Proposed Placing of New Ordinary Shares
NOT FOR RELEASE, DISTRIBUTION OR PUBLICATION, DIRECTLY OR INDIRECTLY, TO THE UNITED STATES, AUSTRALIA, CANADA, SOUTH AFRICA, JAPAN OR ANY MEMBER STATE OF THE EEA OR TO ANY NATIONAL, RESIDENT OR CITIZEN OF THE UNITED STATES, AUSTRALIA, CANADA, SOUTH AFRICA, JAPAN OR ANY MEMBER STATE OF THE EEA.
THIS ANNOUNCEMENT INCLUDING THE APPENDIX HERETO (TOGETHER THE "ANNOUNCEMENT") IS AN ADVERTISEMENT AND NOT A PROSPECTUS. THIS ANNOUNCEMENT DOES NOT CONSTITUTE OR FORM PART OF, AND SHOULD NOT BE CONSTRUED AS, ANY OFFER FOR SALE OR SUBSCRIPTION OF, OR SOLICITATION OF ANY OFFER TO BUY OR SUBSCRIBE FOR, ANY SECURITIES IN BAILLIE GIFFORD CHINA GROWTH TRUSTPLC (THE "COMPANY") OR SECURITIES IN ANY OTHER ENTITY, IN ANY JURISDICTION, INCLUDING THE UNITED STATES, NOR SHALL IT, OR ANY PART OF IT, OR THE FACT OF ITS DISTRIBUTION, FORM THE BASIS OF, OR BE RELIED ON IN CONNECTION WITH, ANY CONTRACT OR INVESTMENT DECISION WHATSOEVER, IN ANY JURISDICTION. THIS ANNOUNCEMENT DOES NOT CONSTITUTE A RECOMMENDATION REGARDING ANY SECURITIES.
THIS ANNOUNCEMENT HAS BEEN DETERMINED TO CONTAIN INSIDE INFORMATION. UPON PUBLICATION OF THIS ANNOUNCEMENT, THIS INSIDE INFORMATION IS NOW CONSIDERED TO BE IN THE PUBLIC DOMAIN.
5 May 2021
Baillie Gifford China Growth Trust plc (BGCG)
Legal Entity Identifier: 213800KOK5G3XYI7ZX18
Proposed Placing of up to 5,779,383 New Ordinary Shares
The Board of directors of Baillie Gifford China Growth Trust plc (the "Company") is pleased to announce a proposed placing of up to 5,779,383 new ordinary shares of 25 pence each in the capital of the Company (the "New Ordinary Shares") (the "Placing"), representing approximately 10 per cent. of the Company's issued share capital as at 24 February 2021 pursuant to shareholder authority granted at the general meeting of the Company held on 18 March 2021.
Highlights of the Placing
· Up to 5,779,383 New Ordinary Shares to be issued at a price equal to the Company's net asset value per ordinary share (as at close of business on 27 May 2021) plus 3 per cent.
· The net proceeds of the Placing will be invested in accordance with the Company's investment policy that aims to produce long-term capital growth by investing predominantly in shares of, or depository receipts representing shares of, Chinese companies.
· The Placing will provide investors the opportunity to acquire ordinary shares in the Company at a modest premium to net asset value per ordinary share.
Commenting on today's announcement, Susan Platts-Martin, Chair of Baillie Gifford China Growth Trust plc, said:
"Following the appointment of Baillie Gifford as the Company's investment manager and the adoption of a new investment objective and investment policy in September 2020, we have been encouraged to see continued high demand for the Company's ordinary shares in light of strong performance. We believe that the Company's long-term approach to investing in growth companies is a key factor that attracts investors and this Placing allows the Company to provide additional liquidity for investors. We actively monitor the premium level of the ordinary shares and we expect the Placing will act to control the high level of the premium by allowing investors to acquire shares at a modest premium to the net asset value per ordinary share."
Background to and reasons for the Placing
Following the general meeting of the Company held in November 2020, where the Company received shareholder authority to issue and allot up to 9,799,797 ordinary shares in the capital of the Company on a non-pre-emptive basis (representing 20 per cent. of the issued share capital of the Company as at 5 November 2020), the Company has continued to see high demand for its ordinary shares. The Company's ordinary shares have consistently traded at a premium to the net asset value per ordinary share since 18 September 2020.
In order to satisfy this demand the Company has been issuing ordinary shares regularly. The premium on the issue of such ordinary shares has covered the cost of issuing the ordinary shares and has also provided some enhancement to the net asset value per ordinary share for existing shareholders.
With a view to further diversify the Company's register and to allow investors to participate in size at a modest premium to net asset value, the Board has concluded that up to 5,779,383 New Ordinary Shares be issued and allotted to satisfy market demand via the Placing.
Details of the Placing and expected timetable
Under the terms of the Placing, the Company intends to issue up to 5,779,383 New Ordinary Shares pursuant to shareholder authority granted at the general meeting of the Company held on 18 March 2021.
The Placing will be non-pre-emptive and launched immediately following this announcement. The price at which the New Ordinary Shares will be issued and the number of New Ordinary Shares to be issued, will be determined at the close of the Placing, expected to be at 4.00 p.m. (London) on Thursday, 27 May 2021 and a results announcement will be made on Tuesday, 1 June 2021.
J.P. Morgan Securities plc (which conducts its UK investment banking business as J.P. Morgan Cazenove) ("JPMC") has been appointed as sole bookrunner in respect of the Placing.
The Company reserves the right, together with JPMC and Baillie Gifford & Co Limited, to determine all matters in respect of the Placing including to scale back applications under the Placing in such amounts as it considers appropriate.
The Company will apply for admission of the New Ordinary Shares to listing on the premium listing segment of the Official List of the Financial Conduct Authority and to trading on the main market for listed securities of the London Stock Exchange ("Admission"). It is expected that settlement of subscriptions in respect of the New Ordinary Shares and admission will take place such that trading in the New Ordinary Shares will commence at 8.00 a.m. (London) on 3 June 2021.
|
Placing opens Latest time and date for receipt of commitments under the Placing |
5 May 2021 4.00 p.m. on 27 May 2021 |
|
Results of the Placing announced |
1 June 2021 |
|
Admission and dealings in Placing Shares commence |
8 a.m. on 3 June 2021 |
The timetable is subject to change at the discretion of the Company, JPMC and Baillie Gifford & Co Limited. If any of the above times and/or dates change, the revised times and/or dates will be notified to shareholders by announcement through a Regulatory Information Service. References to time in this announcement are to London time.
The Company recommends investors refer to the circular published in relation to the proposals associated with the Company's change to its investment management arrangements, published on 24 August 2020, for additional information on the risk factors associated with the Company's investment proposition.
The Appendix to this Announcement (which forms part of this Announcement) sets out the terms and conditions of the Placing.
Baillie Gifford & Co Limited
Investment Manager and Company Secretary
5 May 2021
For further information, please contact:
Alex Blake 0131 275 2859
Baillie Gifford & Co
William Simmonds (Corporate Finance) 0207 742 4000
James Bouverat (Sales)
J.P. Morgan Cazenove
Important Information
The information contained within this announcement is deemed by the Company to constitute inside information for the purpose of the UK version Market Abuse Regulation (EU) No. 596/2014 which is part of UK law by virtue of the European Union (Withdrawal) Act 2018, as amended. Upon the publication of this announcement via a Regulatory Information Service, this inside information is now considered to be in the public domain.
