REG - Accsys Technologies - Equity Raise and Trading Update
25/05/2022 08:31
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RNS Number : 6864M Accsys Technologies PLC 25 May 2022
AIM: AXS
Euronext Amsterdam: AXS
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR
INDIRECTLY, IN, INTO OR FROM THE UNITED STATES OF AMERICA, CANADA, AUSTRALIA,
JAPAN, THE REPUBLIC OF SOUTH AFRICA OR SWITZERLAND OR INTO ANY OTHER
JURISDICTION WHERE TO DO SO WOULD BREACH ANY APPLICABLE LAW OR REGULATION
THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND SHALL NOT CONSTITUTE AN
OFFER OF SECURITIES IN ANY JURISDICTION
ACCSYS TECHNOLOGIES PLC
("Accsys" or the "Company" or "Group")
Equity Issue to raise gross proceeds of approximately €20 million and
Trading Update
Proceeds to strengthen the balance sheet, increase liquidity and complete
capacity expansion
Accsys, the fast-growing and eco-friendly company that combines chemistry and
technology to create high performance, sustainable wood building products,
today announces that it proposes to raise gross proceeds of approximately
€20 million (approximately €19 million net of expenses) by way of a
Placing and Subscription (the "Issue") of new ordinary shares of 0.05 euro
cents nominal value each ("New Ordinary Shares") in the Company at a price of
145 euro cents (123 pence) (the "Issue Price").
The net proceeds of the Issue will be used to strengthen the Company's balance
sheet, increase liquidity headroom and fund additional costs to complete the
Arnhem Plant Reactor 4 ("R4") capacity expansion. The Issue will also provide
increased working capital in FY23 to support the wider Accsys organisation in
what is a pivotal year, as the equivalent of an additional 60,000m(3) of new
capacity projects are due to come online in the next three months, increasing
the total capacity at Group level to 120,000m(3).
Accsys Directors Stephen Odell, Chairman, Rob Harris, CEO, and Nick Meyer,
NED, intend to subscribe for New Ordinary Shares at the Issue Price
representing, in aggregate, a total investment of c.£230,000 (the
"Subscription") following release of this announcement.
The Placing is being conducted through an accelerated bookbuild (the
"Bookbuild") by the Company's corporate brokers in London and Amsterdam to
reflect Accsys' dual-listing on the London (AIM) and Euronext Amsterdam stock
exchanges. The Bookbuild will be launched immediately following the release of
this announcement by Numis Securities Limited ("Numis"), Investec Bank plc
("Investec"), and ABN AMRO Bank N.V. (acting in collaboration with ODDO BHF
SCA) ("ABN AMRO" and together with Numis, and Investec, the "Joint
Bookrunners"). The timing of the closing of the Bookbuild, pricing and
allocations are at the discretion of the Joint Bookrunners and the Company. A
further announcement will be made following completion of the Bookbuild.
Rob Harris, CEO, commented:
"We are pleased to report another period of strong demand and good revenue
growth in our trading update, which sets out key headlines from our unaudited
results for FY22. We are today also announcing a capital raise to further
strengthen our balance sheet to improve liquidity and ensure delivery of our
key growth projects.
We are very excited to approach the completion of the R4 and Hull projects in
the next three months which brings the opportunity to enhance profitability
through economies of scale as we double production capacity across Accsys.
Demand for our high-performance and sustainable building products, Accoya(®)
and Tricoya(®), remains strong and Accsys continues to deliver its targeted
fivefold increase in production capacity to 200,000m(3) by 2025."
Trading update - Headlines from unaudited results for the full year ended 31
March 2022 (FY22)
· Continuing strong demand for Accoya(®)
o Accoya(®) wood revenue up c.15% to €105 m
o Accoya(®) sales volumes broadly flat at c.59,649m(3), with volumes
limited by capacity constraints, as well as temporary production downtime at
the Arnhem Plant connected to the installation of R4 (see below for further
details)
o North America Accoya(®) sales up c.40%
· Higher average sales prices continue to offset significant
increases in raw material costs in Q4 FY22
· Group FY22 EBITDA expectations continue to be in line with
guidance given in Accsys' 4 March 2022 Trading Update
· Reported year end net debt of c.€27m and adjusted net debt(1)
of c.€55m
· Preliminary results for the year ended 31 March 2022 will be
announced on 30 June 2022
Progress on strategic growth projects:
Tricoya® UK plant construction (Hull Plant)
· Good progress has been made towards plant completion, with the
project managed directly by Accsys following the termination last year of the
EPC contract with EFAB
· Plant physical construction is now largely complete and being
actively commissioned with commercial operations targeted to commence in
July/August 2022
· Plant expected to produce an additional equivalent of 40,000m(3)
once at full capacity (with a planned 3-year ramp up) and target gross margin
remaining at approximately 40%
· Costs to complete the plant are expected to remain in-line with
the previously announced additional €9 -15 m of capital costs (announced in
August 2021, the "Hull additional costs"), with FY23 remaining capex
anticipated at c.€9m
· As announced in November 2021, Accsys provided a €17m loan (of
which approximately €12 million is drawn down) to TUK(2) to help fund Hull
Plant project costs, which reduced Accsys' overall cash liquidity but ensured
the project remained on track
· The TUK facility(3) remains in technical default as a result of
cost overruns and other project changes. The lender remains supportive of the
project and TUK is progressing discussions with the lender to seek a facility
amendment and extension of an additional €3m. An inability to realise a
facility increase would require TUK to seek additional funding from its
shareholders
Accoya(®) plant expansion in Arnhem
· Operational start-up of R4 now expected through June 2022
(previously expected April 2022)
· Since Accsys' 4 March 2022 trading update, construction of R4 has
taken longer than expected due to challenges in the final installation and
pipework tie-ins along with delays in the supply of certain equipment. This
resulted in an unexpected second shutdown across the plant in April/May
2022. The plant-wide works have now been completed, with commissioning of R4
underway and the plant's existing three reactors now back up and operational
· EBITDA and cash generation from the Arnhem Plant were lower than
expected in the period from December 2021 to May 2022 as a result of this
extended downtime and delay to R4 being operational
· There is an expected additional cost of c.€7m to complete the
R4 project, compared to the original cost of €26m
· Automated wood handling equipment now operational (ability to
handle 100,000m(3))
· Following the R4 challenges, Accsys is conducting a strategic
review of its engineering capabilities and other actions to drive improved
capital project delivery
· Once at full capacity, R4 is expected to add 20,000m(3) of
additional volume. Management is allowing for a two-year ramp up, noting
Reactor 3 at the Arnhem Plant was at full capacity within 9 months
· Once operational, Accsys continues to expect increased economies
of scale at Arnhem from R4, with a target manufacturing margin of
approximately 30%. Profit per m(3) is targeted to grow over FY23, but may
result in lower percentage gross margin given the expected sales mix and
higher acetic acid prices
Accoya(®) USA plant joint venture
· Good progress in line with expectations, with the project
targeted to deliver an IRR of over 20%
· Ground was broken in April 2022 with Eastman leading construction
project management. An EPC contractor is on site, under a fixed price cap
mechanism contract, providing some insulation from cost inflation
· The plant has an anticipated total project cost of approximately
US$136m (c.€120m), split between Accsys and Eastman (60:40), with US$70m of
project cost being funded through an eight-year term loan from First Horizon
Bank
· Anticipated 2-year construction timeline, with 43,000m(3) of
capacity once fully operational and the wider site has the potential for up to
8 reactors, or >160,000m(3) capacity per annum in total
· As announced on 4 March 2022, the project financing required
Accsys to utilise some of its RCF facility to support a letter of credit to
the project's principal lender, First Horizon Bank. The Group utilised a
further £5m of its RCF in April 2022 and the RCF is now fully drawn
Current trading and outlook
The Company continues to see strong demand for Accoya(®) and Tricoya(®),
significantly in excess of capacity. Strong customer demand together with
increases in the average sales price has enabled Accsys to continue to
counteract higher raw material costs, with further sales price increases
expected in June 2022 to address incremental cost pressures. Accsys has
introduced an energy price premium earlier this month, to further mitigate
inflationary pressures and offset the effects of volatile gas prices which
impact its acetyl raw material cost (a key input cost for the Group).
As at 30 April 2022, the Group's adjusted(4) cash balance was approximately
€8m.
