TIDMBPCR
RNS Number : 3334Z
BioPharma Credit PLC
14 December 2017
NOT FOR RELEASE, DISTRIBUTION OR PUBLICATION, IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY, TO ANY US PERSON (AS DEFINED BELOW)
OR IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA, SOUTH AFRICA OR
JAPAN, OR ANY OTHER JURISDICTION, OR TO ANY PERSON, WHERE TO DO SO
WOULD CONSTITUTE A VIOLATION OF APPLICABLE LAW.
This Announcement is an advertisement and not a prospectus.
Investors should not purchase or subscribe for any transferable
securities referred to in this Announcement except on the basis of
information published by the Company that is publicly available.
This Announcement does not constitute or form a part of any offer
to sell, or a solicitation of any offer to purchase or otherwise
acquire, securities by any US Persons or in the United States or
any other jurisdiction. Neither this Announcement nor any part of
it shall form the basis of or be relied on in connection with or
act as an inducement to enter into any contract or commitment
whatsoever.
biopharma credit plc
PLACING OF UP TO 152,375,471 ORDINARY SHARES
The Board of BioPharma Credit plc (the "Company") today
announces a proposal to issue up to 152,375,471 ordinary shares
("Shares") on a non pre-emptive basis (the "Issue").
Highlights
-- Issue of up to 152,375,471 Shares at a price per Share of
US$1.0114, being the most recently published NAV per Share of the
Company (adjusted for the dividend declared by the Company on 7
December 2017, with ex-dividend date on 14 December), plus a
premium to cover the costs of the Issue (the "Issue Price")
-- Net proceeds to be used to finance future investments in
addition to commitments already made to Tesaro, Lexicon and Bristol
Myers Squibb
-- The Company has received substantial indications of interest
from investors, including Pablo Legorreta, CEO of Royalty Pharma
and Co-Founder of Pharmakon Advisors LP ("Pharmakon")
-- The Issue will be launched immediately following this
Announcement and will be conducted by way of a bookbuilding process
to determine the level of demand from potential investors for
participation in the Issue
-- The Company announced on 13 December 2017 its latest NAV per
share as 99.67 cents, as at 30 November 2017
-- The Shares will rank pari passu in all respects with the
existing ordinary shares; however, they will not be entitled to the
dividend of US$0.01 per ordinary share declared by the Company on 7
December 2017, with ex-dividend date on 14 December
Commenting on today's announcement, Pedro Gonzalez de Cosio, CEO
of Pharmakon, the Company's investment manager, said "Since its
March 2017 IPO, the Company has made four investments that could
require it to deploy up to approximately US$700 million in cash
through April 2021 as these investments are funded. Pharmakon has
also identified several additional attractive investment
opportunities that have the potential to become actionable in the
near term. The proposed Issue will provide the capital for the
Company to take advantage of these additional opportunities."
Background
-- In March 2017, the Company raised gross proceeds of US$761.9
million from an initial public offering, and was admitted to
trading on the Specialist Fund Segment of the Main Market of the
London Stock Exchange and to listing and trading on the Official
List of The International Stock Exchange
-- The Company has been actively deploying cash since its IPO,
including through several major investments:
o US$222 million to Tesaro, an oncology-focused
biopharmaceutical company, with an additional amount of up to
US$148 million to be committed by 20 December 2018 at Tesaro's
option
o US$124.5 million to Lexicon, a fully integrated
biopharmaceutical company, with an additional amount of up to
US$41.5 million to be committed by 30 March 2019 at Lexicon's
option, subject to certain sales conditions
o US$140 million to US$160 million to Bristol Myers Squibb
between 2018 and 2020, determined by product sales over that
period
o purchasing 2.5% senior unsecured convertible notes issued by
Depomed Inc., with a face value of US$23.5 million, at an average
price of 72.9 cents for a total consideration of US$17.2 million.
The Company sold the entire position at an average price of 83.4
cents and received proceeds of US$19.7million including accrued
interest, generating a net gain of US$2.5 million and an IRR of
154%
-- Further details on the Company's investments are set out below
-- As at 12 December 2017, the Company holds US$317.1 million in cash
Use of proceeds
The Company will use the net proceeds of the Issue in accordance
with its investment objective and policy to fund future investment
commitments which may also be financed through borrowing facilities
that may be put in place at a future date.
The Company has a pipeline of future investments considered to
be compelling by Pharmakon and is currently evaluating a number of
opportunities for further deployment of capital. While there can be
no certainty around the execution of particular opportunities and
while some of them are contingent on external factors, the Company
remains focused on several of these potential investments, some of
which may be executed in the near term.
Furthermore, as outlined above, the Company has a number of
subsequent potential commitments related to its existing
investments which may be exercised over the course of 2018 and
beyond, including:
-- US$148 million to Tesaro, which can be drawn at Tesaro's option by 20 December 2018
-- US$41.5 million to Lexicon, which can be drawn at Lexicon's option by 30 March 2019
In line with the Company's intentions, the Issue will allow it
to create an increasingly diversified portfolio by continuing to
invest across a range of different forms of debt assets issued by a
variety of borrowers.
DETAILS OF THE ISSUE
Issue Structure
The Issue will comprise a placing of Shares (the "Placing") and
will be subject to the prevailing market conditions.
The Issue Price per Share is US$1.0114, being the 30 November
2017 NAV per Share of 99.67 cents (adjusted for the dividend
declared by the Company on 7 December 2017, with ex-dividend date
on 14 December), plus a premium to cover the costs of the Issue,
such that the Issue is not dilutive on a NAV per share basis to
existing shareholders.
The Shares issued pursuant to the Issue will rank pari passu in
all respects with the shares in issue of the same class, including
in respect of any dividend which may be declared for the period
ending 31 December 2017. The Shares would not, however, be eligible
for the interim dividend of US$0.01 per ordinary share declared by
the Company on 7 December 2017 in respect of the financial period
ending 30 September 2017, with ex-dividend date on 14 December,
which is payable on 31 January 2018.
J.P. Morgan Securities plc (which conducts its UK investment
banking business as J.P. Morgan Cazenove) and Goldman Sachs
International have been appointed as joint bookrunners (the "Joint
Bookrunners") in respect of the Issue.
Timetable
The bookbuild will open with immediate effect following this
Announcement. The exact number of Shares will be determined by the
Company and the Joint Bookrunners at the close of the bookbuild and
announced by the Company shortly thereafter. The timing of the
closing of the bookbuild and allocations are at the discretion of
the Company and the Joint Bookrunners.
The Company will apply for admission of the Shares to trading on
the London Stock Exchange plc's Specialist Fund Segment and to
listing and trading on the Official List of The International Stock
Exchange ("Admission"). It is expected that Admission will take
place and that trading in the Shares will commence on 18 December
2017.
The Appendix to this Announcement (which forms part of this
Announcement) sets out the terms and conditions of the Placing.
Lock-up
The Company has agreed with the Joint Bookrunners that it will
not, without the prior written consent of each of the Joint
Bookrunners, during the period of 90 days after the date of
Admission of the Shares under the Issue, directly or indirectly,
issue, offer or otherwise transfer or dispose of any shares in the
capital of the Company or any interest in such shares.
developments since the Company's initial public offering
Update on financial performance of the Company
The Company was launched in March 2017 with seed assets of
US$338.6 million, together with US$423.3 million of cash. The
Company's NAV at IPO was US$746.6 million or 98.00 cents per share
and on 30 November 2017 was US$759.4 million, or 99.67 cents per
share, an increase of 1.7 per cent over the period. The Company's
share price closed on 30 November 2017 at US$1.06. For the period
27 March 2017 through 30 November 2017, the Company's seed assets
declined through capital repayments by US$91.8 million to US$246.8
million. Cash increased over the same period to US$514.4
million.
On 21 September 2017, the Company declared an interim dividend
in respect of the financial period ending 30 June 2017 of US$0.01
per ordinary share payable on 31 October 2017 to ordinary
shareholders on the register on 29 September 2017. The ex-dividend
date was 28 September 2017.
On 7 December 2017, the Company declared an interim dividend in
respect of the financial period ending 30 September 2017 of US$0.01
per ordinary share payable on 31 January 2018 to ordinary
shareholders on the register on 15 December 2017. The ex-dividend
date was 14 December 2017.
Between 13 September 2017 and 31 October 2017, the Company
purchased 2.5% senior unsecured convertible notes issued by Depomed
Inc. (NASDAQ: DEPO), with a face value of US$23.5 million, at an
average price of 72.9 cents for a total consideration of US$17.2
million. Between 5 December 2017 and 8 December 2017, the Company
sold the entire position at an average price of 83.4 cents. The
Company received proceeds of US$19.7 million including accrued
interest, generating a net gain of US$2.5 million and an IRR of
154%.
Update on key investments of the Company
BioPharma III Interest
The Company acquired a limited partnership interest (the
"BioPharma III Interest") in BioPharma III Holdings, LP, in
exchange for Shares at the time of its IPO. The BioPharma III
Interest gives the Company indirect exposure to five debt assets,
the value of which at the time of the IPO was US$332.5 million.
Since the IPO, the BioPharma III Interest has resulted in cash
distributions to the Company of US$38.1 million of which US$28.0
million represented repayment of principal.
RPS Note
On IPO, the Company also entered into a credit agreement with
RPS BioPharma Investments LP (the "RPS Borrower") pursuant to which
the RPS Borrower issued a promissory note in favour of the Company
(the "RPS Note") for a loan of US$185.1 million. The RPS Note
represents the right to receive a proportion of ongoing royalties
generated from 21 life sciences products and bears interest at an
annual rate of 12%.
Since IPO, the RPS Note has resulted in cash distributions to
the Company of US$94.8 million of which US$85.5 million represented
repayment of principal.
Tesaro
On 21 November 2017, the Company and BioPharma Credit
Investments IV, S.àr.L. ("BioPharma IV") entered into a definitive
loan agreement for up to US$500 million with Tesaro, Inc. (NASDAQ:
TSRO) ("Tesaro").
Under the terms of the transaction, the Company will invest up
to US$370 million (US$222 million in the first tranche and up to an
additional US$148 million by 20 December 2018) and BioPharma-IV
will invest up to US$130 million in parallel with the Company
acting as collateral agent. The loan has a term of seven years and
is secured by Tesaro's US rights to Zejula(R) and Varubi(R). The
first US$300 million tranche bears interest at LIBOR plus 8%, with
the second optional tranche bearing interest at LIBOR plus 7.5%.