The information contained in this announcement is given at the date of its publication (unless otherwise marked) and is subject to updating, revision and amendment from time to time.
This announcement does not contain or constitute an offer for sale or the solicitation of an offer to purchase securities in the United States. The New Ordinary Shares have not been and will not be registered under the US Securities Act of 1933, as amended (the "Securities Act") or under any securities laws of any state or other jurisdiction of the United States and may not be offered, sold, taken up, exercised, resold, renounced, transferred or delivered, directly or indirectly, within the United States except pursuant to an applicable exemption from or in a transaction not subject to the registration requirements of the Securities Act and in compliance with any applicable securities laws of any state or other jurisdiction of the United States. There will be no public offer of the New Ordinary Shares in the United States.
This announcement is for information purposes only and is not intended to and does not constitute or form part of any offer or invitation to purchase or subscribe for, or any solicitation to purchase or subscribe for, any securities in any jurisdiction. No offer or invitation to purchase or subscribe for, or any solicitation to purchase or subscribe for, any securities will be made in any jurisdiction in which such an offer or solicitation is unlawful. The information contained in this announcement is not for release, publication or distribution to persons in the United States, Canada, Australia, the Republic of South Africa, New Zealand or Japan, and should not be distributed, forwarded to or transmitted in or into any jurisdiction, where to do so might constitute a violation of local securities laws or regulations.
JPMC, which is authorised and regulated in the United Kingdom by the Financial Conduct Authority, is acting solely for the Company and no-one else in connection with the transactions and arrangements described in this announcement and will not regard any other person (whether or not a recipient of this announcement) as a client in relation to the transactions and arrangements described in this announcement. JPMC is not responsible to anyone other than the Company for providing the protections afforded to clients of JPMC or for providing advice in connection with the contents of this announcement or the transactions and arrangements described herein.
This announcement has been prepared on the basis that all offers of New Ordinary Shares will be made pursuant to any exemption under Regulation (EU) 2017/2019 (the "EU Prospectus Regulation) or the the UK version of the EU Prospectus Regulation which is part of UK law by virtue of the European Union (Withdrawal) Act 2018, as amended (the "UK Prospectus Regulation") from the requirement to produce a prospectus for offers of New Ordinary Shares. Accordingly, any person making or intending to make any offer within the UK or the EEA of or for ordinary shares in the capital of the Company which are not the subject of the Placing contemplated in this announcement should only do so in circumstances in which no obligation arises for the Company or JPMC to produce a prospectus. Neither the Company nor JPMC has authorised, nor do they authorise, the making of any offer of ordinary shares through any financial intermediary, other than offers made by JPMC which constitute the final placement of the New Ordinary Shares contemplated in this announcement.
In the case of any New Ordinary Shares being offered to a financial intermediary as that term is used in Article 5(1) of the UK Prospectus Regulation , such financial intermediary will also be deemed to have represented, acknowledged and agreed that the New Ordinary Shares acquired by it in the Placing have not been acquired on a non-discretionary basis on behalf of, nor have they been acquired with a view to their offer or resale to, persons in circumstances which may give rise to an offer of any New Ordinary Shares to the public other than their offer or resale in the UK or a relevant member state to qualified investors within the meaning of Article 2(e) of the UK Prospectus Regulation or Article 2(e) of the EU Prospectus Regulation (as applicable) or in circumstances in which the prior consent of the Company or JPMC has been obtained to each such proposed offer or resale. Each of the Company and JPMC and their respective affiliates will rely on the truth and accuracy of the foregoing representation, acknowledgement and agreement.
This announcement may include statements that are, or may be deemed to be, "forward-looking statements". These forward-looking statements can be identified by the use of forward-looking terminology, including the terms "believes", "estimates", "anticipates", "expects", "intends", "may", "will" or "should" or, in each case, their negative or other variations or comparable terminology. All statements other than statements of historical facts included in this announcement, including, without limitation, those regarding the Company's financial position, strategy, plans, proposed acquisitions and objectives, are forward-looking statements.
Forward-looking statements are subject to risks and uncertainties and, accordingly, the Company's actual future financial results and operational performance may differ materially from the results and performance expressed in, or implied by, the statements. These forward-looking statements speak only as at the date of this announcement and cannot be relied upon as a guide to future performance. The Company, Baillie Gifford & Co Limited and JPMC expressly disclaim any obligation or undertaking to update or revise any forward-looking statements contained herein to reflect actual results or any change in the assumptions, conditions or circumstances on which any such statements are based unless required to do so by the Financial Services and Markets Act 2000 or other applicable laws, regulations or rules.
None of the Company, Baillie Gifford & Co Limited or JPMC, or any of their respective affiliates, accepts any responsibility or liability whatsoever for or makes any representation or warranty, express or implied, as to this announcement, including the truth, accuracy or completeness of the information in this announcement (or whether any information has been omitted from the announcement) or any other information relating to the Company or associated companies, whether written, oral or in a visual or electronic form, and howsoever transmitted or made available or for any loss howsoever arising from any use of the announcement or its contents or otherwise arising in connection therewith. Apart from the liabilities and responsibilities (if any) which may be imposed on Baillie Gifford & Co Limited and/or JPMC under the Financial Services and Markets Act 2000 or any regulatory regime established thereunder, the Company, Baillie Gifford & Co Limited and JPMC, and their respective affiliates, accordingly disclaim all and any liability whether arising in tort, contract or otherwise which they might otherwise have in respect of this announcement or its contents or otherwise arising in connection therewith.
Appendix - Further Details of the Placing
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES ONLY .
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) AND THE TERMS AND CONDITIONS OF THE PLACING SET OUT IN THIS APPENDIX ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA ("EEA") WHO ARE (I) QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(E) OF REGULATION (EU) 2017/2019 (THE "EU PROSPECTUS REGULATION") ("EEA QUALIFIED INVESTORS); AND (II) PROFESSIONAL INVESTORS WITHIN THE MEANING OF ARTICLE 4(1)(AG) OF THE ALTERNATIVE INVESTMENT FUND MANAGERS DIRECTIVE (WHICH MEANS DIRECTIVE 2011/61/EU AND INCLUDES ANY RELEVANT LEGISLATION IMPLEMENTING THAT DIRECTIVE IN ANY MEMBER STATE) ("EU AIFM DIRECTIVE") OR WHOM MAY BE TREATED AS PROFESSIONAL INVESTORS UNDER THE NATIONAL LAW OF ANY MEMBER STATE; (B) IN THE UNITED KINGDOM, PERSONS WHO ARE QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(E) OF THE UK VERSION OF THE EU PROSPECTUS REGULATION WHICH IS PART OF UK LAW BY VIRTUE OF THE EUROPEAN UNION (WITHDRAWAL) ACT 2018, AS AMENDED (THE "UK PROSPECTUS REGULATION") ("UK QUALIFIED INVESTORS) WHO ARE PERSONS: (I) WHO HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS FALLING WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER"); OR (II) 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; (C) IN SWITZERLAND, ANY PERSON WHO IS DEEMED A "REGULATED QUALIFIED INVESTOR" AS DEFINED IN THE FEDERAL ACT ON COLLECTIVE INVESTMENT SCHEMES ACT OF 23 JULY 2006 (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT RELATES IS AVAILABLE ONLY TO AND WILL ONLY BE ENGAGED IN WITH THE PERSONS REFERRED TO IN (A), (B) AND (C).
