Acquisition of TE2 and accelerated bookbuild
THIS ANNOUNCEMENT, INCLUDING THE INFORMATION CONTAINED HEREIN, IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN OR INTO OR FROM THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA, OR ANY OTHER JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL.
12 July 2017
accesso® Technology Group plc
("accesso" or the "Company")
Acquisition of TE2 and accelerated bookbuild
- Acquisition of customer engagement platform The Experience Engine (TE2) for £62.3 million ($80 million)
- Placing to raise approximately £58.8 million ($75.6 million) via an accelerated bookbuild
accesso Technology Group plc (AIM: ACSO), the premier technology solutions provider to leisure, entertainment and cultural markets, is pleased to announce that it has today agreed to acquire, by way of merger with its wholly-owned U.S. subsidiary, the entire share capital of The Experience Engine ("TE2"), a privately-owned developer of software solutions which enables leading enterprises to offer a highly-personalised guest experience to their customers, primarily in the leisure, hospitality, entertainment and retail sectors. The acquisition is for an enterprise value of £62.3 million1 ($80 million), and is being funded by the issue of approximately $14.4 million in accesso shares to the Vendors and an underwritten vendor and cash placing to raise approximately £58.8 million ($75.6 million) via an accelerated bookbuild, which is being launched with immediate effect with this announcement (the "Announcement").
Canaccord Genuity Limited ("Canaccord Genuity") and Numis Securities Limited ("Numis") (together the "Bookrunners"), which are both authorised and regulated in the United Kingdom by the Financial Conduct Authority ("FCA"), are acting as joint underwriters and bookrunners to accesso.
Overview of acquisition
Founded in 2013 by its management team led by CEO Scott Sahadi, COO Ray Atkin and Head of Technology Josh Bass, TE2 is based in San Diego, California and Orlando, Florida and has approximately 69 employees. TE2 has a growing customer base consisting of several leading theme park and leisure operators, with notable customers including Cedar Fair Entertainment, SeaWorld Parks & Resorts, Merlin Entertainments, and Carnival Corporation.
Rationale for the acquisition
The Directors of accesso (the "Board") believe that TE2's cloud based solution offers market-leading personalisation capabilities and data orchestration technologies which capture, model and anticipate guest behaviour and preferences not only pre- and post-visit online, but in the physical in-venue environment. Personalisation is achieved via many heuristics, including machine-learning-based recommendations, in order both to enhance guest experiences and to provide actionable analytics and insights to the operations, retail and marketing organisations.
The Board believes that the acquisition of TE2 will greatly complement and enhance accesso's existing offerings, which help its enterprise customers both improve and monetise their customers' experiences at leading venues and resorts worldwide. The Board also believes that accesso's greater scale, customer relationships, sales and delivery capability, established reputation and capital resources should help accelerate adoption of TE2's solution among new and existing customers.
TE2 senior management have indicated that they intend to remain with the enlarged company, with CEO Scott Sahadi reporting directly to accesso CEO Steve Brown.
The acquisition is expected to be marginally earnings enhancing to accesso's adjusted earnings per share in the first full financial year following closing of the acquisition, with the full financial and strategic benefits of the acquisition being felt in 2019 and subsequent years.
[1] Based on an exchange rate of £0.78:$1.00 as at 11 July 2017.
Current trading
Further to the AGM statement published on 23 May 2017, the first part of the 2017 financial year has started strongly, with all parts of the business generating good momentum. As is normal for the Company, around 38% of the year has been traded to date. The integration of the Ingresso acquisition made in March 2017 continues to progress well and in line with management's expectations, whilst the Merlin Entertainment roll-out also continues to plan. TE2 also continues to trade strongly as expected for a high growth business, with underlying revenue growing significantly during the first 5 months of 2017 versus the same period the previous year. The Board remains entirely focused on continuing to deliver value for shareholders.
Commenting on the acquisition, Tom Burnet, Executive Chairman of accesso said:
"Our central aim at Accesso is to help operators drive revenue by improving the experience they provide for their guests. The addition of TE2 is the latest example of our commitment to that aim. In acquiring TE2, we further our technology leadership in this area, and enhance our ability to benefit fully from the scale we've achieved. "
Commenting on the acquisition, Steve Brown, President and Chief Executive Officer of accesso said:
"We often speak about the quality of the Accesso experience and our belief that a truly customer-centric approach will be a genuine revenue driver for operators. This acquisition allows us to make that experience even more personal and relevant, using insights based on customer behaviour to empower operators like never before."
Scott Sahadi, Chief Executive Officer of TE2 added:
"We're delighted to be joining accesso, which provides a fantastic platform for us to continue our growth. Our businesses are highly complementary; both are passionate about providing outstanding customer experiences and know this is the ultimate differentiator in our industry. Everyone at TE2 is looking forward to a successful future working with our new colleagues".
Further details of the acquisition and the Placing
The transaction is structured as a merger of a wholly-owned U.S. subsidiary of accesso with and into TE2's corporate vehicle, Blazer and Flip Flops Inc., inclusive of net cash in that company, in consideration for its security holders (comprising chiefly the TE2 founders and management team, and employee shareholders and option holders, together with certain external individual, family trust and corporate investors) (the "Vendors") receiving the following consideration:
(a) approximately $68.8 million in cash, to be funded by way of a vendor placing of new Ordinary Shares at the Placing Price ("Vendor Shares") to be placed by the Bookrunners pursuant to the Bookbuild ("Vendor Placing"), such amount to be subject to customary escrow arrangements against potential warranty claims and working capital adjustments; and
(b) the issue of new Ordinary Shares at the Placing Price equal to approximately $14.4 million ("Consideration Shares") to the Vendors of which $9.5 million will be issued to TE2 founders and certain senior management over a three year vesting schedule dependent on continued employment ("Founder Consideration Shares").