The Group's cash headroom has been impacted by a combination of factors. These
include:
· macroeconomic dynamics, which have increased pressure on working
capital, particularly the need for high inventory and increased acetyl price
volatility
· the previously announced Hull additional costs
· costs and lower cash generation due to an unplanned delay in the
fourth reactor project and temporary halting of production at the Arnhem Plant
in April / May 2022
Consequently, the Board believes it is appropriate to strengthen the balance
sheet through the proposed Issue, particularly given that FY23 will be a
pivotal year for growth.
Rationale for the Issue
The proceeds of the Issue will be used to strengthen Accsys' balance sheet,
resulting in improved liquidity and covenant headroom during more volatile
economic conditions as the Company invests to deliver future growth. Currently
c.€200m of capital has been committed to projects under management (with a
total project capex investment of €57m falling in FY23, which includes
€35m of cash due to be allotted to the Accoya(®) USA JV investment). As set
out under 'Current Trading and Outlook' above, the Group's cash headroom has
been adversely impacted despite current tight management of the working
capital position. The proceeds of the Issue are intended to be used to fund
the following:
· c.€7m will be used to fund the additional cost of R4 at Arnhem;
and
· c.€13m will be used for improving the Company's liquidity and
working capital position, including to:
o address the funding shortfall for the previously announced Hull additional
costs,
o provide contingency as the Company manages its investment programme in
significant projects during the key period of FY23, and
o manage supply chain volatility, increased logistics costs, higher
inventory and acetyls cost variances.
As noted above, Accsys Directors Stephen Odell, Chairman, Rob Harris, CEO and
Nick Meyer, NED, have confirmed their intention to participate in the Issue.5
If the Issue were not to go ahead, the Company would have very limited cash
headroom. While management believes it could mitigate any potential covenant
issues in its principal banking facilities, this cannot be guaranteed. Accsys
would need to manage cash carefully so as to prioritise liquidity over growth
investment, which would likely adversely impact Accsys' future prospects and
growth ambitions and increase the potential for an emphasis of matter in the
Company's FY22 audited accounts.
Timetable and structure of the Issue
The Board has consulted with a number of the Company's shareholders ahead of
the release of this Announcement, including on the rationale for, and the
structure of, the Issue. The structure has been chosen as it minimises time to
completion and use of management time during an important period for the
Company. The directors believe that the Issue is in the best interests of
shareholders, as well as wider stakeholders in the Group.
Application will be made for the New Ordinary Shares to be admitted to trading
on the AIM market of London Stock Exchange plc and Euronext Amsterdam
("Admission"). No prospectus is required in respect of the Issue and no
prospectus or similar document will be published in connection with the Issue.
Admission is expected to take place on or before start of trading on 30 May
2022 and settlement of the New Ordinary Shares is expected to take place on
the same date. The Issue is conditional, among other things, upon Admission
becoming effective and the Placing Agreement not being terminated in
accordance with its terms. Appendix II sets out further information relating
to the Bookbuild and the terms and conditions of the Issue. By choosing to
participate in the Issue and by making an oral or written offer to acquire New
Ordinary Shares, Placees will be deemed to have read and understood this
Announcement in its entirety (including the Appendices) and to be making a
legally binding offer on, and subject to, the terms and conditions in it, and
to be providing the representations, warranties and acknowledgements contained
in Appendix II.
Notes:
1. Excludes US$31m committed for investment into Accoya(®) USA JV
in Q1 FY23 and includes both the De Engh Convertible and corresponding
restricted cash held by ABN AMRO (see details described in the 4 March 2022
USA JV Announcement)
2. Tricoya UK Limited ("TUK") is Accsys' joint venture in relation
to the Hull plant in which Accsys is the largest shareholder (through its
shareholding in Tricoya Technologies Limited)
3. The TUK facility is a project debt facility with NatWest
(€17m facility, of which approximately €14.5m has been drawn down and
approximately €2.5m remains undrawn). The facility term runs to March 2023
4. Cash balance adjusted to exclude US$31m committed for
investment into Accoya® USA JV in Q1 FY23 and restricted cash
5. Given the benefit which the Company would obtain from these
Directors participating in the Issue and the Company not being in a MAR closed
period as at the date of this Announcement, the non-participating directors of
the Company have considered and approved the participation in the Subscription
by Stephen Odell, Rob Harris and Nick Meyer for the purposes of the Company's
share dealing policy
For further information, please contact:
Accsys Technologies PLC ir@accsysplc.com
Sarah Ogilvie, Investor Relations
Numis Securities Limited (London) +44 (0) 20 7260 1000
Nominated Adviser, Joint Bookrunner and Joint Broker
Oliver Hardy (NOMAD), Ben Stoop, Hannah Boros
Investec Bank plc (London) +44 (0) 20 7597 5970
Joint Bookrunner and Joint Broker +31 20 344 2000
Carlton Nelson, Alex Wright, Harry Hargreaves
ABN AMRO Bank N.V. (Amsterdam)
Joint Bookrunner
Dennis van Helmond, Diederik Berend
FTI Consulting (UK) +44 (0) 20 3727 1340
Matthew O'Keeffe, Alex Le May
Current or potential investors in Accsys are reminded of the non-exhaustive
summary of the principal risks facing the Group set out on pages 37 to 45 of
the Company's annual report for FY21, as well as those described elsewhere in
this announcement.
IMPORTANT NOTICES
This announcement including its appendices (the "Announcement") and the
information contained in it is not for publication, release, transmission
distribution or forwarding, in whole or in part, directly or indirectly, in or
into the United States, Australia, Canada, Japan, Switzerland or the Republic
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an offer to buy, acquire or subscribe for shares in the capital of the Company
in the United States, Australia, Canada, Japan, Switzerland or the Republic of
South Africa or any other state or jurisdiction. This Announcement has not
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violation of the securities laws of such jurisdictions.
The New Ordinary Shares have not been and will not be registered under the US
Securities Act or under the securities law or with any securities regulatory
authority of any state or other jurisdiction of the United States and may not
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being offered and sold outside of the United States in offshore transactions
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United States or any other U.S. regulatory authority, nor have any of the
foregoing authorities passed upon or endorsed the merits of the offering of
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referred to herein may not be offered or sold in the United States, Australia,
Canada, Japan, Switzerland or the Republic of South Africa or to, or for the
account or benefit of, any national, resident or citizen of the United States,
Australia, Canada, Japan, Switzerland or the Republic of South Africa.
No public offering of securities is being made in the United States, the
United Kingdom or elsewhere.
All offers of New Ordinary Shares will be made pursuant to an exemption under
the EU Prospectus Regulation and the UK Prospectus Regulation (as applicable)
from the requirement to produce a prospectus. This Announcement is being
distributed to persons in the United Kingdom only in circumstances in which
section 21(1) of FSMA does not apply.
No prospectus will be made available in connection with the Placing and no
such prospectus is required (in accordance with the EU Prospectus Regulation
or the UK Prospectus Regulation) to be published. This Announcement and the
terms and conditions set out herein are for information purposes only. The
Placing is directed only at persons who are: (a) if in a member state of the
European Economic Area, persons who are qualified investors within the meaning
of article 2(e) of the EU Prospectus Regulation; (b) if in the United Kingdom,
persons who (i) are "investment professionals" specified in article 19(5) of
the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005
(the "Order") and/or (ii) fall within article 49(2)(a) to (d) of the Order
(and only where the conditions contained in those articles have been, or will
at the relevant time be, satisfied), and, in each case, who are also qualified
investors within the meaning of article 2 of the UK Prospectus Regulation; or
(c) persons to whom it may otherwise be lawfully communicated (all such
persons together being referred to as "Relevant Persons").
This Announcement and the terms and conditions set out herein must not be
acted on or relied on by persons who are not Relevant Persons. Persons
distributing this Announcement must satisfy themselves that it is lawful to do
so. Any investment or investment activity to which this Announcement and the
terms and conditions set out herein relates is available only to Relevant
Persons and will be engaged in only with Relevant Persons. This Announcement
does not itself constitute an offer for sale or subscription of any securities
in Accsys.
The contents of this Announcement are not to be construed as legal, business,
financial or tax advice. Each investor or prospective investor should consult
his, her or its own legal adviser, business adviser, financial adviser or tax
adviser for legal, financial, business or tax advice. The contents of this
Announcement have not been reviewed by any regulatory authority in the United
Kingdom or elsewhere. Each Shareholder or prospective Shareholder is advised
to exercise caution in relation to the Issue.
