TIDMWAND
RNS Number : 9448C
WANdisco Plc
23 January 2015
THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE INFORMATION
CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION
OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN,
INTO OR FROM THE UNITED STATES, THE REPUBLIC OF IRELAND, AUSTRALIA,
CANADA, JAPAN, SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH SUCH
RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL.
23 January 2015
WANdisco plc
Proposed Placing of 4,798,859 new Ordinary Shares at 375 pence
per share
1. Introduction
WANdisco plc (LSE: WAND) ("WANdisco", the "Company" and,
together with its subsidiary undertakings, the "Group"), the
leading provider of non-stop Big Data, today announces a
conditional placing of 4,798,859 new ordinary shares of ten pence
each ("Ordinary Shares") in the capital of the Company (the
"Placing Shares") at a price of 375 pence per Placing Share (the
"Placing Price") to raise approximately $24.8 million (after
expenses) (the "Placing").
The Placing Shares represent approximately 19.6 per cent. of the
existing issued share capital of the Company and the Placing Price
represents a discount of approximately 3.8 per cent. to the closing
mid-market price of 390 pence per existing Ordinary Share on 22
January 2015, being the latest practicable date prior to the
publication of this Announcement.
The Board believes that raising equity finance using the
flexibility provided by a non-pre-emptive placing is the most
appropriate and optimal structure for the Company at this time.
This allows both certain existing institutional holders and new
institutional investors the opportunity to participate in the
Placing and avoids the requirement for a prospectus, which is a
costly and time consuming process.
2. Background to and reasons for the Placing
The Directors believe that WANdisco has continued to demonstrate
momentum and growth in the bookings and revenues generated by its
broadening product suite. This has occurred at the same time as an
acceleration of Big Data market growth which has manifested itself
for WANdisco in an increasing shift from customers undergoing proof
of concept trials to live installations.
Whilst the Group's results in any financial period remain
exposed to fluctuations caused by sales cycles that exist in
enterprise technology procurement, the Directors believe that the
current sales pipeline provides significant opportunities for
long-term growth. The purpose of the Placing is to raise funds to
be used by the Group to support its activities, with a particular
focus on maintaining the levels of investment in its product
development and expanding its global sales infrastructure to take
advantage of the increasing market opportunity.
The Group's sales pipeline has grown significantly over the last
six months and now encompasses a considerable number of
opportunities, with a number of initial and scale-up deals across a
wide number of enterprises. It is not possible to predict when any
individual opportunity will convert to invoiced revenue, however
good progress has been made to date and particularly in recent
months.
The Directors believe that it is important to continue to invest
in the sales and marketing capabilities of the Group to take
advantage of current and potential growth opportunities and to
drive further enterprise adoption of WANdisco's technology. Part of
the use of proceeds will be to raise the investment made in
WANdisco's global sales infrastructure. In addition, the proceeds
will be used to further drive product development and innovation
including the launch of WANdisco 'One Hadoop', and the further
expansion of the sales function.
The Group has been loss making to date. Whilst the Directors
intend to invest in the sales and marketing capabilities and
product development of the Group they will continue to actively
review the Group's costs and seek to take action to adjust them as
necessary.
If the Resolutions are not approved, the Directors may seek
alternative sources of capital and/or reduce the Group's investment
plans. Whilst the latter would protect the Group's short-term
financial position, it is likely to reduce the longer-term
prospects of the Group.
3. Current trading and outlook
On 19 January 2015, WANdisco announced its Q4 bookings update,
which is repeated below in full:
WANdisco (LSE: WAND), the leading provider of non-stop Big Data,
reports fourth quarter sales bookings increasing by 8% compared
with the prior year to $4.7m. Bookings for the year were $17.4m, up
18% on the prior year.
Highlights
-- Record Big Data bookings
-- Five new Big Data customers
-- British Gas expands its WANdisco Big Data solution in the
largest Big Data deal to date
-- Significant growth in sales pipeline
Big Data
$2.1m of bookings in the quarter came from our Big Data products
(Q4 2013: nil).
Amongst existing Big Data customers, British Gas, after a period
of extensive testing, is, as announced on 8 January 2015, scaling
up into live production, entering into a new subscription that is
our largest-ever Big Data contract, valued at $750,000.
Five new customers selected our Non-Stop Hadoop product for
deployment alongside our partners Cloudera and Hortonworks. Amongst
these customers, in the consumer sector, dunnhumby and Epsilon are
transforming the capture, interrogation, availability and
responsiveness of their customer data. In financial services, two
global banks have adopted our technology for analysing buying
behaviour, verifying financial transactions and managing risk,
including fraud.
These highlighted contracts from new and existing customers have
initial values of between $160,000 and $750,000, with customers
indicating plans to scale up these contracts as they further
develop Hadoop operations.
Responding to customer requirements, we have added to the
continuous availability features of Non-Stop Hadoop. New features
enable data capture from multiple data centres; allocation of data
processing to the most cost-effective hardware; and selective
replication of data to comply with national regulations. These
features, controlled through a new administrative user interface,
were released during the period as Non- Stop Hadoop 1.9.10.
During the fourth quarter our pipeline of sales opportunities
grew significantly and currently includes a broad industry spread,
with opportunities in the EMEA and Asia-Pacific regions building up
to complement our well-established opportunities in the Americas. A
number of successful fourth-quarter production trials are expected
to lead to new subscription contracts during the coming months. In
addition, for the first quarter of 2015 we have scheduled a number
of significant new production trials with potential new
customers.
Application Lifecycle Management ("ALM")
$2.6m of bookings in the quarter came from our ALM products, (Q4
2013: $4.3 million). ALM sales were impacted by the decision to
focus certain sales resources on closing those Big Data
opportunities that accelerated late in the quarter. The high
proportion of bookings from new subscriptions, and high renewal
rates, continue to demonstrate the potential of the ALM market.
New customers this quarter included Zurich Insurance and
Elektrobit Automotive. More customers are adopting our products to
manage the popular Git open source code management environment. We
enhanced our Git products during the period with variants for the
GitLab and Gerrit collaboration tools.
Based on its operating scale and revenue potential, we intend to
advance the ALM business towards profitability in 2015.
Current trading
Since the end of the year, the Group's pipeline for its Big Data
product has continued to expand and the Directors see a continuing
acceleration of market adoption and customer appetite to migrate
from trial phase to live implementations. The Group's pipeline has
increased in both breadth and depth of opportunities. The challenge
for the Group, on which the Directors are confident of delivering,
is to convert this record and growing pipeline into recurring
revenue generation.
4. Details of the Placing
Investec Bank plc ("Investec") is acting as nominated adviser
and joint broker and UBS Investment Bank ("UBS") is acting as joint
broker in connection with the Placing.
The Placing is subject to the terms and conditions set out in
the appendix (the "Appendix") to this announcement (which forms
part of this announcement, such announcement and the Appendix
together being the "Announcement").
Under the terms of the Placing, Investec and UBS has today
placed 4,798,859 new Ordinary Shares at the Placing Price by way of
a conditional, non-pre-emptive placing. The Placing Price
represents a discount of approximately 3.8 per cent. to the closing
mid-market price of 390 pence on 22 January 2015, being the latest
practicable date prior to the announcement of the Placing. The
Placing Shares will represent approximately 16.4 per cent. of the
Enlarged Issued Share Capital following Admission. The Placing
Shares will be issued credited as fully paid and will be identical
to and rank pari passu in all respects with the existing Ordinary
Shares, including the right to receive all future distributions,
declared, paid or made in respect of the Ordinary Shares following
the date of Admission.
Application will be made to the London Stock Exchange for the
Placing Shares to be admitted to trading on AIM. It is expected
that admission to AIM ("Admission") will become effective in
respect of, and that dealings on AIM will commence in, the Placing
Shares, on or around 18 February 2015.