The LIBOR rate is subject to a floor of 1% and certain caps. Each
tranche of the loan is interest only for the first two years,
amortises over the remaining term, and can be prepaid at Tesaro's
discretion, at any time, subject to prepayment fees. The first
US$300 million tranche was funded on 6 December 2017.
For further information, please see the announcement titled
"Announcement of First Major Investment Since IPO" on 21 November
2017 under RNS No. 1291X.
Lexicon
On 4 December 2017, the Company and BioPharma IV entered into a
definitive term loan agreement for up to US$200 million with
Lexicon Pharmaceuticals, Inc. (NASDAQ: LXRX) ("Lexicon") a fully
integrated biopharmaceutical company with a current market
capitalisation of approximately US$1.0 billion.
The US$200 million loan will be available in two tranches, each
maturing in December 2022 and bearing interest at 9.0% per annum.
The first US$150 million is available immediately and an additional
tranche of US$50 million is available for draw down by March 2019
at Lexicon's option if net Xermelo sales are greater than US$25
million in the preceding quarter. Under the terms of the
transaction, the Company will invest up to US$166m (US$124.5
million in the first tranche and up to an additional US$41.5
million by 30 March 2019) and BioPharma IV will invest up to US$34
million in parallel with the Company, acting as collateral agent.
The loan is secured by substantially all of Lexicon's assets,
including its rights to Xermelo(R) and Sotagliflozin.
For further information, please see the announcement titled "New
Acquisition" on 5 December 2017 under RNS No. 3624Y.
Bristol Myers Squibb
On 8 December 2017, the Company's wholly-owned subsidiary
entered into a purchase, sale and assignment agreement with a
wholly-owned subsidiary of Royalty Pharma Investments ("RPI"), for
the purchase of a 50% interest in a stream of payments (the
"Purchased Payments") acquired by RPI's subsidiary from Bristol
Myers Squibb (NYSE: BMY) through a purchase agreement dated 14
November 2017. As a result of the arrangements, RPI's subsidiary
and the Company's subsidiary will each be entitled to the benefit
of 50% of the Purchased Payments under identical economic terms.
The Purchased Payments are linked to tiered worldwide sales of
Onglyza and Farxiga, diabetes agents marketed by AstraZeneca, and
related products.
The Company is expected to fund US$140 million to US$160 million
in consideration for acquiring the Purchased Payments during 2018
and 2020, determined by product sales over that period, and will
receive payments from 2020 through 2025. The Purchased Payments are
expected to generate attractive risk-adjusted returns in the high
single digits per annum. Bristol Myers Squibb and Astra Zeneca are
rated A2/A+ and A3/BBB+ respectively.
For further information, please see the announcement titled "New
Investment" on 8 December 2017 under RNS No. 8759Y.
Funding commitments of the Company
As at the date of this Announcement, other than the assets held
through the BioPharma III Interest and the RPS Note which were
fully funded on the IPO, the Company has utilised its net cash
proceeds from the IPO to fund the following commitments in relation
to its current portfolio. The Company also intends to utilise its
existing cash of US$317.1 million (as at 12 December 2017) as well
as the net proceeds from the Issue to fund future commitments in
relation to its current portfolio.
Investment Funded Commitment Outstanding Commitment Funded Commitment
(US$m) (US$m) as a % of Total
Assets
--------------- ------------------ ----------------------- ------------------
Tesaro 222.0 148.0 29.2
--------------- ------------------ ----------------------- ------------------
Lexicon 124.5 41.5 16.4
--------------- ------------------ ----------------------- ------------------
Bristol Myers - 140.0 - 160.0 -
Squibb
--------------- ------------------ ----------------------- ------------------
Total 346.5 329.5 - 349.5 45.6
--------------- ------------------ ----------------------- ------------------
Enquiries
BioPharma Credit plc
via Link Company Matters Limited
Company Secretary
+44 (0) 1392 477 509
Goldman Sachs International (Joint Bookrunner)
+44 (0) 207 774 1000
Charlie Lytle
Shomick Bhattacharya
Jennie Holloway
Tom Hartley
J.P. Morgan Cazenove (Joint Bookrunner)
+44 (0)20 7742 4000
William Simmonds
Oliver Kenyon
Anne Ross
Buchanan
David Rydell / Mark Court / Jamie Hooper / Henry Wilson
+44 (0)20 7466 5000
biopharmacredit@buchanan.uk.com
Notes to Editors:
BioPharma Credit PLC is London's only listed specialist investor
in debt from the life sciences industry and joined the LSE on 27
March 2017. The Company seeks to provide long-term shareholder
returns, principally in the form of sustainable income
distributions from exposure to the life sciences industry. The
Company seeks to achieve this objective primarily through
investments in debt assets secured by royalties or other cash flows
derived from the sales of approved life sciences products.
LEI: 213800AV55PYXAS7SY24
This Announcement contains Inside Information as defined under
the Market Abuse Regulation (EU) No. 596/2014.
Save as set out below in the Appendix, 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 (including the Appendix).
IMPORTANT NOTICES
This Announcement is an advertisement and not a prospectus. The
merits or suitability of any securities must be independently
determined by each investor on the basis of its own investigation
and evaluation of the Company. Any such determination should
involve, among other things, an assessment of the legal, tax,
accounting, regulatory, financial, credit and other related aspects
of the securities.
Article 1 (5)(a) of Regulation (EU) 2017/1129 provides that the
obligation to publish a prospectus shall not apply to the admission
to trading on a regulated market of any securities fungible with
securities already admitted to trading on the same regulated
market, provided that they represent, over a period of 12 months,
less than 20% of the number of securities already admitted to
trading on the same regulated market. The number of new Shares to
be issued by the Company pursuant to the Issue is less than 20% of
the number of Shares admitted to trading on the London Stock
Exchange as at the date of this Announcement and the Company has
therefore not issued a prospectus in connection with the Issue.
Accordingly, investors should not purchase or subscribe for any
transferrable securities pursuant to the Issue except on the basis
of information published by the Company that is publicly
available.
This Announcement may not be used in making any investment
decision. This Announcement does not contain sufficient information
to support an investment decision and investors should ensure that
they obtain all available relevant information before making any
investment. This Announcement does not constitute and may not be
construed as an offer to sell, or an invitation to purchase or
otherwise acquire, investments of any description, or as a
recommendation regarding the possible offering or the provision of
investment advice by any party. No information in this Announcement
should be construed as providing financial, investment or other
professional advice and each prospective investor should consult
its own legal, business, tax and other advisers in evaluating the
investment opportunity. No reliance may be placed for any purposes
whatsoever on this Announcement (including, without limitation, any
illustrative modelling information contained herein), or its
completeness.
Nothing in this Announcement constitutes investment advice and
any recommendations that may be contained herein have not been
based upon a consideration of the investment objectives, financial
situation or particular needs of any specific recipient.
The information and opinions contained in this Announcement are
provided as at the date of this Announcement and are subject to
change and no representation or warranty, express or implied, is or
will be made in relation to the accuracy or completeness of the
information contained herein and no responsibility, obligation or
liability or duty (whether direct or indirect, in contract, tort or
otherwise) is or will be accepted by the Company, Pharmakon, J.P.
Morgan Cazenove, Goldman Sachs International or any of their
affiliates or by any of their respective officers, employees or
agents in relation to it.
Potential investors should be aware that any investment in the
Company is speculative, involves a high degree of risk, and could
result in the loss of all or substantially all of their investment.
Results can be positively or negatively affected by market
conditions beyond the control of the Company or any other
person.
The information contained in this Announcement is given at the
date of its publication (unless otherwise marked). No reliance may
be placed for any purpose whatsoever on the information or opinions
contained in this Announcement or on its completeness, accuracy or
fairness. This Announcement has not been approved by any competent
regulatory or supervisory authority.
The information in this Announcement may include forward-looking
statements, which are based on the current expectations and
projections about future events and in certain cases can be
identified by the use of terms such as "may", "will", "should",
"expect", "anticipate", "project", "estimate", "intend",
"continue", "target", "believe" (or the negatives thereon) or other
variations thereon or comparable terminology. These forward-looking
statements are subject to risks, uncertainties and assumptions
about the Company, including, among other things, the development
of its business, trends in its operating industry, and future
capital expenditures and acquisitions. In light of these risks,
uncertainties and assumptions, the events in the forward-looking
statements may not occur. Each of the Company, Pharmakon, J.P.
Morgan Cazenove, Goldman Sachs International and their affiliates
and their respective officers, employees and agents expressly
disclaim any and all liability which may be based on this
Announcement and any errors therein or omissions therefrom. No
representation or warranty is given to the achievement or
reasonableness of future projections, management targets,
estimates, prospects or returns, if any. Any views contained herein
are based on financial, economic, market and other conditions
prevailing as at the date of this Announcement. The information
contained in this Announcement will not be updated.
This Announcement does not constitute or form part of, and
should not be construed as, any offer or invitation or inducement
for sale, transfer or subscription of, or any solicitation of any
offer or invitation to buy or subscribe for or to underwrite, any
share in the Company or to engage in investment activity (as
defined by the Financial Services and Markets Act 2000) in any
jurisdiction nor shall it, or any part of it, or the fact of its
distribution form the basis of, or be relied on in connection with,
any contract or investment decision whatsoever, in any
jurisdiction. This Announcement does not constitute a
recommendation regarding any securities.
Neither this Announcement nor any part or copy of it may be
taken or transmitted into the United States, Australia, Canada,
South Africa or Japan, or distributed, in whole or in part,
directly or indirectly, to US Persons (as defined below) or in or
into the United States, Australia, Canada, South Africa, Japan or
any other jurisdiction, or to any person, where to do so would
constitute a violation of applicable law. Any failure to comply
with this restriction may constitute a violation of applicable law.
This Announcement does not constitute an offer of securities to the
public in the United States, Australia, Canada, South Africa or
Japan or in any other jurisdiction. Persons into whose possession
this Announcement comes should observe all relevant
restrictions.
The Company has not been and will not be registered under the
United States Investment Company Act of 1940, as amended (the
"Investment Company Act"), and as such investors will not be
entitled to the benefits of the Investment Company Act. The 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 other
jurisdiction of the United States, and may not be offered, sold,
resold, pledged, transferred or delivered, directly or indirectly,
into or within the United States or to, or for the account or
benefit of, any "US persons" as defined in Regulation S under the
Securities Act ("US Persons"), 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 and in a manner which would not require the
Company to register under the Investment Company Act. There has
been and will be no public offer of the Shares in the United
States.