This Announcement has been issued by, and is the sole responsibility of, the
Company. No representation or warranty, express or implied, is or will be made
as to, or in relation to, and no responsibility or liability is or will be
accepted by any of the Joint Bookrunners, or by any of their respective
partners, directors, officers, employees, advisers, consultants, affiliates or
agents as to or in relation to, the accuracy, fairness or completeness of this
Announcement or any other written or oral information made available to or
publicly available to any interested party or its advisers, and any liability
therefore is expressly disclaimed.
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.
Notice to all investors
Numis is authorised and regulated in the United Kingdom by the FCA. Investec
is authorised by the Prudential Regulation Authority (the "PRA") and regulated
in the United Kingdom by the PRA and the FCA. Investec Europe Limited (trading
as Investec Europe), acting on behalf of Investec Bank plc in certain
jurisdictions in the EEA, is regulated in Ireland by the Central Bank of
Ireland. Numis, Investec and ABN AMRO are acting for Accsys and are acting for
no one else in connection with the Issue and will not regard any other person
(whether or not a recipient of this Announcement) as a client in relation to
the Issue and will not be responsible to anyone other than Accsys for
providing the protections afforded to their respective clients, nor for
providing advice in connection with the Issue or any other matter, transaction
or arrangement referred to herein.
Numis' responsibilities as the Company's nominated adviser under the AIM Rules
for Nominated Advisers are owed solely to the London Stock Exchange and are
not owed to the Company or to any Director or to any other person.
None of the information in this Announcement has been independently verified
by any of the Joint Bookrunners or any of their respective partners,
directors, officers, employees, advisers, consultants, agents or affiliates.
Apart from the responsibilities and liabilities, if any, which may be imposed
upon the Joint Bookrunners by FSMA, none of the Joint Bookrunners nor any of
their subsidiary undertakings, affiliates or any of their directors, officers,
employees, consultants, advisers or agents accept any responsibility or
liability whatsoever (whether arising in tort, contract or otherwise) for the
contents of the information contained in this Announcement (including, but not
limited to, any errors, omissions or inaccuracies in the information or any
opinions) or for any other statement made or purported to be made by or on
behalf of any of the Joint Bookrunners or any of their respective partners,
directors, officers, employees, advisers, consultants, agents or affiliates in
connection with Accsys or the New Ordinary Shares or the Issue and nothing in
this Announcement is, or shall be relied upon as, a promise or representation
in this respect, whether as to the past or future. The Joint Bookrunners
accept no liability or responsibility for any loss, costs or damage suffered
or incurred howsoever arising, directly or indirectly, from any use of this
Announcement or its content or otherwise in connection therewith or any acts
or omissions by the Company. Each of the Joint Bookrunners and their
subsidiary undertakings, affiliates or any of their directors, officers,
employees, advisers and agents accordingly disclaims to the fullest extent
permitted by law all and any responsibility and liability whether arising in
tort, contract or otherwise (save as referred to above) which it might
otherwise have in respect of this Announcement or any such statement and no
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Bookrunners or any of their respective partners, directors, officers,
employees, advisers, consultants, agents or affiliates as to the accuracy,
fairness, completeness or sufficiency of the information contained in this
Announcement.
In connection with the Issue, the Joint Bookrunners and any of their
affiliates, acting as investors for their own accounts, may subscribe for or
purchase New Ordinary Shares as a principal position and in that capacity may
retain, purchase, sell, offer to sell or otherwise deal for their own accounts
in such New Ordinary Shares and other securities of the Company or related
investments in connection with the Issue or otherwise. Accordingly, references
to the New Ordinary Shares being offered, subscribed, acquired, placed or
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acquisition, placing or dealing by the Joint Bookrunners and any of their
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Cautionary statement regarding forward-looking statements
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"believes", "anticipates", "estimates", "expects", "intends", "aims",
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historical fact included in this Announcement are forward-looking statements.
Forward-looking statements appear in a number of places throughout this
Announcement and include statements regarding the Directors' or the Company's
intentions, beliefs or current expectations concerning, among other things,
operating results, financial condition, prospects, growth, expansion plans,
strategies, the industry in which the Group operates and the general economic
outlook.
By their nature, forward-looking statements involve risk and uncertainty
because they relate to events and depend upon circumstances that may or may
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guarantees of future performance. Investors are therefore cautioned that a
number of important factors could cause actual results or outcomes to differ
materially from those expressed in any forward-looking statements.
Neither the Company, nor any member of the Group, nor any of the Joint
Bookrunners undertakes any obligation to update or revise any of the
forward-looking statements, whether as a result of new information, future
events or otherwise, save in respect of any requirement under applicable law
or regulation (including, without limitation, FSMA, the AIM Rules for
Companies, UK MAR, the Dutch Financial Supervision Act and EU MAR).
FY22 figures and data
This Announcement contains certain figures and data relating to the Group's
trading and activities during FY22. All such figures and data have been
prepared and presented on an estimated and unaudited basis and are subject to
change as the Group's finance function and auditors continue their year end
work.
Information to Distributors
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For the avoidance of doubt, the Target Market Assessment does not constitute:
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compatible with an end target market of: (a) investors who meet the criteria
of professional clients as defined in point (8) of Article 2(1) of Regulation
(EU) No 600/2014 as it forms part of domestic UK law by virtue of
the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal
Agreement) Act 2020; (b) eligible counterparties, as defined in the FCA
Handbook Conduct of Business Sourcebook ("COBS"); and (c) retail clients who
do not meet the definition of professional client under (b) or eligible
counterparty per (c); and (ii) eligible for distribution through all
distribution channels as are permitted by Directive 2014/65/EU (the
"UK target market assessment"). Notwithstanding the UK target market
assessment, distributors should note that: the price of the New Ordinary
Shares may decline and investors could lose all or part of their investment;
the New Ordinary Shares offer no guaranteed income and no capital protection;
and an investment in the New Ordinary Shares is compatible only with investors
who do not need a guaranteed income or capital protection, who (either alone
or in conjunction with an appropriate financial or other adviser) are capable
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The UK target market assessment is without prejudice to the requirements of
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Placing. Furthermore, it is noted that, notwithstanding the UK target market
assessment, the Joint Bookrunners will only procure investors who meet the
criteria of professional clients and eligible counterparties. For the
avoidance of doubt, the UK target market assessment does not constitute: (a)
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and COBS 10A, respectively; or (b) a recommendation to any investor or group
of investors to invest in, or purchase or take any other action whatsoever
with respect to the New Ordinary Shares.
Each distributor is responsible for undertaking its own UK target market
assessment in respect of the New Ordinary Shares and determining appropriate
distribution channels.
Market Abuse Regulation
This Announcement contains inside information for the purposes of EU MAR and
UK MAR (together, "MAR"). In addition, market soundings (as defined in MAR)
were taken in respect of the matters contained in this Announcement, with the
result that certain persons became aware of such inside information as
permitted by MAR. That inside information is set out in this Announcement and
has been disclosed as soon as possible in accordance with paragraph 7 of
article 17 of both EU MAR and UK MAR. Upon the publication of this
Announcement, the inside information is now considered to be in the public
domain and such persons shall therefore cease to be in possession of inside
information in relation to the Company and its securities.
The person responsible for making this Announcement on behalf of Accsys is
Nick Hartigan, General Counsel & Company Secretary.