The Placing is conditional, among other things, on the
resolutions required to implement the Placing (the "Resolutions")
being duly passed by Shareholders of the Company at the general
meeting of the Company (the "General Meeting") to be held at the
office of DLA Piper UK LLP at 3 Noble Street, London EC2V 7EE at
10.00 a.m. on 17 February 2015.
A circular containing, amongst other things, the notice of the
General Meeting is expected to be published by the Company later
today.
Settlement for the Placing Shares and Admission is expected to
take place at 8.00 a.m. on 18 February 2015. Following Admission,
the Company will have 29,233,894 Ordinary Shares in issue.
5. Recommendation and irrevocable undertakings
The Directors consider the Placing to be in the best interests
of the Company and its Shareholders as a whole and accordingly
unanimously recommend that Shareholders vote in favour of the
Resolutions to be proposed at the General Meeting, as those
Directors who are also Shareholders have irrevocably undertaken to
do in respect of their own beneficial holdings amounting to
4,508,692 Ordinary Shares representing approximately 18.5 per cent.
of the existing issued ordinary share capital of the Company.
In addition to the Directors, certain other Shareholders have
irrevocably undertaken to vote in favour of the Resolutions in
respect of the Ordinary Shares in which they are interested,
amounting, in aggregate to 3,776,083 Ordinary Shares, representing
15.5 per cent. of the existing issued ordinary share capital of the
Company.
David Richards, Chief Executive Officer, commented:
"The sales success we have recently seen, particularly in the
most recent quarter, has emboldened our view of the Big Data
opportunity open to us and of our ability to win in that
marketplace. Our pipeline of opportunities has continued to grow,
helped by increasing customer understanding of our products, the
problems those products can solve and the ever increasing
importance of data availability to enterprises of all shapes and
size. The funds sought today will help us to push ahead with our
growth plans."
Enquiries:
WANdisco plc via FTI Consulting
David Richards, Chief Executive Officer
Paul Harrison, Chief Financial Officer
Phil Branston, VP Corporate Development & Investor
Relations
Investec Bank plc - Nominated Adviser and Joint Broker +44 (0)
20 7597 4000
Christopher Baird / Dominic Emery
UBS Investment Bank - Joint Broker to WANdisco +44 (0) 20 7567
8000
Rahul Luthra / Sandip Dhillon
FTI Consulting - PR Adviser to WANdisco +44 (0) 20 3727 1000
Matt Dixon / Rob Mindell
This Announcement should be read in its entirety. In particular,
you should read and understand the information provided in the
"Important Notices" section of this Announcement.
IMPORTANT NOTICES
This Announcement or any part of it does not constitute or form
part of any offer to issue or sell, or the solicitation of an offer
to acquire, purchase or subscribe for, any securities in the United
States (including its territories and possessions, any state of the
United States and the District of Columbia). The Placing Shares
have not been and will not be registered under the United States
Securities Act of 1933, as amended (the "Securities Act") or with
any securities regulatory authority of any state or jurisdiction of
the United States, and may not be offered, sold or transferred,
directly or indirectly, in the United States except pursuant to an
exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and in compliance
with any applicable securities laws of any state or other
jurisdiction of the United States. There will be no public offering
of securities in the United States.
This Announcement may contain and the Company may make verbal
statements containing "forward-looking statements" with respect to
certain of the Company's plans and its current goals and
expectations relating to its future financial condition,
performance, strategic initiatives, objectives and results.
Forward-looking statements sometimes use words such as "aim",
"anticipate", "target", "expect", "estimate", "intend", "plan",
"goal", "believe", "seek", "may", "could", "outlook" or other words
of similar meaning. By their nature, all forward-looking statements
involve risk and uncertainty because they relate to future events
and circumstances which are beyond the control of the Company,
including amongst other things, United Kingdom domestic and global
economic business conditions, market-related risks such as
fluctuations in interest rates and exchange rates, the policies and
actions of governmental and regulatory authorities, the effect of
competition, inflation, deflation, the timing effect and other
uncertainties of future acquisitions or combinations within
relevant industries, the effect of tax and other legislation and
other regulations in the jurisdictions in which the Company and its
respective affiliates operate, the effect of volatility in the
equity, capital and credit markets on the Company's profitability
and ability to access capital and credit, a decline in the
Company's credit ratings; the effect of operational risks; and the
loss of key personnel. As a result, the actual future financial
condition, performance and results of the Company may differ
materially from the plans, goals and expectations set forth in any
forward-looking statements. Any forward-looking statements made in
this Announcement by or on behalf of the Company speak only as of
the date they are made. Except as required by applicable law or
regulation, the Company expressly disclaims any obligation or
undertaking to publish any updates or revisions to any
forward-looking statements contained in this Announcement to
reflect any changes in the Company's expectations with regard
thereto or any changes in events, conditions or circumstances on
which any such statement is based.
Investec is authorised by the Prudential Regulation Authority
(the "PRA") and regulated by the Financial Conduct Authority (the
"FCA") and the PRA in the United Kingdom and is acting exclusively
for the Company and no one else in connection with the Placing, and
Investec will not be responsible to anyone (including any Placees)
other than the Company for providing the protections afforded to
its clients or for providing advice in relation to the Placing or
any other matters referred to in this Announcement.
UBS is authorised by the PRA and regulated by the FCA and the
PRA in the United Kingdom and is acting exclusively for the Company
and no one else in connection with the Placing, and UBS will not be
responsible to anyone (including any Placees) other than the
Company for providing the protections afforded to its clients or
for providing advice in relation to the Placing or any other
matters referred to in this Announcement.
No representation or warranty, express or implied, is or will be
made as to, or in relation to, and no responsibility or liability
is or will be accepted by Investec or UBS or by any of its
respective affiliates or agents as to, or in relation to, the
accuracy or completeness of this Announcement or any other written
or oral information made available to or publicly available to any
interested party or its advisers, and any liability therefore is
expressly disclaimed.
APPENDIX - TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR INVITED PLACEES ONLY REGARDING THE
PLACING.
THIS ANNOUNCEMENT, INCLUDING THIS APPENDIX AND THE INFORMATION
CONTAINED HEREIN (TOGETHER THE "ANNOUNCEMENT") IS RESTRICTED AND IS
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART,
DIRECTLY OR INDIRECTLY, IN OR INTO OR FROM THE UNITED STATES, THE
REPUBLIC OF IRELAND, AUSTRALIA, CANADA, JAPAN, THE REPUBLIC OF
SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH SUCH RELEASE,
PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL. THIS ANNOUNCEMENT
HAS NOT BEEN APPROVED BY THE LONDON STOCK EXCHANGE, NOR IS IT
INTENDED THAT IT WILL BE SO APPROVED.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND IS
DIRECTED ONLY AT: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN
ECONOMIC AREA ("EEA") WHO ARE QUALIFIED INVESTORS AS DEFINED IN
SECTION 86(7) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000, AS
AMENDED ("QUALIFIED INVESTORS"), BEING PERSONS FALLING WITHIN THE
MEANING OF ARTICLE 2(1)(e) OF DIRECTIVE 2003/71/EC AS AMENDED,
INCLUDING BY THE 2010 PROSPECTUS DIRECTIVE AMENDING DIRECTIVE
(DIRECTIVE 2010/73/EC) AND TO THE EXTENT IMPLEMENTED IN THE
RELEVANT MEMBER STATE (THE "PROSPECTUS DIRECTIVE"); AND (B) IN THE
UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE PERSONS WHO (I) HAVE
PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS FALLING
WITHIN ARTICLE 19(5) (INVESTMENT PROFESSIONALS) OF THE FINANCIAL
SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS
AMENDED (THE "ORDER"); (II) ARE PERSONS FALLING WITHIN ARTICLE
49(2)(A) TO (D) (HIGH NET WORTH COMPANIES, UNINCORPORATED
ASSOCIATIONS, ETC.) OF THE ORDER; OR (III) ARE PERSONS TO WHOM IT
MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER
BEING REFERRED TO AS "RELEVANT PERSONS").