The Shares have not been approved or disapproved by the US
Securities and Exchange Commission, any state securities commission
or other regulatory authority in the United States, nor have any of
the foregoing authorities passed upon or endorsed the merits of the
Placing or the accuracy or adequacy of this Announcement. Any
representation to the contrary is a criminal offence in the United
States.
Prospective investors should take note that, without the express
written consent of the Company, no Shares may be acquired by (i)
investors using assets of (A) an "employee benefit plan" as defined
in Section 3(3) of US Employee Retirement Income Security Act of
1974, as amended ("ERISA") that is subject to Title I of ERISA; (B)
a "plan" as defined in Section 4975 of the US Internal Revenue Code
of 1986, as amended (the "US Tax Code"), including an individual
retirement account or other arrangement that is subject to Section
4975 of the US Tax Code; or (C) an entity which is deemed to hold
the assets of any of the foregoing types of plans, accounts or
arrangements that is subject to Title I of ERISA or Section 4975 of
the US Tax Code or (ii) a governmental, church, non-US or other
employee benefit plan that is subject to any federal, state, local
or non-US law that is substantially similar to the provisions of
Title I of ERISA or Section 4975 of the US Tax Code.
Both of J.P. Morgan Cazenove and Goldman Sachs International are
authorised by the Prudential Regulation Authority and regulated in
the United Kingdom by the Prudential Regulation Authority and
Financial Conduct Authority. Both of J.P. Morgan Cazenove and
Goldman Sachs International are acting for the Company and no one
else in connection with the Issue and will not be responsible to
anyone other than the Company for providing the protections
afforded to clients of J.P. Morgan Cazenove or Goldman Sachs
International or for affording advice in relation to any
transaction or arrangement referred to in this Announcement. This
Announcement does not constitute any form of financial opinion or
recommendation on the part of J.P. Morgan Cazenove or Goldman Sachs
International or any of their respective affiliates and is not
intended to be an offer, or the solicitation of any offer, to buy
or sell any securities. Neither J.P. Morgan Cazenove nor Goldman
Sachs International is responsible for the contents of this
Announcement. This does not exclude any responsibilities which J.P.
Morgan Cazenove or Goldman Sachs International may have under the
Financial Services and Market Act 2000 or the regulatory regime
established thereafter.
APPIX: FURTHER DETAILS OF THE PLACING
THIS ANNOUNCEMENT (INCLUDING THIS APPIX) IS NOT FOR RELEASE,
PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, TO ANY US
PERSON (AS DEFINED BELOW) IN OR INTO THE UNITED STATES, AUSTRALIA,
CANADA, JAPAN OR SOUTH AFRICA OR ANY OTHER JURISDICTION WHERE TO DO
SO WOULD CONSTITUTE A VIOLATION OF APPLICABLE LAW.
THE INFORMATION CONTAINED HEREIN DOES NOT CONSTITUTE AN OFFER OF
SECURITIES FOR SALE INCLUDING IN THE UNITED STATES, CANADA,
AUSTRALIA, JAPAN OR SOUTH AFRICA.
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES
ONLY.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THIS ANNOUNCEMENT (INCLUDING THIS APPIX) AND THE TERMS AND
CONDITIONS OF THE PLACING SET OUT HEREIN ARE FOR INFORMATION
PURPOSES ONLY AND ARE DIRECTED ONLY AT: (A) PERSONS IN MEMBER
STATES OF THE EUROPEAN ECONOMIC AREA ("EEA") WHO ARE (I) QUALIFIED
INVESTORS WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE PROSPECTUS
DIRECTIVE (WHICH MEANS DIRECTIVE 2003/71/EC AND INCLUDES ANY
RELEVANT IMPLEMENTING DIRECTIVE MEASURE IN ANY MEMBER STATE) (THE
"PROSPECTUS DIRECTIVE"); AND (II) PROFESSIONAL INVESTORS WITHIN THE
MEANING OF ARTICLE 4(1)(AG) OF THE ALTERNATIVE INVESTMENT FUND
MANAGERS DIRECTIVE (WHICH MEANS DIRECTIVE 2011/61/EU AND INCLUDES
ANY RELEVANT LEGISLATION IMPLEMENTING THAT DIRECTIVE IN ANY MEMBER
STATE) ("AIFM DIRECTIVE") OR WHOM MAY BE TREATED AS PROFESSIONAL
INVESTORS UNDER THE NATIONAL LAW OF ANY MEMBER STATE; (B) IN THE
UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE PERSONS (I) WHO HAVE
PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS FALLING
WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000
(FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER"); OR (II) FALLING
WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES,
UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER; OR (III) ARE
PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED; (C)
PERSONS OUTSIDE THE UNITED STATES WHO ARE NOT "US PERSONS" (AS
DEFINED IN REGULATION S ("REGULATION S") UNDER THE SECURITIES ACT
OF 1933, AS AMED (THE "SECURITIES ACT")) OR IN THE UNITED STATES OR
TO US PERSONS, WHO, SUBJECT TO CERTAIN LIMITED EXCEPTIONS, ARE
QUALIFIED INSTITUTIONAL BUYERS ("QIBS") (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), WHO ARE ALSO "QUALIFIED PURCHASERS" AS
DEFINED IN THE INVESTMENT COMPANY ACT OF 1940, AS AMED (THE
"INVESTMENT COMPANY ACT"); (D) IF THE PLACEE IS A RESIDENT OF
SWITZERLAND OR IF THE OFFERING, DISTRIBUTION OR SELLING OF THE
INTERESTS IN THE COMPANY IS MADE THROUGH A SWISS BASED CUSTODIAN OR
FINANCIAL INTERMEDIARY TO THE PLACEE, TO A REGULATED FINANCIAL
INTERMEDIARY UNDER THE SWISS FEDERAL COLLECTIVE INVESTMENT SCHEMES
ACT ("CISA"); (E) IF THE PLACEE IS LOCATED IN MEXICO, TO
INSTITUTIONAL INVESTORS (INVERSIONISTA INSTITUTUCIONAL) OR
QUALIFIED INVESTORS (INVERSIONISTA CALIFICADO) WITHIN THE MEANING
OF THE MEXICAN SECURITES MARKET LAW (LEY DEL MERCADO DE VALORES)
AND THE REGULATIONS IN EFFECT AS OF THE DATE HEREOF; (F) IF THE
PLACEE IS LOCATED IN PERU, TO INSTITUTIONAL INVESTORS
(INVERSIONISTA INSTITUCIONAL) UNDER THE SECURITIES LAW; (G) IF IT
IS LOCATED IN THE BAHAMAS, TO A CORPORATE ENTITY INCORPORATED UNDER
THE INTERNATIONAL BUSINESS COMPANY ACT THAT IS DEEMED NON-RESIDENT
FOR EXCHANGE CONTROL PURPOSES BY THE CENTRAL BANK OF THE BAHAMAS
(ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS "RELEVANT
PERSONS"). ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS
ANNOUNCEMENT RELATES IS AVAILABLE ONLY TO AND WILL ONLY BE ENGAGED
IN WITH THE PERSONS REFERRED TO IN (A), (B), (C), (D), (E), (F) AND
(G).
THIS APPIX AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT
BE ACTED ON OR RELIED ON IN ANY MEMBER STATE OF THE EEA BY PERSONS:
(A) WHO ARE NOT QUALIFIED INVESTORS; OR (B) (IF THEY ARE DOMICILED,
RESIDENT OR HAVE A REGISTERED OFFICE IN THE EEA) THAT ARE LOCATED
IN A MEMBER STATE OF THE EEA OTHER THAN LUXEMBOURG OR THE UK OR ANY
MEMBER STATE OF THE EUROPEAN ECONOMIC AREA THAT HAS NOT TRANSPOSED
THE AIFM DIRECTIVE.
PERSONS DISTRIBUTING THIS ANNOUNCEMENT (INCLUDING THIS APPIX)
MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT
OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT (INCLUDING THIS
APPIX) AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATES IS
AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH
RELEVANT PERSONS. NEITHER THIS APPIX NOR THE ANNOUNCEMENT OF WHICH
IT FORMS PART CONSTITUTES AN OFFER OR AN INVITATION TO ACQUIRE OR
DISPOSE OF ANY SECURITIES IN THE COMPANY.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL,
TAX, BUSINESS AND RELATED ASPECTS OF A SUBSCRIPTION FOR SHARES.
Persons (including individuals, funds or otherwise) who are
invited to and who choose to participate in the Placing, by making
(or on whose behalf there is made) an oral or written offer to
subscribe for Shares (the "Placees"), will be deemed to have read
and understood this Announcement (including this Appendix) in its
entirety and to be making such offer on the terms and conditions,
and to be providing the representations, warranties, indemnities,
acknowledgements, agreements and undertakings contained in this
Appendix. In particular each such Placee represents, warrants and
acknowledges that:
(a) it is a Relevant Person (as defined above) and undertakes
that it will acquire, hold, manage or dispose of any Shares that
are allocated to it for the purposes of its business;
(b) in the case of a Relevant Person in a Member State of the
European Economic Area which has implemented the Prospectus
Directive (a "Relevant Member State"), (i) it is a Qualified
Investor, and (ii) in the case of any Shares acquired by it as a
financial intermediary, as that term is used in Article 3(2) of the
Prospectus Directive, (a) the Shares subscribed for and/or acquired
by it in the Placing have not been subscribed for and/or 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 J.P. Morgan Cazenove, Goldman Sachs International and the
Company has been given to the offer or resale; or (b) where Shares
have been acquired by it on behalf of persons in any Relevant
Member State other than Qualified Investors, the offer of those
Shares to it is not treated under the Prospectus Directive as
having been made to such persons;
(c) in the case of a Relevant Person in a Member State of the
European Economic Area which has implemented the AIFM Directive, it
is a person to whom Shares may lawfully be marketed under the AIFM
Directive; and
(d) it either is (i) outside the United States and is not a US
Person and is subscribing for Shares in an "offshore transaction"
(within the meaning of Regulation S) and is purchasing the Shares
for its own account or is purchasing the Shares for an account with
respect to which it exercises sole investment discretion and that
it (and any such account) is outside the United States and is not a
US Person or it is a dealer or other professional fiduciary in the
United States acting on a discretionary basis for non-US beneficial
owners (other than an estate or trust), in reliance upon Regulation
S or (ii) in the case of a person inside the United States or who
is a US Person and, unless otherwise agreed in writing with the
Company and the Joint Bookrunners, it is a qualified institutional
buyer ("QIB") as defined in Rule 144A under the Securities Act and
also a qualified purchaser ("QP") as defined in the Investment
Company Act; and
(e) it has the authority to make and does make the representations, warranties, indemnities, acknowledgements and agreements contained in this Announcement and it understands (or, if acting for the account of another person, such person understands) the resale and transfer restrictions set out in this Appendix.