The Vendor Placing is being launched by way of the Bookbuild with effect from the Announcement, together with a cash placing ("Cash Placing") to raise an additional amount of approximately £5.3 million ($6.8 million) for working capital and general corporate purposes (including payment of transaction and Placing costs) for the enlarged company. The Vendor Placing and the Cash Placing (together, the "Placing") have been underwritten by Canaccord Genuity and Numis Securities. Completion of the acquisition is expected to occur upon admission of the Placing Shares which is expected to be on or around 20 July 2017 following applicable TE2 shareholder consents.
Financial Information
Audited financial information on TE2 under US GAAP for the financial years ended 31 December 2015 and 2016 shows revenues rising from $2.2 million to $12.7 million and negative EBITDA (after expensing all development costs) of ($4.6 million) falling to ($3.1 million) in 2016. Profit before tax was ($3.2 million) in 2016. The approximately five-fold increase in TE2 revenues in 2016 over 2015 is largely attributable to development services revenues from two major new customer projects together with revenues of $2.6 million being recognised in relation to part of a major one-off licence fee from one of those customers which was invoiced and paid in 2016, with the balance treated as deferred income to be recognised in 2017 and 2018. Under IFRS accounting, accesso considers that the full licence would have been recognised in 2016 and accordingly does not anticipate recognising any post-acquisition revenues from this licence, although professional services revenues will continue. Excluding revenues related to this licence, TE2's underlying revenues in 2016 would have been approximately $10.0 million, and taking into account an estimate of the adjustment that would be made to align to accesso's adjusted EBITDA metric, reflecting the capitalisation of development costs under IFRS, TE2's adjusted EBITDA in 2016 would have been approximately $(2.7 million).
TE2 revenues in the first five months of 2017 (excluding the one-off licence) are significantly ahead of the equivalent period of 2016, reflecting a continuing high level of development work on two major ongoing projects in particular. In addition to these, TE2 has a strong pipeline of prospects both with new customers and wider take-up within the estates of certain existing customers. TE2 continues to be on a high growth trajectory and on a standalone basis, expected to reach positive cash generation in late 2018.
The Placing
The Placing will open with immediate effect following this Announcement. The Placing Price will be decided at the close of the Bookbuild. The timing of the closing of the Placing, the number of Placing Shares, the Placing Price and allocations are at the discretion of the Bookrunners and a further announcement confirming these details will be made in due course. Members of the public are not entitled to participate in the Vendor Placing or the Cash Placing.
accesso intends to raise approximately £53.5 million ($68.8 million) of cash pursuant to the Vendor Placing and has agreed to procure that the net proceeds of the Vendor Placing are paid to the Vendors. The Company is also seeking to raise approximately £5.3m ($6.8 million) via the Cash Placing
The Placing Shares will, when issued, be credited as fully paid and will rank pari passu with the existing Ordinary Shares including the right to receive all future dividends and distributions declared, made or paid by reference to a record date falling after their issue.
The Company will apply for Placing Shares and the Consideration Shares to be issued on closing, to trading on AIM (together, "Admission"). It is expected that settlement of subscriptions in respect of the Placing Shares and Admission will take place and that trading in the Placing Shares and those Consideration Shares to be issued on closing, will commence at 8.00 a.m. on Thursday, 20 July 2017.
The Placing is conditional upon, inter alia, Admission becoming effective and the conditions to closing under the Merger Agreement having been fully satisfied (save as to Admission occurring, and the Placing Agreement not having been terminated and having become unconditional in all respects). The Placing is also conditional upon the placing agreement between the Company and the Bookrunners (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 (which forms part of this Announcement).
By choosing to participate in the Placing and by making a verbal offer to acquire 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.
The information contained within this announcement is deemed to constitute inside information as stipulated under the Market Abuse Regulations (EU) No. 596/2014 ("MAR"). Upon the publication of this announcement, this inside information is now considered to be in the public domain.
For further information, please contact:
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accesso Technology Group plc |
+44 (0)118 934 7400 |
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Tom Burnet, Executive Chairman |
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John Alder, Chief Financial Officer |
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FTI Consulting, LLP |
+44 (0)20 3727 1000 |
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Matt Dixon, Adam Davidson |
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Canaccord Genuity Limited |
+44 (0)20 7523 8000 |
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Simon Bridges, Martin Davison, Richard Andrews |
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Numis Securities Limited |
+44 (0)20 7260 1000 |
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Simon Willis, Mark Lander, Tom Ballard |
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About accesso Technology Group
accesso (AIM: ACSO) is the premier technology solutions provider to leisure, entertainment and cultural markets. Our patented and award-winning technology solutions drive increased revenue for attraction operators while improving the guest experience.
Our solutions add value to operators at every point of the guest experience with our technology facilitating the key points of contact with their many millions of guests.