THIS ANNOUNCEMENT AND THE INFORMATION IN IT MUST NOT BE ACTED ON
OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS
DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS
LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH
THIS ANNOUNCEMENT RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND
WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS ANNOUNCEMENT
DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY
SECURITIES IN WANDISCO PLC.
THIS ANNOUNCEMENT IS NOT AN OFFER OF SECURITIES FOR SALE INTO
THE UNITED STATES. THE PLACING SHARES HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT 1933, AS AMENDED
(THE "SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY AUTHORITY
OF ANY STATE OR JURISDICTION OF THE UNITED STATES, AND MAY NOT BE
OFFERED, SOLD OR TRANSFERRED, DIRECTLY OR INDIRECTLY, IN THE UNITED
STATES EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND IN COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION OF THE UNITED STATES. SUBJECT TO CERTAIN
EXCEPTIONS AND AT THE SOLE DISCRETION OF THE COMPANY, THE PLACING
SHARES ARE BEING OFFERED AND SOLD ONLY OUTSIDE THE UNITED STATES IN
"OFFSHORE TRANSACTIONS" WITHIN THE MEANING OF, AND IN ACCORDANCE
WITH, REGULATION S UNDER THE SECURITIES ACT AND OTHERWISE IN
ACCORDANCE WITH APPLICABLE LAWS. NO PUBLIC OFFERING OF THE PLACING
SHARES IS BEING MADE IN THE UNITED STATES, THE UNITED KINGDOM OR
ELSEWHERE. NO MONEY, SECURITIES OR OTHER CONSIDERATION FROM ANY
PERSON INSIDE THE UNITED STATES IS BEING SOLICITED AND, IF SENT IN
RESPONSE TO THE INFORMATION CONTAINED IN THIS ANNOUNCEMENT, WILL
NOT BE ACCEPTED.
EACH PLACEE SHOULD CONSULT WITH ITS OWN TAX ADVISERS AS TO
LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF AN INVESTMENT IN
PLACING SHARES. THE DISTRIBUTION OF THIS ANNOUNCEMENT, ANY PART OF
IT OR ANY INFORMATION CONTAINED IN IT MAY BE RESTRICTED BY LAW IN
CERTAIN JURISDICTIONS, AND ANY PERSON INTO WHOSE POSSESSION THIS
ANNOUNCEMENT, ANY PART OF IT OR ANY INFORMATION CONTAINED IN IT
COMES SHOULD INFORM THEMSELVES ABOUT, AND OBSERVE, SUCH
RESTRICTIONS.
No action has been taken by the Company, Investec, UBS or any of
their respective affiliates, agents, directors, officers or
employees that would permit an offer of the Placing Shares or
possession or distribution of this Announcement or any other
offering or publicity material relating to such Placing Shares in
any jurisdiction where action for that purpose is required.
This Announcement or any part of it does not constitute or form
part of any offer to issue or sell, or the solicitation of an offer
to acquire, purchase or subscribe for, any securities in the United
States (including its territories and possessions, any state of the
United States and the District of Columbia), Canada, the Republic
of Ireland, Australia, the Republic of South Africa, Japan or any
other jurisdiction in which the same would be unlawful. No public
offering of the Placing Shares is being made in any such
jurisdiction.
All offers of the Placing Shares will be made pursuant to an
exemption under the Prospectus Directive from the requirement to
produce a prospectus. In the United Kingdom, this Announcement is
being directed solely at persons in circumstances in which section
21(1) of the Financial Services and Markets Act 2000 (as amended)
(the "FSMA") does not apply.
The Placing Shares have not been approved or disapproved by the
US Securities and Exchange Commission, any state securities
commission or other regulatory authority in the United States, nor
have any of the foregoing authorities passed upon or endorsed the
merits of the Placing or the accuracy or adequacy of this
Announcement. Any representation to the contrary is a criminal
offence in the United States. The relevant clearances have not
been, nor will they be, obtained from the securities commission of
any province or territory of Canada, no prospectus has been lodged
with, or registered by, the Australian Securities and Investments
Commission or the Japanese Ministry of Finance; the relevant
clearances have not been, and will not be, obtained for the South
Africa Reserve Bank or any other applicable body in the Republic of
South Africa in relation to the Placing Shares and the Placing
Shares have not been, nor will they be, registered under or
offering in compliance with the securities laws of any state,
province or territory of Australia, Canada, Japan or the Republic
of South Africa. Accordingly, the Placing Shares may not (unless an
exemption under the relevant securities laws is applicable) be
offered, sold, resold or delivered, directly or indirectly, in or
into Australia, Canada, Japan or the Republic of South Africa or
any other jurisdiction outside the United Kingdom.
Persons (including, without limitation, nominees and trustees)
who have a contractual right or other legal obligations to forward
a copy of this Announcement should seek appropriate advice before
taking any action.
This Announcement should be read in its entirety. In particular,
you should read and understand the information provided in the
"Important Notices" section of this Announcement.
By participating in the Placing, each person who is invited to
and who chooses to participate in the Placing (a "Placee") will be
deemed to have read and understood this Announcement in its
entirety, to be participating, making an offer and acquiring
Placing Shares on the terms and conditions contained herein and to
be providing the representations, warranties, indemnities,
acknowledgements and undertakings contained in this Appendix.
In particular, each such Placee represents, warrants,
undertakes, agrees and acknowledges (amongst other things)
that:
(1) it is a Relevant Person and undertakes that it will acquire,
hold, manage or dispose of any Placing Shares that are allocated to
it for the purposes of its business;
(2) in the case of a Relevant Person in a member state of the
EEA which has implemented the Prospectus Directive (each, a
"Relevant Member State") who acquires any Placing Shares pursuant
to the Placing:
a) it is a Qualified Investor within the meaning of Article
2(1)(E) of the Prospectus Directive; and
b) in the case of any Placing Shares acquired by it as a
financial intermediary, as that term is used in Article 3(2) of the
Prospectus Directive:
(i) the Placing Shares acquired by it in the Placing have not
been acquired on behalf of, nor have they been acquired with a view
to their offer or resale to, persons in any Relevant Member State
other than Qualified Investors or in circumstances in which the
prior consent of Investec or UBS has been given to the offer or
resale; or
(ii) where Placing Shares have been acquired by it on behalf of
persons in any member state of the EEA other than Qualified
Investors, the offer of those Placing Shares to it is not treated
under the Prospectus Directive as having been made to such persons;
and
(3) it is acquiring the Placing Shares for its own account or is
acquiring the Placing Shares for an account with respect to which
it exercises sole investment discretion and has the authority to
make and does make the representations, warranties, indemnities,
acknowledgements, undertakings and agreements contained in this
Announcement; and
(4) it understands (or if acting for the account of another
person, such person has confirmed that such person understands) the
resale and transfer restrictions set out in this Appendix; and
(5) except as otherwise permitted by the Company and subject to
any available exemptions from applicable securities laws, it (and
any account referred to in paragraph 3 above) is outside the United
States acquiring the Placing Shares in offshore transactions as
defined in and in accordance with Regulation S under the Securities
Act.