PERSONS DISTRIBUTING THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. 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. NEITHER THIS APPENDIX NOR THE ANNOUNCEMENT OF WHICH IT FORMS PART CONSTITUTES AN OFFER OR AN INVITATION TO ACQUIRE OR DISPOSE OF ANY SECURITIES IN THE COMPANY.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF A SUBSCRIPTION FOR NEW ORDINARY SHARES.
Persons (including individuals, funds or otherwise) who are invited to and who choose to participate in the Placing, by making (or on whose behalf there is made) an oral or written offer to subscribe for New Ordinary Shares (all such persons a "Placee"), will be deemed to have read and understood this Announcement (including this Appendix) in its entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, indemnities, acknowledgements, agreements and undertakings contained in this Appendix. In particular each such Placee represents, warrants and acknowledges that:
(a) it is a Relevant Person (as defined above) and undertakes that it will acquire, hold, manage or dispose of any New Ordinary Shares that are allocated to it for the purposes of its business;
(b) in the case of a Relevant Person in a Member State of the EEA (a "Member State"), (i) it is a Qualified Investor, and (ii) in the case of any New Ordinary Shares acquired by it as a financial intermediary, as that term is used in Article 5(1) of the EU Prospectus Regulation, (a) the New Ordinary 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 Member State other than Qualified Investors or in circumstances in which the prior consent of J.P. Morgan Securities plc ("J.P. Morgan Cazenove") has been given to the offer or resale; or (b) where New Ordinary Shares have been acquired by it on behalf of persons in any Member State other than Qualified Investors, the offer of those New Ordinary Shares to it is not treated under the EU Prospectus Regulation as having been made to such persons;
(c) in the case of a Placee in a Member State which has implemented the EU AIFM Directive, it is a person to whom New Ordinary Shares may lawfully be marketed under the EU AIFM Directive or under applicable implementing legislation (if any) of such Member State and that, where required by the EU AIFM Directive, it has read the information made available by the Company under Article 23 of the EU AIFM Directive. The additional regulatory disclosure made by the Company under Article 23 of the EU AIFM Directive can be found at https://www.bailliegifford.com/en/uk/individual-investors/literature-library/funds/investment-trusts/china-growth-trust/baillie-gifford-china-growth-trust-investor-disclosure-document ; and
(d) it, and any account for which it purchases New Ordinary Shares, is either (i) not a US Person and is acquiring the New Ordinary Shares in an "offshore transaction" (within the meaning of Regulation S ("Regulation S") under the US Securities Act of 1933, as amended (the "Securities Act")) nor a US Resident (as defined below) or (ii) it is a dealer or other professional fiduciary in the United States acting on a discretionary basis for non-US beneficial owners (other than an estate or trust), in reliance upon Regulation S; or (iii) it is a qualified institutional buyer ("QIB") as defined in Rule 144A under the Securities Act ("Rule 144A") and also a qualified purchaser ("QP") as defined in the U.S Investment Company Act of 1940, as amended (the "Investment Company Act"). "US Residents" for these purposes means any US Person, as well as: (a) any natural person who is only temporarily residing outside the United States, (b) any account of a US Person over which a non-US fiduciary has investment discretion or any entity, which, in either case, is being used to circumvent the registration requirements of the Investment Company Act and (c) any employee benefit or pension plan that has as its participants or beneficiaries persons substantially all of whom are US Persons. In addition, for these purposes, if an entity either has been formed for or operated for the purpose of investing in the New Ordinary Shares or facilitates individual investment decisions, such as a self-directed employee benefit or pension plan, it will be treated as a US Resident to the extent one or more of the beneficiaries or other interest holders of such entity are US Residents; and
(e) it has the authority to make and does make the representations, warranties, indemnities, acknowledgements and agreements contained in this Announcement and it understands (or, if acting for the account of another person, such person understands) the resale and transfer restrictions set out in this Appendix.
The Company and J.P. Morgan Cazenove will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and agreements.
This Announcement (including this Appendix) is for information purposes and does not constitute an offer or invitation to underwrite, subscribe for or otherwise acquire or dispose of any securities or investment advice in any jurisdiction, including without limitation, the United States, Australia, Canada, Japan or the Republic of South Africa (save as provided herein) or in any jurisdiction in which such offer or invitation is unlawful (the "Restricted Jurisdictions") and the information contained herein is not for publication or distribution, directly or indirectly, to persons in any Restricted Jurisdiction. No public offer of securities of the Company is being made in the United Kingdom, United States or elsewhere.
The Company has not been and will not be registered under the Investment Company Act and investors will not be entitled to the benefits of the Investment Company Act. The New Ordinary Shares referred to in this Announcement (including this Appendix) have not been and will not be registered under the Securities Act or with any securities regulatory authority of any state or other jurisdiction of the United States. The 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 receiving this Announcement (including this Appendix) (including custodians, nominees and trustees) must not forward, distribute, mail or otherwise transmit it in or into the United States or to US Persons or use the United States mails, directly or indirectly, in connection with the Placing.
The Shares may not be offered, sold or transferred within the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. The Shares are only being offered and sold in the Placing to persons (i) outside the United States who are not US Persons or US Residents or (ii) subject to certain limited exceptions, in the United States or who are US Persons who are QIBs who are also QPs.
The relevant clearances have not been, and 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; and the New Ordinary Shares have not been, and nor will they be, registered under or offered in compliance with the securities laws of any state, province or territory of Australia, Canada, Japan or the Republic of South Africa. Accordingly, the New Ordinary Shares may not (unless an exemption under the relevant securities laws is available) 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 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.
The distribution of this Announcement (including this Appendix), and the Placing and/or issue of the Shares in certain jurisdictions may be restricted by law. No action has been taken or will be taken by the Company, J.P. Morgan Cazenove or any of their respective Affiliates (as defined below), that would, or is intended to permit, an offer of the Shares or possession or distribution of this Announcement (including this Appendix) or any other offering or publicity material relating to such Shares in any jurisdiction where action for that purpose is required. Persons into whose possession this Announcement (including this Appendix) comes are required by the Company and J.P. Morgan Cazenove to inform themselves about and to observe any such restrictions.
In this Appendix, unless the context otherwise requires, Placee means a Relevant Person (including individuals, funds or others) on whose behalf a commitment to subscribe for Shares has been given.
Information to Distributors
Solely for the purposes of the product governance requirements contained within: (a) EU Directive 2014/65/EU on markets in financial instruments, as amended (Directive 2014/65/EU); (b) Articles 9 and 10 of Commission Delegated Directive (EU) 2017/593 supplementing Directive 2014/65/EU; (c) local implementing measures; and/or (d) (where applicable to UK investors or UK firms) the relevant provisions of the UK MiFID Laws (including the FCA's Product Intervention and Governance Sourcebook (PROD)) (together the MiFID II Product Governance Requirements), and disclaiming all and any liability, whether arising in tort, contract or otherwise, which any ''manufacturer'' (for the purposes of the MiFID II Product Governance Requirements) may otherwise have with respect thereto, the New Ordinary Shares have been subject to a product approval process, which has determined that the New 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 Directive 2014/65/EU or the UK MiFID Laws (as applicable); and (ii) eligible for distribution through all distribution channels as are permitted by Directive 2014/65/EU or the UK MiFID Laws, as applicable (the "Target Market Assessment").