APPENDIX I
DEFINITIONS
In addition to the terms defined elsewhere in this Announcement, the following
definitions apply throughout this Announcement (unless the context otherwise
requires):
"4 March 2022 Trading Update" the trading update issued by the Company on 4 March 2022;
"4 March 2022 US JV Announcement" the RNS announcement issued by the Company on 4 March 2022 confirming that a
final investment decision had been made with respect to the Accoya(®) USA JV;
"ABN AMRO" ABN AMRO Bank N.V.;
"Accoya(®) USA JV" Accoya USA LLC, a joint venture company between Accsys and Eastman;
"Admission" the admission of the New Ordinary Shares to listing and trading on Euronext
Amsterdam and to trading on AIM;
"AFM" the Dutch Authority for the Financial Markets (Stichting Autoriteit
Financiële Markten);
"AIM" AIM, a market operated by the London Stock Exchange;
"AIM Rules for Companies" the rules published by the London Stock Exchange governing admission to AIM
and the regulation of companies whose securities are admitted to trading on
AIM (including any guidance notes), as each may be amended or reissued from
time to time;
"Arnhem Plant" the Group's Accoya(®) production facility in Arnhem, the Netherlands;
"Board" or "Directors" the directors of the Company at the date of this Announcement;
"Bookbuild" the accelerated bookbuild to be launched immediately following release of this
Announcement;
"CJA" the Criminal Justice Act 1993;
"Companies Act" the Companies Act 2006 of England and Wales;
"Company" or "Accsys" Accsys Technologies PLC;
"CREST" the United Kingdom paperless share settlement system and system for the
holding of shares in uncertificated form in respect of which Euroclear UK is
the operator;
"Data Protection Law" applicable data protection legislation and regulations;
"De Engh Convertible" the €10 million convertible loan agreement between the Company and De Engh
BV dated 3 March 2022;
"Eastman" Eastman Chemical Company;
"EEA" the European Economic Area;
"EU" the European Union;
"EU MAR" the EU Market Abuse Regulation (Regulation (EU) 596/2014), together with any
related implementing legislation;
"EU Prospectus Regulation" the EU Prospectus Regulation (Regulation (EU) 2017/1129), together with any
related implementing legislation;
"Euroclear Nederland" Nederlands Centraal Instituut voor Giraal Effectenverkeer B.V.;
"Euroclear UK" Euroclear UK & Ireland Limited, the operator of CREST;
"Euronext Amsterdam" Euronext Amsterdam N.V. or the regulated market operated by Euronext Amsterdam
N.V. (as the context requires);
"Exchange Information" any information previously or subsequently published by or on behalf of the
Company, including, without limitation, any information required to be
published by the Company pursuant to applicable laws;
"Financial Conduct Authority" or "FCA" the Financial Conduct Authority of the UK;
"FSMA" the Financial Services and Markets Act 2000 (as amended);
"FY21" the twelve months ending 31 March 2021;
"FY22" the twelve months ending 31 March 2022;
"FY23" the twelve months ending 31 March 2023;
"Group" Accsys and its existing subsidiary undertakings (and, where the context
permits, each of them);
"Hull Plant" the Tricoya(®) wood chip acetylation plant currently being built at the
Saltend Chemical Park in Hull;
"Investec" Investec Bank plc;
"Issue" together, the Placing and the Subscription;
"Issue Price" the single price per share payable by Placees, pursuant to the Placing, and
Directors, pursuant to the Subscription;
"JerseyCo" Ray Implementation Limited, a subsidiary of the Company incorporated in
Jersey;
"Joint Bookrunners" Numis, Investec and ABN AMRO;
"London Stock Exchange" London Stock Exchange plc;
"MAR" UK MAR and EU MAR, as applicable;
"MiFID II" EU Directive 2014/65/EU on markets in financial instruments, as amended;
"MiFID II Product Governance Requirements" (a) MiFID II; (b) Articles 9 and 10 of Commission Delegated Directive (EU)
2017/593 supplementing MiFID II; and (c) local implementing measures,
together;
"New Ordinary Shares" the new Ordinary Shares to be issued pursuant to the Issue;
"Numis" or "Nominated Adviser" Numis Securities Limited;
"Order" the Financial Services And Markets Act 2000 (Financial Promotion) Order 2005;
"Ordinary Shares" the ordinary shares of 0.05 euro cents each in the capital of Accsys;
"Placee" any person who has agreed to subscribe for Placing Shares pursuant to the
Placing;
"Placing" the placing of New Ordinary Shares with Placees subject to, and in accordance
with, the terms and conditions set out in Appendix II to this Announcement;
"Placing Agreement" the agreement dated 25 May 2022 between the Company and the Joint Bookrunners
relating to the Issue;
"Placing Price" the single price per share payable by Placees under the terms and conditions
set out in Appendix II hereto, expected to be 145 euro cents (123 pence);
"Placing Results" the results of the Placing, to be released promptly following completion of
the Bookbuild;
"Placing Shares" the New Ordinary Shares which are the subject of the Placing;
"R4" the fourth reactor at the Arnhem Plant;
"RCF" the Group's revolving credit facility;
"Registrar" the Company's registrars;
"Regulation S" Regulation S under the US Securities Act;
"Relevant Persons" and "Qualified Investors" and related terms has the meaning given to it in Appendix II;
"Restricted Territory" United States, Canada, Australia, South Africa, Japan, Switzerland, New
Zealand and any other jurisdiction where the extension or availability of the
Issue would breach applicable law;
"RIS" a regulatory information service;
"Shareholder" a holder of Ordinary Shares;
"Subscription" the potential subscription for New Ordinary Shares by certain of the Directors
as part of the Issue;
"Target Market Assessment" the MiFID II target market assessment undertaken by the Joint Bookrunners;
"Terms of Sale" the terms of sale to be signed under the Placing Agreement following
completion of the Bookbuild;
"TUK" Tricoya UK Limited;
"UK" or "United Kingdom" the United Kingdom of Great Britain and Northern Ireland;
"UK MAR" the EU MAR, as it forms part of retained EU law as defined in the European
Union (Withdrawal) Act 2018;
"UK Prospectus Regulation" the EU Prospectus Regulation, as it forms part of retained EU law as defined
in the European Union (Withdrawal) Act 2018;
"US" or "United States" the United States of America, its possessions and territories, any state of
the United States of America and the District of Columbia; and
"US Securities Act" the United States Securities Act of 1933, as amended.
APPENDIX II
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING (AS DEFINED
BELOW). THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT IN THIS
APPENDIX (TOGETHER, THE "ANNOUNCEMENT") ARE FOR INFORMATION PURPOSES ONLY AND
ARE DIRECTED ONLY AT PERSONS WHOSE ORDINARY ACTIVITIES INVOLVE THEM IN
ACQUIRING, HOLDING, MANAGING AND DISPOSING OF INVESTMENTS (AS PRINCIPAL OR
AGENT) FOR THE PURPOSES OF THEIR BUSINESS AND WHO HAVE PROFESSIONAL EXPERIENCE
IN MATTERS RELATING TO INVESTMENTS AND ARE: (A) IF IN A MEMBER STATE OF THE
EUROPEAN ECONOMIC AREA (THE "EEA"), PERSONS WHO ARE QUALIFIED INVESTORS ("EU
QUALIFIED INVESTORS") WITHIN THE MEANING OF ARTICLE 2(E) OF PROSPECTUS
REGULATION (EU) 2017/1129 (THE "EU PROSPECTUS REGULATION"); (B) IF IN THE
UNITED KINGDOM, PERSONS WHO (I) ARE "INVESTMENT PROFESSIONALS" SPECIFIED IN
ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL
PROMOTION) ORDER 2005 (THE "ORDER") AND/OR (II) FALL WITHIN ARTICLE 49(2)(A)
TO (D) OF THE ORDER (AND ONLY WHERE THE CONDITIONS CONTAINED IN THOSE ARTICLES
HAVE BEEN, OR WILL AT THE RELEVANT TIME BE, SATISFIED) AND, IN EACH CASE, WHO
ARE ALSO QUALIFIED INVESTORS (WITH PERSONS FALLING IN THIS PART (B) BEING "UK
QUALIFIED INVESTORS" AND, TOGETHER WITH EU QUALIFIED INVESTORS, "QUALIFIED
INVESTORS") WITHIN THE MEANING OF ARTICLE 2 OF THE EU PROSPECTUS REGULATION AS
AMENDED AND TRANSPOSED INTO THE LAWS OF THE UNITED KINGDOM PURSUANT TO THE
EUROPEAN UNION (WITHDRAWAL) ACT 2018 AND THE EUROPEAN UNION (WITHDRAWAL
AGREEMENT) ACT 2020 (THE "UK PROSPECTUS REGULATION"); OR (C) PERSONS TO WHOM
IT MAY OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING
REFERRED TO AS "RELEVANT PERSONS").
THIS ANNOUNCEMENT MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT
RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS
ANNOUNCEMENT RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED
IN ONLY WITH RELEVANT PERSONS.
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS NOT FOR RELEASE,
PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN
OR INTO THE UNITED STATES, AUSTRALIA, CANADA, SOUTH AFRICA, SWITZERLAND,
JAPAN, NEW ZEALAND OR ANY OTHER JURISDICTION IN WHICH SUCH RELEASE,
PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL.
THIS ANNOUNCEMENT DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION
OF ANY SECURITIES IN ACCSYS TECHNOLOGIES PLC (THE "COMPANY").