The Company, J.P. Morgan Cazenove, Goldman Sachs International
will rely upon the truth and accuracy of the foregoing
representations, warranties, acknowledgements and agreements.
This Announcement (including this Appendix) is for information
purposes and does not constitute an offer or invitation to
underwrite, subscribe for or otherwise acquire or dispose of any
securities or investment advice in any jurisdiction, including
without limitation, the United States, Australia, Canada, Japan or
South Africa (save as provided herein) or in any jurisdiction in
which such offer or invitation is unlawful (the "Restricted
Jurisdictions") and the information contained herein is not for
publication or distribution, directly or indirectly, to persons in
any Restricted Jurisdiction. No public offer of securities of the
Company is being made in the United Kingdom, United States or
elsewhere.
The Company has not been and will not be registered under the
Investment Company Act and investors will not be entitled to the
benefits of the Investment Company Act. The Shares referred to in
this Announcement (including this Appendix) have not been and will
not be registered under the Securities Act or with any securities
regulatory authority of any state or other jurisdiction of the
United States. The Shares have not been approved or disapproved by
the US Securities and Exchange Commission, any State securities
commission or other regulatory authority in the United States, nor
have any of the foregoing authorities passed upon or endorsed the
merits of the Placing or the accuracy or adequacy of this
Announcement. Any representation to the contrary is a criminal
offence in the United States. Persons receiving this Announcement
(including this Appendix) (including custodians, nominees and
trustees) must not forward, distribute, mail or otherwise transmit
it in or into the United States or to US Persons or use the United
States mails, directly or indirectly, in connection with the
Placing.
The Shares may not be offered, sold or transferred within the
United States except pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act. The Shares are only being offered and sold in the
Placing to persons (i) outside the United States who are not US
Persons or (ii) subject to certain limited exceptions, in the
United States or who are US Persons who are QIBs who are also
QPs.
The relevant clearances have not been, and nor will they be,
obtained from the securities commission of any province or
territory of Canada; no prospectus has been lodged with or
registered by, the Australian Securities and Investments Commission
or the Japanese Ministry of Finance; and the Shares have not been,
and nor will they be, registered under or offered in compliance
with the securities laws of any state, province or territory of
Australia, Canada, Japan or South Africa. Accordingly, the Shares
may not (unless an exemption under the relevant securities laws is
available) be offered, sold, resold or delivered, directly or
indirectly, in or into Australia, Canada, Japan or South Africa or
any other jurisdiction outside the United Kingdom.
This Announcement may only be freely circulated and interests in
the Company may only be freely offered, distributed or sold to
regulated financial intermediaries such as banks, securities
dealers, fund management companies, asset managers of collective
investment schemes and central banks as well as to regulated
insurance companies. Circulating this Announcement and offering,
distributing or selling interests in the Company to other persons
or entities including qualified investors as defined in the Federal
Act on Collective Investment Schemes ("CISA") and its implementing
Ordinance ("CISO") may trigger, in particular, (i)
licensing/prudential supervision requirements for the distributor,
(ii) a requirement to appoint a representative and paying agent in
Switzerland and (iii) the necessity of a written distribution
agreement between the representative in Switzerland and the
distributor. Accordingly, legal advice should be sought before
providing this Announcement to and offering, distributing or
selling interests of the Company to any other persons or entities.
This Announcement does not constitute an issuance prospectus
pursuant to Articles 652a or 1156 of the Swiss Code of Obligations
and may not comply with the information standards required
thereunder. The Interests will not be listed on the SIX Swiss
Exchange, and consequently, the information presented in this
Announcement does not necessarily comply with the information
standards set out in the relevant listing rules. The documentation
of the Company has not been and will not be approved, and may not
be able to be approved, by the Swiss Financial Market Supervisory
Authority FINMA under CISA. Therefore, investors do not benefit
from protection under CISA or supervision by FINMA. This
Announcement does not constitute investment advice. It may only be
used by those persons to whom it has been handed out in connection
with the interests and may neither be copied or directly/indirectly
distributed or made available to other persons.
Neither these Shares, nor their offer, sale or transfer, have
been registered with the Superintendence of the Securities Market
of the Republic of Panama. The exemption from registration is based
on numeral 2 of Article 129 of Decree Law 1 of July 8, 1999
(Institutional Investors). These Shares are not under the
supervision of the Superintendence of the Securities Market of the
Republic of Panama.
The Shares and the information contained in this Announcement
are not being publicly marketed or offered in Peru and will not be
distributed or caused to be distributed to the general public in
Peru. Peruvian securities laws and regulations on public offerings
will not be applicable to the offering of the Shares and therefore,
the disclosure obligations set forth therein will not be applicable
to the issuer of the Shares before or after their acquisition by
prospective investors. The Shares and the information contained in
this Announcement have not been and will not be reviewed,
confirmed, approved or in any way submitted to the Peruvian
Superintendency of Capital Markets (Superintendencia del Mercado de
Valores), nor have they been registered under the Securities Market
Law (Ley del Mercado de Valores) or any other Peruvian regulations.
Accordingly, the Shares cannot be offered or sold within the
Peruvian territory except to the extent any such offering or sale
qualifies as a private offering under Peruvian regulations and
complies with the provisions on private offerings set forth
therein.
The Shares have not been and will not be registered in the
Mexican National Registry of Securities (Registro Nacional de
Valores). Therefore, the Shares may not be offered or sold in the
United Mexican States ("Mexico") by any mean except in
circumstances which constitute a private offering (oferta privada)
pursuant to Article 8 of the Mexican Securites Market Law (Ley del
Mercado de Valores). All applicable provisions of the Mexican
Securites Market Law must be complied with in respect to anything
done in relation to the Shares in, from or otherwise involving
Mexico.
Under the AIFM Directive, the Company is required to make
available to you certain information before you receive Shares.
This information is either included in this document, the Company's
prospectus dated 1 March 2017 or the latest Company Factsheet. The
Company is also required to make available to you its Interim
Report for the period ended on 30 June 2017 (being the latest
financial information published by the Company prior to the date of
this Announcement) before you receive Shares, which were published
on 20 September 2017. The Company's prospectus, latest Company
Factsheet and Interim Report are available on the Company's website
at www.bpcrukcom.
Persons (including, without limitation, nominees and trustees)
who have a contractual or other legal obligation to forward a copy
of this Appendix or the Announcement of which it forms part should
seek appropriate advice before taking any action.
The distribution of this Announcement (including this Appendix),
and the Placing and/or issue of the Shares in certain jurisdictions
may be restricted by law. No action has been taken or will be taken
by the Company, J.P. Morgan Cazenove or Goldman Sachs
International, or any of their respective Affiliates (as defined
below), that would, or is intended to permit, an offer of the
Shares or possession or distribution of this Announcement
(including this Appendix) or any other offering or publicity
material relating to such Shares in any jurisdiction where action
for that purpose is required. Persons into whose possession this
Announcement (including this Appendix) comes are required by the
Company, J.P. Morgan Cazenove and Goldman Sachs International to
inform themselves about and to observe any such restrictions.
In this Appendix, unless the context otherwise requires, Placee
means a Relevant Person (including individuals, funds or others) on
whose behalf a commitment to subscribe for Shares has been
given.
Details of the Placing Agreement and the Shares
J.P. Morgan Cazenove and Goldman Sachs International have
entered into a placing agreement (the "Placing Agreement") with the
Company and Pharmakon Advisors, L.P. (the "Investment Manager")
under which J.P. Morgan Cazenove and Goldman Sachs International
have severally, on the terms and subject to the conditions set out
therein, undertaken, as agents for the Company, to use their
respective reasonable endeavours to procure subscribers for the
Shares at the Placing Price.
The Shares will, when issued, be subject to the Company's
Memorandum and Articles of Association and be credited as fully
paid and will rank pari passu in all respects with the existing
issued ordinary shares of US$0.01 each in the capital of the
Company ("Ordinary Shares"), including the right to receive all
dividends and other distributions declared, made or paid on or in
respect of such Ordinary Shares after the date of issue of the
Shares. For the avoidance of doubt, the Shares will not be entitled
to receive the dividend of US$0.01 per Ordinary Share declared on 7
December 2017 in respect of the period 1 July 2017 to 30 September
2017.
The Shares will be issued free of any encumbrance, lien or other
security interest.
Application for admission to trading
Application will be made to London Stock Exchange plc (the
"London Stock Exchange") for admission to trading of the Shares on
the Specialist Fund Segment of the London Stock Exchange's main
market for listed securities and to The International Stock
Exchange Authority Limited ("TISEA") for admission of the Shares to
the Official List of The International Stock Exchange (together,
"Admission"). It is expected that Admission will become effective
on or around 18 December 2017 and that dealings in the Shares on
the Specialist Fund Segment will commence at that time.
Bookbuild
J.P. Morgan Cazenove and Goldman Sachs International will today
commence the bookbuilding process in respect to the Placing (the
"Bookbuild") to determine demand for participation in the Placing
by Placees. This Appendix gives details of the terms and conditions
of, and the mechanics of participation in, the Placing. No
commissions will be paid to Placees or by Placees in respect of any
Shares.
J.P. Morgan Cazenove, Goldman Sachs International and the
Company shall be entitled to effect the Placing by such alternative
method to the Bookbuild as they may, in their sole discretion,
determine.
Participation in, and principal terms of, the Placing
1. J.P. Morgan Cazenove and Goldman Sachs International are
arranging the Placing as joint bookrunners and agents of the
Company.