No prospectus
No prospectus or other offering document has been or will be
submitted to be approved by the FCA in relation to the Placing or
the Placing Shares and Placees' commitments will be made solely on
the basis of the information contained in this Announcement and any
information publicly announced through a Regulatory Information
Service (as defined in the AIM Rules for Companies (the "AIM
Rules")) by or on behalf of the Company on or prior to the date of
this Announcement (the "Publicly Available Information") and
subject to any further terms set forth in the contract note to be
sent to individual Placees.
Each Placee, by participating in the Placing, agrees that the
content of this Announcement is exclusively the responsibility of
the Company and confirms that it has neither received nor relied on
any information (other than the Publicly Available Information),
representation, warranty or statement made by or on behalf of
Investec, UBS, the Company or any other person and none of
Investec, UBS, the Company or any other person acting on such
person's behalf nor any of their respective affiliates has or shall
have any liability for any Placee's decision to participate in the
Placing based on any other information, representation, warranty or
statement. Each Placee acknowledges and agrees that it has relied
on its own investigation of the business, financial or other
position of the Company in accepting a participation in the
Placing. Nothing in this paragraph shall exclude the liability of
any person for fraudulent misrepresentation.
Details of the Placing Agreement and the Placing Shares
Investec and UBS (together the "Banks" and each a "Bank") have
today entered into a placing agreement (the "Placing Agreement")
with the Company under which, on the terms and subject to the
conditions set out in the Placing Agreement, each of the Banks, as
agent for and on behalf of the Company, has agreed to use their
reasonable endeavours to procure Placees for the Placing Shares at
the Placing Price.
The Placing Shares will, when issued, be subject to the articles
of association of the Company and credited as fully paid and will
rank pari passu in all respects with the existing issued ordinary
shares of ten pence per share ("Ordinary Shares") in the capital of
the Company, including the right to receive all dividends and other
distributions declared, made or paid in respect of such Ordinary
Shares after the date of issue of the Placing Shares.
As part of the Placing, the Company has agreed that it will not
for a period of 180 days after Admission, offer, issue, sell,
contract to sell, issue options in respect of or otherwise dispose
of any securities of the Company (or any interest therein or in
respect thereof) or any other securities exchangeable for, or
convertible into, or substantially similar to, Ordinary Shares or
enter into any transaction having substantially the same effect or
agree to do any of the foregoing other than with the prior written
consent of Investec and UBS (such consent not to be unreasonably
withheld or delayed), in relation to certain permitted staff share
scheme grants or as otherwise contemplated by the Placing
Agreement.
Application for admission to trading
Application will be made to the London Stock Exchange for
admission of the Placing Shares to trading on AIM.
It is expected that Admission will take place at 8.00 a.m. on 18
February 2015 and that dealings in the Placing Shares on AIM will
commence at the same time.
Principal terms of the Placing
1. Investec is acting as nominated adviser and joint broker to
the Placing, as agent for and on behalf of the Company. Investec is
authorised in the United Kingdom by the Prudential Regulation
Authority ("PRA") and regulated by the Financial Conduct Authority
("FCA") and the PRA, is acting exclusively for the Company and no
one else in connection with the matters referred to in this
Announcement and will not be responsible to anyone other than the
Company for providing the protections afforded to the customers of
Investec or for providing advice in relation to the matters
described in this Announcement.
2. UBS is acting as joint broker to the Placing, as agent for
and on behalf of the Company. UBS is authorised in the United
Kingdom by the PRA and regulated by the FCA and the PRA, is acting
exclusively for the Company and no one else in connection with the
matters referred to in this Announcement and will not be
responsible to anyone other than the Company for providing the
protections afforded to the customers of UBS or for providing
advice in relation to the matters described in this
Announcement.
3. Participation in the Placing will only be available to
persons who may lawfully be, and are, invited by the Banks to
participate. Each of the Banks and any of their respective
affiliates is entitled to participate in the Placing as
principal.
4. The price per Placing Share (the "Placing Price") is fixed at
375 pence and is payable to the Banks by all Placees.
5. Each Placee's allocation is determined by the relevant Bank
in its discretion following consultation with the Company and has
been or will be confirmed orally by the relevant Bank and a
contract note will be dispatched as soon as possible thereafter.
That oral confirmation will give rise to an irrevocable, legally
binding commitment by that person (who at that point becomes a
Placee), in favour of the Banks and the Company, under which it
agrees to acquire the number of Placing Shares allocated to the
Placee at the Placing Price and otherwise on the terms and subject
to the conditions set out in this Appendix and in accordance with
the Company's articles of association. Except with the relevant
Banks' consent, such commitment will not be capable of variation or
revocation at the time at which it is submitted.
6. Each Placee's allocation and commitment will be evidenced by
a contract note issued to such Placee by the relevant Bank. The
terms of this Appendix will be deemed incorporated in that contract
note.
7. Each Placee will have an immediate, separate, irrevocable and
binding obligation, owed to the relevant Bank (as agent for the
Company), to pay to it (or as it may direct) in cleared funds an
amount equal to the product of the Placing Price and the number of
Placing Shares such Placee has agreed to acquire and the Company
has agreed to allot and issue to that Placee.
8. Irrespective of the time at which a Placee's allocation(s)
pursuant to the Placing is/are confirmed, settlement for all
Placing Shares to be acquired pursuant to the Placing will be
required to be made at the same time, on the basis explained below
under "Registration and Settlement".
9. All obligations of the Banks under the Placing will be
subject to fulfilment of the conditions referred to below under
"Conditions of the Placing" and to the Placing not being terminated
on the basis referred to below under "Termination of the
Placing".
10. By participating in the Placing, each Placee will agree that
its rights and obligations in respect of the Placing will terminate
only in the circumstances described below and will not be capable
of rescission or termination by the Placee.
11. To the fullest extent permissible by law and applicable FCA
rules, none of (a) Investec, (b) any of Investec's affiliates,
agents, directors, officers, consultants (c) to the extent not
contained within (a) or (b), any person connected with Investec as
defined in the Financial Services and Markets Act 2000 ("FSMA")
((b) and (c) being together "affiliates" and individually an
"affiliate" of Investec) (d) any person acting on Investec's behalf
(e) UBS, (f) any of UBS's affiliates, agents, directors, officers,
consultants (g) to the extent not contained within (e) or (f), any
person connected with UBS as defined in FSMA ((f) and (g) being
together "affiliates" and individually an "affiliate" of UBS) or
(h) any person acting on UBS's behalf shall have any liability
(including to the extent permissible by law, any fiduciary duties)
to Placees or to any other person whether acting on behalf of a
Placee or otherwise. In particular, neither of the Banks nor any of
their respective affiliates shall have any liability (including, to
the extent permissible by law, any fiduciary duties) in respect of
their conduct of the Placing or of such alternative method of
effecting the Placing as the Banks and the Company may agree.
Registration and Settlement
If Placees are allocated any Placing Shares in the Placing they
will be sent a contract note or electronic confirmation by the
relevant Bank which will confirm the number of Placing Shares
allocated to them, the Placing Price and the aggregate amount owed
by them to the relevant Bank.
Each Placee will be deemed to agree that it will do all things
necessary to ensure that delivery and payment is completed as
directed by the relevant Bank in accordance with either the
standing CREST or certificated settlement instructions which they
have in place with the relevant Bank.
Settlement of transactions in the Placing Shares (ISIN:
JE00B6Y3DV84) following Admission will take place within the CREST
system, subject to certain exceptions. Settlement through CREST
will be on a T+2 basis unless otherwise notified by the Banks and
is expected to occur at 8.00 a.m. on 18 February 2015 (the
"Settlement Date") in accordance with the contract notes.
