty or statement contained in this Announcement or elsewhere, provided that nothing in this paragraph shall exclude any liability of any person for fraud;
26 neither N+1 Singer, the Company, nor any of their respective affiliates, agents, directors, officers or employees or any person acting on behalf of N+1 Singer, the Company or their respective affiliates, agents, directors, officers or employees is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Placing nor providing advice in relation to the Placing nor in respect of any representations, warranties, acknowledgements, agreements, undertakings, or indemnities contained in the Placing Agreement nor the exercise or performance of N+1 Singer's rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
27 it acknowledges and accepts that N+1 Singer may, in accordance with applicable legal and regulatory provisions, engage in transactions in relation to the Placing Shares and/or related instruments for their own account for the purpose of hedging their underwriting exposure or otherwise and, except as required by applicable law or regulation, N+1 Singer will not make any public disclosure in relation to such transactions;
28 N+1 Singer and each of its affiliates, each acting as an investor for its or their own account(s), may bid or subscribe for and/or purchase Placing Shares and, in that capacity, may retain, purchase, offer to sell or otherwise deal for its or their own account(s) in the Placing Shares, any other securities of the Company or other related investments in connection with the Placing or otherwise. Accordingly, references in this Announcement to the Placing Shares being offered, subscribed, acquired or otherwise dealt with should be read as including any offer to, or subscription, acquisition or dealing by N+1 Singer and/or any of its respective affiliates, acting as an investor for its or their own account(s). Neither N+1 Singer nor the Company intend to disclose the extent of any such investment or transaction otherwise than in accordance with any legal or regulatory obligation to do so;
29 it has not offered or sold and will not offer or sell any Placing Shares to persons in the EEA prior to the expiry of a period of six months from Admission except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purpose of their business or otherwise in circumstances which have not resulted and which will not result in an offer to the public in any member state of the EEA within the meaning of the Prospectus Directive;
30 it has complied with its obligations in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2000, the Terrorism Act 2006 and the Money Laundering Regulations 2007 (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;
31 it is aware of the obligations regarding insider dealing in the Criminal Justice Act 1993, FSMA, the EU Market Abuse Regulation No. 596 of 2014 and the Proceeds of Crime Act 2002 and confirms that it has and will continue to comply with those obligations;
32 in order to ensure compliance with the Money Laundering Regulations 2007, N+1 Singer (for itself and as agent on behalf of the Company) or the Company's registrars may, in their absolute discretion, require verification of its identity. Pending the provision to N+1 Singer's or the Company's registrars, as applicable, of evidence of identity, definitive certificates in respect of the Placing Shares may be retained at N+1 Singer's absolute discretion or, where appropriate, delivery of the Placing Shares to it in uncertificated form may be delayed at N+1 Singer's or the Company's registrars', as the case may be, absolute discretion. If within a reasonable time after a request for verification of identity N+1 Singer's (for itself and as agent on behalf of the Company) or the Company's registrars have not received evidence satisfactory to them, N+1 Singer and/or the Company may, at its absolute discretion, terminate its commitment in respect of the Placing, in which event the monies payable on acceptance of allotment will, if already paid, be returned without interest to the account of the drawee's bank from which they were originally debited;
33 it acknowledges that its commitment to acquire Placing Shares on the terms set out in this Announcement and in the form of confirmation will continue notwithstanding any amendment that may in future be made to the terms and conditions of the Placing and that Placees will have no right to be consulted or require that their consent be obtained with respect to the Company's or N+1 Singer's conduct of the Placing;
34 it has knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of subscribing for or acquiring the Placing Shares. It further acknowledges that it is experienced in investing in securities of this nature and is aware that it may be required to bear, and is able to bear, the economic risk of, and is able to sustain, a complete loss in connection with the Placing. It has relied upon its own examination and due diligence of the Company and its affiliates taken as a whole, and the terms of the Placing, including the merits and risks involved;
35 it irrevocably appoints any duly authorised officer of N+1 Singer as its agent for the purpose of executing and delivering to the Company and/or its registrars any documents on its behalf necessary to enable it to be registered as the holder of any of the Placing Shares for which it agrees to subscribe or purchase upon the terms of this Announcement;
36 the Company, N+1 Singer and others (including each of their respective affiliates, agents, directors, officers or employees) will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and agreements, which are given to N+1 Singer, on their own behalf and on behalf of the Company and are irrevocable;
37 if it is acquiring the Placing Shares as a fiduciary or agent for one or more investor accounts, it has full power and authority to make, and does make, the foregoing representations, warranties, acknowledgements, agreements and undertakings on behalf of each such accounts;
38 time is of the essence as regards its obligations under this Appendix;
39 any document that is to be sent to it in connection with the Placing will be sent at its risk and may be sent to it at any address provided by it to N+1 Singer;
40 the Placing Shares will be issued subject to the terms and conditions of this Appendix; and
41 these terms and conditions in this Appendix and all documents into which this Appendix is incorporated by reference or otherwise validly forms a part and/or any agreements entered into pursuant to these terms and conditions and all agreements to acquire shares pursuant to the Placing will be governed by and construed in accordance with English law and it submits to the exclusive jurisdiction of the English courts in relation to any claim, dispute or matter arising out of any such contract, except that enforcement proceedings in respect of the obligation to make payment for the Placing Shares (together with any interest chargeable thereon) may be taken by the Company or N+1 Singer in any jurisdiction in which the relevant Placee is incorporated or in which any of its securities have a quotation on a recognised stock exchange.