2. Participation in the Placing will only be available to
persons who may lawfully be, and are, invited to participate by
J.P. Morgan Cazenove and Goldman Sachs International. Each Placee
and any person acting on behalf of the Placee acknowledges and
agrees that J.P. Morgan Cazenove, Goldman Sachs International and
any of their respective holding companies, subsidiaries, branches
or affiliates (each an "Affiliate") are entitled to enter bids in
the Bookbuild pursuant to their liquidity provision / market making
activities.
3. By participating in the Bookbuild process and the Placing,
Placees will be deemed to have read and understood this
Announcement (including this Appendix) in its entirety and to be
participating and making an offer for Shares on the terms and
conditions, and to be providing the representations, warranties,
indemnities, acknowledgments, agreements and undertakings contained
in this Appendix.
4. The Shares are being offered at a fixed price of US$1.0114
per Share (the "Placing Price"). The final number of Shares to be
issued will be agreed between J.P. Morgan Cazenove, Goldman Sachs
International, the Company and Pharmakon following completion of
the Bookbuild. The number of Shares will be announced on a
Regulatory Information Service following completion of the
Bookbuild.
5. To bid in the Bookbuild, Placees should communicate their bid
by telephone to their usual sales contact at J.P. Morgan Cazenove
or Goldman Sachs International. Each bid should state the number of
Shares which the prospective Placee wishes to subscribe for. Bids
may be scaled down by J.P. Morgan Cazenove and Goldman Sachs
International on the basis referred to in paragraph 9 below. No
more than 152,375,471 Shares will be issued in aggregate.
6. The Bookbuild is expected to close no later than 6.00 p.m.
(London time) on 14 December 2017 but may be closed earlier or
later at the discretion of J.P. Morgan Cazenove and Goldman Sachs
International. J.P. Morgan Cazenove and Goldman Sachs International
may, in agreement with the Company, accept bids that are received
after the Bookbuild has closed.
7. A bid in the Bookbuild will be made on the terms and subject
to the conditions in this Announcement (including this Appendix)
and will be legally binding on the Placee on behalf of which it is
made and except with J.P. Morgan Cazenove's and Goldman Sachs
International's consent will not be capable of variation or
revocation after the time at which it is submitted.
8. Each Placee's allocation and the Placing Price will be
confirmed to Placees orally by J.P. Morgan Cazenove and Goldman
Sachs International following the close of the Bookbuild, and a
trade confirmation will be dispatched as soon as practicable
thereafter by J.P. Morgan Cazenove or Goldman Sachs International
and the terms of this Appendix will be deemed incorporated by
reference therein. J.P. Morgan Cazenove's and Goldman Sachs
International's oral confirmation to a Placee will constitute an
irrevocable legally binding commitment upon that person (who will
at that point become a Placee) in favour of J.P. Morgan Cazenove,
Goldman Sachs International and the Company, under which it agrees
to subscribe for the number of Shares allocated to it at the
Placing Price on the terms and conditions set out in this Appendix
and in accordance with the Company's Memorandum and Articles of
Association. Each Placee will also have an immediate, separate,
irrevocable and binding obligation, owed to J.P. Morgan Cazenove or
Goldman Sachs International, as applicable, to pay it (or as it may
direct) in cleared funds an amount equal to the product of the
Placing Price and the number of Shares such Placee has agreed to
subscribe. The Company shall allot such Shares to each Placee
following each Placee's payment to J.P. Morgan Cazenove or Goldman
Sachs International, as applicable, of such amount.
9. Subject to paragraphs 4 and 5 above, J.P. Morgan Cazenove and
Goldman Sachs International may choose to accept bids, either in
whole or in part, on the basis of allocations determined in
agreement with the Company and Pharmakon and may scale down any
bids for this purpose on such basis as J.P. Morgan Cazenove and
Goldman Sachs International may determine. J.P. Morgan Cazenove and
Goldman Sachs International may also, notwithstanding paragraphs 5
and 6 above, subject to the prior consent of the Company: (i)
allocate Shares after the time of any initial allocation to any
person submitting a bid after that time, and (ii) allocate Shares
after the Bookbuild has closed to any person submitting a bid after
that time.
10. Except as required by law or regulation, no press release or
other announcement will be made by J.P. Morgan Cazenove, Goldman
Sachs International or the Company using the name of any Placee (or
its agent), in its capacity as Placee (or agent), other than with
such Placee's prior written consent.
11. Irrespective of the time at which a Placee's allocation(s)
pursuant to the Placing is/are confirmed, settlement for all Shares
to be acquired pursuant to the Placing will be required to be made
at the same time, on the basis explained below under "Registration
and Settlement".
12. All obligations under the Bookbuild and Placing will be
subject to fulfilment or (where applicable) waiver of the
conditions referred to below under "Conditions of the Placing" and
to the Placing not being terminated on the basis referred to below
under "Right to terminate under the Placing Agreement".
13. By participating in the Bookbuild, each Placee will agree
that its rights and obligations in respect of the Placing will
terminate only in the circumstances described below and will not be
capable of rescission or termination by the Placee.
14. Subject to the terms of the Placing Agreement, J.P. Morgan
Cazenove and Goldman Sachs International shall be entitled to
effect the Bookbuild and the Placing by such method as they shall
in their sole discretion determine. To the fullest extent
permissible by law, neither J.P. Morgan Cazenove, nor Goldman Sachs
International nor any of their respective Affiliates, nor any
person acting on behalf of any of the foregoing shall have any
liability to Placees (or to any other person whether acting on
behalf of a Placee or otherwise). In particular, neither J.P.
Morgan Cazenove, nor Goldman Sachs International, nor any of their
respective Affiliates nor any person acting on their behalf shall
have any liability to Placees in respect of their conduct of the
Bookbuild or of such alternative method of effecting the Placing as
J.P. Morgan Cazenove, Goldman Sachs International and the Company
may agree.
15. All obligations of J.P. Morgan Cazenove and Goldman Sachs
International under the Placing will be subject to fulfilment of
the conditions referred to below under "Conditions of the
Placing".
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming
unconditional and not having been terminated in accordance with its
terms. J.P. Morgan Cazenove's and Goldman Sachs International's
obligations under the Placing Agreement are conditional on, inter
alia:
(a) the execution and delivery of the term sheet setting out the
number of Shares and the Placing Price, to be executed by J.P.
Morgan Cazenove, Goldman Sachs International the Company and
Pharmakon at the end of the Bookbuild;
(b) the representations and warranties contained in the Placing
Agreement being true and accurate and not misleading on and as of
the date of the Placing Agreement and at all times before
Admission;
(c) each of the Company and Pharmakon having complied with and
performed their respective obligations under the Placing Agreement,
which are material in the context of the Placing, to the extent
that the same fall to be performed before Admission (including,
without limitation, delivery of the documents referred to and in
accordance with the Placing Agreement);
(d) there not having occurred before Admission any development
or event (or any development or event involving a prospective
change of which the Company or Pharmakon (as the case may be) is,
or might reasonably be expected to be, aware) which will or is
likely to have a material adverse effect on the condition
(financial, operational, legal or otherwise), prospects, solvency,
liquidity, management, results of operations, financial position,
business or general affairs of the Company or of Investment Manager
whether or not foreseeable and whether or not arising in the
ordinary course of business and shall include any revocation of
Pharmakon's entitlement to market the Company's Shares in the
United Kingdom under Regulation 62 of the AIFM Regulations (in each
case, which is material in the context of Admission) (a "Material
Adverse Change");
(e) the Company allotting and issuing, subject only to
Admission, the Shares in accordance with the Placing Agreement;
and
(f) Admission occurring not later than 8.00 a.m. (London time)
on 18 December 2017 or such later date as the Company, J.P. Morgan
Cazenove and Goldman Sachs International may otherwise agree but
not being later than close of business on 21 December 2017,
(all conditions to the obligations of J.P. Morgan Cazenove and
Goldman Sachs International included in the Placing Agreement being
together the "conditions").
If (i) any of the conditions contained in the Placing Agreement,
including those described above, are not fulfilled or (where
applicable) waived by J.P. Morgan Cazenove and Goldman Sachs
International by the respective time or date where specified (or
such later time or date as J.P. Morgan Cazenove and Goldman Sachs
International may agree), (ii) any such conditions become incapable
of being fulfilled or (iii) the Placing Agreement is terminated in
the circumstances specified below, the Placing will lapse and the
Placee's rights and obligations hereunder in relation to the Shares
shall cease and terminate at such time and each Placee (or any
person on whose behalf the Placee is acting) agrees that no claim
can be made by the Placee in respect thereof.
J.P. Morgan Cazenove and Goldman Sachs International may, at
their absolute discretion and upon such terms as they think fit,
waive compliance by the Company or Pharmakon with the whole or any
part of any of their respective obligations in relation to the
conditions in the Placing Agreement (save that the above conditions
relating to the term sheet being executed and delivered and to
Admission taking place and the Company's allotment of the Shares
may not be waived) or extend in writing the time required for the
fulfilment of any such conditions in respect of all or any part of
the performance thereof. Any such extension or waiver will not
affect Placees' commitments as set out in this Announcement
(including this Appendix).
Neither J.P. Morgan Cazenove, Goldman Sachs International nor
the Company shall have any liability to any Placee (or to any other
person whether acting on behalf of a Placee or otherwise) in
respect of any decision it may make as to whether or not to waive
or to extend the time and/or date for the satisfaction of any
condition to the Placing nor for any decision they may make as to
the satisfaction of any condition or in respect of the Placing
generally, and by participating in the Placing each Placee agrees
that any such decision is within the absolute discretion of J.P.
Morgan Cazenove and Goldman Sachs International.
By participating in the Placing, each Placee agrees that its
rights and obligations hereunder terminate only in the
circumstances described above and under "Right to terminate under
the Placing Agreement" below, and will not be capable of rescission
or termination by the Placee.
Right to terminate under the Placing Agreement
Each of J.P. Morgan Cazenove and Goldman Sachs International is
entitled, at any time before Admission, to terminate their
respective obligations under the Placing Agreement in accordance
with the terms of the Placing Agreement in certain circumstances,
including if, inter alia, in the opinion of J.P. Morgan Cazenove or
Goldman Sachs International, as applicable, acting in good
faith:
(a) the representations and warranties contained in the Placing
Agreement are not true and accurate in any material respect or have
become misleading (or would not be so true and accurate or would be
misleading if they were repeated at any time before Admission) by
reference to the facts subsisting at the time when the notice
terminate the Placing Agreement is given; or
(b) the Company or Pharmakon fails to comply with any of their
respective obligations under the Placing Agreement in any material
respect; or
(c) there has been a Material Adverse Change; or
(d) there has been a force majeure event as specified in the
Placing Agreement which would, in the opinion of J.P. Morgan
Cazenove or Goldman Sachs International (acting in good faith),
make it impracticable or inadvisable to proceed with the
Placing.