Notwithstanding the Target Market Assessment, distributors should note that: the price of the New Ordinary Shares may decline and investors could lose all or part of their investment; the New Ordinary Shares offer no guaranteed income and no capital protection; and an investment in the New 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 Placing. Furthermore, it is noted that, notwithstanding the Target Market Assessment, J.P. Morgan Cazenove will only contact prospective Placees for participation in the Placing who meet the criteria of professional clients and eligible counterparties.
For the avoidance of doubt, the Target Market Assessment does not constitute: (a) an assessment of suitability or appropriateness for the purposes of Directive 2014/65/EU, or the UK MiFID Laws, as applicable; 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 New Ordinary Shares. Each distributor is responsible for undertaking its own Target Market Assessment in respect of the New Ordinary Shares and determining appropriate distribution channels.
Details of the Placing Agreement and the New Ordinary Shares
J.P. Morgan Cazenove has entered into a placing agreement (the "Placing Agreement") with the Company, Baillie Gifford & Co Limited (the "Investment Manager") and Baillie Gifford & Co (the "Portfolio Manager") under which J.P. Morgan Cazenove has, on the terms and subject to the conditions set out therein, undertaken, as agent for the Company, to use its reasonable endeavours to procure subscribers for the New Ordinary Shares at the Issue Price (being an amount equal to the Net Asset Value per Ordinary Share as at the closing of the Bookbuild plus a premium of 3.0 per cent.).
The New Ordinary Shares will, when issued, be credited as fully paid and will rank pari passu in all respects with the existing issued ordinary shares of 25 pence each in the capital of the Company ("Ordinary Shares"), including the right to receive all dividends and other distributions declared, made or paid on or in respect of such Ordinary Shares after the date of issue of the New Ordinary Shares.
The New Ordinary Shares will be issued free of any encumbrance, lien or other security interest.
Applications for listing and admission to trading
Applications will be made to the Financial Conduct Authority (the "FCA") for admission of the New Ordinary Shares to listing on the premium listing segment of the Official List of the FCA (the "Official List") and to London Stock Exchange plc (the "London Stock Exchange") for admission of the New Ordinary Shares to trading on its main market for listed securities (together, "Admission").
It is expected that Admission will become effective at 8.00 a.m. on or around 3 June 2021 and that dealings in the New Ordinary Shares will commence at that time.
Bookbuild
J.P. Morgan Cazenove will today commence the bookbuilding process with respect to 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 New Ordinary Shares.
J.P. Morgan Cazenove 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. J.P. Morgan Cazenove is arranging the Placing as sole bookrunner and agent of the Company.
2. Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by J.P. Morgan Cazenove. Each Placee and any person acting on behalf of the Placee acknowledges and agrees that J.P. Morgan Cazenove and any of its companies, subsidiaries, branches or affiliates (each an "Affiliate") is entitled to enter bids in the Bookbuild pursuant to their liquidity provision / market making activities.
3. By participating in the Bookbuild process and the Placing, Placees will be deemed to have read and understood this Announcement (including this Appendix) in its entirety and to be participating and making an offer for New Ordinary Shares on the terms and conditions, and to be providing the representations, warranties, indemnities, acknowledgments, agreements and undertakings contained in this Appendix.
4. The New Ordinary Shares are being offered at a fixed price equal to the Net Asset Value per Ordinary Share as at the closing of the Bookbuild plus a premium of 3.0 per cent per Share (the "Issue Price"). The final number of New Ordinary Shares to be issued will be agreed between J.P. Morgan Cazenove, the Company and the Investment Manager following completion of the Bookbuild. The number of New Ordinary Shares and the Issue Price will be announced on a Regulatory Information Service following completion of the Bookbuild.
5. To bid in the Bookbuild, Placees should communicate their bid by telephone to their usual sales contact at J.P. Morgan Cazenove. Each bid should state the number of New Ordinary Shares which the prospective Placee wishes to subscribe for. Bids may be scaled down by J.P. Morgan Cazenove on the basis referred to in paragraph 9 below. No more than 5,779,383 New Ordinary Shares will be issued in aggregate.
6. The Bookbuild is expected to close no later than 4.00 p.m. (London time) on 27 May 2021 but may be closed earlier or later at the discretion of J.P. Morgan Cazenove. J.P. Morgan Cazenove may, in agreement with the Company, accept bids that are received after the Bookbuild has closed.
7. 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 J.P. Morgan Cazenove's consent will not be capable of variation or revocation after the time at which it is submitted.
8. Each prospective Placee's allocation and the Issue Price will be confirmed to Placees orally by J.P. Morgan Cazenove following the close of the Bookbuild, and a trade confirmation will be dispatched as soon as practicable thereafter by J.P. Morgan Cazenove and the terms of this Appendix will be deemed incorporated by reference therein. J.P. Morgan Cazenove's oral confirmation to a Placee will constitute an irrevocable legally binding commitment upon that person (who will at that point become a Placee) in favour of J.P. Morgan Cazenove and the Company, under which it agrees to subscribe for the number of New Ordinary Shares allocated to it at the Issue Price on the terms and conditions set out in this Appendix and in accordance with the Company's articles of association. Each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to J.P. Morgan Cazenove to pay it (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 New Ordinary Shares such Placee has been allocated. The Company shall allot such New Ordinary Shares to each Placee following each Placee's payment to J.P. Morgan Cazenove of such amount.
9. J.P. Morgan Cazenove may choose to accept bids, either in whole or in part, on the basis of allocations determined in agreement with the Company and the Investment Manager and may scale down any bids for this purpose on such basis as J.P. Morgan Cazenove may determine. J.P. Morgan Cazenove may also, subject to the prior consent of the Company (i) allocate New Ordinary Shares after the time of any initial allocation to any person submitting a bid after that time, and (ii) allocate New Ordinary Shares after the Bookbuild has closed to any person submitting a bid after that time.
11. Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all New Ordinary 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".
12. 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".
13. 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.
14. Subject to the terms of the Placing Agreement, J.P. Morgan Cazenove shall be entitled to effect the Bookbuild and the Placing by such alternative method to the Bookbuild as it shall in its sole discretion determine. To the fullest extent permissible by law, neither J.P. Morgan Cazenove nor any of its Affiliates, nor any person acting on its or their behalf shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither J.P. Morgan Cazenove nor any of its Affiliates nor any person acting on its or their behalf shall have any liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise) in respect of their conduct of the Bookbuild or of such alternative method of effecting the Placing as J.P. Morgan Cazenove and the Company may agree.
15. All obligations of J.P. Morgan Cazenove under the Placing will be subject to fulfilment of the conditions referred to below under "Conditions of the Placing".
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional and not having been terminated in accordance with its terms. J.P. Morgan Cazenove's obligations under the Placing Agreement are subject to customary terms and conditions, including Admission taking place by not later than 8.00 a.m. on 3 June 2021 or such later date as may be agreed by J.P. Morgan Cazenove with the Company and the Investment Manager, being not later than 11 June 2021.