Settlement will be on a delivery versus payment basis. However, in
the event of any difficulties or delays in the admission of the
Placing Shares to CREST or the use of CREST in relation to the
Placing, the Company and each of the Banks may agree that the
Placing Shares should be issued in certificated form. Each of the
Banks reserves the right to require settlement for the Placing
Shares, and to deliver the Placing Shares to Placees, by such other
means as they deem necessary if delivery or settlement to Placees
is not practicable within the CREST system or would not be
consistent with regulatory requirements in a Placee's
jurisdiction.
Interest is chargeable daily on payments not received from
Placees on the due date in accordance with the arrangements set out
above, in respect of either CREST or certificated deliveries, at
the rate of 2 percentage points above prevailing LIBOR as
determined by the Banks.
Each Placee is deemed to agree that if it does not comply with
these obligations, the Banks may sell any or all of their Placing
Shares on their behalf and retain from the proceeds, for the Bank's
own account and benefit, an amount equal to the aggregate amount
owed by the Placee plus any interest due. The relevant Placee will,
however, remain liable for any shortfall below the amount owed by
it and for any stamp duty or stamp duty reserve tax (together with
any interest or penalties) which may arise upon the sale of their
Placing Shares on their behalf.
If Placing Shares are to be delivered to a custodian or
settlement agent, Placees must ensure that, upon receipt, the
conditional contract note is copied and delivered immediately to
the relevant person within that organisation. Insofar as Placing
Shares are registered in a Placee's name or that of its nominee or
in the name of any person for whom a Placee is contracting as agent
or that of a nominee for such person, such Placing Shares should,
subject as provided below, be so registered free from any liability
to United Kingdom stamp duty or stamp duty reserve tax. Placees
will not be entitled to receive any fee or commission in connection
with the Placing.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming
unconditional and not having been terminated in accordance with its
terms.
The obligations of each of the Banks under the Placing Agreement
are, and the Placing is, conditional upon, inter alia:
(a) the passing of the Resolutions (without any amendments not
approved by the Banks) at the General Meeting (or at any
adjournment thereof);
(b) the warranties on the part of the Company contained in the
Placing Agreement being true and accurate in all material respects
and not misleading on and as of the date of the Placing Agreement
and on Admission, as though they had been given and made on such
date by reference to the facts and circumstances then
subsisting;
(c) the performance by the Company of its obligations under the
Placing Agreement to the extent that they fall to be performed
prior to Admission;
(d) no matter having arisen before Admission which might
reasonably be expected to give rise to an indemnity claim under the
Placing Agreement;
(e) in the opinion of the Banks, acting in good faith, there
shall have been no material adverse change since the date of the
Placing Agreement (whether or not foreseeable at the date of the
Placing Agreement) before Admission; and
(f) Admission occurring not later than 8.00 a.m. on 18 February
2015 or such later time as the Banks may agree in writing with the
Company (but in any event not later than 8.00 a.m. on 4 March
2015),
(all conditions to the obligations of each of the Banks included
in the Placing Agreement being together, the "conditions").
If any of the conditions set out in the Placing Agreement are
not fulfilled or, where permitted, waived in accordance with the
Placing Agreement within the stated time periods (or such later
time and/or date as the Company and the Banks may agree), or the
Placing Agreement is terminated in accordance with its terms, the
Placing will lapse and the Placee's rights and obligations shall
cease and terminate at such time and each Placee agrees that no
claim can be made by or on behalf of the Placee (or any person on
whose behalf the Placee is acting) in respect thereof.
By participating in the Placing, each Placee agrees that its
rights and obligations cease and terminate only in the
circumstances described above and under "Termination of the
Placing" below and will not be capable of rescission or termination
by it.
Certain conditions may be waived in whole or in part by the
Banks, acting jointly, in their absolute discretion by notice in
writing to the Company and the Banks may also agree in writing with
the Company to extend the time for satisfaction of any condition.
Any such extension or waiver will not affect Placees' commitments
as set out in this Announcement.
Either of the Banks may terminate the Placing Agreement in
certain circumstances, details of which are set out below.
None of the Banks, the Company or any of their respective
affiliates, agents, directors, officers, employees shall have any
liability to any Placee (or to any other person whether acting on
behalf of a Placee or otherwise) in respect of any decision any of
them may make as to whether or not to waive or to extend the time
and/or date for the satisfaction of any condition to the Placing
nor for any decision any of them may make as to the satisfaction of
any condition or in respect of the Placing generally and by
participating in the Placing each Placee agrees that any such
decision is within the absolute discretion of the Banks
Termination of the Placing
Either of the Banks may terminate the Placing Agreement, in
accordance with its terms, at any time prior to Admission if, inter
alia:
1. it comes to the knowledge of either Bank that any of the
warranties was untrue, inaccurate or misleading in any material
respect; or
2. it comes to the notice of either Bank that any statement
contained in this Announcement, or any other document or
announcement issued or published by or on behalf of the Company in
connection with the Placing, is or has become untrue, incorrect or
misleading in any material respect; or
3. the Company shall fail to comply, in any respect which either
Bank in its sole discretion believes is material, with any of its
obligations under the Placing Agreement; or
4. there has occurred a force majeure event, or any material
adverse change has occurred in the financial position or prospects
or business of the Company and its subsidiary undertakings (taken
as whole) which, in the reasonable opinion of either Bank, would
materially prejudice the success of the Placing or the distribution
of the Placing Shares.
If the Placing Agreement is terminated in accordance with its
terms, the rights and obligations of each Placee in respect of the
Placing as described in this Announcement shall cease and terminate
at such time and no claim can be made by any Placee in respect
thereof.
By participating in the Placing, each Placee agrees with the
Company and the Banks that the exercise by the Company or the Banks
of any right of termination or any other right or other discretion
under the Placing Agreement shall be within the absolute discretion
of the Company or the Banks and that neither of the Company nor the
Banks need make any reference to such Placee and that none of the
Banks, the Company, or any of their respective affiliates, agents,
directors, officers or employees shall have any liability to such
Placee (or to any other person whether acting on behalf of a Placee
or otherwise) whatsoever in connection with any such exercise.
By participating in the Placing, each Placee agrees that its
rights and obligations terminate only in the circumstances
described above and under the "Conditions of the Placing" section
above and will not be capable of rescission or termination by it
after the issue by the relevant Bank of a contract note confirming
each Placee's allocation and commitment in the Placing.