If both J.P. Morgan Cazenove and Goldman Sachs International
exercise their right to terminate their obligations under the
Placing Agreement, the Placing Agreement will be terminated and the
Placing will not proceed.
By participating in the Placing, Placees agree that the exercise
by J.P. Morgan Cazenove or Goldman Sachs International of any right
of termination or other discretion under the Placing Agreement
shall be within the absolute discretion of J.P. Morgan Cazenove and
Goldman Sachs International and that they need not make any
reference to Placees and that they shall have no liability to
Placees (or to any other person whether acting on behalf of a
Placee or otherwise) whatsoever in connection with any such
exercise or failure so to exercise.
No Prospectus
The Shares are being offered to Relevant Persons only and will
not be offered in such a way as to require a prospectus in the
United Kingdom or elsewhere. No offering document or prospectus has
been or will be submitted to be approved by the Financial Conduct
Authority ("FCA") in relation to the Placing and Placees'
commitments will be made solely on the basis of the information
contained in this Announcement (including this Appendix) and
certain business and financial information published by the Company
and publicly available in accordance with the rules and practices
of the FCA (collectively "Exchange Information").
Each Placee, by accepting a participation in the Placing, agrees
that the content of this Announcement (including this Appendix) is
exclusively the responsibility of the Company and confirms that it
has neither received nor relied on any other information (other
than the Exchange Information), representation, warranty, or
statement made by or on behalf of the Company, J.P. Morgan
Cazenove, Goldman Sachs International or Pharmakon or any other
person and neither J.P. Morgan Cazenove, nor Goldman Sachs
International nor the Company nor Pharmakon 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.
Registration and Settlement
Settlement of transactions in the Shares (ISIN: GB00BDGKMY29)
following Admission will take place within the CREST system,
subject to certain exceptions. J.P. Morgan Cazenove, Goldman Sachs
International and the Company reserve the right to require
settlement for, and delivery of, the Shares (or a portion thereof)
to Placees, by such other means that they deem necessary if
delivery or settlement to Placees is not practicable within the
CREST system within the timetable set out in this Announcement
(including this Appendix) or would not be consistent with the
regulatory requirements in the Placee's jurisdiction.
Following close of the Bookbuild, each Placee allocated Shares
in the Placing will be sent a trade confirmation by J.P. Morgan
Cazenove or Goldman Sachs International in accordance with that
Placee's standing arrangements in place with J.P. Morgan Cazenove
or Goldman Sachs International, as applicable, stating the number
of Shares allocated to it at the Placing Price, the aggregate
amount owed by such Placee to J.P. Morgan Cazenove or Goldman Sachs
International, as applicable, and settlement instructions. Each
Placee agrees that it will do all things necessary to ensure that
delivery and payment is completed in accordance with either the
standing CREST or certificated settlement instructions that it has
in place with J.P. Morgan Cazenove or Goldman Sachs International,
as applicable,. The Company will issue shares on a delivery versus
payment basis.
It is expected that settlement will be on 18 December 2017 on a
T+2 basis in accordance with the instructions set out in the trade
confirmation.
Interest is chargeable daily on payments not received from
Placees on the due date in accordance with the arrangements set out
above at the rate of two percentage points above LIBOR as
determined by J.P. Morgan Cazenove and Goldman Sachs
International.
Each Placee is deemed to agree that, if it does not comply with
these obligations, J.P. Morgan Cazenove and/or Goldman Sachs
International may sell any or all of the Shares allocated to that
Placee on such Placee's behalf and retain from the proceeds, for
J.P. Morgan Cazenove's and Goldman Sachs International's account
and benefit, an amount equal to the aggregate amount owed by the
Placee plus any interest due. The relevant Placee will, however,
remain liable for any shortfall between the net proceeds of such
sale and the placing proceeds of such Shares and may be required to
bear any stamp duty or stamp duty reserve tax (together with any
interest or penalties due pursuant to the terms set out or referred
to in this Announcement (including this Appendix)) which may arise
upon the sale of such Shares on such Placee's behalf. By
communicating a bid for Shares, each Placee confers on J.P. Morgan
Cazenove and/or Goldman Sachs International all such authorities
and powers necessary to carry out any such sale and agrees to
ratify and confirm all actions which J.P. Morgan Cazenove and/or
Goldman Sachs International lawfully takes in pursuance of such
sale.
If Shares are to be delivered to a custodian or settlement
agent, Placees should ensure that, upon receipt, the trade
confirmation is copied and delivered immediately to the relevant
person within that organisation.
Insofar as 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
Shares should, subject as provided below, be so registered free
from any liability to UK stamp duty or stamp duty reserve tax. If
there are any circumstances in which any other stamp duty or stamp
duty reserve tax is payable in respect of the issue of the Shares,
neither J.P. Morgan Cazenove, Goldman Sachs International nor the
Company shall be responsible for the payment thereof. Placees will
not be entitled to receive any fee or commission in connection with
the Placing.
Representations, Warranties and Further Terms
By participating in the Placing each Placee (and any person
acting on such Placee's behalf):
1. represents and warrants that it has read this Announcement
(including this Appendix) in its entirety and acknowledges that its
acquisition of Shares is subject to and based upon all the terms,
conditions, representations, warranties, indemnities,
acknowledgements, agreements and undertakings and other information
contained herein and undertakes not to redistribute or duplicate
this Announcement (including this Appendix);
2. acknowledges that no offering document or prospectus has been
prepared in connection with the placing of the Shares and
represents and warrants that it has not received a prospectus or
other offering document in connection therewith;
3. acknowledges that the Ordinary Shares are listed on the
Specialist Fund Segment of the main market for listed securities of
the London Stock Exchange, and the Company is therefore required to
publish certain business and financial information in accordance
with the rules and practices of the FCA (collectively the "Exchange
Information"), 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 the Placee 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. acknowledges that neither J.P. Morgan Cazenove nor Goldman
Sachs International nor the Company nor Pharmakon nor any of their
respective Affiliates nor any person acting on behalf of any of
them has provided, and will not provide it, with any material
regarding the Shares or the Company other than this Announcement
(including this Appendix); nor has it requested any of J.P. Morgan
Cazenove, Goldman Sachs International, the Company, Pharmakon any
of their Affiliates or any person acting on behalf of any of them
to provide it with any such information;
5. acknowledges that the content of this Announcement (including
this Appendix) is exclusively the responsibility of the Company and
that none of J.P. Morgan Cazenove, Goldman Sachs International,
their respective Affiliates or any person acting on J.P. Morgan
Cazenove's or Goldman Sachs International's behalf has or shall
have any liability for any information, representation or statement
contained in this Announcement (including this Appendix) or any
information previously published by or on behalf of the Company
(including any Exchange Information) and will not be liable for any
Placee's decision to participate in the Placing based on any
information, representation or statement contained in this
Announcement (including this Appendix) or otherwise;
6. further represents, warrants and agrees that the only
information on which it is entitled to rely and on which such
Placee has relied in committing itself to acquire the Shares is
contained in this Announcement (including this Appendix) and any
Exchange Information, such information being all that it deems
necessary to make an investment decision in respect of the Shares
and that it has neither received nor relied on any other
information given or representations, warranties or statements made
by any of J.P. Morgan Cazenove, Goldman Sachs International, the
Company or Pharmakon (including with respect to the Company, the
Placing or the Shares or the accuracy, completeness or adequacy of
any publicly available information) and neither J.P. Morgan
Cazenove nor Goldman Sachs International, nor the Company nor
Pharmakon 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. Each Placee
further acknowledges and agrees that it has relied on its own
investigation of the business, financial or other position of the
Company and the terms of the Placing, satisfied itself that this
information is still current and relied on that information in
deciding to participate in the Placing;
7. represents and warrants that it has neither received nor
relied on any confidential price sensitive information concerning
the Company in accepting this invitation to participate in the
Placing;
8. acknowledges that neither J.P. Morgan Cazenove nor Goldman
Sachs International, nor any person acting on behalf of them nor
any of their respective Affiliates has or shall have any liability
for any publicly available or filed information (including any
Exchange Information) or any information, representation, warranty
or statement relating to the Company contained therein or
otherwise, provided that nothing in this paragraph excludes the
liability of any person for fraudulent misrepresentation made by
that person;
9. if in a Member State of the European Economic Area, unless
otherwise specifically agreed with J.P. Morgan Cazenove or Goldman
Sachs International in writing, represents and warrants that it is
a Qualified Investor within the meaning of the Prospectus
Directive;
10. if in a Member State of the European Economic Area which has
implemented AIFM Directive, represents and warrants that it is a
person to whom Shares may lawfully be marketed under AIFM Directive
or under the applicable implementing legislation (if any) of such
Member State;
11. if in the UK, represents and warrants that it is a Qualified
Investor and also a person (i) who has professional experience in
matters relating to investments falling with Article 19(5) of the
Financial Services and Markets Act 2000 (Financial Promotion) Order
2005 (the "Order"); or (ii) falling within Article 49(2)(A) to (D)
("High Net Worth Companies, Unincorporated Associations, etc") of
the Order; or (iii) to whom this Announcement (including this
Appendix) may otherwise be lawfully communicated;
12. represents and warrants that it is not, and at the time the
Shares are acquired will not (unless an exemption under the
relevant securities laws is available) be a resident of Australia,
Canada, Japan or South Africa, and, each of it and the beneficial
owner(s) of the Shares is, and at the time the Shares are acquired
will be, acquiring the Shares in an "offshore transaction" in
accordance with Rule 903 or Rule 904 of Regulation S under the
Securities Act, and has such knowledge and experience in financial
and business matters to be capable of evaluating the merits and
risks of an investment in the Shares, will not look to J.P. Morgan
Cazenove or Goldman Sachs International for all or part of any such
loss it may suffer, is able to bear the economic risk of an
investment in the Shares, is able to sustain a complete loss of the
investment in the Shares and has no need for liquidity with respect
to its investment in the Shares;
13. if it is a resident of Switzerland or if the offering,
distribution or selling of the interests in the Company is made
through a Swiss based custodian or financial intermediary to the
Placee, it represents and warrants that it is a regulated financial
intermediary under the CISA;
14. if it is located in Mexico, represents and warrants that it
is an institutional investor (inversionista institutucional) or a
