11 Jun 2020 16:45
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS NOT FOR PUBLICATION, RELEASE, OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM, THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, THE REPUBLIC OF SOUTH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 OR ANY JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL. THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS FOR INFORMATION PURPOSES ONLY AND SHALL NOT CONSTITUTE AN OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY, SUBSCRIBE OR ACQUIRE ANY SECURITIES IN THE UNITED STATES, AUSTRALIA, CANADA, JAPAN OR THE REPUBLIC OF SOUTH AFRICA (UNLESS AN EXEMPTION UNDER THE RELEVANT SECURITIES LAWS IS AVAILABLE) OR IN ANY OTHER JURISDICTION IN WHICH ANY SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL.
This Announcement contains inside information for the purposes of Article 7 of EU Regulation 596/2014. Upon the publication of this Announcement, this inside information is now considered to be in the public domain.
11 June 2020
WANdisco plc
("WANdisco" or the "Company")
Proposed Placing of New Ordinary Shares
WANdisco plc (AIM: WAND), the LiveData company for machine learning and AI, announces its intention to raise a minimum of $25 million by way of a non pre-emptive placing (the "Placing") of approximately 3,041,880 new ordinary shares of 10 pence each in the capital of the Company (the "Placing Shares") at a price of 650 pence (the "Placing Price") per Placing Share. The Placing Shares would represent approximately 6.3 per cent. of the Company's current issued ordinary share capital.
The Placing, which is being conducted by way of an accelerated bookbuilding process (the "Bookbuild") available to qualifying new and existing investors, will be launched immediately following this announcement.
Highlights
· | Placing to raise a minimum of $25 million by way of a non pre-emptive placing |
· | Net proceeds to be used to strengthen the Group's balance sheet and to provide further working capital alongside the optionality to accelerate the Company's growth ambitions and to pursue near term opportunities with channel partners
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· | Additional liquidity will allow the Group to deliver significant scale through capitalising upon strong operational momentum, including the public launch of the Microsoft Azure LiveData Platform and a global reseller agreement with a large global systems integrator
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· | The Group continues to work towards becoming run rate break even by capitalising on the opportunity for customers to move their data through the Microsoft Azure LiveData Platform, that will continue to scale in revenue attribution over time |
Background to the Placing and use of proceeds
Further to this afternoon's full year results announcement, WANdisco continues to deliver on its strategic goals underpinned by its patented WANdisco Fusion ("Fusion") data replication technology and its WANdisco LiveData platform ("LiveData"). The Company plans to use the proceeds from the Placing (the "Proceeds") to capitalise on its strong operational momentum over the last year and to further accelerate its growth ambitions.
In 2019, the Company delivered on its primary strategic goal through cementing its partnership with Microsoft to embed Fusion into Azure, allowing customers to use Fusion as if it was a native Azure offering. Fusion provides a seamless customer experience and is the fastest and easiest way to establish data connectivity and the replication of continuously changing data from on-premises to cloud storage with guaranteed consistency, no downtime and no business disruption.
In recent days, the Company announced the availability of WANdisco LiveData Platform for Azure in limited public preview, a new Azure service offering available exclusively on Microsoft Azure. This launch marks a landmark occasion in WANdisco's vendor partnership strategy, with the Company being the first independent software vendor to be integrated as a service within Microsoft Azure and will help facilitate petabyte scale cloud migration without business interruption within the world's largest cloud ecosystem. The Company's management in conjunction with Microsoft are targeting an addressable market of 200-300 exabytes of data on-premise, and over the next 12 months expect to sign over 50 new customers on the Azure platform.
The Company has also secured a global reseller agreement with a large global systems integrator. The customer will have access to the Company's full suite of solutions and use these to build its own data migration practice for moving data at scale into the public cloud. This agreement is significant for the Company as the relationship will encompass and target all major public cloud vendors, and a pipeline of opportunities is immediately being explored following successful deployment in a large-scale customer environment. Given the scale and reach of the global systems integrator, with 240,000 people in 46 countries, the Company sees potential for material upside once the global systems integrator's data migration practice is complete.
In order to capitalise on this strong operational momentum and further accelerate its growth ambitions, the Company is seeking to raise additional equity capital. The net Proceeds from the Placing will be used to strengthen the Group's balance sheet and to provide further working capital alongside the optionality to accelerate the Company's growth ambitions and to pursue near term opportunities with channel partners. With a greater reliance on the Microsoft sales organisation and systems integrator partners, the Company can also accelerate enablement of these parties for the business to scale. Secondly, the Company would seek to replicate its achievements with Microsoft on a second platform, given the strong levels of interest from other cloud platform vendors. Following the Placing, the Company's increased liquidity will give further confidence to new strategic partners and customers as well as preparing the Company for this next phase of growth.
Current Trading and Outlook
The Company ended 2019 with a number of delayed deals linked to the availability of its newly launched LiveData Platform. Consequently, 2020 was always going to be a predominantly second half weighted year, with Microsoft projected to represent at least 50 per cent. of the Company's 2020 revenues. With the launch of the LiveData Platform for Azure, the Company remains confident of reaching market estimates for 2020. As at 31 May 2020, the Company's cash balance was c.$12 million and we expect total cash costs in 2020 to be c.$37 million.
David Richards, Chief Executive and Chairman of WANdisco, commented:
"Following the public launch of our joint product with Microsoft in June, there is a plethora of opportunities ahead, both to drive scale and new customer acquisition through the platform, and to replicate this success across other major cloud vendors. This additional liquidity will provide us with the optionality to capitalise on recent successes and accelerate our growth while strengthening our balance sheet. Our embedded technology now provides the key to open the world's largest cloud ecosystem, a model that will deliver significant scale and operational leverage in the years to come."
Details of the Placing
Stifel Nicolaus Europe Limited ("Stifel") and Beech Hill Securities, Inc. ("Beech Hill") are acting as joint bookrunners (the "Joint Bookrunners") in connection with the Placing pursuant to an agreement entered into between the Company and the Joint Bookrunners dated 11 June 2020 (the "Placing Agreement").
The Placing, which is being conducted by way of an accelerated bookbuilding process available to qualifying new and existing institutional investors, will be launched immediately following this announcement (being together with the appendix, the "Announcement"), in accordance with the terms and conditions set out in the appendix to this Announcement (the "Appendix").
The timing of the closing of the Placing, the number of Placing Shares and allocations are at the discretion of the Company and the Joint Bookrunners and a further announcement confirming these details will be made in due course. Members of the public are not permitted to participate in the Placing.