We drive attendance
The accesso Passport® and accesso ShoWareSM ticketing suites are comprehensive, easy-to-use cloud solutions that process tens of millions of tickets every year for assigned seat and general admission venues, enabling operators to maximize up-sell and cross-sell with ease to drive greater revenue.
We handle payments
Our payment gateway carries level 1 PCI security certification and 24/7 support. It provides the tools, security and support operators need to drive sales and has so far processed more than $5 billion in transactions.
We take guests out of line
Since 2001 more than 11 million guests have used a patented accesso LoQueueSM solution to queue less, ride more, enjoy a better experience and increase in-attraction spend.
We simplify point-of-sale
Our accesso SiriuswareSM point-of-sale solution offers software modules that combine ticketing, membership, retail, food/beverage transactions, rentals, credit card processing and many other functions into a single system eliminating the need for separate systems and databases.
Attractions and venues worldwide currently employ accesso technology - from theme parks, water parks, cultural attractions, live performance venues and sporting events to ski and snow parks. We are proud that the majority of the leading names in the leisure industry including Six Flags Entertainment, Cedar Fair Entertainment, Merlin Entertainments, International Speedway Corporation, Palace Entertainment, Compagnie des Alpes and Herschend Family Entertainment, trust our solutions.
accesso is a public company, listed on AIM: a market operated by the London Stock Exchange. For more information visit: www.accesso.com
IMPORTANT NOTICE
This announcement does not constitute an offer to sell or issue or a solicitation of an offer to buy or subscribe for Placing Shares or Consideration Shares in any jurisdiction including, without limitation, the United States, Canada, the Republic of South Africa, Australia, Japan or any other jurisdiction in which such offer or solicitation is or may be unlawful (each, a "Restricted Jurisdiction"). This announcement and the information contained herein are not for publication or distribution, directly or indirectly, to persons in a Restricted Jurisdiction unless permitted pursuant to an exemption under the relevant local law or regulation in any such jurisdiction. Persons receiving this announcement are required to inform themselves about and to observe any such restrictions.
The securities referred to herein have not been, and will not be, registered under the US Securities Act of 1933, as amended (the "Securities Act"), and may not be offered or sold in the United States absent registration or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. There will be no public offer of securities in the United States.
The Bookrunners, which are both authorised and regulated in the United Kingdom by the FCA, are acting for accesso and for no-one else in connection with the matters referred to in this announcement and will not be responsible to anyone other than accesso for providing the protections afforded to clients of the Bookrunners, or for providing advice in relation to the contents of this announcement or any matters referred to herein. The Bookrunners are not responsible for the contents of this announcement.
Certain statements in this announcement may be forward-looking. Although accesso believes that the expectations reflected in these forward looking statements are reasonable, it can give no assurance or guarantee that these expectations will prove to have been correct. Because these statements involve risks and uncertainties, actual results may differ materially from those expressed or implied by these forward looking statements.
Definitions:
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Acquisition Documents |
the ancillary documents referred to in the Merger Agreement (other than the Placing Agreement). |
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Admission |
the admission of the Placing Shares and the Consideration Shares, other than the Founder Consideration Shares to trading on AIM and such admission becoming effective in accordance with the AIM Rules. |
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AIM |
a market operated by the LSE. |
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AIM Rules |
the rules for AIM-listed companies and their nominated advisers issued by the LSE. |
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Bookbuild |
the bookbuild process by which the Bookrunners will determine demand for participation in the Placing by the Placees. |
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Bookrunners |
Canaccord Genuity Limited and Numis Securities Limited |
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Cash Placing |
the cash placing launched alongside the Vendor Placing to raise an additional amount of approximately£5.3 million ($6.8 million) for working capital and general corporate purposes |
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Cash Realisation Agreement |
the cash realisation agreement between the Company and the Bookrunners dated 12 July 2017. |
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Company |
accesso Technology Group plc. |
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Consideration Shares |
the Ordinary Shares issued at the Placing Price to the Vendors under the Placing. |
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Founder Consideration Shares |
the subset of Consideration Shares issued to TE2 founders and certain senior management over a three year vesting schedule dependent on continued employment. |
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FSMA |
Financial Services and Markets Act (2000) (as amended) |
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Group |
the Company and its subsidiary undertakings. |
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LSE |
London Stock Exchange plc. |
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Merger Agreement |
means the conditional agreement and plan of merger in the approved terms relating to the merger to be entered into on or about 12 July 2017 between the Company, the Target, ALAVS, Inc., Lo-Q Inc. and Fortis Advisors LLC (solely in its capacity as stockholders' representative).