THE SECURITIES REFERRED TO IN THIS ANNOUNCEMENT HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "US
SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OR WITH ANY SECURITIES
REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES,
AND MAY NOT BE OFFERED, SOLD, TAKEN UP, RESOLD TRANSFERRED OR DELIVERED
DIRECTLY OR INDIRECTLY IN OR INTO THE UNITED STATES EXCEPT PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE US SECURITIES ACT AND IN COMPLIANCE WITH THE SECURITIES
LAWS OF ANY STATE OR ANY OTHER JURISDICTION OF THE UNITED STATES. THE
SECURITIES REFERRED TO IN THIS ANNOUNCEMENT ARE BEING OFFERED AND SOLD OUTSIDE
THE UNITED STATES IN OFFSHORE TRANSACTIONS IN ACCORDANCE WITH REGULATION S
UNDER THE US SECURITIES ACT. NO PUBLIC OFFERING OF THE SHARES REFERRED TO IN
THIS ANNOUNCEMENT IS BEING MADE IN THE UNITED STATES, THE UNITED KINGDOM OR
ELSEWHERE.
THE CONTENTS OF THIS ANNOUNCEMENT HAVE NOT BEEN REVIEWED BY ANY REGULATORY
AUTHORITY IN THE UNITED KINGDOM, THE NETHERLANDS OR ELSEWHERE. YOU ARE ADVISED
TO EXERCISE CAUTION IN RELATION TO THE PLACING. IF YOU ARE IN ANY DOUBT ABOUT
ANY OF THE CONTENTS OF THIS ANNOUNCEMENT, YOU SHOULD OBTAIN INDEPENDENT
PROFESSIONAL ADVICE.
Neither the Company, Numis Securities Limited ("Numis"), Investec Bank plc
("Investec") nor ABN AMRO Bank N.V. ("ABN AMRO"), nor any of their respective
affiliates, agents, directors, officers, consultants or employees, makes any
representation or warranty (whether express or implied) to persons who are
invited to and who choose to participate in the placing ("Placees") of new
Ordinary Shares in the capital of the Company (the "Placing") of nominal value
of EUR 0.05 (the "Placing Shares") regarding an investment in the securities
referred to in this Announcement under the laws applicable to such Placees.
Each Placee should consult its own advisers as to the legal, tax, business,
financial and related aspects of an investment in the Placing Shares. For the
purposes of this Announcement, references to Investec shall also include
Investec Europe Limited (trading as Investec Europe), acting as agent on
behalf of Investec Bank plc in certain jurisdictions in the EEA.
By participating in the Placing, Placees will be deemed to have read and
understood this Announcement, including this Appendix, in its entirety, and to
be participating, making an offer and acquiring Placing Shares on the terms
and conditions contained herein and to be providing the representations,
warranties, indemnities, acknowledgments and undertakings contained herein.
In particular each such Placee represents, warrants, undertakes, agrees and
acknowledges that:
1. it is a Relevant Person and undertakes that it will acquire, hold,
manage or dispose of any Placing Shares that are allocated to it for the
purposes of its business;
2. it is and, at the time the Placing Shares are acquired, will be
outside the United States and acquiring the Placing Shares in an "offshore
transaction" in accordance with Regulation S under the US Securities Act
("Regulation S"); and
3. if it is a financial intermediary, as that term is used in Article
2(d) of the EU Prospectus Regulation or the UK Prospectus Regulation, as
applicable, any Placing Shares acquired by it in the Placing will not be
acquired on a non-discretionary basis on behalf of, nor will they be acquired
with a view to their offer or resale to, persons in circumstances which may
give rise to an offer of securities to the public other than an offer or
resale to Qualified Investors in a member state of the EEA or in the UK, as
applicable, or in circumstances in which the prior consent of the Joint
Bookrunners (as defined below) has been given to each such proposed offer or
resale.
For the purposes of this Appendix, Numis, Investec and ABN AMRO are each a
"Joint Bookrunner" and together the "Joint Bookrunners".
The Company and each of the Joint Bookrunners will rely upon the truth and
accuracy of the foregoing representations, warranties and acknowledgements.
The distribution of this Announcement and the Placing and/or the offer or sale
of the Placing Shares in certain jurisdictions may be restricted by law. No
action has been taken by the Company or by the Joint Bookrunners or any of its
or their respective affiliates or any of its or their respective agents,
directors, officers or employees which would, or is intended to, permit an
offer of the Placing Shares or possession or distribution of this Announcement
or any other offering or publicity material relating to such Placing Shares in
any country or jurisdiction where any such action for that purpose is
required. The information in this Announcement may not be forwarded or
distributed to any other person and may not be reproduced in any manner
whatsoever. Any forwarding, distribution, dissemination, reproduction, or
disclosure of this information in whole or in part is unauthorised. Failure to
comply with this directive may result in a violation of the US Securities Act
or the applicable laws of other jurisdictions.
Details of the Placing Agreement
The Company and the Joint Bookrunners have today entered into an agreement
with respect to the Placing (the "Placing Agreement") under which, on the
terms and subject to the conditions set out therein, the Joint Bookrunners
have agreed to (i) use their respective reasonable endeavours, as agents of
the Company, to procure Placees for the Placing Shares in such number and at
such price, if any, as may be agreed between the Joint Bookrunners and the
Company and recorded in the executed terms of sale (the "Terms of Sale") and
(ii) to the extent that any Placee fails to pay the Placing Price (as defined
below) in respect of any of the Placing Shares which have been allocated to
it, to (severally and not jointly or jointly and severally) subscribe for such
Placing Shares at the Placing Price.
Pursuant to the terms of the Placing Agreement, the Placing is subject to
certain conditions (including, inter alia, Admission). The issue of the
Placing Shares is to be effected by way of a cash box placing. In accordance
with the Placing Agreement and a subscription and transfer agreement entered
into between the Company, Ray Implementation Limited (a Jersey incorporated
subsidiary of the Company) ("JerseyCo") and Numis, the Company will allot and
issue the Placing Shares on a non pre-emptive basis to Numis and ABN AMRO, as
bare nominee for the Placees (pending transfer of legal title to the Placees
through CREST), in consideration for the transfer to the Company by Numis of
certain shares which it holds in JerseyCo. Accordingly, instead of receiving
cash as consideration for the issue of Placing Shares, the Company will,
conditional on Admission and following the conclusion of the Placing, own all
of the issued share capital of JerseyCo, whose only asset will be its cash
reserves, which will represent an amount approximately equal to the net
proceeds of the Placing. By taking up or purchasing Placing Shares under the
Placing and submitting a valid payment in respect thereof, a Placee instructs
Numis and ABN AMRO to hold such payment and: (i) to the extent of a successful
application under the Placing, to apply such payment on behalf of Numis solely
for Numis to subscribe (as principal) for redeemable preference shares in
JerseyCo; and (ii) to the extent of an unsuccessful application under the
Placing, to return the relevant payment without interest to the applicant. The
Joint Bookrunners also have the right to terminate the Placing Agreement in
certain circumstances. Further details of the Placing Agreement are set out
below.
The Placing Shares
The Placing Shares have been duly authorised and will, when issued, be
credited as fully paid and will rank pari passu in all respects with the
existing ordinary shares in the Company, including the right to receive all
dividends and other distributions declared, made or paid in respect of the
ordinary shares of the Company (the "Ordinary Shares") after the date of issue
of the Placing Shares.
Applications for admission to trading
Applications will be made for the Placing Shares to be admitted to the
regulated market operated by Euronext Amsterdam N.V. ("Euronext Amsterdam")
and to the London Stock Exchange's AIM market ("Admission"). It is expected
that Admission will become effective on or around 8.00 a.m. (London time) and
9.00 a.m. (Central European time) on 30 May 2022 (or on such later date as may
be agreed between the Company and the Joint Bookrunners) and that dealings in
the Placing Shares will commence at that time.
Bookbuild
The Joint Bookrunners will commence with immediate effect a bookbuilding
process in relation to the Placing (the "Bookbuild") to establish the single
price payable per Placing Share by each Placee (the "Placing Price") and
demand for participation in the Placing by Placees. This Appendix gives
details of the terms and conditions of, and the mechanics of participation in,
the Placing. No commissions will be paid to Placees or by Placees in respect
of any Placing Shares.
The Joint Bookrunners and the Company shall be entitled to effect the Placing
by such alternative method to the Bookbuild as they may, in their absolute
discretion, determine.
Participation in, and principal terms of, the Placing
1. Numis, Investec and ABN AMRO are acting severally, and not
jointly, or jointly and severally, as joint bookrunners and agents of the
Company in connection with the Placing.
2. Participation in the Placing will only be available to
Relevant Persons who may lawfully be, and are, invited by the Joint
Bookrunners to participate. The Joint Bookrunners and any of their affiliates
may, acting as investors for their own account, subscribe for Placing Shares
in the Placing.