If: (i) any of the conditions contained in the Placing Agreement are not fulfilled or (where applicable) waived or extended by J.P. Morgan Cazenove by the respective time or date where specified (or such later time or date as the Company and J.P. Morgan Cazenove may agree), (ii) any such conditions become incapable of being fulfilled or (iii) the Placing Agreement is terminated in the circumstances specified below, the Placing will lapse and the Placee's rights and obligations hereunder in relation to the New Ordinary Shares shall cease and terminate at such time and each Placee (or any person on whose behalf the Placee is acting) agrees that no claim can be made by the Placee in respect thereof.
J.P. Morgan Cazenove may, at its absolute discretion and upon such terms as it thinks fit, waive compliance by the Company, the Investment Manager or the Portfolio Manager with the whole or any part of any of their respective obligations in relation to the conditions in the Placing Agreement (save that the conditions relating to Admission taking place and the Company's allotment of the New Ordinary Shares may not be waived) or extend in writing the time required for the fulfilment of any such conditions, in each case in respect of all or any part of the performance thereof. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement (including this Appendix).
Neither J.P. Morgan Cazenove nor the Company shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision it may make as to whether or not to waive or to extend the time and/or date for the satisfaction of any condition to the Placing nor for any decision they 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 J.P. Morgan Cazenove .
By participating in the Placing, each Placee agrees that its rights and obligations hereunder terminate only in the circumstances described above and under "Right to terminate under the Placing Agreement" below, and will not be capable of rescission or termination by the Placee.
Right to terminate under the Placing Agreement
J.P. Morgan Cazenove is entitled, at any time before Admission, to terminate its obligations under the Placing Agreement in accordance with the terms of the Placing Agreement in certain circumstances, including if, inter alia, in the opinion of J.P. Morgan Cazenove acting in good faith: (i) any of the Company's, the Investment Manager's or the Portfolio Manager's representations or warranties are not true and accurate in any material respect or have become misleading; (ii) the Company, the Investment Manager or the Portfolio Manager fails to comply with any of their respective obligations under this Agreement in any material respect; (iii) there has been a material adverse change; or (iv) if there has been a force majeure event, in each case as described in the Placing Agreement.
If J .P. Morgan Cazenove exercises it right to terminate its obligations under the Placing Agreement, the Placing Agreement will be terminated and the Placing will not proceed.
By participating in the Placing, Placees agree that the exercise by J .P. Morgan Cazenove of any right of termination or other discretion under the Placing Agreement shall be within its absolute discretion and that J .P. Morgan Cazenove need not make any reference to Placees and that it shall have no liability to Placees (or to any other person whether acting on behalf of the Placee or otherwise) whatsoever in connection with any such exercise or failure so to exercise.
No Prospectus
No offering document or prospectus or admission document has been or will be published or submitted to be approved by the FCA in relation to the Placing and Placees' commitments will be made solely on the basis of their own assessment of the Company, the New Ordinary 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, the Company's pre-investment disclosure document prepared for the purposes of Article 23 of the EU AIFM Directive and Article 23 of the UK version of the EU AIFM Directive which is part of UK law by virtue of the European Union (Withdrawal) Act 2018, as amended (the "UK AIFM Directive") 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, J .P. Morgan Cazenove or the Investment Manager or any other person and neither J.P. Morgan Cazenove, nor the Company nor the Investment Manager nor any other person will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received. 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 business adviser for legal, tax and business advice regarding an investment in the New Ordinary Shares. Nothing in this paragraph shall exclude the liability of any person for fraud or fraudulent misrepresentation by that person.
Registration and Settlement
Settlement of transactions in the New Ordinary Share s (ISIN: GB0003656021) following Admission will take place within the CREST system, subject to certain exceptions. J.P. Morgan Cazenove and the Company reserve the right to require settlement for, and delivery of, the New Ordinary Share s (or a portion thereof) to Placees, by such other means that they deem necessary if delivery or settlement is not practicable within the CREST system within the timetable set out in this Announcement (including this Appendix) or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Following the closing of the Bookbuild, each Placee allocated New Ordinary Shares in the Placing will be sent a trade confirmation by J.P. Morgan Cazenove in accordance with that Placee's standing arrangements in place with J.P. Morgan Cazenove, stating the number of New Ordinary Shares allocated to it at the Issue Price, the aggregate amount owed by such Placee to J.P. Morgan Cazenove and settlement instructions. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions that it has in place with J.P. Morgan Cazenove. The Company will issue shares on a delivery versus payment basis.
It is expected that settlement will be on 3 June 2021 on a T+2 basis in accordance with the instructions set out in the trade confirmation.
Interest will be 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 J .P. Morgan Cazenove .
Each Placee is deemed to agree that, if it does not comply with these obligations, J .P. Morgan Cazenove may sell any or all of the New Ordinary Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for J.P. Morgan Cazenove'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 between the net proceeds of such sale and the placing proceeds of such New Ordinary Shares and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon the sale of such New Ordinary Shares on such Placee's behalf. By communicating a bid for New Ordinary Shares, each Placee confers on J .P. Morgan Cazenove all such authorities and powers necessary to carry out any such sale and agrees to ratify and confirm all actions which J .P. Morgan Cazenove lawfully takes in pursuance of such sale.
If New Ordinary Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation.
Insofar as New Ordinary 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 New Ordinary 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 other 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 New Ordinary 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 New Ordinary Shares), neither J.P. Morgan Cazenove nor the Company shall be responsible for the payment thereof.