The Placing Shares will, when issued, be credited as fully paid and will rank pari passu with the existing ordinary shares of the Company including the right to receive all future dividends and distributions declared, made or paid by reference to a record date falling after their issue. As the Company will require additional shareholder authorities in order to issue the Placing Shares, their admission to trading will be conditional upon shareholder approval. Therefore, a shareholder circular is due to be published on 12 June 2020 (the "Circular") with the General Meeting due to take place on or around 29 June 2020 (the "General Meeting").
In the event that the Company has demand from investors which exceeds the minimum of $25 million, the Company may consider increasing the size of the Placing up to 5,602,187 new ordinary shares, representing11.6 per cent. of the current issued ordinary share capital of the Company. Any decision to upsize would only be made after careful consideration of the prevailing market conditions and whether appropriate opportunities exist for the deployment of additional Placing proceeds. There is no certainty that the maximum number of new ordinary shares will be issued, even if sufficient investor demand exists.
Prior to launch of the Placing, the Company consulted with a significant number of its shareholders to gauge their feedback as to the terms of the Placing. Feedback from this consultation was supportive and as a result the Board has chosen to proceed with the Placing. The Placing is being structured as a Bookbuild to minimise execution and market risk. The Board intends to apply the principles of pre-emption when allocating Placing Shares to those shareholders that participate in the Placing.
The Company will make an application for the Placing Shares to be admitted to trading on AIM ("Admission"). Subject to Admission becoming effective, it is expected that the settlement of subscriptions in respect of the Placing Shares and trading in the Placing Shares will commence at 8.00 a.m. on 30 June 2020.
The Placing is conditional upon, inter alia, Admission becoming effective and the Placing Agreement becoming unconditional and not being terminated. Further details of the Placing Agreement can be found in the terms and conditions of the Placing contained in the Appendix to this Announcement and which forms part of this Announcement.
A further announcement will be made following the completion of the Bookbuild.
By choosing to participate in the Placing and by making an oral and legally binding offer to subscribe for Placing Shares, investors will be deemed to have read and understood this Announcement (including the Appendix) in its entirety and to be making such offer on the terms and subject to the conditions in this Announcement, and to be providing the representations, warranties and acknowledgements contained in the Appendix.
Your attention is drawn to the detailed terms and conditions of the Placing set out in the Appendix to this Announcement.
Timetable
Latest time and date for receipt of commitments under the Placing 8.00 p.m. on 11 June 2020
Results of the Placing announced by close of business on 12 June 2020
Circular for General Meeting publication by close of business on 12 June 2020
General Meeting on 29 June 2020
Admission and dealings in Placing Shares commence 8.00 a.m. on 30 June 2020
The dates set out in the expected timetable above may be adjusted by the Company and Stifel. In such circumstances details of the new dates will be notified to the London Stock Exchange and an announcement will be made through a Regulatory Information Service.
For further information, please contact:
WANdisco plc | Via FTI Consulting |
David Richards, Chief Executive Officer and Chairman | |
Erik Miller, Chief Financial Officer | |
FTI Consulting | +44 (0)20 3727 1137 |
Matt Dixon / Chris Birt / Kwaku Aning | |
Stifel (Nomad and Joint Bookrunner) | +44 (0)20 7710 7600 |
Fred Walsh / Rajpal Padam | SNELProjectJaguarV12@stifel.com |
Equity Sales | +44 (0) 7418 922 756 / +44 (0) 7418 922 755 |
Beech Hill Securities (Joint Bookrunner) | +1 212 350 7200 |
Thomas Lawrence
Dealing codes
Ticker: WAND
ISIN for the Placing Shares: JE00B6Y3DV84
SEDOL for the Placing Shares: B6Y3DV8
This announcement contains inside information as defined in Article 7 of the Market Abuse Regulation No. 596/2014 ("MAR"). Market Soundings, as defined in MAR, were taken in respect of the proposed Placing with the result that certain persons became aware of this inside information, as permitted by MAR. Upon the publication of this announcement, this inside information is now considered to be in the public domain. The person responsible for arranging for the release of this announcement on behalf of WANdisco is David Richards, Chief Executive Officer and Chairman of WANdisco.
About WANdisco:
WANdisco is the LiveData Company for machine learning and AI. WANdisco solutions enable enterprises to create an environment where data is always available, accurate and protected, creating a strong backbone for their IT infrastructure and a bedrock for running consistent, accurate machine learning applications. With zero downtime and zero data loss, WANdisco Fusion keeps geographically dispersed data at any scale consistent between on-premises and cloud environments allowing businesses to operate seamlessly in a hybrid or multicloud environment. WANdisco has over a hundred customers and significant go-to-market partnerships with Microsoft Azure, Amazon Web Services, Google Cloud, Oracle, and others as well as OEM relationships with IBM and Alibaba.
For more information on WANdisco, visit http://www.wandisco.com.
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
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). The Placing Shares have not been and will not be registered under the United States Securities Act of 1933, as amended (the "US 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 US Securities Act and in compliance with any applicable securities laws of any state or other jurisdiction of the United States. There will be no public offering of securities in the United States.
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. 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.
Solely for the purposes of Article 9(8) of Commission Delegated Directive 2017/593 (the "Delegated Directive") regarding the responsibilities of Manufacturers under the Product Governance requirements contained within: (a) Directive 2014/65/EU on markets in financial instruments, as amended ("MiFID II"); (b) Articles 9 and 10 of the Delegated Directive; and (c) local implementing measures (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 Ordinary Shares have been subject to a product approval process, which has determined that the Ordinary 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 (as defined within the MiFID II Product Governance Requirements) should note that: the price of the Ordinary Shares may decline and investors could lose all or part of their investment; the Ordinary Shares offer no guaranteed income and no capital protection; and an investment in Ordinary 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 proposed placing. Furthermore, it is noted that, notwithstanding the Target Market Assessment, the Bookrunners 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 of 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 Ordinary Shares. Each distributor is responsible for undertaking its own target market assessment in respect of the Ordinary Shares and determining appropriate distribution channels.
Stifel is regulated by the Financial Conduct Authority (the "FCA") in the United Kingdom and is acting exclusively for the Company and no one else in connection with the Placing, and Stifel will not be responsible to anyone (including any purchasers of the Placing Shares) other than the Company for providing the protections afforded to its clients or for providing advice in relation to the Placing or any other matters referred to in this Announcement.
Beech Hill is regulated by the SEC and the Financial Industry Regulatory Authority in the United States of America and is acting exclusively for the Company and no one else in connection with the Placing, and Beech Hill will not be responsible to anyone (including any purchaser of the Placing Shares) other than the Company for providing the protections afforded to its clients or for providing advice in relation to the Placing or any other matters referred to in this Announcement.