By participating in the Placing, each Placee (and any person acting on such Placee's behalf) agrees to indemnify and hold the Company, N+1 Singer and each of 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 (and any person acting on such Placee's behalf) in this Appendix or incurred by N+1 Singer, the Company or each of their respective affiliates, agents, directors, officers or employees arising from the performance of the Placee's obligations as set out in this Announcement, and further agrees that the provisions of this Appendix shall survive after the completion of the Placing.
The agreement to allot and issue New Ordinary Shares to Placees (or the persons for whom Placees are contracting as agent) free of stamp duty and stamp duty reserve tax in the United Kingdom relates only to their allotment and issue to Placees, or such persons as they nominate as their agents, direct by the Company. Such agreement assumes that the New Ordinary Shares are not being acquired in connection with arrangements to issue depositary receipts or to transfer the New Ordinary Shares into a clearance service. If there are any such arrangements, or the settlement related to any other dealings in the New Ordinary Shares, stamp duty or stamp duty reserve tax may be payable. In that event, the Placee agrees that it shall be responsible for such stamp duty or stamp duty reserve tax and neither the Company nor N+1 Singer shall be responsible for such stamp duty or stamp duty reserve tax. If this is the case, each Placee should seek its own advice and they should notify N+1 Singer accordingly. In addition, Placees should note that they will be liable for any capital duty, stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the United Kingdom by them or any other person on the acquisition by them of any Placing Shares or the agreement by them to acquire any Placing Shares and each Placee, or the Placee's nominee, in respect of whom (or in respect of the person for whom it is participating in the Placing as an agent or nominee) the allocation, allotment, issue or delivery of Placing Shares has given rise to such non-United Kingdom stamp, registration, documentary, transfer or similar taxes or duties undertakes to pay such taxes and duties, including any interest and penalties (if applicable), forthwith and to indemnify on an after-tax basis and to hold harmless the Company and N+1 Singer in the event that either the Company and/or N+1 Singer has incurred any such liability to such taxes or duties.
The representations, warranties, acknowledgements and undertakings contained in this Appendix are given to N+1 Singer for itself and on behalf of the Company and are irrevocable and shall not be capable of termination in any circumstances.
Each Placee and any person acting on behalf of the Placee acknowledges that N+1 Singer does not owe any fiduciary or other duties to any Placee in respect of any representations, warranties, undertakings, acknowledgements, agreements or indemnities in the Placing Agreement.
Each Placee and any person acting on behalf of the Placee acknowledges and agrees that N+1 Singer may (at its absolute discretion) satisfy their obligations to procure Placees by itself agreeing to become a Placee in respect of some or all of the Placing Shares or by nominating any connected or associated person to do so.
When a Placee or any person acting on behalf of the Placee is dealing with N+1 Singer, any money held in an account with N+1 Singer on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the relevant rules and regulations of the FCA made under FSMA. Each Placee acknowledges that the money will not be subject to the protections conferred by the client money rules: as a consequence this money will not be segregated from N+1 Singer's money (as applicable) in accordance with the client money rules and will be held by it under a banking relationship and not as trustee.
References to time in this Announcement are to London time, unless otherwise stated.
All times and dates in this Announcement may be subject to amendment.
No statement in this Announcement is intended to be a profit forecast, and no statement in this Announcement should be interpreted to mean that earnings per share of the Company for the current or future financial years would necessarily match or exceed the historical published earnings per share of the Company.
The price of Ordinary Shares and 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 shares. Past performance is no guide to future performance, and persons needing advice should consult an independent financial adviser.
The Placing Shares to be issued or sold pursuant to the 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 nor any website accessible by hyperlinks on the Company's website is incorporated in, or forms part of, this Announcement.