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Ordinary Shares |
ordinary shares of £0.01 each in the capital of the Company. |
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Placing |
the proposed conditional placing (comprising the Vendor Placing and the Cash Placing together) by the Bookrunners, as agent to the Company, of the Placing Shares at the Placing Price pursuant to the terms and conditions set out in this announcement. |
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Placing Agreement |
the agreement between the Company the Bookrunners dated 12 July 2017 in connection with the Placing. |
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Placing Price |
the single price per Ordinary Share established by the Bookbuild which is payable to the Bookrunners as agent for the Company by all Placees whose bids are successful. |
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Placing Shares |
the new Ordinary Shares to be allotted and issued by the Company pursuant to the Placing. |
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Target |
Blazer and Flip Flops, Inc. |
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Vendor Placing |
a vendor placing of new Ordinary Shares at the Placing Price to be placed by the Bookrunners pursuant to the Bookbuild. |
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Vendor Shares |
the new Ordinary Shares to be placed by the Bookrunners under the Vendor Placing. |
APPENDIX: TERMS AND CONDITIONS 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 AND THE TERMS AND CONDITIONS SET OUT IN THIS APPENDIX ARE DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA ("EEA") WHO ARE QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE EU PROSPECTUS DIRECTIVE (WHICH MEANS DIRECTIVE 2003/71/EC, AS AMENDED FROM TIME TO TIME, AND INCLUDES ANY RELEVANT IMPLEMENTING DIRECTIVE MEASURE IN ANY MEMBER STATE) (THE "PROSPECTUS DIRECTIVE") ("QUALIFIED INVESTORS"); AND (B) IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE PERSONS WHO (I) HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS FALLING WITHIN ARTICLE 19(1) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER"); (II) ARE PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER; OR (III) ARE PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS 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 APPENDIX DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE 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, RESOLD, TRANSFERRED OR DELIVERED, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES EXCEPT PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES. THERE WILL BE NO PUBLIC OFFER OF THE SECURITIES MENTIONED HEREIN IN THE UNITED STATES.
THE SECURITIES MENTIONED HEREIN WILL HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE US SECURITIES AND EXCHANGE COMMISSION (THE "SEC"), ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY IN THE UNITED STATES, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THE PLACING OR THE ACCURACY OR ADEQUACY OF THIS ANNOUNCEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENCE IN THE UNITED STATES.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF AN ACQUISITION OF PLACING SHARES.
Persons who are invited to and who choose to participate in the Placing by making an oral or written offer to acquire Placing Shares, including any individuals, funds or others on whose behalf a commitment to acquire Placing Shares is given (the "Placees"), will be deemed: (i) to have read and understood this Announcement, including this Appendix, in its entirety; and (ii) to be participating and making an offer for Placing Shares 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:
(a) it is a Relevant Person and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business;
(b) it is and, at the time the Placing Shares are acquired, will be either (a) outside the United States and acquiring the Placing Shares in an "offshore transaction" in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act ("Regulation S") or (ii) a "qualified institutional buyer" ("QIB") as defined in Rule 144A under the Securities Act and, in the case of (i) and (ii) above is acquiring beneficial interests in the Placing Shares for its own account; if acquiring the Shares for the account of one or more other persons, it has full power and authority to make the representations, warranties, agreements, undertakings, and acknowledgements herein on behalf of each such person; and
(c) if it is a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, any Placing Shares acquired by it in the Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in circumstances which may give rise to an offer of securities to the public other than an offer or resale to Qualified Investors in a member state of the EEA which has implemented the Prospectus Directive, or in circumstances in which the prior consent of the Bookrunners has been given to each such proposed offer or resale.
This Announcement, including this Appendix, does not constitute an offer to sell, or a solicitation of an offer to buy, securities in the United States. Securities may not be offered or sold in the United States absent (i) registration under the Securities Act or (ii) an available exemption from, or in a transaction not subject to, registration under the Securities Act. The securities mentioned herein have not been, and will not be, registered under the Securities Act. The Placing Shares are being offered and sold (i) outside the United States in "offshore transactions" in accordance with Regulation S and (ii) within the United States solely to a limited number of QIBs pursuant to an exemption from, or in a transaction not subject to, the registration requirements under the Securities Act. There will be no public offering of the securities in the United States.
Details of the Placing Agreement, the Placing Shares and the Bookbuild
The Bookrunners are acting as joint bookrunners in connection with the Placing and have entered into the Placing Agreement with the Company under which they have agreed to use their respective reasonable endeavours to procure Placees to take up the Placing Shares, on the terms and subject to the conditions set out therein.
The Bookrunners will today commence the bookbuilding process to determine demand for participation in the Placing by Placees (the "Bookbuild"). 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 shall be entitled to effect the Placing by such alternative method to the Bookbuild as they may, in their absolute discretion following consultation with the Company, determine.
In the event that the Bookrunners fail to procure Placees for at least gross proceeds of £58.8 million ($75.5 million)(or such other number as agreed by the Company and the Bookrunners), then subject to the satisfaction (or waiver) of the Conditions, each Bookrunner severally agrees it shall itself as principal acquire, upon the terms and conditions set out in this Appendix, 50 per cent. of any such shortfall not so taken up.
The Placing Shares will, as from the date when they are issued, be fully paid up, rank in full for all dividends and other distributions declared, made or paid on the Ordinary Shares after Admission and otherwise rank pari passu in all respects with, and be identical to, the existing Ordinary Shares then in issue.
Application for listing and admission to trading
Application will be made for admission of the Placing Shares to trading on AIM.
It is expected that Admission of the Placing Shares will become effective at or around 8.00 a.m. (London time) on or around 20 July 2017 and that dealings in the Placing Shares will commence at that time.
Participation in, and principal terms of, the Placing
1. The Bookrunners are arranging the Placing severally, and not jointly, nor jointly and severally, as bookrunners and placing agents of the Company for the purpose of procuring Placees at the Placing Price (as defined below) for the Placing Shares.
2. Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by the Bookrunners. Each Bookrunner may itself agree to be a Placee in respect of all or some of the Placing Shares or may nominate any member of its group to do so.