Representations, Warranties and Further Terms
By participating in the Placing, each Placee (and any person acting on such Placee's behalf) irrevocably represents, warrants, undertakes, acknowledges, agrees and confirms (as the case may be) with J.P. Morgan Cazenove and the Company, in each case as a fundamental term of its application for New Ordinary Shares, as follows:
1. represents and warrants that it has read this Announcement (including this Appendix) in its entirety and acknowledges that its participation in the Bookbuild and the Placing and its acquisition of New Ordinary Share s is subject to and based upon all the terms, conditions, representations, warranties, indemnities, acknowledgements, agreements and undertakings and other information contained herein and undertakes not to redistribute or duplicate this Announcement (including this Appendix);
2. acknowledges that no offering document, prospectus or admission document has been prepared in connection with the Placing and that it has not received a prospectus or other offering document in connection therewith;
3. if it has received any "inside information" (as defined in the UK version of Regulation (EU) 596/2014 which is part of UK law by virtue of the European Union (Withdrawal) Act 2018, as amended) about the Company in advance of the Placing, it has not: (i) dealt in the securities of the Company; (ii) encouraged or required another person to deal in the securities of the Company; or (iii) disclosed such information to any person, prior to the information being made publicly available;
4. acknowledges that neither J.P. Morgan Cazenove nor the Company nor the Investment Manager nor any of their respective Affiliates nor any person acting on behalf of any of them has provided, and will not provide it, with any material regarding the New Ordinary Share s or the Company other than this Announcement (including this Appendix); nor has it requested any of J.P. Morgan Cazenove, the Company, the Investment Manager, any of their respective Affiliates or any person acting on behalf of any of them to provide it with any such information;
5. (i) represents and warrants that it has made its own assessment of the Company, the New Ordinary Share s and the terms of the Placing based on this Announcement (including this Appendix), the Company's pre-investment disclosure document prepared for the purposes of Article 23 of the EU AIFM Directive and the UK AIFM Directive and any information publicly announced to a Regulatory Information Service by or on behalf of the Company prior to the date of this Announcement, including the Key Information Document made available by the Company in accordance with the UK version of Regulation (EU) 1286/2014 of the European Parliament and the Council (commonly known as the PRIIPs Regulation) which is part of UK law by virtue of the European Union (Withdrawal) Act 2018, as amended, (the "KID"); (the "Publicly Available Information"); (ii) acknowledges that the Ordinary Shares are listed on the premium listing segment of the Official List and the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of the London Stock Exchange 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 represents and warrants that: (A) it has reviewed such Exchange Information as it has deemed necessary; and/or (B) that it is able to obtain or access the Exchange Information without undue difficulty; and (iii) represents and warrants that 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 New Ordinary Share s, as well as the opportunity to ask questions) concerning the Company, the Placing and the New Ordinary Share s as it has deemed necessary in connection with its own investment decision to acquire any of the New Ordinary Share s 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;
6. acknowledges and agrees that it has had access to the KID and that: (i) none of the Company, J.P. Morgan Cazenove or any of their respective Affiliates has made any representations to it, express or implied, with respect to the Company, the Placing and the New Ordinary Share s or the accuracy, completeness or adequacy of the KID or any other Publicly Available Information or the Exchange Information, and each of them expressly disclaims any liability in respect thereof; and (ii) it will not hold J.P. Morgan Cazenove or any of its 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 fraud or fraudulent misrepresentation made by that person;
7. acknowledges that the content of this Announcement (including this Appendix) and the Publicly Available Information is exclusively the responsibility of the Company and that neither J.P. Morgan Cazenove nor any of its Affiliates or any person acting on J.P. Morgan Cazenove's 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 (including this Appendix) 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 New Ordinary Shares is contained in this Announcement (including this Appendix) and any Publicly Available Information including (without limitation) the Exchange Information, and if it is a US Person (within the meaning of Regulation S under the Securities Act) or a US Resident, the US Purchaser's Letter (as defined below), such information being all that it deems necessary to make an investment decision in respect of the New Ordinary Shares and that it has neither received nor relied on any other information given or other representations, warranties or statements made by any of J.P. Morgan Cazenove, the Company, the Investment Manager or any of their respective Affiliates, or any person acting on behalf of any of them and neither J.P. Morgan Cazenove nor the Company nor the Investment Manager nor any of their respective Affiliates nor any person acting on behalf of any of them will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information given or representation, warranty or statement made. Each Placee further represents and warrants that it has relied on its own investigation of the business, financial or other position of the Company and has independently made its own analysis and decision with regard to its commitment to subscribe for New Ordinary Shares;
8. acknowledges that it has not relied on any information relating to the Company contained in any research reports prepared by J.P. Morgan Cazenove, any of its Affiliates or any person acting on its or any of its Affiliates' behalf and that neither J.P. Morgan Cazenove nor any of its Affiliates nor any person acting on behalf of any of them has or shall have any liability for any publicly available or filed information of the Company or any information, representation, warranty or statement relating to the Company contained therein or otherwise;
9. if in a Member State, unless otherwise specifically agreed with J.P. Morgan Cazenove in writing, represents and warrants that it is a Qualified Investor within the meaning of the EU Prospectus Regulation;
10. if in a Member State which has implemented the EU AIFM Directive, represents and warrants that it is a person to whom New Ordinary Shares may lawfully be marketed under EU AIFM Directive or under the applicable implementing legislation (if any) of such Member State;
11. if in the UK, represents and warrants that it is a Qualified Investor within the meaning of the UK Prospectus Regulation and also a person (i) who has professional experience in matters relating to investments falling with Article 19(5) of the Order; or (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 (including this Appendix) may otherwise be lawfully communicated;
12. represents and warrants that it is not, and at the time the New Ordinary Share s are acquired will not (unless an exemption under the relevant securities laws is available) be a resident of Australia, Canada, Japan or the Republic of South Africa and has such knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the New Ordinary Shares, will not look to J.P. Morgan Cazenove for all or part of any such loss it may suffer, is able to bear the economic risk of an investment in the New Ordinary Shares, is able to sustain a complete loss of the investment in the New Ordinary Shares and has no need for liquidity with respect to its investment in the New Ordinary Shares;
13. if it is a resident of Switzerland, represents and warrants that it is a "regulated qualified investor" as defined in the CISA and its implementing ordinance;
14. represents and warrants that it is, or at the time the New Ordinary Share s are acquired that it will be, the beneficial owner of such New Ordinary Share s, or that the beneficial owner of such New Ordinary Share s is not (unless an exemption under the relevant securities laws is available) a resident of Australia, Canada, Japan or the Republic of South Africa;
15. represents and warrants that it is and any account for which it purchases New Ordinary Shares is either: (i) not a "US Person" (within the meaning of Regulation S) nor a US Resident; or (ii) a dealer or other professional fiduciary in the United States acting on a discretionary basis for non-US beneficial owners (other than an estate or trust), in reliance upon Regulation S; or (iii) a "qualified institutional buyer" as defined in Rule 144A who is also a "qualified purchaser" as defined under the Investment Company Act which has duly executed a US purchaser's letter in a form provided to it and delivered the same to J.P. Morgan Cazenove or an Affiliate of J.P. Morgan Cazenove (the "US Purchaser Letter");
16. other than as may be expressly agreed with the Company and J.P. Morgan Cazenove, represents and warrants that it is not an ERISA plan investor (which term includes: (i) employee benefit plans that are subject to Section 406 of the US Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the "Code"); (ii) plans, individual retirement accounts and other arrangements that are subject to provisions under applicable US federal, state, local or other laws or regulations that are substantially similar to Section 406 of ERISA or Section 4975 of the Code; and (iii) entities the underlying assets of which are considered to include "plan assets" of such plans, accounts and arrangements) and are not purchasing the New Ordinary Shares on behalf of, or with the "plan assets" of, any plan;
17. acknowledges that no action has been or will be taken by any of the Company, J.P. Morgan Cazenove or any person acting on behalf of the Company or J.P. Morgan Cazenove that would, or is intended to, permit a public offer of the New Ordinary Share s in any country or jurisdiction where any such action for that purpose is required;