DEFINITIONS
In this Appendix to the Announcement and, as the context shall admit, in the Announcement the following words and expressions shall have the following meanings:
"Act" | the Companies Act 2006 (as amended) |
"Admission" | admission of the New Ordinary Shares to trading on AIM becoming effective in accordance with Rule 6 of the AIM Rules |
"AIM" | the AIM Market operated by the London Stock Exchange |
"AIM Application" | the application to be made to the London Stock Exchange for Admission in the form specified by the AIM Rules |
"AIM Rules" | the AIM Rules for Companies published by the London Stock Exchange from time to time |
"Announcement" | this announcement (including the Appendix and information contained therein) |
"Baden Hill" | the trading name of Sanlam Securities UK Limited, joint bookrunners to the Placing |
"Bookbuild Process" | the process to be carried out by the Joint Bookrunners in seeking to procure Placees for the Placing Shares |
"Business Day" | any day on which the banks are usually open in England and Wales for the transaction of business, other than a Saturday, Sunday or public holiday |
"certificated form" or "in certificated form" | an Ordinary Share recorded on a company's share register as being held in certificated form (namely, not in CREST) |
"Circular" | the circular to be issued by the Company to Shareholders setting out details of the placing and the Notice of General Meeting |
"Company" | Actual Experience plc, a company incorporated and registered in England and Wales under the Companies Act 1985 with registered number 06838738 |
"CREST" | the relevant system (as defined in the CREST Regulations) in respect of which Euroclear UK & Ireland is the operator (as defined in those regulations) |
"CREST Regulations" | the Uncertificated Securities Regulations 2001 (S.I. 2001 No. 3755) |
"Directors" or "Board" | the directors of the Company |
"Director Seller" | any Director or PDMR of the Group that indicates to the Company his or her intention to sell his or her respective Ordinary Shares pursuant to the Placing |
"Director Shares" | the up to 100,000 Existing Ordinary Shares held by the Director Sellers proposed to be sold pursuant to the Placing |
"Employee Existing Shares" | the up to 100,000 Existing Ordinary Shares held by Employee Sellers proposed to be sold pursuant to the Placing |
"Employee Option Shares" | the up to 100,000 New Ordinary Shares proposed to be issued to Employee Sellers following the exercise of options held by them prior to Admission and sold pursuant to the Placing |
"Employee Seller" | any employee of the Group that indicates to the Company his or her intention to sell his or her respective Ordinary Shares pursuant to the Placing |
"Employee Shares" | the Employee Existing Shares and Employee Option Shares |
"Existing Ordinary Shares" | the 37,527,588 Ordinary Shares in issue at the date of this Announcement, all of which are admitted to trading on AIM |
"FCA" | the UK Financial Conduct Authority |
"Form of Proxy" | the form of proxy for use in connection with the General Meeting which will accompany the Circular |
"FSMA" | the Financial Services and Markets Act 2000 (as amended) |
"General Meeting" | the general meeting of the Company to be held at the offices of N+1 Singer, One Bartholomew Lane, London EC2N 2AX at 11.00 a.m. on 20 March 2017 |
"Group" | the Company and its subsidiary, Actual Experience, Inc. |
"Independent Directors" | the Directors other than the Director Sellers |
"London Stock Exchange" | London Stock Exchange plc |
"MAR" | Article 7 of EU Regulation 596/2014 |
"New Ordinary Shares" | the up to 7,200,000 new Ordinary Shares to be issued by the Company pursuant to the Placing, including the Employee Option Shares |
"Ordinary Shares" | ordinary shares of 0.2 pence each in the capital of the Company |
"PDMR" | a person discharging managerial responsibilities of the Company, as defined under MAR |
"Placee" | any person that has conditionally agreed to subscribe for Placing Shares |
"Placing" | the conditional placing of the Placing Shares by N+1 Singer, as agent on behalf of the Company and the Selling Shareholders, pursuant to the Placing Agreement |
"Placing Agreement" | the conditional agreement dated the same time as this Announcement and made between (1) the Company, (2) N+1 Singer and (3) the Director Sellers in relation to the Placing |
"Placing Price" | 250 pence per Placing Share |
"Placing Shares" | the Ordinary Shares to be placed at the Placing Price, pursuant to the Placing, being the New Ordinary Shares, the Existing Director Shares and the Existing Employee Shares |
"Placing Resolution" | Resolution 1 of the resolutions set out in the notice of General Meeting in the Circular |
"Prospectus Rules" | the prospectus rules made by the FCA pursuant to section 73A of FSMA |
"Results Announcement" | the announcement to be released by the Company following the close of the Bookbuilding Process, detailing the aggregate number of Placing Shares to be issued at the Placing Price |
"Sale Shares" | means the Director Shares and the Employee Shares |
"Selling Shareholders" | the Director Sellers and the Employee Sellers |
"Shareholders" | holders of Ordinary Shares |
"UK" | the United Kingdom of Great Britain and Northern Ireland |
"uncertificated" or "in uncertificated form" | an Ordinary Share recorded on a company's share register as being held in uncertificated form in CREST and title to which, by virtue of the CREST Regulations, may be transferred by means of CREST |