3. The Bookbuild, if successful, will establish a single price payable to the Bookrunners as agent for the Company by all Placees whose bids are successful (the "Placing Price"). The Placing Price and the number of Placing Shares will be agreed by the Bookrunners (in consultation with the Company) following completion of the Bookbulid. The Placing Price and the number of Placing Shares to be issued will be announced on a Regulatory Information Service following the completion of the Bookbuild (the "Placing Results Announcement").
4. Allocations of the Placing Shares will be determined by the Bookrunners after consultation with the Company (the proposed allocations having been supplied by the Bookrunners to the Company in advance of such consultation). Allocations will be confirmed orally by the Bookrunners and a trade confirmation will be despatched as soon as possible thereafter. A Bookrunner's oral confirmation to such Placee constitutes an irrevocable legally binding commitment upon such person (who will at that point become a Placee), in favour of the Bookrunners and the Company, to acquire the number of Placing Shares allocated to it and to pay the Placing 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. Except with the Bookrunners' consent, such commitment will not be capable of variation or revocation after the time at which it is submitted.
5. Each Placee's allocation and commitment will be evidenced by a contract note issued to such Placee by the Bookrunners. The terms of this Appendix will be deemed incorporated in that contract note.
6. 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".
7. All obligations of the Bookrunners under the Placing will be subject to fulfilment of the conditions referred to below under "Conditions of the Placing" and to the Placing not being terminated on the basis referred to below under "Right to terminate under the Placing Agreement".
8. By participating in the Placing, each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below under "Right to terminate under the Placing Agreement" and will not be capable of rescission or termination by the Placee.
9. To the fullest extent permissible by law, neither the Bookrunners, nor the Company, nor any of their respective affiliates, agents, directors, officers or employees shall have any responsibility or liability to Placees (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither the Bookrunners, nor the Company, nor any of their respective affiliates, agents, directors, officers or employees shall have any responsibility or liability (including to the extent permissible by law, any fiduciary duties) in respect of the Bookrunners' conduct of the Placing or of such alternative method of effecting the Placing as the Bookrunners and the Company may determine.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional and not having been terminated in accordance with its terms. The Bookrunners' obligations under the Placing Agreement are conditional on, inter alia:
(a) Admission occurring at or before 8:00 a.m. (London time) on 20 July 2017 (or such later time and/or date, not being later than 8:00 a.m. (London time) on 3 August 2017, as the Company and the Bookrunners may otherwise agree) (the "Closing Date");
(b) the Company having confirmed to the Bookrunners that, prior to the delivery of such confirmation, none of the representations, warranties and agreements of the Company contained in the Placing Agreement was untrue, inaccurate or misleading at the date of the Placing Agreement or will be untrue, inaccurate or misleading immediately prior to Admission when repeated at that time, by reference to the facts and circumstances then subsisting;
(c) the Company having complied with or performed its obligations under the Placing Agreement to the extent that the same fall to be performed prior to Admission;
(d) any Acquisition Documents which are to be entered into prior to completion of the Merger Agreement and the Cash Realisation Agreement having been duly executed by the parties thereto;
(e) in the good faith opinion of the Bookrunners, between the date of the Placing Agreement and Admission there has been no material adverse change in, or any development involving a prospective material adverse change in, or affecting, the condition (financial, operational, legal or otherwise) or the earnings, management, business affairs, solvency, credit rating or prospects of the Company, the Target or of the Group (taken as a whole), whether or not arising in the ordinary course of business;
(f) the Merger Agreement: (i) having been duly executed by the parties thereto by or on the date of the Placing Agreement; (ii) remaining in full force and effect and not having been materially modified, or rescinded, lapsed or been terminated (in whole or in part) prior to Admission (save with the consent of the Bookrunners); and (iii) having become unconditional in all respects save for any condition relating to Admission occurring and the Placing Agreement not having been terminated and having become unconditional in all respects; and
(g) the filing by the Target of a certificate of merger, satisfying the applicable requirements of the Delaware General Corporation Law (as amended), with the Secretary of State of the State of Delaware in accordance with the terms of the Merger Agreement, and that such filing has not been withdrawn nor rescinded.
The Bookrunners may, at their discretion and upon such terms as they think fit, waive compliance by the Company with the whole or any part of any of the Company's obligations in relation to certain conditions in the Placing Agreement save that the above conditions relating, inter alia, to Admission taking place may not be waived. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement.
If: (i) any of the conditions contained in the Placing Agreement, including those described above, is not fulfilled or (where permitted) waived by the Bookrunners by the relevant time or date specified (or such later time or date as the Company and the Bookrunners may agree); or (ii) the Placing Agreement is terminated in the circumstances specified below, the Placing will lapse and the Placees' rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by it in respect thereof.
Neither the Bookrunners nor any of their respective affiliates, agents, directors, officers or employees shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision they may make as to whether or not to waive, or to extend the time and/or date for the satisfaction of, any condition in the Placing Agreement nor in respect of 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 the Bookrunners.