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 Stifel or Beech Hill or by any of its respective affiliates or agents as to, or in relation to, the accuracy or completeness of this Announcement or any other written or oral information made available to or publicly available to any interested party or its advisers, and any liability therefore is expressly disclaimed.
Appendix
Terms and Conditions of the Placing
THIS ANNOUNCEMENT, AND THE INFORMATION CONTAINED IN IT, IS RESTRICTED AND IS NOT FOR PUBLIC RELEASE, PUBLICATION, OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA OR ANY OTHER STATE OR JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL.
IMPORTANT INFORMATION FOR INVITED PLACEES ONLY REGARDING THE PLACING
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT IN THIS APPENDIX ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT PERSONS WHO ARE: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA ("EEA") WHO ARE QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(E) OF THE PROSPECTUS REGULATION (WHICH MEANS REGULATION 2017/1129 AS AMENDED FROM TIME TO TIME) (THE "PROSPECTUS REGULATION") ("QUALIFIED INVESTORS"), (B) IF IN THE UNITED KINGDOM, PERSONS WHO (I) HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS WHO FALL WITHIN THE DEFINITION OF "INVESTMENT PROFESSIONALS" IN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMENDED (THE "ORDER"), OR ARE HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS OR PARTNERSHIPS OR TRUSTEES OF HIGH VALUE TRUSTS AS DESCRIBED IN ARTICLE 49(2) OF THE ORDER AND (II) ARE "QUALIFIED INVESTORS" AS DEFINED IN SECTION 86 OF THE FINANCIAL SERVICES AND MARKETS ACT 2000, AS AMENDED ("FSMA"), AND (C) OTHERWISE, TO PERSONS TO WHOM IT MAY OTHERWISE BE LAWFUL TO COMMUNICATE IT TO (EACH A "RELEVANT PERSON"). NO OTHER PERSON SHOULD ACT OR RELY ON THIS ANNOUNCEMENT AND PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. BY ACCEPTING THE TERMS OF THIS ANNOUNCEMENT YOU REPRESENT AND AGREE THAT YOU ARE A RELEVANT PERSON. 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 ANNOUNCEMENT (INCLUDING 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. THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) DOES NOT ITSELF CONSTITUTE AN OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY OR ACQUIRE ANY SECURITIES IN THE COMPANY.
THE INFORMATION CONTAINED HEREIN IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES (INCLUDING ITS TERRITORIES AND POSSESSIONS, ANY STATE OF THE UNITED STATES AND THE DISTRICT OF COLUMBIA) AUSTRALIA, CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA OR ANY JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL. THIS ANNOUNCEMENT (AND THE INFORMATION CONTAINED HEREIN) DOES NOT CONSTITUTE AND MAY NOT BE CONSTRUED AS AN OFFER OF SECURITIES FOR SALE IN THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA OR IN ANY OTHER JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL.
THE PLACING SHARES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS AMENDED (THE "US SECURITIES ACT"), OR UNDER THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD, ACQUIRED, RESOLD, TRANSFERRED OR DELIVERED, DIRECTLY OR INDIRECTLY WITHIN, INTO OR IN THE UNITED STATES, EXCEPT PURSUANT TO AN APPLICABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE US SECURITIES ACT AND IN COMPLIANCE WITH THE SECURITIES LAWS OF ANY RELEVANT STATE OR OTHER JURISDICTION OF THE UNITED STATES. THERE WILL BE NO PUBLIC OFFER OF THE PLACING SHARES IN THE UNITED STATES, THE UNITED KINGDOM OR ELSEWHERE.
EACH PLACEE SHOULD CONSULT ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS, FINANCIAL AND RELATED ASPECTS OF ACQUIRING THE PLACING SHARES.
Unless otherwise defined in these terms and conditions, capitalised terms used in these terms and conditions shall have the meaning given to them in this Announcement.
The Placees will be deemed to have read and understood this Announcement, including its Appendices, in its entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, acknowledgements and undertakings, contained in this Appendix. In particular, each such Placee represents, warrants and acknowledges 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. | if it is in a member state of the EEA and/or if it is a financial intermediary, as that term is used in Article 3(2) of the Prospectus Regulation, that any Placing Shares acquired by it in the Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in any member state of the EEA in circumstances which may give rise to an offer of securities to the public, other than an offer or resale in a member state of the EEA which has implemented the Prospectus Regulation to Qualified Investors, or in circumstances in which the prior consent of Stifel has been given to each such proposed offer or resale;
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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;
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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;
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5. | it acknowledges that the Placing Shares have not been and will not be registered under the US Securities Act or with any securities regulatory authority of any state or other jurisdiction of the United States and may not be offered, sold or transferred, directly or indirectly, within the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the US Securities Act and in compliance with any applicable securities laws of any state or other jurisdiction of the United States;
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6. | except as otherwise permitted by the Company and subject to available exemptions from applicable securities laws, it, and the person(s), if any, for whose account or benefit it is acquiring the Placing Shares: (i) will be either (a) if outside the United States, purchasing the Placing Shares in an "offshore transaction" as defined in Regulation S under the US Securities Act ("Regulation S"), in accordance with Rule 903 or Rule 904 of Regulation S or (b) if in the United States, a qualified institutional buyer ("QIB"), as such term is defined in Rule 144A under the US Securities Act ("Rule 144A"), purchasing the Placing Shares in accordance with Rule 144A, or a major US institutional investor, as defined in Rule 15a-6 under the US Securities Exchange Act of 1934, as amended (the "US Exchange Act"), purchasing the Placing Shares in accordance with Section 4(a)(2) of the US Securities Act; (ii) it is aware of the restrictions on the offer and sale of the Placing Shares pursuant to Regulation S, Rule 144A, and the US Securities Act, as applicable; and (iii) the Placing Shares have not been offered to it by means of any "directed selling efforts" as defined in Regulation S; and
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7. | the Company and the Bookrunners will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements. |
Selling Restrictions
The New Ordinary Shares have not been and will not be registered under the US Securities Act or the securities laws of any state or other jurisdiction of the United States and may not be offered, sold, resold, transferred, delivered or distributed, directly or indirectly, within, into or in the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the US Securities Act and in compliance with the securities laws of any state or other jurisdiction of the United States. The Placing is being made (i) outside the United States in accordance with Regulation S and applicable laws, and (ii) by way of an offering of New Ordinary Shares to persons in the United States and to US Persons who are QIBs and/or major US institutional investors as defined in Rule 15a-6 under the US Exchange Act, in transactions exempt from the registration requirements of the US Securities Act.