Representations, warranties and further terms
By participating in the Placing, each Placee (and any person
acting on such Placee's behalf) represents, warrants, acknowledges
and agrees (for itself and for any such prospective Placee) that
(save where the Banks expressly agree in writing to the
contrary):
1. it has read and understood this Announcement in its entirety
and that its acquisition of the Placing Shares is subject to and
based upon all the terms, conditions, representations, warranties,
indemnities, acknowledgements, agreements and undertakings and
other information contained herein and that it has not relied on,
and will not rely on, any information given or any representations,
warranties or statements made at any time by any person in
connection with Admission, the Placing, the Company, the Placing
Shares or otherwise, other than the information contained in this
Announcement and the Publicly Available Information;
2. it has not received a prospectus or other offering document
in connection with the Placing and acknowledges that no prospectus
or other offering document: (a) is required under the Prospectus
Directive; and (b) has been or will be prepared in connection with
the Placing;
3. the Ordinary Shares are admitted to trading on AIM, and that
the Company is therefore required to publish certain business and
financial information in accordance with the AIM Rules, which
includes a description of the nature of the Company's business and
the Company's most recent balance sheet and profit and loss account
and that it is able to obtain or access such information without
undue difficulty, and is able to obtain access to such information
or comparable information concerning any other publicly traded
company, without undue difficulty;
4. it has made its own assessment of the Placing Shares and has
relied on its own investigation of the business, financial or other
position of the Company in accepting a participation in the Placing
and none of the Banks, the Company or any of their respective
affiliates, agents, directors, officers or employees or any person
acting on behalf of any of them has provided, and will not provide,
it with any material regarding the Placing Shares or the Company or
any other person other than the information in this Announcement or
the Publicly Available Information; nor has it requested either of
the Banks, the Company, any of their respective affiliates, agents,
directors, officers or employees or any person acting on behalf of
any of them to provide it with any such information;
5. none of the Banks, any person acting on behalf of them or any
of their respective affiliates, agents, directors, officers or
employees has or shall have any liability for any Publicly
Available Information, or any representation relating to the
Company, provided that nothing in this paragraph excludes the
liability of any person for fraudulent misrepresentation made by
that person;
6. the only information on which it is entitled to rely on and
on which it has relied in committing to subscribe for the Placing
Shares is contained in the Publicly Available Information, such
information being all that it deems necessary to make an investment
decision in respect of the Placing Shares and it has made its own
assessment of the Company, the Placing Shares and the terms of the
Placing based on Publicly Available Information; (b) none of the
Banks, the Company or any of their respective affiliates, agents,
directors, officers or employees has made any representation or
warranty to it, express or implied, with respect to the Company,
the Placing or the Placing Shares or the accuracy, completeness or
adequacy of the Publicly Available Information; (c) it has
conducted its own investigation of the Company, the Placing and the
Placing Shares, satisfied itself that the information is still
current and relied on that investigation for the purposes of its
decision to participate in the Placing; and (d) has not relied on
any investigation that the Banks or any person acting on their
behalf may have conducted with respect to the Company, the Placing
or the Placing Shares;
7. the content of this Announcement and the Publicly Available
Information has been prepared by and is exclusively the
responsibility of the Company and that neither of the Banks nor any
persons acting on behalf of either of them is responsible for or
has or shall have any liability for any information,
representation, warranty or statement relating to the Company
contained in this Announcement or the Publicly Available
Information nor will they be liable for any Placee's decision to
participate in the Placing based on any information,
representation, warranty or statement contained in this
Announcement, the Publicly Available Information or otherwise.
Nothing in this Appendix shall exclude any liability of any person
for fraudulent misrepresentation;
8. the Placing Shares have not been registered or otherwise
qualified, and will not be registered or otherwise qualified, for
offer and sale nor will a prospectus be cleared or approved in
respect of any of the Placing Shares under the securities laws of
the United States, or any state or other jurisdiction of the United
States, the Republic of Ireland, Australia, Canada, Republic of
South Africa or Japan and, subject to certain exceptions, may not
be offered, sold, taken up, renounced or delivered or transferred,
directly or indirectly, within the United States, the Republic of
Ireland, Australia, Canada, South Africa or Japan or in any country
or jurisdiction where any such action for that purpose is
required;
9. it and/or each person on whose behalf it is participating:
a) is entitled to acquire Placing Shares pursuant to the Placing
under the laws and regulations of all relevant jurisdictions;
b) has fully observed such laws and regulations;
c) has capacity and authority and is entitled to enter into and
perform its obligations as an acquirer of Placing Shares and will
honour such obligations; and
d) has obtained all necessary consents and authorities
(including, without limitation, in the case of a person acting on
behalf of a Placee, all necessary consents and authorities to agree
to the terms set out or referred to in this Appendix) under those
laws or otherwise and complied with all necessary formalities to
enable it to enter into the transactions contemplated hereby and to
perform its obligations in relation thereto and, in particular, if
it is a pension fund or investment company it is aware of and
acknowledges it is required to comply with all applicable laws and
regulations with respect to its subscription for Placing
Shares;
10. it is not, and any person who it is acting on behalf of is
not, and at the time the Placing Shares are subscribed will not be,
a resident of, or with an address in, or subject to the laws of,
Australia, Canada, Japan, the Republic of Ireland or the Republic
of South Africa, and it acknowledges and agrees that the Placing
Shares have not been and will not be registered or otherwise
qualified under the securities legislation of Australia, Canada,
Japan, the Republic of Ireland or the Republic of South Africa and
may not be offered, sold, or acquired, directly or indirectly,
within those jurisdictions;
11. the Placing Shares have not been, and will not be,
registered under the Securities Act and may not be offered, sold or
resold in or into or from the United States except pursuant to an
effective registration under the Securities Act, or pursuant to an
exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and in accordance
with applicable state securities laws; and no representation is
being made as to the availability of any exemption under the
Securities Act for the reoffer, resale, pledge or transfer of the
Placing Shares;
12. it and the beneficial owner of the Placing Shares:
a) is, and at the time the Placing Shares are acquired will be,
outside the United States and acquiring the Placing Shares in an
"offshore transaction" as defined in, and in accordance with,
Regulation S under the Securities Act; or
b) or is acquiring the Placing Shares pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act and in accordance with
applicable state securities laws;
13. it (and any account for which it is purchasing) is not
acquiring the Placing Shares with a view to any offer, sale or
distribution thereof within the meaning of the Securities Act;
14. it understands that: (a) the Placing Shares are "restricted
securities" within the meaning of Rule 144(a)(3) under the
Securities Act; (b) no representation is made as to the
availability of the exemption provided by Rule 144 for resales of
Placing Shares; and (c) it will not deposit the Placing Shares in a
depositary receipt programme in the United States or for US persons
(as defined in the Securities Act);
15. it will not offer, sell, transfer, pledge or otherwise
dispose of any Placing Shares except:
a) in an offshore transaction in accordance with Rules 903 or
904 of Regulation S under the Securities Act; or
b) otherwise pursuant to an exemption from registration under
the Securities Act, if available,
and in each case in accordance with all applicable securities
laws of the states of the United States and other
jurisdictions;
16. no representation has been made as to the availability of
the exemption provided by Rule 144, Rule 144A or any other
exemption under the Securities Act for the reoffer, resale, pledge
or transfer of the Placing Shares;
17. understands that the Placing Shares are expected to be
issued to it through CREST but may be issued to it in certificated,
definitive form and acknowledges and agrees that the Placing Shares
will, to the extent they are delivered in certificated form, bear a
legend to the following effect unless agreed otherwise with the
Company:
"THESE SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER THE APPLICABLE SECURITIES LAWS OR WITH
ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER
JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (B) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR
(C) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION OF THE UNITED STATES. NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THE FOREGOING, THE SHARES MAY NOT BE DEPOSITED INTO ANY
UNRESTRICTED DEPOSITARY RECEIPT FACILITY IN RESPECT OF SHARES
ESTABLISHED OR MAINTAINED BY A DEPOSITARY BANK. EACH HOLDER, BY ITS
ACCEPTANCE OF THESE SHARES, REPRESENTS THAT IT UNDERSTANDS AND
AGREES TO THE FOREGOING RESTRICTIONS.";
18. it will not distribute, forward, transfer or otherwise
transmit this Announcement or any part of it, or any other
presentational or other materials concerning the Placing in or into
or from the United States (including electronic copies thereof) to
any person, and it has not distributed, forwarded, transferred or
otherwise transmitted any such materials to any person;
19. none of the Banks, their respective affiliates, agents,
directors, officers or employees and any person acting on behalf of
any of them is making any recommendations to it, advising it
regarding the suitability of any transactions it may enter into in
connection with the Placing and that participation in the Placing
is on the basis that it is not and will not be a client of either
of the Banks and neither of the Banks has any duties or
responsibilities to it for providing the protections afforded to
its clients or for providing advice in relation to the Placing nor
in respect of any representations, warranties, undertakings or
indemnities contained in the Placing Agreement nor for the exercise
or performance of any of its rights and obligations thereunder
including any rights to waive or vary any conditions or exercise
any termination right;
20. it has the funds available to pay for the Placing Shares for
which it has agreed to subscribe and acknowledges and agrees that
it will make payment to the relevant Bank for the Placing Shares
allocated to it in accordance with the terms and conditions of this
Announcement on the due times and dates set out in this
Announcement, failing which the relevant Placing Shares may be
placed with others on such terms as the Banks may, in their
absolute discretion determine without liability to the Placee and
it will remain liable for any shortfall below the net proceeds of
such sale and the placing proceeds of such Placing Shares and may
be required to bear any stamp duty or stamp duty reserve tax
(together with any interest or penalties due pursuant to the terms
set out or referred to in this Announcement) which may arise upon
the sale of such Placee's Placing Shares on its behalf;
21. no action has been or will be taken by any of the Company,
the Banks or any person acting on their behalf that would, or is
intended to, permit a public offer of the Placing Shares in the
United States or in any country or jurisdiction where any such
action for that purpose is required;
22. the person who it specifies for registration as holder of
the Placing Shares will be: (a) the Placee; or (b) a nominee of the
Placee, as the case may be. Neither the Banks nor the Company will
be responsible for any liability to stamp duty or stamp duty
reserve tax resulting from a failure to observe this requirement.