3. The Placing shall be conducted by way of a bookbuild to
establish the Placing Price and the number of Placing Shares to be allocated
to Placees, which will comprise their allocation of Placing Shares.
4. The Bookbuild will commence on the release of this
Announcement and will close at a time to be determined by the Joint
Bookrunners in their absolute discretion (after consultation with the
Company), expected to be no later than 4.35 p.m. (London time) on 25 May 2022.
The Joint Bookrunners may, in agreement with the Company, accept bids that are
received after the Bookbuild has closed.
5. The Placing Price is expected to be 145 euro cents (123
pence) but the final Placing Price and the number of Placing Shares to be
issued will be agreed between the Joint Bookrunners and the Company following
completion of the Bookbuild. The Placing Price and the number of Placing
Shares to be issued will be announced by the Company via a Regulatory
Information Service ("RIS") following the completion of the Bookbuild (the
"Placing Results").
6. To bid in the Bookbuild, Placees should communicate their
bid by telephone and/or in writing to their usual sales contact at ABN AMRO if
they are resident in the Netherlands or at Numis or Investec if they are
resident in the United Kingdom or elsewhere within the EEA. Each bid should
state the number of Placing Shares which the prospective Placee wishes to
subscribe for at the Placing Price ultimately established by the Company and
the Joint Bookrunners or at prices up to a price limit specified in its bid.
Bids may also be scaled down by the Joint Bookrunners on the basis referred to
in paragraph 11 below.
7. A bid in the Bookbuild will be made on the terms and
subject to the conditions in this Announcement and will be legally binding on
the Placee on behalf of which it is made and, except with the consent of the
Joint Bookrunners, will not be capable of variation or revocation after the
time at which it is submitted.
8. Each prospective Placee's allocation will be agreed between
the Joint Bookrunners and the Company and will be confirmed orally or in
writing by one of the Joint Bookrunners (each as agent for the Company)
following the close of the Bookbuild and a trade confirmation or contract note
will be despatched thereafter. This oral or written confirmation from a Joint
Bookrunner to a Placee will constitute an irrevocable legally binding
commitment upon that person (who will at that point become a Placee) in favour
of Numis, Investec, ABN AMRO and the Company to subscribe for the number of
Placing 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
articles of association. The terms and conditions of this Announcement will be
deemed to be incorporated in that trade confirmation, contract note or such
other (oral or written) confirmation and will be legally binding on the Placee
on behalf of which it is made. All obligations under the Bookbuild and Placing
will be subject to fulfilment of the conditions referred to below under
"Conditions of the Placing" and to the Placing not being terminated on the
basis referred to below under "Termination of the Placing Agreement". 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.
9. Each Placee will have an immediate, separate, irrevocable
and binding obligation owed to the Joint Bookrunners, as agents for the
Company, to pay in cleared funds at the relevant time in accordance with the
requirements set out below under "Registration and Settlement", an amount
equal to the product of the Placing Price and the number of Placing Shares
such Placee has agreed to subscribe for and the Company has agreed to allot.
10. The Joint Bookrunners may choose to accept bids, either in
whole or in part, on the basis of allocations determined in consultation with
the Company and may scale down any bids for this purpose on such basis as they
may in their absolute discretion determine. The Joint Bookrunners may also,
notwithstanding paragraphs 6 and 9 above, (i) allocate Placing Shares after
the time of any initial allocation to any person submitting a bid after that
time; and (ii) allocate Placing Shares after the Bookbuild has closed to any
person submitting a bid after that time. The Company reserves the right (with
the agreement of the Joint Bookrunners) to reduce or seek to increase the
amount to be raised pursuant to the Placing, in agreement with the Joint
Bookrunners. As noted above, the Company will release an announcement
following the close of the Bookbuild, detailing the Placing Price and the
aggregate number of Placing Shares to be issued.
11. Irrespective of the time at which a Placee's allocation(s)
pursuant to the Placing is confirmed, settlement for all Placing Shares to be
subscribed for pursuant to the Placing will be required to be made at the same
time, on the basis explained below under "Registration and Settlement".
12. Completion of the Placing will be subject to the fulfilment
of the conditions referred to below under "Conditions of the Placing" and to
the Placing not being terminated on the basis referred to below under
"Termination of the Placing Agreement". In the event that the Placing
Agreement does not become unconditional in any respect or is terminated, the
Placing will not proceed.
13. By participating in the Placing, each Placee will agree that
its rights and obligations in respect of the Placing will terminate only in
the circumstances described below and will not be capable of rescission or
termination by the Placee, and is not subject to any further conditions or
requirements other than those set out in this Announcement or the Placing
Agreement.
14. To the fullest extent permissible by law, none of Numis,
Investec or ABN AMRO nor any of their affiliates, agents, directors, officers,
consultants or employees shall have any liability to Placees (or to any other
person whether acting on behalf of a Placee or otherwise) in connection with
the Placing or the Bookbuild. In particular, none of the Joint Bookrunners nor
any of their respective affiliates, agents, directors, officers, consultants
or employees shall have any liability (including to the fullest extent
permissible by law, any fiduciary duties) in respect of the relevant Joint
Bookrunner's conduct of the Bookbuild or of such alternative method of
effecting the Placing as the Joint Bookrunners and the Company may agree.
Conditions of the Placing
The Placing is conditional upon, among other things, the Placing Agreement
becoming unconditional and not having been terminated in accordance with its
terms.
The obligations of the Joint Bookrunners under the Placing Agreement in
respect of the Placing Shares are conditional on, among other things:
(a) the Joint Bookrunners and the Company entering into the
Terms of Sale;
(b) the Company allotting the Placing Shares, prior to and
conditional only on Admission in accordance with the Placing Agreement;
(c) the Placing Agreement not having been terminated in
accordance with its terms prior to Admission;
(d) there having been no breach by the Company or JerseyCo of
any of their obligations under the initial subscription and option agreement
or the subscription and transfer agreement before Admission; and
(e) Admission in respect of the Placing Shares taking place by
not later than 8.00 a.m. (London time) and 9.00 a.m. (Central European time)
on 30 May 2022 (or such later time and/or date as may be agreed between the
Joint Bookrunners and the Company).
The Joint Bookrunners may, in their absolute discretion and on such terms as
each Joint Bookrunner thinks appropriate, waive the satisfaction, in whole or
in part, of certain conditions in the Placing Agreement by giving notice in
writing to the Company. The conditions set out at paragraphs (a) and (d) above
may only be extended by the mutual agreement of the Company and the Joint
Bookrunners. Any such waiver by the Joint Bookrunners will not affect Placees'
commitments as set out in this Announcement.
If: (i) any of the conditions contained in the Placing Agreement are not
fulfilled or, where permitted, waived by the Joint Bookrunners by the time or
date specified (or such later time and/or date as the Company and the Joint
Bookrunners may agree); or (ii) any of such conditions become incapable of
being fulfilled; or (iii) the Placing Agreement is terminated in the
circumstances specified below under "Termination of the Placing Agreement",
the Placing will not proceed and the Placees' rights and obligations hereunder
in relation to the Placing Shares shall cease and terminate at such time and
each Placee agrees that no claim can be made by the Placee in respect thereof.
Neither the Company, Numis, Investec, ABN AMRO, nor any of their respective
affiliates, agents, directors, officers, consultants or employees, shall have
any liability, whether in contract, tort or otherwise, to any Placee (or to
any other person whether acting on behalf of a Placee or otherwise) in respect
of any decision they may make as to whether or not to waive or to extend the
time and/or the 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 Bookbuild and
the Placing each Placee agrees that any such decision is within the absolute
discretion of the Joint Bookrunners and the Company. Placees will have no
rights against Numis, Investec, ABN AMRO, the Company or any of their
respective members, directors or employees under the Placing Agreement
pursuant to the Contracts (Rights of Third Parties) Act 1999 (as amended) or
otherwise.
Lock-up
As part of the Placing, the Company has undertaken, subject to certain
customary agreed exceptions, that it will not, among other things, issue,
offer, sell, contract to sell or issue or grant any rights in respect of any
Ordinary Shares in the period from the date of this Announcement until 180
days after Admission without the prior written consent of the Joint
Bookrunners (such consent not to be unreasonably withheld or delayed).