18. acknowledges that the New Ordinary Share s have not been and will not be registered or qualified for offer and sale nor will a prospectus be cleared in respect of any of the New Ordinary Share s under the securities laws or legislation of any Restricted Jurisdiction and, subject to certain exceptions, may not be offered, sold, or delivered or transferred, directly or indirectly, within those jurisdictions;
19. acknowledges that the New Ordinary Share s have not been and will not be registered under the Securities Act or with any State or other jurisdiction of the United States, nor approved or disapproved by the US Securities and Exchange Commission, any state securities commission in the United States or any other United States regulatory authority, that the Company has not been registered as an "investment company" under the Investment Company Act and that, subject to certain limited exemptions, the New Ordinary Share s are being offered and sold on behalf of the Company in "offshore transactions" (within the meaning of Regulation S) to persons who are not US Persons or to a limited number of persons in the United States pursuant to an available exemption from registration under the Securities Act;
20. it further represents and warrants that neither it nor its Affiliates nor any person acting on its or their behalf have engaged or will engage in any "directed selling efforts" (within the meaning of Regulation S) with respect to the New Ordinary Share s in the United States;
21. unless otherwise expressly agreed by the Company in writing, if in the future it decides to offer, sell, transfer, assign, pledge or otherwise dispose of the New Ordinary Share s or any beneficial interest therein, it will do so only (i) in an "offshore transaction" complying with the provisions of Regulation S to a person outside the United States and not known by the transferor to be a US Person, by prearrangement or otherwise, or (ii) to the Company or a subsidiary thereof. It acknowledges and agrees that any offer, sale, transfer, assignment, pledge or other disposal made other than in compliance with the foregoing restrictions will be subject to the compulsory transfer provisions contained in the Articles. It acknowledges that no representation has been made as to the availability of Rule 144 or any other exemption under the Securities Act for the reoffer, resale, pledge or transfer of the New Ordinary Share s;
22. acknowledges that: (i) the New Ordinary Shares may constitute an equity interest in a passive foreign investment company within the meaning of Section 1297(a) of the Code (a "PFIC"); (ii) in the current or any future tax year; if the Company is a PFIC, US taxable investors may be subject to adverse US tax consequences in respect of their investment in the New Ordinary Shares, (iii) neither the Company nor J.P. Morgan Cazenove intends to assess whether the New Ordinary Shares constitute equity interests in a PFIC in any taxable year or to provide such information as may be required to make a "qualified electing fund" election and that it should not assume that such information will be made available;
23. represents and warrants that: (i) neither it, nor the person specified by it for registration as holder of New Ordinary Share s is, or is acting as nominee or agent for, and the New Ordinary Share s will not be allotted to, a person who is or may be liable under any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depositary receipts and clearance services); and (ii) the New Ordinary Share s are not being acquired in connection with arrangements to issue depositary receipts or to transfer New Ordinary Share s into a clearance system;;
24. in connection with its participation in the Placing, represents and warrants that it has observed all relevant legislation and regulations, in particular (but without limitation) those relating to money laundering and countering terrorist financing and that its application is only made on the basis that it accepts full responsibility for any requirement to identify and verify the identity of its clients and other persons in respect of whom it has applied. In addition, it warrants that it is a person: (i) subject to the UK Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (SI 2017/692) as amended and supplemented from time to time including by the Money Laundering and Transfer of Funds (Information) (Amendment) (EU Exit) Regulations 2019 in force in the United Kingdom (the "UK Money Laundering Regulations 2017); or (ii) Directive (2018/843/EU) of the European Parliament and of the EC Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing) (the "EU Money Laundering Directive") or (iii) acting in the course of a business in relation to which an overseas regulatory authority exercises regulatory functions and is based or incorporated in, or formed under the law of, a country in which there are in force provisions at least equivalent to those required by the EU Money Laundering Directive;
25. acknowledges that it is a term of the Placee's participation in the Placing that, to ensure compliance with the UK Money Laundering Regulations 2017, J.P. Morgan Cazenove may, in its absolute discretion, require proof of identity and verification of the source of payment before the application can be processed. Pending the provision to J.P. Morgan Cazenove of evidence of identity and verification of the source of payment, definitive certificates for the New Ordinary Share s may be retained and/or the delivery of the New Ordinary Share s into CREST may be delayed, each at J.P. Morgan Cazenove's absolute discretion. J.P. Morgan Cazenove also reserves the right to reject in whole or in part, or to scale down or limit, any participation;
26. acknowledges that pursuant to applicable data protection legislation (including the General Data Protection Regulation (EU) 2016/679 ("EU GDPR"), the UK version of the EU GDPR which is part of UK law by virtue of the European Union (Withdrawal) Act 2018, as amended and supplemented from time to time including by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419), the Data Protection Act 2018 and regulatory requirements in the UK and/or the EEA, as appropriate, in force from time to time (the ''DP Legislation') the Company and/or its registrar (the "Registrar") may hold personal data (as defined in the DP Legislation) relating to past and present shareholders. Personal data held by the Registrar may be used to process basic changes to shareholder records, process bank account information for processing dividend payments, and to carry out other ancillary processing functions in order to ensure that the Registrar is able to discharge its obligations under its registrar services agreement with the Company (the "Registrar Services Agreement"); and may be disclosed to any person with legal, administrative or regulatory power over the Registrar in respect of the services under the Registrar Services Agreement, the Registrar's Affiliates, including such Affiliates which are outside of the UK and the EEA in countries which do not have similar protections in place regarding the information and its use (provided that the Registrar shall ensure that any Affiliates outside the UK and the EEA to whom personal data is disclosed have put in place proper security measures to ensure at least the same level of protection of the personal data as is required under the DP Legislation) and to any third parties who are involved in carrying out functions related to the services under the Registrar Services Agreement By becoming registered as a holder of the Shares, a person becomes a data subject (as defined in the DP Legislation) and is deemed to have consented to the processing by the Company or the Registrar of any personal data relating to them in the manner described above;
27. if a financial intermediary, as that term is used in Article 5(1) of the UK Prospectus Regulation or the EU Prospectus Regulation, represents and warrants that the New Ordinary Share s purchased by it in the Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in the UK or a Member State other than Qualified Investors (within the meaning of the UK Prospectus Regulation or the EU Prospectus, as applicable), or in circumstances in which the prior consent of J.P. Morgan Cazenove has been given to the offer or resale;
28. represents and warrants that it has not offered or sold and, prior to the expiry of a period of six months from Admission, will not offer or sell any New Ordinary Share s to persons in the United Kingdom, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted and which will not result in an offer to the public in the United Kingdom within the meaning of section 85(1) of the Financial Services and Markets Act 2000 ("FSMA");
29. represents and warrants that it has not offered or sold and will not offer or sell any New Ordinary Share s to persons in the EEA prior to Admission except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted in and which will not result in an offer to the public in any Member State within the meaning of the EU Prospectus Regulation;
30. represents and warrants that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) relating to the New Ordinary Share s in circumstances and in a manner in which section 21(1) of the FSMA does not require approval of the communication by an authorised person;
31. represents and warrants that it has complied and will comply with all applicable provisions of the FSMA and the Financial Services Act 2012 with respect to anything done by it in relation to the New Ordinary Share s in, from or otherwise involving, the United Kingdom;
32. represents and warrants that (i) it and any person on whose behalf it is acting is entitled to acquire the New Ordinary Share s under the laws of all relevant jurisdictions; (ii) it has paid any issue, transfer or other taxes due in connection with its participation in the Placing; (iii) it (and/or any such person) has fully observed such laws; (iv) it (and any such person) has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to its 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; and (v) it has not taken any action which will or may result in the Company, J.P. Morgan Cazenove, the Investment Manager, any of their respective 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;