Each Placee and any person acting on behalf of such Placee agrees
to acquire Placing Shares pursuant to the Placing and agrees to
indemnify the Company and the Banks in respect of the same on the
basis that the Placing Shares will be allotted to a CREST stock
account of either of the Banks or transferred to a CREST stock
account of either of the Banks who will hold them as nominee on
behalf of the Placee until settlement in accordance with its
standing settlement instructions with it;
23. it is acting as principal only in respect of the Placing or,
if it is acting for any other person, (a) it is duly authorised to
do so and has full power to make the acknowledgments,
representations and agreements herein on behalf of each such person
and (b) it is and will remain liable to the Company and the Banks
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);
24. the allocation, allotment, issue and delivery to it, or the
person specified by it for registration as holder, of Placing
Shares will not give rise to a stamp duty or stamp duty reserve tax
liability under (or at a rate determined under) any of sections 67,
70, 93 or 96 of the Finance Act 1986 (depository receipts and
clearance services) and that it is not participating in the Placing
as nominee or agent for any person or persons to whom the
allocation, allotment, issue or delivery of Placing Shares would
give rise to such a liability;
25. it and any person acting on its behalf (if within the United
Kingdom) falls within Article 19(5) and/or 49(2) of the Order and
undertakes that it will acquire, hold, manage and (if applicable)
dispose of any Placing Shares that are allocated to it for the
purposes of its business only;
26. it will not make an offer to the public of the Placing
Shares and it has not offered or sold and will not offer or sell
any Placing Shares to persons in the United Kingdom or elsewhere in
the EEA prior to the expiry of a period of six months from
Admission except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as
principal or agent) for the 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 or an offer to the public in any other
member state of the EEA within the meaning of the Prospectus
Directive;
27. it is a person of a kind described in: (a) Article 19(5)
(Investment Professionals) and/or 49(2) (High net worth companies
etc.) of the Financial Services and Markets Act 2000 (Financial
Promotion) Order 2005, as amended, and/or an authorised person as
defined in section 31 of FSMA; and (b) section 86(7) of FSMA
("Qualified Investor"), being a person falling within Article
2.1(e) the Prospectus Directive. For such purposes, it undertakes
that it will acquire, hold, manage and (if applicable) dispose of
any Placing Shares that are allocated to it for the purposes of its
business only;
28. it has only communicated or caused to be communicated and it
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
section 21 of the FSMA) relating to Placing Shares in circumstances
in which section 21(1) of the FSMA does not require approval of the
communication by an authorised person and it acknowledges and
agrees that neither of the Banks has approved this Announcement in
their capacity as authorised persons under section 21 of FSMA and
it may not therefore be subject to the controls which would apply
if it was made or approved as financial promotion by an authorised
person;
29. it has complied and it will comply with all applicable laws
with respect to anything done by it or on its behalf in relation to
the Placing Shares (including all relevant provisions of the FSMA
in respect of anything done in, from or otherwise involving the
United Kingdom);
30. represents and warrants that, if it is a financial
intermediary, as that term is used in Article 3(2) of the
Prospectus Directive (including any relevant implementing measure
in any member state), the Placing Shares acquired by it in the
Placing will not be acquired on a non-discretionary basis on behalf
of, nor will they be acquired with a view to their offer or resale
to, persons in a member state of the EEA which has implemented the
Prospectus Directive other than Qualified Investors, or in
circumstances in which the express prior written consent of the
Banks has been given to the offer or resale;
31. it has neither received nor relied on any confidential price
sensitive information concerns in the Company in accepting this
invitation to participate in the Placing;
32. none of the Banks, any of their respective affiliates,
agents, directors, officers or employees or any person acting on
behalf of any of them has or shall have any liability for any
information, representation or statement contained in this
Announcement or for any information previously published by or on
behalf of the Company or any other written or oral information made
available to or publicly available or filed information or any
representation, warranty or undertaking relating to the Company,
and will not be liable for its decision to participate in the
Placing based on any information, representation, warranty or
statement contained in this Announcement or elsewhere, provided
that nothing in this paragraph shall exclude any liability of any
person for fraud;
33. none of the Banks, the Company, any of their respective
affiliates, agents, directors, officers or employees or any person
acting on behalf of the Banks, the Company or their respective
affiliates, agents, directors, officers or employees is making any
recommendations to it, advising it regarding the suitability of any
transactions it may enter into in connection with the Placing nor
providing advice in relation to the Placing nor in respect of any
representations, warranties, acknowledgements, agreements,
undertakings, or indemnities contained in the Placing Agreement nor
the exercise or performance of each of the Banks' rights and
obligations thereunder including any rights to waive or vary any
conditions or exercise any termination right;
34. acknowledges and accepts that the Banks may, in accordance
with applicable legal and regulatory provisions, engage in
transactions in relation to the Placing Shares and/or related
instruments for their own account for the purpose of hedging their
underwriting exposure or otherwise and, except as required by
applicable law or regulation, neither of the Banks will make any
public disclosure in relation to such transactions;
35. the Banks and each of their respective affiliates, each
acting as an investor for its or their own account(s), may bid or
subscribe for and/or purchase Placing Shares and, in that capacity,
may retain, purchase, offer to sell or otherwise deal for its or
their own account(s) in the Placing Shares, any other securities of
the Company or other related investments in connection with the
Placing or otherwise. Accordingly, references in this Announcement
to the Placing Shares being offered, subscribed, acquired or
otherwise dealt with should be read as including any offer to, or
subscription, acquisition or dealing by the Banks and/or any of
their respective affiliates, acting as an investor for its or their
own account(s). Neither the Banks nor the Company intend to
disclose the extent of any such investment or transaction otherwise
than in accordance with any legal or regulatory obligation to do
so;
36. it has not offered or sold and will not offer or sell any
Placing Shares to persons in the EEA prior to the expiry of a
period of six months from Admission except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purpose of
their business or otherwise in circumstances which have not
resulted and which will not result in an offer to the public in any
member state of the EEA within the meaning of the Prospectus
Directive;
37. it has complied with its obligations in connection with
money laundering and terrorist financing under the Proceeds of
Crime Act 2002, the Terrorism Act 2000, the Terrorism Act 2006 and
the Money Laundering Regulations 2007 (together, the "Regulations")
and, if making payment on behalf of a third party, that
satisfactory evidence has been obtained and recorded by it to
verify the identity of the third party as required by the
Regulations;
38. it is aware of the obligations regarding insider dealing in
the Criminal Justice Act 1993, section 118 of FSMA and the Proceeds
of Crime Act 2002 and confirms that it has and will continue to
comply with those obligations;
39. in order to ensure compliance with the Money Laundering
Regulations 2007, the Banks (each for itself and as agent on behalf
of the Company) or the Company's registrars may, in their absolute
discretion, require verification of its identity. Pending the
provision to the Banks or the Company's registrars, as applicable,
of evidence of identity, definitive certificates in respect of the
Placing Shares may be retained at the Banks absolute discretion or,
where appropriate, delivery of the Placing Shares to it in
uncertificated form may be delayed at the Banks or the Company's
registrars', as the case may be, absolute discretion. If within a
reasonable time after a request for verification of identity the