Right to terminate under the Placing Agreement
The Bookrunners are entitled, at any time before Admission, to terminate the Placing Agreement in accordance with its terms in certain circumstances, including, inter alia:
(a) if it comes to the knowledge of either Bookrunner that any of the warranties given by the Company in the Placing Agreement was untrue or inaccurate or misleading when made and/or that any of such warranties would be untrue or inaccurate in a material respect or misleading if it were to be repeated at any time prior to Admission by reference to the facts, matters and circumstances then subsisting and, in the opinion of either Bookrunner (acting in good faith), the effect of such is that it would materially prejudice the success of the Placing or the distribution of the Placing Shares;
(b) any material adverse change in, or any development reasonably likely to lead to a material adverse change in, the condition (financial, operational or legal), the assets, or the earnings, results of operations or prospects of the Group taken as a whole whether or not arising in the ordinary course of business and in the opinion of either Bookrunner (acting in good faith) the effect of such change is that it would materially prejudice the success of the Placing or the distribution of the Placing Shares, at any time since the date of the Placing Agreement;
(c) the occurrence of one or more specified adverse macro-economic changes, suspension or material limitation in the trading on AIM or the London Stock Exchange's main market for listed securities of any securities of the Company or a general moratorium on commercial banking activities in London or New York which, in the opinion of either Bookrunner (acting in good faith) would materially prejudice the success of the Placing or the distribution of Placing Shares;
(d) any of the conditions to Placing are not fulfilled or waived (as applicable).
By participating in the Placing, Placees agree that the exercise by either Bookrunner of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of such Bookrunner and that it need not make any reference to, or consult with, Placees and that it shall have no liability to Placees whatsoever in connection with any such exercise.
No Prospectus
No offering document or prospectus has been or will be submitted to be approved by the FCA or submitted to the London Stock Exchange in relation to the Placing.
Placees' commitments will be made solely on the basis of the information contained in this Announcement (including this Appendix) released by the Company today and subject to the further terms set forth in the contract note to be provided to individual Placees. Each Placee, by accepting a participation in the Placing, agrees that the content of this Announcement (including this Appendix) and all other publicly available information previously published by the Company by notification to a Regulatory Information Service is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information, representation, warranty or statement made by or on behalf of the Company or either Bookrunner or any other person and none of the Company or the Bookrunners 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. 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: GB0001771426) following Admission will take place within the system administered by Euroclear UK & Ireland Limited ("CREST"). Subject to certain exceptions, the Bookrunners and the Company reserve the right to require settlement for, and delivery of, the Placing Shares (or any part thereof) to Placees by such other means that they deem necessary if 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.
Each Placee allocated Placing Shares in the Placing will be sent a trade confirmation in accordance with the standing arrangements in place with the relevant Bookrunner stating the number of Placing Shares allocated to it at the Placing Price, the aggregate amount owed by such Placee to the Bookrunner and settlement instructions. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with the standing CREST or certificated settlement instructions in respect of the Placing Shares that it has in place with the relevant Bookrunner.
It is expected that settlement will be on 20 July 2017 in accordance with the instructions set out in the trade confirmation.
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 Bookrunners' account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) or other similar taxes imposed in any jurisdiction which may arise upon the sale of such Placing Shares on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation.
Insofar as Placing Shares are 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.
Representations, Warranties and Further Terms
By participating in the Placing each Placee (and any person acting on such Placee's behalf) irrevocably:
1. represents and warrants that it has read and understood the Announcement, including this Appendix, in its entirety and that its acquisition of Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, acknowledgements, agreements and undertakings and other information contained herein and undertakes not to redistribute or duplicate this Announcement;
2. acknowledges that no offering document or prospectus has been or will be prepared in connection with the Placing and represents and warrants that it has not received and will not receive a prospectus or other offering document in connection with the Placing or the Placing Shares;
3. acknowledges that the Placing does not constitute a recommendation or financial product advice and neither Bookrunner has had regard to its particular objectives, financial situation or needs;
4. acknowledges that none of the Bookrunners, the Company, any of their respective affiliates, agents, directors, officers or employees has provided, nor will provide, it with any material regarding the Placing Shares or the Company other than this Announcement; nor has it requested any of the Bookrunners, the Company, any of their respective affiliates or any person acting on behalf of any of them to provide it with any such information;
5. acknowledges that the Ordinary Shares are listed on AIM and that the Company is therefore required to publish certain business and financial information in accordance with the rules and practices under the AIM Rules, which includes a description of the Company's business and the Company's financial information, including balance sheets and income statements, and that it is able to obtain or access to such information, or comparable information concerning other publicly traded companies, in each case without undue difficulty;
6. acknowledges that the content of this Announcement is exclusively the responsibility of the Company and that neither of the Bookrunners, nor their respective affiliates or any person acting on behalf of any of them, has or shall have any liability for any information, representation or statement contained in, or omission from, this Announcement or any information previously published by or on behalf of the Company, pursuant to applicable laws, and will not be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this Announcement or otherwise. Each Placee further represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing itself to acquire Placing Shares is contained in this Announcement and any information previously published by the Company by notification to a Regulatory Information Service, such information being all that such Placee deems necessary or appropriate and sufficient to make an investment decision in respect of the Placing Shares and that it has neither received nor relied on any other information given, or representations, warranties or statements made, by any of the Bookrunners or the Company nor any of their respective affiliates, agents, directors, officers or employees and none of the Bookrunners or the Company or any such affiliate, agent, director, officer or employee will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