By participating in the Placing, Placees agree that the exercise by the Joint
Bookrunners of any power to grant consent to waive the undertaking by the
Company in respect of a transaction which would otherwise be subject to the
lock-up under the Placing Agreement shall be within the absolute discretion of
the Joint Bookrunners and that they need not make any reference to, or consult
with, Placees and that the Joint Bookrunners shall have no liability to
Placees whatsoever in connection with any such exercise of their power to
grant such consent.
Termination of the Placing Agreement
The Joint Bookrunners are entitled, at any time prior to Admission, to
terminate the Placing Agreement in accordance with its terms by giving notice
in writing to the Company in certain circumstances, including in the event of,
inter alia: (i) the warranties of the Company and/or JerseyCo contained in the
Placing Agreement, initial subscription and option agreement or subscription
and transfer agreement being or becoming untrue, inaccurate or misleading to
the extent any Joint Bookrunner considers (acting in good faith) to be
material in the context of the Group taken as a whole or the Placing and/or
the proposed Subscription; (ii) any statement contained in certain documents
issued, or entered into, by the Company in connection with the Placing being
untrue, inaccurate or misleading in any material respect (or any matter having
arisen which would constitute a material omission from such documents), in
each case which any Joint Bookrunner considers in its sole judgement (acting
in good faith) to be material in the context of the Group as a whole or the
Placing and/or the Subscription; (iii) there having been a failure to comply
by the Company and/or JerseyCo with any of their obligations under the initial
subscription and option agreement or the subscription and transfer agreement
to an extent which any Joint Bookrunner considers in its sole judgement
(acting in good faith) to be material in the context of the Group as a whole
or the Placing and/or Admission; (iv) either application for Admission being
withdrawn by the Company and/or refused by the London Stock Exchange or
Euronext Amsterdam (as applicable); (v) the occurrence, in the good faith
opinion of any Joint Bookrunner, of certain material adverse changes, or any
development reasonably likely to involve a material adverse change, in or
affecting the financial, trading or operational condition or prospects of the
Company, whether or not arising in the course of business; (vi) the occurrence
of certain force majeure events which any Joint Bookrunner (acting in good
faith) considers to materially and adversely affect the financial or trading
position or the business or prospects of the Group (taken as a whole), or
which renders the Placing and/or the Subscription and/or Admission and/or
post-Admission dealings in the Placing Shares impracticable or inadvisable in
any material respect; or (vii) the cancellation or suspension by the London
Stock Exchange or Euronext Amsterdam of trading in the Company's securities
which any Joint Bookrunner (acting in good faith) believes would make it
inadvisable or impracticable to proceed with the Placing and/or the
Subscription and considers to be material in the context of the Group taken as
a whole or the Placing and/or the Subscription.
Upon such termination, the Company and the Joint Bookrunners shall be released
and discharged (except for any liability arising before or in relation to such
termination) from their respective obligations under or pursuant to the
Placing Agreement and the Placing will not proceed.
By participating in the Placing, Placees agree that the exercise or
non-exercise by any Joint Bookrunner of any right of termination or other
discretion under the Placing Agreement shall be within the absolute discretion
of each of the Joint Bookrunners and that none of the Joint Bookrunners need
make any reference to the Placees prior to such exercise and that none of the
Joint Bookrunners or their respective affiliates or their or their respective
affiliates' agents, members, directors, officers or employees, respectively,
shall have any liability to Placees whatsoever in connection with any such
exercise or failure so to exercise.
No prospectus
No offering document or prospectus has been or will be submitted to be
approved by the UK Financial Conduct Authority (the "FCA"), Dutch Authority
for the Financial Markets (Stichting Autoriteit Financiële Markten) or any
other regulator in relation to the Bookbuild or the Placing and Placees'
commitments will be made solely on the basis of the information contained in
this Announcement (including this Appendix) which has been released by the
Company today and any information publicly announced to a RIS by or on behalf
of the Company prior to or on the date of this Announcement and subject to the
further terms set forth in the contract note or trade confirmation to be
provided to individual prospective Placees.
Each Placee, by accepting a participation in the Bookbuild and the Placing,
agrees that the content of this Announcement (including this Appendix) is
exclusively the responsibility of the Company and confirms that it has neither
received nor relied on any other information, representation, warranty, or
statement made by or on behalf of the Company, or the Joint Bookrunners other
than publicly available information and none of the Joint Bookrunners or the
Company nor any person acting on their behalf nor any of their respective
affiliates has or shall have any liability for any Placee's decision to
participate in the Bookbuild and 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 or limit the liability of any person for fraudulent misrepresentation
by that person.
Registration and settlement
Settlement of transactions in the Placing Shares following Admission will take
place within the systems administered by Euroclear UK & Ireland Limited
("CREST") and by Nederlands Centraal Instituut voor Giraal Effectenverkeer
B.V. ("Euroclear Nederland"). Settlement will be on a delivery versus payment
basis. Subject to certain exceptions, the Joint Bookrunners and the Company
reserve the right to require settlement and delivery of the Placing Shares (or
a portion thereof) to Placees by such other means that it deems necessary or
in certificated form if delivery or settlement is not possible or practicable
within the CREST system or Euroclear Nederland or would not be consistent with
the regulatory requirements in the relevant Placee's jurisdiction.
Following the close of the Bookbuild, each Placee allocated Placing Shares in
the Placing will be sent a contract note or trade confirmation stating the
number of Placing Shares to be allocated to it at the Placing Price, the
aggregate amount owed by such Placee to Numis, Investec or ABN AMRO as
appropriate 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 or the Euroclear Nederland settlement instructions, as
appropriate, that it has in place with the relevant Joint Bookrunner.
The Company will deliver (i) the Placing Shares taken up by Placees resident
outside of the Netherlands to a CREST account operated by Numis who will
transfer those Placing Shares allocated to Placees by Investec or ABN AMRO, as
the case may be, to a CREST account operated by the relevant Joint Bookrunner,
as appropriate, as the Company's agent and the relevant Joint Bookrunner will
enter its delivery (DEL) instruction into the CREST system and (ii) the
Placing Shares taken up by Placees resident in the Netherlands to a Euroclear
Nederland securities account operated by Numis, Investec or ABN AMRO, as
appropriate, as the Company's agent and the relevant Joint Bookrunner will
enter its delivery instructions into the Euroclear Nederland system. The input
to CREST or Euroclear Nederland (as applicable) by a Placee of a matching or
acceptance instruction will then allow delivery of the relevant Placing Shares
to that Placee against payment.
It is expected that settlement through CREST and through Euroclear Nederland
will be from 8:00 a.m. (London time) and 9.00 a.m. (Central European time) on
30 May 2022 on a delivery versus payment basis in accordance with the
instructions set out in the trade confirmation unless otherwise notified by
Numis, Investec or ABN AMRO. Interest is chargeable daily on payments not
received from Placees on the due date in accordance with the arrangements set
out above, in respect of either CREST or certificated deliveries.
Each Placee is deemed to agree that, if it does not comply with these
obligations, Numis, Investec or ABN AMRO may sell any or all of the Placing
Shares allocated to that Placee on such Placee's behalf and retain from the
proceeds, for its own account and benefit (as agent for the Company), an
amount equal to the aggregate amount owed by the Placee for the Placing Shares
sold plus any interest due. The relevant Placee will, however, remain liable
for and shall indemnify the relevant Joint Bookrunner on demand for any
shortfall below the aggregate amount owed by it for the Placing Shares and for
any stamp duty or stamp duty reserve tax and any other similar or equivalent
duties or taxes (together with any interest or penalties) which may arise upon
the sale of such Placing Shares on such Placee's behalf. Each Placee confers
on the Joint Bookrunners all such authorities and powers necessary to carry
out any such sale and agrees to ratify and confirm all actions which any of
the Joint Bookrunners lawfully undertakes in pursuance of such sale. Legal
and/or beneficial title in and to any Placing Shares shall not pass to the
relevant Placee until it has fully complied with its obligations hereunder.
If Placing Shares are to be delivered to a custodian or settlement agent,
Placees should ensure that the contract note is copied and delivered
immediately to the relevant person within that organisation. Insofar as
Placing Shares are registered in a Placee's name or that of its nominee or in
the name of any person for whom a Placee is contracting as agent or that of a
nominee for such person, such Placing Shares should, subject as provided
below, be so registered free from any liability to UK stamp duty or stamp duty
reserve tax (or any equivalent taxes in the Netherlands in respect of Placees
resident in the Netherlands). Placees shall not be entitled to receive any fee
or commission in connection with the Bookbuild or the Placing. If there are
any circumstances in which any other stamp duty or stamp duty reserve tax
(together with interest and penalties) is payable in respect of the issue of
the Placing Shares, none of the Joint Bookrunners or the Company shall be
responsible for the payment thereof.