Banks (each for itself and as agent on behalf of the Company) or
the Company's registrars have not received evidence satisfactory to
them, the Banks and/or the Company may, at its absolute discretion,
terminate its commitment in respect of the Placing, in which event
the monies payable on acceptance of allotment will, if already
paid, be returned without interest to the account of the drawee's
bank from which they were originally debited;
40. acknowledges that its commitment to acquire Placing Shares
on the terms set out in this Announcement and in the contract note
will continue notwithstanding any amendment that may in future be
made to the terms and conditions of the Placing and that Placees
will have no right to be consulted or require that their consent be
obtained with respect to the Company's or the Banks conduct of the
Placing;
41. it has knowledge and experience in financial, business and
international investment matters as is required to evaluate the
merits and risks of subscribing for the Placing Shares. It further
acknowledges that it is experienced in investing in securities of
this nature and is aware that it may be required to bear, and is
able to bear, the economic risk of, and is able to sustain, a
complete loss in connection with the Placing. It has relied upon
its own examination and due diligence of the Company and its
affiliates taken as a whole, and the terms of the Placing,
including the merits and risks involved;
42. it irrevocably appoints any duly authorised officer of the
Banks as its agent for the purpose of executing and delivering to
the Company and/or its registrars any documents on its behalf
necessary to enable it to be registered as the holder of any of the
Placing Shares for which it agrees to subscribe or purchase upon
the terms of this Announcement;
43. the Company, the Banks and others (including each of their
respective affiliates, agents, directors, officers or employees)
will rely upon the truth and accuracy of the foregoing
representations, warranties, acknowledgements and agreements, which
are given to the Banks, each on their own behalf and on behalf of
the Company and are irrevocable;
44. if it is acquiring the Placing Shares as a fiduciary or
agent for one or more investor accounts, it has full power and
authority to make, and does make, the foregoing representations,
warranties, acknowledgements, agreements and undertakings on behalf
of each such accounts;
45. time is of the essence as regards its obligations under this Appendix;
46. 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 the Banks;
47. the Placing Shares will be issued subject to the terms and
conditions of this Appendix; and
48. these terms and conditions in this Appendix and all
documents into which this Appendix is incorporated by reference or
otherwise validly forms a part and/or any agreements entered into
pursuant to these terms and conditions and all agreements to
acquire shares pursuant to the Placing will be governed by and
construed in accordance with English law and it submits to the
exclusive jurisdiction of the English courts in relation to any
claim, dispute or matter arising out of any such contract, except
that enforcement proceedings in respect of the obligation to make
payment for the Placing Shares (together with any interest
chargeable thereon) may be taken by the Company or the Banks in any
jurisdiction in which the relevant Placee is incorporated or in
which any of its securities have a quotation on a recognised stock
exchange.
By participating in the Placing, each Placee (and any person
acting on such Placee's behalf) agrees to indemnify and hold the
Company, the Banks and each of their respective affiliates, agents,
directors, officers and employees harmless from any and all costs,
claims, liabilities and expenses (including legal fees and
expenses) arising out of or in connection with any breach of the
representations, warranties, acknowledgements, agreements and
undertakings given by the Placee (and any person acting on such
Placee's behalf) in this Appendix or incurred by the Banks, the
Company or each of their respective affiliates, agents, directors,
officers or employees arising from the performance of the Placee's
obligations as set out in this Announcement, and further agrees
that the provisions of this Appendix shall survive after the
completion of the Placing.
The agreement to allot and issue Placing Shares to Placees (or
the persons for whom Placees are contracting as agent) free of
stamp duty and stamp duty reserve tax in the United Kingdom relates
only to their allotment and issue to Placees, or such persons as
they nominate as their agents, direct by the Company. Such
agreement assumes that the Placing Shares are not being acquired in
connection with arrangements to issue depositary receipts or to
transfer the Placing Shares into a clearance service. If there are
any such arrangements, or the settlement related to any other
dealings in the Placing Shares, stamp duty or stamp duty reserve
tax may be payable. In that event, the Placee agrees that it shall
be responsible for such stamp duty or stamp duty reserve tax and
neither the Company nor the Banks shall be responsible for such
stamp duty or stamp duty reserve tax. If this is the case, each
Placee should seek its own advice and they should notify the Banks
accordingly. In addition, Placees should note that they will be
liable for any capital duty, stamp duty and all other stamp, issue,
securities, transfer, registration, documentary or other duties or
taxes (including any interest, fines or penalties relating thereto)
payable outside the United Kingdom by them or any other person on
the acquisition by them of any Placing Shares or the agreement by
them to acquire any Placing Shares and each Placee, or the Placee's
nominee, in respect of whom (or in respect of the person for whom
it is participating in the Placing as an agent or nominee) the
allocation, allotment, issue or delivery of Placing Shares has
given rise to such non-United Kingdom stamp, registration,
documentary, transfer or similar taxes or duties undertakes to pay
such taxes and duties, including any interest and penalties (if
applicable), forthwith and to indemnify on an after-tax basis and
to hold harmless the Company and the Banks in the event that either
the Company and/or the Banks have incurred any such liability to
such taxes or duties.
The representations, warranties, acknowledgements and
undertakings contained in this Appendix are given to each of the
Banks for itself and on behalf of the Company and are
irrevocable.
Each Placee and any person acting on behalf of the Placee
acknowledges that the Banks do not owe any fiduciary or other
duties to any Placee in respect of any representations, warranties,
undertakings, acknowledgements, agreements or indemnities in the
Placing Agreement.
Each Placee and any person acting on behalf of the Placee
acknowledges and agrees that the Banks may (at their absolute
discretion) satisfy their obligations to procure Placees by itself
agreeing to become a Placee in respect of some or all of the
Placing Shares or by nominating any connected or associated person
to do so.
When a Placee or any person acting on behalf of the Placee is
dealing with the relevant Bank, any money held in an account with
the relevant Bank on behalf of the Placee and/or any person acting
on behalf of the Placee will not be treated as client money within
the meaning of the relevant rules and regulations of the FCA made
under FSMA. Each Placee acknowledges that the money will not be
subject to the protections conferred by the client money rules: as
a consequence this money will not be segregated from the relevant
Bank's money (as applicable) in accordance with the client money
rules and will be held by it under a banking relationship and not
as trustee.
References to time in this Announcement are to London time,
unless otherwise stated.
All times and dates in this Announcement may be subject to
amendment.
No statement in this Announcement is intended to be a profit
forecast, and no statement in this Announcement should be
interpreted to mean that earnings per share of the Company for the
current or future financial years would necessarily match or exceed
the historical published earnings per share of the Company.
The price of shares and any income expected from them may go
down as well as up and investors may not get back the full amount
invested upon disposal of the shares. Past performance is no guide
to future performance, and persons needing advice should consult an
independent financial adviser.
The Placing Shares to be issued or sold pursuant to the Placing
will not be admitted to trading on any stock exchange other than
the London Stock Exchange.
Neither the content of the Company's website nor any website
accessible by hyperlinks on the Company's website is incorporated
in, or forms part of, this Announcement.
This information is provided by RNS
The company news service from the London Stock Exchange
END
IOEPGUCCGUPAPWP
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