The New Ordinary 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.
Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of this Appendix (or the Announcement of which it forms part) should seek appropriate advice before taking any action.
Neither of the Bookrunners makes any representation to any Placees regarding an investment in the Placing Shares.
Details of the Placing Agreement and of the Placing Shares
The Company has today entered into the Placing Agreement with Stifel (the Company's Nominated Adviser and joint bookrunner in connection with the Placing) and Beech Hill (the Company's joint bookrunner in connection with the Placing) (together with Stifel the "Bookrunners" and each a "Bookrunner") under which, subject to the conditions set out therein, each of the Bookrunners have agreed, as agent for and on behalf of the Company, to use its reasonable endeavours to procure Placees for the Placing Shares, at the Issue Price. The Placing is not being underwritten by either of the Bookrunners or any other person.
The price per Ordinary Share at which the Placing Shares are to be placed (the "Issue Price") and the final number of Placing Shares will be decided at the close of the Bookbuild following the execution of the placing terms by the Company and the Bookrunners (the "Term Sheet"). The timing of the closing of the book, pricing and allocations are at the discretion of the Company and the Bookrunners. Details of the Placing Price and the number of Placing Shares will be announced as soon as practicable after the close of the Bookbuild.
In addition, certain QIBs and/or accredited investors (as defined in Rule 501(a) of Regulation D of the US
Securities Act) will subscribe for New Ordinary Shares on the terms and conditions set out in a Subscription Letter with the Company. The Subscription Letter will require such purchasers to give certain representations, warranties and undertakings to the Company. The Subscription Letter is conditional on, among other things, the passing of the Resolutions.
The Placing Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the Existing Ordinary Shares in the Company, 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 Placing Shares.
Application for admission to trading
Applications will be made to London Stock Exchange for admission of the New Ordinary Shares to trading on AIM in accordance with the AIM Rules for Companies ("Admission").
It is expected that Admission will become effective at 8.00 a.m. on or around 30 June 2020 (or such later time or date as Stifel may agree with the Company) and that dealings in the New Ordinary Shares will commence at that time, and in any event no later than 21 July 2020.
Bookbuild
The Bookrunners will today commence the bookbuilding process in respect of the Placing (the "Bookbuild") to determine demand for participation in the Placing by Placees. This Appendix gives details of the terms and conditions of, and the mechanics of participation in, the Placing. No commissions will be paid to Placees or by Placees in respect of any Placing Shares.
The Bookrunners and the Company shall be entitled to effect the Placing by such alternative method to the Bookbuild as they may, in their sole discretion, determine.
Participation in, and principal terms of, the Placing
1. | Each Bookrunner is arranging the Placing as bookrunner and placing agent of the Company. |
2. | Participation in the Placing will only be available to persons who are Relevant Persons and who may lawfully be, and are, invited to participate by a Bookrunner. Each Bookrunner's agents and their respective affiliates are each entitled to enter bids in the Bookbuild as principal. |
3. | The Bookbuild if successful, will establish the Issue Price payable to the Bookrunners, as settlement agents for the Company, by all Placees whose bids are successful. The final number of Placing Shares will be agreed between the Bookrunners and the Company following completion of the Bookbuild. Subject to the execution of the Term Sheet, the Issue Price and the number of Placing Shares will be announced on a Regulatory Information Service following the completion of the Bookbuild (the "Pricing Announcement"). |
4. | To bid in the Bookbuild, Placees should communicate their bid by telephone or in writing to their usual sales contact at the relevant Bookrunner. Each bid should state the aggregate number of Placing Shares which the prospective Placee wishes to subscribe for at either the Issue Price which is ultimately established by the Company and the Bookrunners, or at prices up to a price limit specified in its bid. Bids may be scaled down by the Bookrunners on the basis referred to in paragraph 9 below. The Bookrunners are arranging the Placing as agents of the Company. |
5. | The Bookbuild will open with immediate effect following release of this Announcement and close as soon as reasonably practicable thereafter. Each Bookrunner may, in agreement with the Company, accept bids that are received after the Bookbuild has closed. The Company reserves the right (upon the agreement of the Bookrunners) to reduce or seek to increase the amount to be raised pursuant to the Placing. |
6. | Each prospective Placee's allocation will be determined by the Bookrunners in their sole discretion and, subject to the execution of the Term Sheet, will be confirmed orally by the relevant Bookrunner as agent of the Company following the close of the Bookbuild. That oral confirmation will constitute an irrevocable legally binding commitment upon that person (who will at that point become a Placee) to acquire the number of Placing Shares allocated to it and to pay the Issue Price in respect of such shares on the terms and conditions set out in this Appendix and in accordance with the Company's articles of association and each Placee will be deemed to have read and understood this Announcement (including this Appendix) in its entirety. |
7. | Each prospective Placee's allocation and commitment will be evidenced by a form of confirmation or contract note and/or electronic trade confirmation issued to such Placee by the relevant Bookrunner. The terms of this Appendix will be deemed incorporated by reference therein. |
8. | Each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to the relevant Bookrunner, to pay as principal to that Bookrunner (or as it may direct) in cleared funds immediately on the settlement date an amount equal to the product of the Issue Price and the number of Placing Shares such Placee has agreed to acquire and the Company has agreed to allot and issue to that Placee. |
9. | The Bookrunners reserve the right not to accept bids or may choose to accept bids, either in whole or in part, on the basis of allocations determined in agreement with the Company and may scale down any bids for this purpose on such basis as they may determine. The Bookrunners may also, notwithstanding paragraphs 3 and 4 above, subject to the prior consent of the Company (i) allocate Placing Shares after the time of any initial allocation to any person submitting a bid after that time; and (ii) allocate Placing Shares after the Bookbuild has closed to any person submitting a bid after that time. |
10. | A bid in the Bookbuild will be made on the terms and subject to the conditions in this Announcement (including this Appendix) and will be legally binding on the Placee on behalf of which it is made and, except with the consent of the Bookrunners, will not be capable of variation or revocation after the time at which it is submitted. |
11. | Except as required by law or regulation, no press release or other announcement will be made by the Bookrunners 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. |
12. | Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all Placing Shares to be acquired pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement". |
13. | All obligations under the Bookbuild and Placing will be subject to fulfilment or (where applicable) waiver of the conditions referred to below under "Conditions of the Placing" and to the Placing not being terminated on the basis referred to below under "Right to terminate under the Placing Agreement". |
14. | By participating in the Bookbuild, each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee. |
15. | To the fullest extent permissible by law, neither of the Bookrunners nor any of their respective affiliates, agents, directors, officers or employees shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither of the Bookrunners nor any of their respective affiliates, agents, directors, officers or employees shall have any liability (including to the extent permissible by law, any fiduciary duties) in respect of such Bookrunner's conduct of the Bookbuild or of such alternative method of effecting the Placing as the Bookrunners and the Company may agree. |