qualified investor (inversionista calificado) within the meaning of
the Mexican Securites Market Law (Ley del Mercado de Valores) and
the regulations in effect as of the date hereof;
15. if it is located in the Bahamas, it represents and warrants
that it is a corporate entity incorporated under the International
Business Company Act and is deemed non-resident for exchange
control purposes by the Central Bank of the Bahamas;
16. if it is located in Peru: (i) represents and warrants that
it is an institutional investor (inversionista institucional) under
the Securities Law; and/or (ii) acknowledges that this Announcement
does not contain a public offering in Peru as defined by Article 4
of the Securities Law;
17. represents and warrants that it is, or at the time the
Shares are acquired that it will be, the beneficial owner of such
Shares, or that the beneficial owner of such Shares is not (unless
an exemption under the relevant securities laws is available) a
resident of Australia, Canada, Japan or South Africa;
18. represents and warrants that, except as otherwise permitted
by the Company in writing and subject to any available exemptions
from applicable securities laws, it:
a) (i) is not a US Person and is acquiring the Shares for its
own account or (ii) is outside the United States and is acquiring
the Shares for the account of a non-US Person with respect to which
it exercises sole investment discretion or (iii) it is a dealer or
other professional fiduciary in the United States acting in
reliance upon Regulation S under the Securities Act on a
discretionary basis for a non-US Person; or
b) is a QIB who is also a QP and is acquiring the Shares for its
own account or for the account of a QIB who is also a QP, which has
duly executed a US Investor Letter in a form provided to it and
delivered the same to the Company, J.P. Morgan Cazenove or Goldman
Sachs International or one of their respective Affiliates;
19. represents and warrants that, except as otherwise permitted
by the Company in writing, in acquiring Shares it is not using
assets of (A) an "employee benefit plan" as defined in Section 3(3)
of US Employee Retirement Income Security Act of 1974, as amended
("ERISA") that is subject to Title I of ERISA; (B) a "plan" as
defined in Section 4975 of the US Internal Revenue Code of 1986, as
amended (the "US Tax Code"), including an individual retirement
account or other arrangement that is subject to Section 4975 of the
US Tax Code; or (C) an entity which is deemed to hold the assets of
any of the foregoing types of plans, accounts or arrangements that
is subject to Title I of ERISA or Section 4975 of the US Tax Code
or (ii) a governmental, church, non-US or other employee benefit
plan that is subject to any federal, state, local or non-US law
that is substantially similar to the provisions of Title I of ERISA
or Section 4975 of the US Tax Code;
20. acknowledges that no action has been or will be taken by any
of the Company, J.P. Morgan Cazenove, Goldman Sachs International
or any person acting on behalf of the Company, J.P. Morgan Cazenove
or Goldman Sachs International that would, or is intended to,
permit a public offer of the Shares in any country or jurisdiction
where any such action for that purpose is required;
21. acknowledges that the Shares have not been and will not be
registered or qualified for offer and sale nor will a prospectus be
cleared in respect of any of the Shares under the securities laws
or legislation of any Restricted Jurisdiction and, subject to
certain exceptions, may not be offered, sold, or delivered or
transferred, directly or indirectly, within those
jurisdictions;
22. acknowledges that the Shares have not been and will not be
registered under the Securities Act or with any State or other
jurisdiction of the United States, nor approved or disapproved by
the US Securities and Exchange Commission, any state securities
commission in the United States or any other United States
regulatory authority, that the Company has not been registered as
an "investment company" under the Investment Company Act and that,
subject to certain limited exemptions, the Shares are being offered
and sold on behalf of the Company in "offshore transactions"
(within the meaning of Regulation S) to persons who are not US
Persons;
23. it further represents and warrants that neither it nor its
Affiliates nor any person acting on its or their behalf have
engaged or will engage in any "directed selling efforts" (within
the meaning of Regulation S) with respect to the Shares in the
United States;
24. unless otherwise expressly agreed by the Company in writing,
if in the future it decides to offer, sell, transfer, assign,
pledge or otherwise dispose of the Shares or any beneficial
interest therein, it will do so only (i) in an "offshore
transaction" complying with the provisions of Regulation S to a
person outside the United States and not known by the transferor to
be a US Person, by prearrangement or otherwise, or (ii) to the
Company or a subsidiary thereof. It acknowledges and agrees that
any offer, sale, transfer, assignment, pledge or other disposal
made other than in compliance with the foregoing restrictions will
be subject to the compulsory transfer provisions contained in the
Articles. It acknowledges that no representation has been made as
to the availability of Rule 144 or any other exemption under the
Securities Act for the reoffer, resale, pledge or transfer of the
Shares;
25. represents and warrants that the issue to it, or the person
specified by it for registration as holder, of 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 Shares are not being acquired in connection with
arrangements to issue depositary receipts or to transfer Shares
into a clearance system;
26. in connection with its participation in the Placing,
represents and warrants that it has observed all relevant
legislation and regulations, in particular (but without limitation)
those relating to money laundering and countering terrorist
financing and that its application is only made on the basis that
it accepts full responsibility for any requirement to identify and
verify the identity of its clients and other persons in respect of
whom it has applied. In addition, it warrants that it is a person:
(i) subject to the Money Laundering Regulations 2007 in force in
the United Kingdom; or (ii) subject to the Money Laundering
Directive (2005/60/EC of the European Parliament and of the EC
Council of 26 October 2005 on the prevention of the use of the
financial system for the purpose of money laundering and terrorist
financing); or (iii) acting in the course of a business in relation
to which an overseas regulatory authority exercises regulatory
functions and is based or incorporated in, or formed under the law
of, a country in which there are in force provisions at least
equivalent to those required by the Money Laundering Directive;
27. acknowledges that it is a term of the Placee's participation
in the Placing that, to ensure compliance with the Money Laundering
Regulations, J.P. Morgan Cazenove and/or Goldman Sachs
International may, in their absolute discretion, require proof of
identity and verification of the source of payment before the
application can be processed. Pending the provision to J.P. Morgan
Cazenove or Goldman Sachs International of evidence of identity and
verification of the source of payment, definitive certificates for
the Shares may be retained and/or the delivery of the Shares into
CREST may be delayed, each at J.P. Morgan Cazenove's and/or Goldman
Sachs International's absolute discretion. J.P. Morgan Cazenove and
Goldman Sachs International also reserve the right to reject in
whole or in part, or to scale down or limit, any participation. It
holds harmless and will indemnify J.P. Morgan Cazenove, Goldman
Sachs International and/or the Company against any liability, loss
or cost ensuing due to the failure to process its application, if
such information as has been required has not been provided by it
or has not been provided by it on a timely basis;
28. acknowledges pursuant to the Data Protection Act 1998 (the
"DP Act") that the Company and/or its registrar (the "Registrar")
may hold personal data (as defined in the DP Act) relating to past
and present shareholders. Personal data held by the Registrar may
be used to process basic changes to shareholder records, process
bank account information for processing dividend payments, and to
carry out other ancillary processing functions in order to ensure
that the Registrar is able to discharge its obligations under its
registrar services agreement with the Company (the "Registrar
Services Agreement"); and may be disclosed to any person with
legal, administrative or regulatory power over the Registrar in
respect of the services under the Registrar Services Agreement, the
Registrar's Affiliates, including such Affiliates which are outside
of the EEA in countries which do not have similar protections in
place regarding the information and its use (provided that the
Registrar shall ensure that any Affiliates outside the EEA to whom
personal data is disclosed have put in place proper security
measures to ensure at least the same level of protection of the
personal data as is required under the DP Act) and to any third
parties who are involved in carrying out functions related to the
services under the Registrar Services Agreement By becoming
registered as a holder of the Shares, a person becomes a data
subject (as defined in the DP Act) and is deemed to have consented
to the processing by the Company or the Registrar of any personal
data relating to them in the manner described above;
29. if a financial intermediary, as that term is used in Article
3(2) of the Prospectus Directive, represents and warrants that the
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 Relevant
Member State other than Qualified Investors (within the meaning of
the Prospectus Directive), or in circumstances in which the prior
consent of J.P. Morgan Cazenove or Goldman Sachs International has
been given to the offer or resale;
30. represents and warrants that it has not offered or sold and,
prior to the expiry of a period of six months from Admission, will
not offer or sell any 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 Financial Services and Markets Act 2000
("FSMA");
31. represents and warrants that it has not offered or sold and
will not offer or sell any Shares to persons in the European
Economic Area prior to Admission except to persons whose ordinary
activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes
of their business or otherwise in circumstances which have not
resulted in and which will not result in an offer to the public in
any member state of the European Economic Area within the meaning
of the Prospectus Directive;
32. represents and warrants that it has only communicated or
caused to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the FSMA) relating to
the Shares in circumstances and in a manner in which section 21(1)
of the FSMA does not require approval of the communication by an
authorised person;
33. represents and warrants that it has complied and will comply
with all applicable provisions of the FSMA and the Financial
Services Act 2012 with respect to anything done by it in relation
to the Shares in, from or otherwise involving, the United
Kingdom;
34. represents and warrants that (i) it and any person on whose
behalf it is acting is entitled to acquire the Shares under the
laws of all relevant jurisdictions; (ii) it has paid any issue,
transfer or other taxes due in connection with its participation in
the Placing; (iii) it (and/or any such person) has fully observed
such laws; (iv) it (and any such person) has all necessary capacity
and has obtained all necessary consents and authorities to enable
it to commit to this participation in the Placing and to perform
its obligations in relation thereto (including, without limitation,
in the case of any person on whose behalf it is acting, all
necessary consents and authorities to agree to the terms set out or
referred to in this Announcement (including this Appendix)) and
will honour such obligations; and (v) it has not taken any action
which will or may result in the Company, J.P. Morgan Cazenove,
Goldman Sachs International, Pharmakon, any of their respective
Affiliates or any person acting on their behalf being in breach of
the legal and/or regulatory requirements of any territory in
connection with the Placing;
35. undertakes that it (and any person on whose behalf it is
acting) will make payment for the Shares allocated to it in
accordance with the terms and conditions of this Announcement