33. undertakes that it (and any person on whose behalf it is acting) will make payment for the New Ordinary Share s 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 New Ordinary Share s may be placed with other subscribers or sold as J.P. Morgan Cazenove may in its sole discretion determine and without liability to such Placee and it will remain liable and will indemnify the Company and J.P. Morgan Cazenove for any shortfall between the net proceeds of such sale and the placing proceeds of such New Ordinary 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 (including this Appendix)) which may arise upon the sale of such Placee's New Ordinary Shares on its behalf;
34. acknowledges that its allocation (if any) of New Ordinary Shares will represent a maximum number of New Ordinary Shares which it will be entitled, and required, to subscribe for, and the Company may call upon it to subscribe for a lower number of Shares (if any), but in no event in aggregate more than the aforementioned maximum;
35. acknowledges that (i) J.P. Morgan Cazenove is authorised by the Prudential Regulation Authority (the "PRA") and regulated by the PRA and the FCA in the United Kingdom, is acting for the Company in relation to the Placing and no one else and will not regard any other person (whether or not a recipient of this Announcement including this Appendix) as a client in relation to the Placing and will not be responsible to anyone other than the Company for providing the protections afforded to its clients nor for providing advice in relation to the Placing or the contents of this Announcement, this Appendix or any transaction, arrangement or other matter referred to herein; and (ii) acknowledges that neither J.P. Morgan Cazenove nor any of its Affiliates, nor any person acting on its behalf, 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 J.P. Morgan Cazenove has no duties or responsibilities to it 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;
36. undertakes that the person whom it specifies for registration as holder of the New Ordinary Share s will be (i) itself or (ii) its nominee, as the case may be. Neither J.P. Morgan Cazenove 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 on whose behalf it is acting agrees to participate in the Placing and it agrees to indemnify the Company and J.P. Morgan Cazenove in respect of the same on the basis that the New Ordinary Share s will be allotted to the CREST stock account of J.P. Morgan Cazenove who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions with J.P. Morgan Cazenove;
37. acknowledges that it has such knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of subscribing for the New Ordinary Share s. 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 associates taken as a whole, and the terms of the Placing, including the merits and risks involved;
38. acknowledges and accepts that J.P. Morgan Cazenove and its Affiliates may, in accordance with applicable legal and regulatory provisions, engage in transactions in relation to the New Ordinary Shares and/or related instruments for their own account and, except as required by applicable law or regulation, neither J.P. Morgan Cazenove nor any of its Affiliates will make any public disclosure in relation to such transactions;
39. if it is acquiring the New Ordinary 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 account(s);
40. time is of the essence as regards its obligations under this Appendix;
41. 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 J.P. Morgan Cazenove;
42. acknowledges that the New Ordinary Shares will be allotted and issued subject to the terms and conditions of this Appendix;
43. acknowledges that this Appendix, any agreements entered into by it pursuant to these terms and conditions (and any non-contractual obligations arising out of or in connection with such agreements) shall be governed by and construed in accordance with the laws of England and Wales and it submits (on behalf of itself and on behalf of any person on whose behalf it is acting) to the exclusive jurisdiction of the 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 New Ordinary Share s (together with any interest chargeable thereon) may be taken by the Company or J.P. Morgan Cazenove 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;
44. agrees that the Company, J.P. Morgan Cazenove and their respective Affiliates and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and undertakings;
45. agrees to indemnify on demand on an after tax basis and hold the Company, J.P. Morgan Cazenove and their respective Affiliates harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in this Appendix or incurred by J.P. Morgan Cazenove and/or the Company arising from the performance of the Placee's obligations as set out in this Announcement and further agrees that the provisions of this Announcement (including this Appendix) shall survive after completion of the Placing;
46. represents and warrants that it has independently made its own analysis and decision with regard to its commitment to subscribe for New Ordinary Share s;
47. acknowledges that its commitment to subscribe for New Ordinary Share s on the terms set out herein and in the trade confirmation will continue notwithstanding any amendment that may in future be made to the terms of the Placing and that Placees will have no right to be consulted or require that their consent be obtained with respect to J.P. Morgan Cazenove's or the Company's conduct of the Placing;
48. acknowledges that the New Ordinary Share s will be issued and/or transferred subject to the terms and conditions set out in this Announcement (including this Appendix);
49. acknowledges and agrees to the compulsory transfer provisions contained in the Company's articles of association; and
50. acknowledges that the basis of allocation will be agreed between J.P. Morgan Cazenove, the Company and the Investment Manager at their absolute discretion. The right is reserved to reject in whole or in part and/or scale back any participation in the Placing.
The representations, warranties, acknowledgments and undertakings contained in this Appendix are given to J.P. Morgan Cazenove for itself and on behalf of the Company and are irrevocable.
The agreement to settle a Placee's subscription of the New Ordinary Shares (and/or the subscription of a person for whom such Placee is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to a subscription by it and/or such person direct from the Company for the New Ordinary 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 New Ordinary Shares are not being subscribed for in connection with arrangements to issue depositary receipts or to issue or transfer the New Ordinary Shares into a clearance service. If there are any such arrangements, or the settlement relates to any other dealing in the New Ordinary Shares, stamp duty or stamp duty reserve tax or other similar taxes may be payable, for which neither the Company nor J.P. Morgan Cazenove will be responsible and the Placee to whom (or on behalf of whom, or in respect of the person for whom it is participating in the Placing as an agent or nominee) the allocation, allotment, issue or delivery of New Ordinary Shares has given rise to such UK stamp duty or stamp duty reserve tax undertakes to pay such UK stamp duty or stamp duty reserve tax forthwith and to indemnify on an after-tax basis and to hold harmless the Company and J.P. Morgan Cazenove in the event that the Company and/or J.P. Morgan Cazenove has incurred any such liability to UK stamp duty or stamp duty reserve tax. If this is the case, each Placee should seek its own advice and notify J.P. Morgan Cazenove accordingly.
In addition, Placees should note that they will be liable for any stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by them or any other person on the subscription by them of any New Ordinary Shares or the agreement by them to subscribe for any New Ordinary Shares.
Each Placee and any person acting on behalf of the Placee acknowledges and agrees that J.P. Morgan Cazenove and any of its Affiliates are entitled to enter bids in the Bookbuild pursuant to their liquidity provision / market making activities. Each Placee and any person acting on behalf of the Placee acknowledges and agrees that J.P. Morgan and any of its Affiliates may, at its absolute discretion, agree to become a Placee in respect of some or all of the New Ordinary Shares. Therefore, J.P. Morgan Cazenove and any of its Affiliates may acquire a proportion of the New Ordinary Shares available under the Placing (which proportion could be significant) and may resell the same following the Placing at a profit on the terms available to it in the market. Notwithstanding the foregoing, neither J.P. Morgan Cazenove nor any of its Affiliates are under an obligation to subscribe for New Ordinary Shares and the Placing is not conditional on J.P. Morgan Cazenove's or any of its Affiliates' participation.
Each Placee and any person acting on behalf of the Placee acknowledges and agrees that the affiliates of the Investment Manager may, at their absolute discretion, agree to become a Placee in respect of some or all of the New Ordinary Shares. Therefore, affiliates of the Investment Manager may acquire a proportion of the New Ordinary Shares available under the Placing (which proportion could be significant) and may resell the same following the Placing at a profit on the terms available to it in the market. Notwithstanding the foregoing, no affiliate of the Investment Manager is under any obligation to subscribe for New Ordinary Shares and the Placing is not conditional on the participation of any affiliate of the Investment Manager.
Past performance is no guide to future performance and persons seeking advice should consult an independent financial adviser.
All times and dates in this Announcement (including this Appendix) may be subject to amendment, and Placees' commitments, representations and warranties are not conditional on any of the expected times and dates in this Announcement (including this Appendix) being achieved. J.P. Morgan Cazenove shall notify the Placees and any person acting on behalf of the Placees of any changes.
The rights and remedies of J.P. Morgan Cazenove and the Company under these terms and conditions are in addition to any rights and remedies which would otherwise be available to each of them and the exercise or partial exercise or partial exercise of one will not prevent the exercise of others.
This Announcement (including this Appendix) has been issued by the Company and is the sole responsibility of the Company.
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