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional and not having been terminated in accordance with its terms. Each Bookrunner's obligations under the Placing Agreement are conditional on customary conditions, including (amongst others) (the "Conditions"):
1. | the London Stock Exchange agreeing to admit the Placing Shares to trading on AIM (subject only to allotment); |
2. | Admission occurring no later than 8.00 a.m. BST on 30 June 2020 (or such later time or date as the Bookrunners may otherwise agree with the Company, being no later than 8.00 a.m. BST on 21 July 2020) (the "Closing Date"); |
3. | the Term Sheet having been executed by the Company and the Bookrunners no later than 7.00 a.m. BST on 12 June 2020 (or such later time or date as Stifel may otherwise agree with the Company); |
4. | the Resolutions (as shall be set out in the Circular) being approved by the requisite majority of Shareholders attending and voting at the General Meeting; |
5. | there having been no development or event resulting in a Material Adverse Effect which could, in the good faith opinion of Stifel, materially and adversely affect the Placing or dealings in the Ordinary Shares following Admission; |
6. | the delivery by the Company to the Bookrunners of a certificate signed by a Director for and on behalf of the Company not later than 5.00 p.m. BST on the Business Day immediately prior to the date on which Admission is expected to occur (and dated as of such date); |
7. | the Company having complied with its obligations which fall to be performed on or prior to Admission under the Placing Agreement; and |
8. | none of the warranties on the part of the Company in the Placing Agreement being untrue or inaccurate or misleading when made and none of the warranties ceasing to be true and accurate or becoming misleading at any time prior to Admission by reference to the facts and circumstances then subsisting. |
If (i) any of the conditions contained in the Placing Agreement, including those described above, are not fulfilled (or, where permitted, waived or extended in writing by the Bookrunner) or become incapable of fulfilment on or before the date or time specified for the fulfilment thereof (or such later date and/or time as the Bookrunners may agree); or (ii) the Placing Agreement is terminated in the circumstances specified below, the Placing will not proceed and the Placees' rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by the Placee in respect thereof. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement (including this Appendix).
Lock-up
The Company has undertaken that it will not at any time between the date of the Placing Agreement and the date which is 90 days from the date of Admission, offer, issue, sell, contract to sell, issue options in respect of or otherwise dispose of any securities of the Company (or any interest therein or in respect thereof) or any other securities exchangeable for, or convertible into, or substantially similar to, Ordinary Shares or enter into any transaction having substantially the same effect or agree to do any of the foregoing other than with the prior written consent of Stifel (save in respect of any options granted or to be granted under the terms of the Company's share schemes and any Subscription Shares pursuant to the Subscription Letters).
Right to terminate under the Placing Agreement
At any time before Admission, each of the Bookrunners is entitled to terminate the Placing Agreement in the following circumstances, amongst others: (i) if any of the Company's warranties or representations are not or cease to be true and accurate in any respect which either of the Bookrunners considers to be material in the context of the Placing and/or Admission; or (ii) if it comes to the notice of either of the Bookrunners that any statement contained in the Placing Agreement was or has become untrue, incorrect or misleading in any respect which either of the Bookrunners considers to be material in the context of the Placing and/or Admission; or (iii) in the opinion of either of the Bookrunners, there shall have occurred any Material Adverse Change (as defined in the Placing Agreement); or (v) if there has occurred (a) a general moratorium on commercial banking activities in London declared by the relevant authorities or a material disruption in commercial banking or securities settlement or clearance services in the United Kingdom, (b) the outbreak or escalation of hostilities or acts of terrorism involving the United Kingdom or any other Relevant Jurisdiction or the declaration by the United Kingdom or any other Relevant Jurisdiction of a national emergency or war; (c) any other occurrence of any kind which (by itself or together with any other such occurrence) in either of the Bookrunner's reasonable opinion is likely to materially and adversely affect the market's position or prospects of the Group taken as a whole; or (d) any other crisis of international or national effect or any change in any currency exchange rates or controls or in any financial, political, economic or market conditions or in market sentiment which, in any such case, in either of the Bookrunner's reasonable opinion is likely to adversely affect the Placing in a material way.
Upon such notice being given, the parties to the Placing Agreement shall be released and discharged (except for any liability arising before or in relation to such termination) from their respective obligations under or pursuant to the Placing Agreement, subject to certain exceptions.
By participating in the Placing, Placees agree that the exercise by either of the Bookrunners of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of that Bookrunner, and that it need not make any reference to Placees and that the relevant Bookrunner shall have no liability to Placees whatsoever in connection with any such exercise or failure so to exercise.
No prospectus or admission document
No offering document or prospectus or admission document has been or will be published or submitted to be approved by the FCA or the LSE in relation to the Placing and Placees' commitments will be made solely on the basis of their own assessment of the Company, the Placing Shares and the Placing based on the Company's publicly available information taken together with the information contained in this Announcement (including this Appendix) released by the Company today and any information publicly announced to a Regulatory Information Service by or on behalf of the Company on or prior to the date of this Announcement, and subject to the further terms set forth in the contract note to be provided to individual prospective Placees.
Each Placee, by accepting a participation in the Placing, agrees that the content of this Announcement (including this Appendix) is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information, representation, warranty or statement made by or on behalf of the Company, the Bookrunners or any other person and neither of the Bookrunners nor the Company nor any of their respective affiliates will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Placing. Each Placee should not consider any information in this Announcement to be legal, tax or business advice. Each Placee should consult its own legal adviser, tax adviser and/or business adviser for legal, tax and business advice regarding an investment in the Placing Shares. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation by that person.
Registration and settlement
Settlement of transactions in the Placing Shares (ISIN: JE00B6Y3DV84) following Admission will take place within the CREST system, subject to certain exceptions. The Company and the Bookrunners reserve the right to require settlement for and delivery of the Placing Shares (or a portion thereof) to Placees by such other means that they deem necessary, including in certificated form, if in either Bookrunner's reasonable opinion delivery or settlement is not possible or practicable within the CREST system within the timetable set out in this Announcement or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Following the close of the Bookbuild for the Placing, each Placee allocated Placing Shares in the Placing will be sent a contract note or electronic confirmation in accordance with the standing arrangements in place with the relevant Bookrunner stating the number of Placing Shares to be allocated to it at the Issue Price, the aggregate amount owed by such Placee to the relevant Bookrunner or its sub-agent and settlement instructions. Each Placee will be deemed to agree that it will do all things necessary to ensure that delivery and payment is completed in accordance with the standing CREST or certificated settlement instructions that it has in place with the relevant Bookrunner.