(including this Appendix) on the due time and date set out herein,
failing which the relevant Shares may be placed with other
subscribers or sold as J.P. Morgan Cazenove and/or Goldman Sachs
International may in their sole discretion determine and without
liability to such Placee and it will remain liable and will
indemnify the Company, J.P. Morgan Cazenove and Goldman Sachs
International for any shortfall between the net proceeds of such
sale and the placing proceeds of such Shares and may be required to
bear any stamp duty or stamp duty reserve tax (together with any
interest or penalties due pursuant to the terms set out or referred
to in this Announcement (including this Appendix)) which may arise
upon the sale of such Placee's Shares on its behalf;
36. acknowledges that its allocation (if any) of Shares will
represent a maximum number of Shares which it will be entitled, and
required, to subscribe for, and the Company may call upon it to
subscribe for a lower number of Shares (if any), but in no event in
aggregate more than the aforementioned maximum;
37. acknowledges that (i) J.P. Morgan Cazenove and Goldman Sachs
International, each of which is authorised by the Prudential
Regulation Authority (the "PRA") and regulated by the PRA and the
FCA in the United Kingdom, are acting respectively for the Company
in relation to the Placing and no one else and will not regard any
other person (whether or not a recipient of this Announcement
including this Appendix) as a client in relation to the Placing and
will not be responsible to anyone other than the Company for
providing the protections afforded to their respective clients nor
for providing advice in relation to the Placing or the contents of
this Announcement, this Appendix or any transaction, arrangement or
other matter referred to herein; and (ii) acknowledges that none of
J.P. Morgan Cazenove nor Goldman Sachs International nor any of
their respective Affiliates, nor any person acting on behalf of any
of them, is making any recommendations to it, advising it regarding
the suitability of any transactions it may enter into in connection
with the Placing and that J.P. Morgan Cazenove and Goldman Sachs
International have no duties or responsibilities to it in respect
of any representations, warranties, undertakings or indemnities
contained in the Placing Agreement nor for the exercise or
performance of any of their respective rights and obligations
thereunder including any rights to waive or vary any conditions or
exercise any termination right;
38. undertakes that the person whom it specifies for
registration as holder of the Shares will be (i) itself or (ii) its
nominee, as the case may be. Neither J.P. Morgan Cazenove nor
Goldman Sachs International nor the Company will be responsible for
any liability to stamp duty or stamp duty reserve tax resulting
from a failure to observe this requirement. Each Placee and any
person on whose behalf it is acting agrees to participate in the
Placing and it agrees to indemnify the Company, J.P. Morgan
Cazenove and Goldman Sachs International in respect of the same on
the basis that the Shares will be allotted to the CREST stock
account of J.P. Morgan Cazenove or Goldman Sachs International as
applicable, who will hold them as nominee on behalf of such Placee
until settlement in accordance with its standing settlement
instructions;
39. acknowledges that it has such knowledge and experience in
financial, business and international investment matters as is
required to evaluate the merits and risks of subscribing for the
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 associates taken as a whole, and the terms of the Placing,
including the merits and risks involved;
40. acknowledges and accepts that each of J.P. Morgan Cazenove
and Goldman Sachs International may, in accordance with applicable
legal and regulatory provisions, engage in transactions in relation
to the Shares and/or related instruments for their own account and,
except as required by applicable law or regulation, neither J.P.
Morgan Cazenove nor Goldman Sachs International will make any
public disclosure in relation to such transactions;
41. if it is acquiring the Shares as a fiduciary or agent for
one or more investor accounts, it has full power and authority to
make, and does make, the foregoing representations, warranties,
acknowledgements, agreements and undertakings on behalf of each
such account(s);
42. time is of the essence as regards its obligations under this
Appendix;
43. any document that is to be sent to it in connection with the
Placing will be sent at its risk and may be sent to it at any
address provided by it to J.P. Morgan Cazenove or Goldman Sachs
International, as applicable;
44. acknowledges that the Shares will be allotted and issued
subject to the terms and conditions of this Appendix;
45. acknowledges that this Appendix, any agreements entered into
by it pursuant to this Appendix (and any non-contractual
obligations arising out of or in connection with such agreements)
and all documents into which this Appendix is incorporated by
reference or otherwise validly forms a part shall be governed by
and construed in accordance with the laws of England and Wales and
it submits (on behalf of itself and on behalf of any person on
whose behalf it is acting) to the exclusive jurisdiction of the
English courts as regards any claim, dispute or matter arising out
of any such contract, except that enforcement proceedings in
respect of the obligation to make payment for the Shares (together
with any interest chargeable thereon) may be taken by the Company,
J.P. Morgan Cazenove or Goldman Sachs International 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;
46. agrees that the Company, J.P. Morgan Cazenove, Goldman Sachs
International and their respective Affiliates and others will rely
upon the truth and accuracy of the foregoing representations,
warranties, acknowledgements and undertakings which are given to
J.P. Morgan Cazenove and Goldman Sachs International on their own
behalf and on behalf of the Company and are irrevocable;
47. agrees to indemnify on demand on an after tax basis and hold
the Company, J.P. Morgan Cazenove, Goldman Sachs International and
their respective Affiliates harmless from any and all costs,
claims, liabilities and expenses (including legal fees and
expenses) arising out of or in connection with any breach of the
representations, warranties, acknowledgements, agreements and
undertakings in this Appendix or incurred by , J.P. Morgan
Cazenove, Goldman Sachs International and/or the Company arising
from the performance of the Placee's obligations as set out in this
Announcement and further agrees that the provisions of this
Appendix shall survive after completion of the Placing;
48. represents and warrants that it has independently made its
own analysis and decision with regard to its commitment to
subscribe for Shares;
49. acknowledges that its commitment to subscribe for Shares on
the terms set out herein and in the trade confirmation will
continue notwithstanding any amendment that may in future be made
to the terms of the Placing and that Placees will have no right to
be consulted or require that their consent be obtained with respect
to J.P. Morgan Cazenove's, Goldman Sachs International's or the
Company's conduct of the Placing;
50. acknowledges that the Shares will be issued and/or
transferred subject to the terms and conditions set out in this
Announcement (including this Appendix);
51. acknowledges and agrees to the compulsory transfer
provisions contained in the Company's Memorandum and Articles of
Association;
52. acknowledges that the basis of allocation will be agreed
between J.P. Morgan Cazenove, Goldman Sachs International, the
Company and Pharmakon at their absolute discretion. The right is
reserved to reject in whole or in part and/or scale back any
participation in the Placing; and
53. represents and warrants that it has complied with its
obligations under the EU Market Abuse Regulation(2014/596/EU).
The representations, warranties, acknowledgments and
undertakings contained in this Appendix are given to J.P. Morgan
Cazenove and Goldman Sachs International for themselves and on
behalf of the Company and are irrevocable.
The agreement to settle a Placee's subscription of the Shares
(and/or the subscription of a person for whom such Placee is
contracting as agent) free of stamp duty and stamp duty reserve tax
depends on the settlement relating only to a subscription by it
and/or such person direct from the Company for the Shares in
question. Such agreement assumes that the Shares are not being
subscribed for in connection with arrangements to issue depositary
receipts or to issue or transfer the Shares into a clearance
service. If there are any such arrangements, or the settlement
related to any other dealing in the Shares, stamp duty or stamp
duty reserve tax may be payable, for which neither the Company nor
J.P. Morgan Cazenove nor Goldman Sachs International will be
responsible and the Placee to whom (or on behalf of whom, or in
respect of the person for whom it is participating in the Placing
as an agent or nominee) the allocation, allotment, issue or
delivery of Shares has given rise to such UK stamp duty or stamp
duty reserve tax undertakes to pay such UK stamp duty or stamp duty
reserve tax forthwith and to indemnify on an after-tax basis and to
hold harmless the Company, J.P. Morgan Cazenove and Goldman Sachs
International in the event that any of the Company, J.P. Morgan
Cazenove and/or Goldman Sachs International has incurred any such
liability to UK stamp duty or stamp duty reserve tax. If this is
the case, each Placee should seek its own advice and notify J.P.
Morgan Cazenove and Goldman Sachs International accordingly.
In addition, Placees should note that they will be liable for
any stamp duty and all other stamp, issue, securities, transfer,
registration, documentary or other duties or taxes (including any
interest, fines or penalties relating thereto) payable outside the
UK by them or any other person on the subscription by them of any
Shares or the agreement by them to subscribe for any Shares.
Each Placee, and any person acting on behalf of the Placee,
acknowledges that neither J.P. Morgan Cazenove nor Goldman Sachs
International owes any fiduciary or other duties to any Placee in
respect of any representations, warranties, undertakings or
indemnities in the Placing Agreement and that such representations,
warranties, undertakings and indemnities are not given for the
benefit of any Placee.
Each Placee and any person acting on behalf of the Placee
acknowledges and agrees that J.P. Morgan Cazenove, Goldman Sachs
International or any of their respective Affiliates may, at their
absolute discretion, agree to become a Placee in respect of some or
all of the Shares. Therefore J.P. Morgan Cazenove, Goldman Sachs
International or any of their respective Affiliates may acquire a
proportion of the Shares available under the Placing (which
proportion could be significant) and may resell the same following
the Placing at a profit on the terms available to it in the market.
Notwithstanding the foregoing, J.P. Morgan Cazenove, Goldman Sachs
International and their respective Affiliates are under no
obligation to subscribe for Shares and the Placing is not
conditional on J.P. Morgan Cazenove's, Goldman Sachs
International's or any of their respective Affiliates'
participation.
Past performance is no guide to future performance and persons
seeking advice should consult an independent financial adviser.
All times and dates in this Announcement (including this
Appendix) may be subject to amendment, and Placees' commitments,
representations and warranties are not conditional on any of the
expected times and dates in this Announcement (including this
Appendix) being achieved. J.P. Morgan Cazenove or Goldman Sachs
International shall notify the Placees and any person acting on
behalf of the Placees of any changes.
The rights and remedies of J.P. Morgan Cazenove, Goldman Sachs
International and the Company under these terms and conditions are
in addition to any rights and remedies which would otherwise be
available to each of them and the exercise or partial exercise or
partial exercise of one will not prevent the exercise of
others.
This Announcement (including this Appendix) has been issued by
the Company and is the sole responsibility of the Company.
This information is provided by RNS
The company news service from the London Stock Exchange
END
IOEGLBDDRDBBGRS
(END) Dow Jones Newswires
December 14, 2017 02:01 ET (07:01 GMT)
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