7. acknowledges and agrees that it may not rely, and has not relied, on any investigation that either Bookrunner, any of their affiliates or any person acting on their behalf, may have conducted with respect to the Placing Shares or the Company, and none of such persons has made any representation, express or implied, with respect to the Company, the Placing Shares or the accuracy, completeness or adequacy of the information from the London Stock Exchange or any other information; each Placee further acknowledges that it has conducted its own investigation of the Company and the Placing Shares and has received all information it believes necessary or appropriate in connection with its investment in the Placing Shares;
8. acknowledges that it has made its own assessment and has satisfied itself concerning the relevant tax, legal, currency and other economic considerations relevant to its investment in the Placing Shares;
9. acknowledges that none of the Bookrunners, their respective affiliates or any person acting on behalf of any of them has or shall have any liability for any information made publicly available by or in relation to the Company or any representation, warranty or statement relating to the Company or the Group contained therein or otherwise, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
10. represents and warrants that (i) the Placing Shares have not been, and will not be, registered under the Securities Act; (ii) it is and, at the time the Placing Shares are acquired, will be either (a) outside the United States and acquiring the Placing Shares in an "offshore transaction" in accordance with Rule 903 or Rule 904 of Regulation S; or (b) a QIB, which is acquiring the Placing Shares for its own account or for the account of one or more QIBs, each of which is acquiring beneficial interests in the Placing Shares for its own account; (iii) if acquiring the Shares for the account of one or more other persons, it has full power and authority to make the representations, warranties, agreements, undertakings and acknowledgements herein on behalf of each such person; (iv) it is not acquiring the Placing Shares as a result of any "directed selling efforts" as defined in Regulation S or as a result of any "general solicitation" or "general advertising" within the meaning of Rule 502(c) of Regulation D of the Securities Act; and (v) it will not publish, distribute or transmit this Announcement or any other document or information related to the Placing, by any means or media, directly or indirectly, in whole or in part, in or into the United States;
11. acknowledges that in making any decision to acquire Placing Shares it (i) has such knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of subscribing for or purchasing the Placing Shares, (ii) will not look to either Bookrunner for all or part of any loss it may suffer as a result of any such subscription or purchase, (iii) 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 an investment in the Placing Shares, (iv) is able to sustain a complete loss of an investment in the Placing Shares and (v) has no need for liquidity with respect to its investment in the Placing Shares;
12. undertakes, unless otherwise specifically agreed with the Bookrunners, that it is not and at the time the Placing Shares are acquired, neither it nor the beneficial owner of the Placing Shares will be, a resident of Australia, Canada, Japan or South Africa and further acknowledges that the Placing Shares have not been and will not be registered under the securities legislation of Australia, Canada, Japan or South Africa and, subject to certain exceptions, may not be offered, sold, transferred, delivered or distributed, directly or indirectly, in or into any of those jurisdictions;
13. acknowledges that the Placing Shares have not been and will not be registered, and that a prospectus will not be cleared in respect of any of the Placing Shares, under the securities laws or legislation of the United States or any state or jurisdiction thereof, Australia, Canada, Japan, or South Africa and, subject to certain exceptions, may not be offered, sold, or delivered or transferred, directly or indirectly, in or into those jurisdictions;
14. represents and warrants that the issue to it, or the person specified by it for registration as holder, of Placing Shares will not give rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act 1986 (depositary receipts and clearance services) and that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer Placing Shares into a clearance service;
15. represents and warrants that it has complied with its obligations under the Criminal Justice Act 1993, MAR 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 and the Money Laundering Regulations 2007 and any related or similar rules, regulations or guidelines, issued, administered or enforced by any government agency having jurisdiction in respect thereof (the "Regulations") and 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. represents and warrants that 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, warranties, representations, undertakings, 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);
17. if a financial intermediary, as that term is used in Article 3(2) of the EU Prospectus Directive, represents, warrants and undertakes that the Placing Shares purchased by it in the Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in a Member State of the EEA which has implemented the Prospectus Directive other than Qualified Investors, or in circumstances in which the prior consent of the Bookrunners has been given to the offer or resale;
18. represents, warrants and undertakes that it has not offered or sold and will not offer or sell any Placing Shares to persons in the United Kingdom, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted and which will not result in an offer to the public in the United Kingdom within the meaning of section 85(1) of the FSMA;
19. represents, warrants and undertakes that it has not offered or sold and will not, prior to Admission, offer or sell any Placing Shares to persons in the EEA 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 (within the meaning of the Prospectus Directive) in any member state of the EEA;
20. represents, warrants and undertakes 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 Placing Shares in circumstances in which section 21(1) of the FSMA does not require approval of the communication by an authorised person;
21. represents, warrants and undertakes that it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving the United Kingdom;
22. represents and warrants, if in a member state of the European Economic Area, unless otherwise specifically agreed with the Bookrunners in writing, that it is a "Qualified Investor";
23. represents and warrants, if in the United Kingdom, that it is a person (i) having professional experience in matters relating to investments who falls within the definition of "investment professionals" in Article 19(5) of the Order or (ii) who falls within Article 49(2)(a) to (d) ("High Net Worth Companies, Unincorporated Associations, etc") of the Order, or (iii) to whom this Announcement may otherwise lawfully be communicated;
24. acknowledges and agrees that no action has been or will be taken by either the Company or the Bookrunners or any person acting on behalf of the Company or 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;