The Company will deliver the Placing Shares to a CREST account operated by Stifel or its sub-agent, in each case, as agent for and on behalf of the Company and will enter its delivery (DEL) instruction into the CREST system. The input to CREST by a Placee of a matching or acceptance instruction will then allow delivery of the relevant Placing Shares to that Placee against payment.
It is expected that settlement will be on 30 June 2020 on a trade date + 3 basis in accordance with the instructions set out in the contract note.
Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out above at the rate of two percentage points above LIBOR as determined by the relevant Bookrunner.
Each Placee is deemed to agree that, if it does not comply with these obligations, the Bookrunners may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for the account and benefit of the relevant Bookrunner, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax or other stamp, securities, transfer, registration, execution, documentary or other similar impost, duty or tax (together with any interest or penalties thereon or other similar taxes imposed in any jurisdiction) 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 relevant Bookrunner all such authorities and powers necessary to carry out any such transaction and agrees to ratify and confirm all actions which that Bookrunner lawfully takes on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the contract note or electronic trade confirmation (as applicable) 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. If there are any other circumstances in which any stamp duty or stamp duty reserve tax (including any interest and penalties relating thereto) is payable in respect of the allocation, allotment, issue or delivery of the Placing Shares (or for the avoidance of doubt if any stamp duty or stamp duty reserve tax is payable in connection with any subsequent transfer of or agreement to transfer Placing Shares), neither of the Bookrunners nor the Company shall be responsible for the payment thereof. Placees (or any nominee or other agent acting on behalf of a Placee) will not be entitled to receive any fee or commission in connection with the Placing.
In the event of any difficulties or delays in the admission of the Placing Shares to CREST or the use of CREST in the Placing, the Company and the Bookrunners may agree that the Placing Shares should be issued in certificated form. The Bookrunners reserve the right to require settlement for the Placing Shares, and to deliver the Placing Shares to Placees, by such other means as they deem necessary if delivery or settlement to Placees is not practicable within the CREST system or would not be consistent with regulatory requirements in a Placee's jurisdiction.
Representations and warranties
By participating in the Placing, each prospective Placee (and any person acting on such Placee's behalf) irrevocably acknowledges, confirms, undertakes, represents, warrants and agrees (as the case may be) with Stifel (in its capacity as the nominated adviser, joint bookrunner and agent of the Company), Beech Hill (in its capacity as joint bookrunner and agent of the Company) and the Company, in each case as a fundamental term of its application for Placing Shares, that:
1. | it has read and understood this Announcement (including its Appendices) in its entirety and that its participation in the Bookbuild and the Placing and its acquisition of Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, indemnities, acknowledgements, agreements and undertakings and other information contained herein; |
2. | no offering document or prospectus or admission document has been prepared in connection with the Placing and it has not received a prospectus, admission document or other offering document in connection with the Bookbuild, the Placing or the Placing Shares; |
3. | it has neither received nor relied on any 'inside information' as defined in MAR concerning the Company, including, but not limited to, any price sensitive information concerning the Company, in accepting this invitation to participate in the Placing; |
4. | it has the power and authority to carry on the activities in which it is engaged, to acquire Placing Shares and to execute and deliver all documents necessary for such acquisition; |
5. | neither of the Bookrunners nor the Company nor any of their respective affiliates, agents, directors, officers or employees nor any person acting on behalf of any of them has provided, and none of them will provide it, with any material regarding the Placing Shares or the Company other than information included in this Announcement (including this Appendix), nor has it requested any of Stifel, Beech Hill, the Company, or any of their respective affiliates or any person acting on behalf of any of them to provide it with any such information; |
6. | (i) it has made its own assessment of the Company, the Placing Shares and the terms of the Placing based on this Announcement (including this Appendix) and any information publicly announced to a Regulatory Information Service by or on behalf of the Company prior to the date of this Announcement (the "Publicly Available Information"); (ii) the Company's Ordinary Shares are listed on AIM and the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the LSE and relevant regulatory authorities (the "Exchange Information"), which includes a description of the nature of the Company's business, most recent balance sheet and profit and loss account, and similar statements for preceding years, and it has reviewed such Exchange Information as it has deemed necessary or that it is able to obtain or access the Exchange Information without undue difficulty; and (iii) it has had access to such financial and other information (including the business, financial condition, prospects, creditworthiness, status and affairs of the Company, the Placing and the Placing Shares, as well as the opportunity to ask questions) concerning the Company, the Placing and the Placing Shares as it has deemed necessary in connection with its own investment decision to acquire any of the Placing Shares and has satisfied itself that the information is still current and relied on that investigation for the purposes of its decision to participate in the Placing; |
7. | (i) neither the Company, Stifel, Beech Hill, nor any of its respective affiliates has made any representations to it, express or implied, with respect to the Company, the Placing and the Placing Shares or the accuracy, completeness or adequacy of the Publicly Available Information or the Exchange Information, and each of them expressly disclaims any liability in respect thereof; and (ii) it will not hold either of the Bookrunners nor any of its respective affiliates responsible for any misstatements in or omissions from any Publicly Available Information or any Exchange Information. Nothing in this paragraph or otherwise in this Announcement (including this Appendix) excludes the liability of any person for fraudulent misrepresentation made by that person; |
8. | the content of this Announcement (including this Appendix) is exclusively the responsibility of the Company and that none of Stifel, Beech Hill nor any of its respective affiliates, agents, directors, officers or employees nor any person acting on its behalf has or shall have any liability for any information, representation or statement contained in this Announcement (including this Appendix) or any information previously published by or on behalf of the Company and will not be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this Announcement or otherwise. Each Placee further represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing itself to acquire the Placing Shares is contained in this Announcement (including this Appendix) and any Publicly Available Information including (without limitation) the Exchange Information, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares and that it has neither received nor relied on any other information given, investigation made or representations, warranties or statements made by any of Stifel, Beech Hill or the Company nor any of their respective affiliates, agents, directors, officers or employees nor any person acting on its or their behalf and none of the Bookrunners nor the Company nor any of their respective affiliates, agents, directors, officers or employees will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement; |
9. | in making any decision to acquire the Placing Shares, it has knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of taking up the Placing Shares. It further confirms that it is experienced in investing in securities of this nature in this sector and is aware that it may be required to bear, and is able to bear, the economic risk of participating in, and is able to sustain a complete loss in connection with, the Placing. It further confirms that it relied on its own examination and due diligence of the Company and its associates taken as a whole, and the terms of the Placing, including the merits and risks involved, and not upon any view expressed or information provided by or on behalf of either of the Bookrunners; |
10. | (i) it and each account it represents is not and at the time the Placing Shares are acquired will not, be a resident of any jurisdiction in which it is unlawful to make or accept an offer to acquire the Placing Shares, and it and each account it represents is either (a) (1) outside the United States and will be outside the United States at the time that any buy order for Placing Shares is originated by it, (2) acquiring the Placing Shares in an "offshore transaction" within the meaning of Regulation S and (3) not acquiring any of the Placing Shares as a result of any form of "directed selling efforts" within the meaning of Regulation S or (b) if inside the United States, is either a QIB or a major US institutional investor (as defined in Rule 15a-6 under the US Exchange Act); (ii) it is not acquiring the Placing Shares with a view to the offer, sale, resale, transfer, delivery or distribution, directly or indirectly of any such Placing Shares into the United States, Australia, Canada, Japan or the Republic of South Africa; and (iii) the Placing Shares have not been and will not be registered under the securities legislation of the United States, Australia, Canada, Japan or the Republic of South Africa and, subject to certain exceptions, may not be offered, sold, acquired, renounced, distributed or delivered or transferred, directly or indirectly, within or into those jurisdictions;
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11. | it understands, and each account it represents has been advised that, (i) the Placing Shares have not been and will not be registered under the US Securities Act or under the applicable securities laws of any state or other jurisdiction of the United States; (ii) the Placing Shares are being offered and sold (a) if outside the United States only in "offshore transactions" within the meaning of and pursuant to Regulation S under the US Securities Act or (b) if inside the United States, to QIBs in accordance with Rule 144A or major US institutional investors (as defined in Rule 15a-6 under the US Exchange Act) in accordance with section 4(a)(2) of the US Securities Act; and (iii) no representation has been made as to the availability of any exemption under the US Securities Act or any relevant state or other jurisdiction's securities laws for the reoffer, resale, pledge or transfer of the Placing Shares; |
12. | it will not distribute, forward, transfer or otherwise transmit this document or any other materials concerning the Placing (including any electronic copies thereof), in or into the United States; |
13. | if it is a pension fund or investment company, its acquisition of Placing Shares is in full compliance with applicable laws and regulations; |
14. | neither it, nor the person specified by it for registration as holder of Placing Shares is, or is acting as nominee or agent for, and the Placing Shares will not be allotted to, a person who is or may be liable to stamp duty or stamp duty reserve tax under any of sections 67, 70, 93 and 96 of the Finance Act of 1986 (depositary receipts and clearance services); |
15. | it has complied with its obligations under the Criminal Justice Act 1993, section 118 of FSMA, and in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002 (as amended), the Terrorism Act 2000, the Terrorism Act 2006, the Money Laundering Regulations 2007 (the "Regulations") and the Money Laundering Sourcebook of the FCA 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; |
16. | if a financial intermediary, as that term is used in Article 3(2) of the Prospectus Regulation, 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 other than to Qualified Investors, or in circumstances in which the prior consent of Stifel has been given to the proposed offer or resale; |
17. | it and any person acting on its behalf falls within Article 19(5) and/or 49(2)(a) to (d) 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; |
18. | it has not offered or sold and will not offer or sell any Placing Shares to the public in any member state of the EEA except in circumstances falling within Article 3(2) of the Prospectus Regulation which do not result in any requirement for the publication of a prospectus pursuant to Article 3 of that Regulation; |
19. | it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) relating to the Placing Shares in circumstances in which section 21(1) of FSMA does not require approval of the communication by an authorised person; |
20. | it has complied and will comply with all applicable provisions of FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving, the United Kingdom; |
21. | if in a member state of the EEA, it is a "qualified investor" within the meaning of the Prospectus Regulation; |
22. | if in the UK, that it is a person (i) who has professional experience in matters relating to investments falling within Article 19(5) of the Order, (ii) falling within Article 49(2)(A) to (D) ("High Net Worth Companies, Unincorporated Associations, etc") of the Order, or (iii) to whom this Announcement may otherwise be lawfully communicated; |
23. | that no action has been or will be taken by any of the Company, either of the Bookrunners or any person acting on behalf of the Company or either of the Bookrunners that would, or is intended to, permit a public offer of the Placing Shares in any country or jurisdiction where any such action for that purpose is required; |
24. | it is acting as principal only in respect of the Placing or, if it is acting for any other person: (i) it is duly authorised to do so and has full power to make the acknowledgments, representations and agreements herein on behalf of each such person; and (ii) it is and will remain liable to the Company and/or the Bookrunners 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). Each Placee agrees that the provisions of this paragraph 24 shall survive the resale of the Placing Shares by or on behalf of any person for whom it is acting; |
25. | (i) it and any person acting on its behalf is entitled to acquire the Placing Shares under the laws of all relevant jurisdictions which apply to it, (ii) it has paid any issue, transfer or other taxes due in connection with its participation in any territory, (iii) it has not taken any action which will or may result in the Company, either of the Bookrunners, any of their affiliates or any person acting on their behalf being in breach of the legal and/or regulatory requirements of any territory in connection with the Placing, (iv) that the acquisition of the Placing Shares by it or any person acting on its behalf will be in compliance with applicable laws and regulations in the jurisdiction of its residence, the residence of the Company, or otherwise, and (v) it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to this participation in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this Announcement (including this Appendix)) and will honour such obligations; |
26. | it (and any person acting on its behalf) will make payment for the Placing Shares allocated to it in accordance with the terms and conditions of this Announcement (including this Appendix) on the due time and date set out herein, failing which the relevant Placing Shares may be placed with other persons or sold as the relevant Bookrunner may in its discretion determine and it will remain liable for any amount by which the net proceeds of such sale falls short of the product of the Issue Price and the number of Placing Shares allocated to it and may be required to bear any stamp duty for 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; |
27. | its allocation (if any) of Placing Shares will represent a maximum number of Placing Shares which it will be entitled, and required, to acquire, and that the Bookrunners may call upon it to acquire a lower number of Placing Shares (if any), but in no event in aggregate more than the aforementioned maximum; |
28. | neither of the Bookrunners nor any of its respective affiliates, agents, directors, officers or employees, nor any person acting on behalf of it, is making any recommendations to it or advising it regarding the suitability of any transactions it may enter into in connection with the Placing and participation in the Placing is on the basis that it is not and will not be a client of either of the Bookrunners and neither of the Bookrunners has any duties or responsibilities to it for providing the protections afforded to its clients or customers or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of their respective rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right; |