25. represents and warrants that it and any person acting on its behalf is entitled to acquire the Placing Shares under the laws of all relevant jurisdictions and that it has fully observed such laws and obtained all such governmental and other guarantees, permits, authorisations, approvals and consents which may be required thereunder and complied with all necessary formalities to enable it to commit to this participation in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this Appendix) and will honour such obligations and that it has not taken any action or omitted to take any action which will or may result in the Bookrunners, the Company or any of their respective directors, officers, agents, employees or advisers acting in breach of the legal or regulatory requirements of any jurisdiction in connection with the Placing;
26. undertakes that it (and any person acting on its behalf) will make payment in respect of the Placing Shares allocated to it in accordance with this Appendix on the due time and date set out herein, failing which the relevant Placing Shares may be placed with other acquirers or sold as the Bookrunners may in their sole discretion determine and without liability to such Placee, who will remain liable for any amount by which the net proceeds of such sale fall short of the product of the relevant Placing Price and the number of Placing Shares allocated to it and may be required to bear any stamp duty, stamp duty reserve tax or other similar taxes (together with any interest or penalties) which may arise upon such placing or sale of such Placee's Placing Shares;
27. acknowledges that neither of the Bookrunners, nor any of their respective affiliates, agents, directors, officers or employees 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 that its participation in the Placing is on the basis that it is not and will not be a client of either Bookrunner in connection with its participation in the Placing and that neither Bookrunner has any duty nor responsibility 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 its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
28. undertakes that 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 ("Indemnified Taxes"). Each Placee and any person acting on behalf of such Placee agrees to indemnify the Company and the Bookrunners on an after-tax basis in respect of any Indemnified Taxes;
29. acknowledges that these terms and conditions and any agreements entered into by it pursuant to the terms and conditions set out in this Appendix, and all non-contractual or other obligations arising out of or in connection with them, shall be governed by and construed in accordance with the laws of England and Wales and it submits (on behalf of itself and on behalf of any person on whose behalf it is acting) to the exclusive jurisdiction of the English courts as regards any claim, dispute or matter arising out of any such contract (including any dispute regarding the existence, validity or termination of such contract or relating to any non-contractual or other obligation arising out of or in connection with 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 the Company or 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;
30. agrees to indemnify on an after tax basis and hold the Company, the Bookrunners 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 its 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;
31. except as set out in clause 32 below, represents and warrants that it has neither received nor relied on any 'inside information' (for the purposes of MAR and section 56 of the Criminal Justice Act 1993) concerning the Company prior to or in connection with accepting the invitation to participate in the Placing and is not purchasing Placing Shares on the basis of material non-public information;
32. 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, 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) dealt (or attempted to deal) in the securities of the Company; (ii) encouraged, recommended or induced another person to deal in the securities of the Company; or (iii) unlawfully disclosed inside information to any person, prior to the information being made publicly available;
33. if it is a pension fund or investment company, its purchase of Placing Shares is in full compliance with applicable laws and regulations;
34. agrees that the Company, the Bookrunners and their respective affiliates and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements, agreements, and undertakings which are given to the Bookrunners on their own behalf and on behalf of the Company and are irrevocable and it irrevocably authorises the Company and the Bookrunners 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 forth herein;
35. none of the Company or the Bookrunners owes any fiduciary or other duties to any Placee in respect of any acknowledgments, confirmations, undertakings, representations, warranties or indemnities in the Placing Agreement; and
36. its commitment to take up 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 or the Bookrunners' conduct of the Placing.
The foregoing representations, warranties, agreements, undertakings, acknowledgements and confirmations are given for the benefit of the Company as well as each of the Bookrunners and are irrevocable. Each Placee, and any person acting on behalf of the Placee, acknowledges that 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.
The agreement to allot and issue Placing Shares to Placees (and/or to persons for whom such Placee is contracting as 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 also assumes that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer the Placing Shares into a clearance service. If there are any such arrangements, or the settlement relates to any other dealing in the Placing Shares, stamp duty or stamp duty reserve tax or other similar taxes may be payable, for which neither the Company nor the Bookrunners will be responsible and the Placees shall indemnify the Company and the Bookrunners on an after-tax basis for any stamp duty or stamp duty reserve tax paid by them in respect of any such arrangements or dealings. If this is the case, each Placee should seek its own advice and notify the Bookrunners accordingly.
The Company and the Bookrunners are not liable to bear any transfer taxes that arise on a sale of Placing Shares subsequent to their acquisition by Placees or for transfer taxes arising otherwise than under the laws of the United Kingdom. Each Placee should, therefore, take its own advice as to whether any such transfer tax liability arises and notify the Bookrunners accordingly. Furthermore, each Placee agrees to indemnify on an after-tax basis and hold each of the Bookrunners and the Company and their respective affiliates harmless from any and all interest, fines or penalties in relation to stamp duty, stamp duty reserve tax and all other similar duties or taxes to the extent that such interest, fines or penalties arise from the default or delay of that Placee or its agent.
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 acquisition by them of any Placing Shares or the agreement by them to acquire any Placing Shares.
Each Placee and any person acting on behalf of the Placee acknowledges and agrees that any Bookrunner or any of its affiliates may, at its absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares and that, in the event that the Bookrunners fail to procure Placees for any of the Placing Shares then the Bookrunners will, as principal, subscribe for such share.
When a Placee or person acting on behalf of the Placee is dealing with a Bookrunner, any money held in an account with such Bookrunner 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 the 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 such Bookrunner's money in accordance with the client money rules and will be used by such Bookrunner in the course of its own business and the Placee will rank only as a general creditor of such Bookrunner.
All times and dates in this Announcement may be subject to amendment. The Bookrunners shall notify the Placees and any person acting on behalf of the Placees of any changes.
This information is provided by RNS
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