29. | if it has received any 'inside information' (for the purposes of MAR and section 56 of the Criminal Justice Act 1993) in relation to the Company and its securities in advance of the Placing, it confirms that it has received such information within the market soundings regime provided for in article 11 of MAR and associated delegated regulations and it has not:
(i) used that inside information to acquire or dispose of securities of the Company or financial instruments related thereto or cancel or amend an order concerning the Company's securities or any such financial instruments; (ii) used that inside information to encourage, require, recommend or induce another person to deal in the securities of the Company or financial instruments related thereto or to cancel or amend an order concerning the Company's securities or such financial instruments; or (iii) disclosed such information to any person, prior to the information being made publicly available. |
30. | the person whom it specifies for registration as holder of the Placing Shares will be (i) itself; or (ii) its nominee, as the case may be. Neither of the Bookrunners nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax or other similar taxes resulting from a failure to observe this requirement. Each Placee and any person acting on behalf of such Placee agrees to participate in the Placing and it agrees to indemnify on an after-tax basis and hold harmless the Company, each of the Bookrunners and each of their respective affiliates, agents, directors, officers and employees in respect of the same on the basis that the Placing Shares will be allotted to the CREST stock account of Stifel who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions; |
31. | it indemnifies and holds harmless the Company, each of the Bookrunners and their respective affiliates, agents, directors, officers and employees from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in this Appendix and further agrees that the provisions of this Appendix shall survive after completion of the Placing; |
32. | in connection with the Placing, each of the Bookrunners and any of its affiliates acting as an investor for its own account may acquire Placing Shares in the Company and in that capacity may acquire, retain, purchase or sell for its own account such ordinary shares in the Company and any securities of the Company or related investments and may offer or sell such securities or other investments otherwise than in connection with the Placing. Neither of the Bookrunners intends to disclose the extent of any such investment or transactions otherwise than in accordance with any legal or regulatory obligation to do so; |
33. | its commitment to acquire Placing Shares on the terms set out in this Announcement (including this Appendix) will continue notwithstanding any amendment that may or in the 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 either of the Bookrunner's conduct of the Placing; |
34. | neither the Company nor either of the Bookrunners owes any fiduciary or other duties to any Placee in respect of any representations, warranties, undertakings or indemnities in the Placing Agreement; |
35. | its commitment to acquire Placing Shares on the terms set out herein and in the contract note will continue notwithstanding any amendment that may in future be made to the terms of the Placing and Placees will have no right to be consulted or require that their consent be obtained with respect to the Company's or either of the Bookrunner's conduct of the Placing; |
36. | these terms and conditions and any agreements entered into by it pursuant to these terms and conditions (including any non-contractual obligations arising out of or in connection with such agreements) shall be governed by and construed in accordance with the laws of England and it submits (on behalf of itself and on behalf of any person on whose behalf it is acting) to the exclusive jurisdiction of the English courts as regards any claim, dispute or matter arising out of any such contract, except that enforcement proceedings in respect of the obligation to make payment for the Placing Shares (together with any interest chargeable thereon) may be taken by either Bookrunner 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; and |
37. | the foregoing acknowledgements, agreements, undertakings, representations, warranties and confirmations are given for the benefit of each of the Company and the Bookrunners (for their own benefit and, where relevant, the benefit of their respective affiliates and any person acting on their behalf) and are irrevocable. The Company, each of the Bookrunners and their respective affiliates, agents, directors, officers and employees and others will rely upon the truth and accuracy of the foregoing acknowledgements, representations, warranties and agreements and it agrees that if any of the acknowledgements, representations, warranties and agreements made in connection with its acquiring of Placing Shares is no longer accurate, it shall promptly notify the Company and the Bookrunners. It irrevocably authorises the Bookrunners and the Company to produce this Announcement pursuant to, in connection with, or as may be required by any applicable law or regulation, administrative or legal proceeding or official inquiry with respect to the matters set out herein.
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Taxation
The agreement to allot and issue Placing Shares to Placees (or the persons for whom Placees are contracting as nominee or agent) free of stamp duty and stamp duty reserve tax relates only to their allotment and issue to Placees, or such persons as they nominate as their agents, direct from the Company for the Placing Shares in question. Such agreement is subject to the representations, warranties and further terms above and assumes, and is based on the warranty from each Placee, that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer the Placing Shares into a clearance service. If there are any such arrangements, or the settlement relates to any other dealing in the Placing Shares, stamp duty or stamp duty reserve tax or other similar taxes may be payable, for which neither the Company nor the Bookrunners will be responsible and each Placee shall indemnify on an after-tax basis and hold harmless the Company, each of the Bookrunners and their respective affiliates, agents, directors, officers and employees for any stamp duty or stamp duty reserve tax paid by them in respect of any such arrangements or dealings.
Neither the Company nor the Bookrunners are liable to bear any capital duty, stamp duty or any other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable in or outside the United Kingdom by any Placee or any other person on a Placee's acquisition of any Placing Shares or the agreement by a Placee to acquire any Placing Shares. Each Placee agrees to indemnify on an after-tax basis and hold harmless the Company, each of the Bookrunners and their respective affiliates, agents, directors, officers and employees from any and all interest, fines or penalties in relation to any such duties or taxes to the extent that such interest, fines or penalties arise from the unreasonable default or delay of that Placee or its agent.
Each Placee should seek its own advice as to whether any of the above tax liabilities arise and notify the relevant Bookrunner accordingly.
Each Placee, and any person acting on behalf of each Placee, acknowledges and agrees that each of the Bookrunners and/or any of its affiliates may, at their absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares.
When a Placee or person acting on behalf of the Placee is dealing with Stifel, any money held in an account with Stifel on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the FCA made under FSMA. The Placee acknowledges that the money will not be subject to the protections conferred by the client money rules; as a consequence, this money will not be segregated from Stifel's money in accordance with the client money rules and will be used by Stifel in the course of its own business; and the Placee will rank only as a general creditor of the Stifel.
Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.
The rights and remedies of each of the Bookrunners and the Company under the Announcement and the Terms and Conditions contained in this Appendix 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.
If a Placee is a discretionary fund manager, he may be asked to disclose, in writing or orally to the Bookrunners the jurisdiction in which the funds are managed or owned.
All times and dates in this Announcement (including this Appendix) may be subject to amendment. The Bookrunners shall notify the Placees and any person acting on behalf of the Placees of any changes.