Representations and warranties
By participating in the Placing each Placee (and any person acting on such
Placee's behalf) irrevocably represents, warrants, undertakes, acknowledges,
confirms and agrees with the Company and each of the Joint Bookrunners, in
each case as a fundamental term of its participation, that:
1. its commitment is made solely on the basis of publicly
available information and subject to this Appendix and not on the basis of any
other information given, or any representation or statement made at any time,
by any person concerning the Company, the Placing Shares or the Placing. It
agrees that neither the Company nor the Joint Bookrunners, or any of their
respective officers, agents, employees or affiliates will have any liability
for any other information or representation. It irrevocably and
unconditionally waives any rights it may have in respect of any other
information or representation;
2. it has carefully read and understands this Announcement,
including this Appendix, in its entirety and acknowledges that its
subscription of Placing Shares is subject to and based upon all the terms,
conditions, representations, warranties, acknowledgements, agreements and
undertakings and other information contained in this Announcement and not in
reliance on any information, representation, warranties or statements other
than those contained in the Announcement. It further agrees that these terms
and conditions represent the whole and only agreement between each Placee, the
Company and the Joint Bookrunners in relation to each Placee's participation
in the Placing and supersede any previous agreement between any of such
parties in relation to such participation. Accordingly, all other terms,
conditions, representations, warranties and other statements which would
otherwise be implied (by law or otherwise) shall not form part of these terms
and conditions. It agrees that neither of the Company or the Joint
Bookrunners, nor any of their respective officers or directors, will have any
liability for any such other information or representation and irrevocably and
unconditionally waives any rights it may have in respect of any such other
information or representation;
3. it has not relied on any information, representations,
warranties or statements other than those contained in this Announcement, and
undertakes not to redistribute or duplicate this Announcement;
4. it has not relied on any of the Joint Bookrunners or any
person affiliated with any of them in connection with any investigation of the
accuracy of any information contained in this Announcement;
5. it acknowledges that no offering document or prospectus has
been or will be prepared in connection with the Placing and it has not
received and will not receive a prospectus or other offering document in
connection with the Bookbuild, the Placing or the Placing Shares;
6. it acknowledges that none of the Joint Bookrunners, the
Company nor any of their respective affiliates, agents, directors, officers,
consultants or employees nor any person acting on behalf of any of them has
provided, and none of them will provide, it with any material or information
regarding the Placing Shares or the Company or any other person other than
this Announcement, including this Appendix, nor has it requested any of the
Joint Bookrunners, the Company, nor any of their respective affiliates or any
person acting on behalf of any of them to provide it with any such material or
information;
7. unless otherwise specifically agreed with the Joint
Bookrunners, it is not, and at the time the Placing Shares are acquired,
neither it nor the beneficial owner of the Placing Shares will be a resident
of the United States, Canada, Australia, South Africa, Japan, Switzerland, New
Zealand, or a citizen, resident or national of any other state or jurisdiction
in which it is unlawful to make or accept an offer to acquire the Placing
Shares (each a "Restricted Territory") and further acknowledges that the
Placing Shares have not been and will not be registered under the securities
legislation of the United States or any other Restricted Territory and,
subject to certain exceptions, may not be offered, sold, transferred,
delivered or distributed, directly or indirectly, in or into those
jurisdictions;
8. it has not, directly or indirectly, distributed, forwarded,
transferred or otherwise transmitted this Announcement or any other offering
materials concerning the Placing or the Placing Shares to any persons within a
Restricted Territory or any other jurisdiction in which it would be unlawful
to do so, nor will it do any of the foregoing;
9. it is not acting on a non-discretionary basis for the
account or benefit of any person located within the United States or any other
Restricted Territory at the time the undertaking to subscribe for Placing
Shares was given and it is not acquiring the Placing Shares with a view to the
offer, sale, resale, transfer, delivery or distribution, directly or
indirectly, of any Placing Shares into the United States or any other
Restricted Territory;
10. it acknowledges that the content of this Announcement is
exclusively the responsibility of the Company and its Directors and that
neither the Joint Bookrunners nor any of their affiliates, agents, directors,
officers, consultants or employees nor any person acting on their behalf are
responsible for or shall have any liability, in contract, tort or otherwise
for any information, representation or statement contained in this
Announcement, any misstatements in or omission from any publicly available
information relating to the Company, or any information previously or
subsequently published by or on behalf of the Company, including, without
limitation, any information required to be published by the Company pursuant
to applicable laws (the "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 or any information
published prior to or on the date of this Announcement by or on behalf of the
Company or otherwise. It further represents, warrants and agrees that the only
information on which it is entitled to rely and on which it has relied in
committing itself to subscribe for the Placing Shares is contained in this
Announcement and any information previously published by the Company by
notification to a RIS, such information being all that it deems necessary to
make an investment decision in respect of the Placing Shares and that it has
neither received nor relied on any other information given or representations,
warranties or statements made by the Joint Bookrunners or the Company and
neither the Joint Bookrunners nor the Company 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. It further
acknowledges and agrees that it has conducted and relied on its own
investigation of the business, financial or other position of the Company in
deciding to participate in the Placing and has received and reviewed all
information that it believes is necessary or appropriate in connection with
its purchase of Placing Shares and has made its own assessment and has
satisfied itself concerning the relevant tax, legal, regulatory, currency and
other economic considerations relevant to its investment in the Placing
Shares. Neither the Joint Bookrunners, the Company nor any of their respective
affiliates has made any representations to it, express or implied, with
respect to the Company, the Placing and the Placing Shares or the accuracy,
completeness or adequacy of the Exchange Information, and each of them
expressly disclaims any liability in respect thereof. Nothing in this
paragraph or otherwise in this Announcement excludes the liability of any
person for fraudulent misrepresentation made by that person;
11. it acknowledges that the issue to it, or the person
specified by it for registration as holder, of Placing Shares will not give
rise to a liability under any of sections 67, 70, 93 or 96 of the Finance Act
1986 (depositary receipts and clearance services) and that the Placing Shares
are not being acquired in connection with arrangements to issue depositary
receipts or to issue or transfer Placing Shares into a clearance service;
12. it is not applying as, nor is it applying as nominee or
agent for, a person who is or may be liable to notify and account for tax
under the Stamp Duty Reserve Tax Regulations 1986 or equivalent legislation or
regulation;
13. it has complied with its obligations under the Criminal
Justice Act 1993 (the "CJA"), the Market Abuse Regulation (EU) No.596/2014
("EU MAR"), EU MAR as amended and transposed into the laws of the United
Kingdom pursuant to the European Union (Withdrawal) Act 2018 and the European
Union (Withdrawal Agreement) Act 2020 ("UK MAR"), and in connection with money
laundering and terrorist financing under the Proceeds of Crime Act 2002 (as
amended), the Terrorism Act 2000 (as amended), the Anti-Terrorism Crime and
Security Act 2001, the Terrorism Act 2006, the Money Laundering, Terrorist
Financing and Transfer of Funds (Information on the Payer) Regulations 2017
and any applicable related or similar rules, regulations or guidelines,
issued, administered or enforced by any government agency having jurisdiction
in respect of the prevent of money laundering and the Money Laundering
Sourcebook of the FCA (the "Regulations") and, if making payment on behalf of
a third party, that satisfactory evidence has been obtained and recorded by it
to verify the identity of the third party as required by the Regulations, and
its application is only made on the basis that it accepts full responsibility
for any requirement to verify the identity of its clients and other persons in
respect of whom it has applied and recorded by it to verify the identity of
the third party as required by the applicable law;
14. it acknowledges that due to anti-money laundering
requirements and the countering of terrorist financing, the Joint Bookrunners
and the Company may require proof of identity and verification of the source
of the payment before the application can be processed and that, in the event
of delay or failure by the applicant to produce any information required for
verification purposes, the Joint Bookrunners and the Company may refuse to
accept the application and the subscription monies relating thereto. It holds
harmless and will indemnify the Joint Bookrunners and the Company against any
liability, loss or cost ensuing due to the failure to process such
application, if such information as has been requested has not been provided
by it in a timely manner;
15. it is acting as principal only in respect of the Placing or,
if it is acting for any other person: (i) it is duly authorised to do so and
has full power to make the acknowledgments, representations and agreements
herein on behalf of each such person; (ii) it exercises sole investment
discretion as to each such person's account; and (iii) it is and will remain
liable to the Joint Bookrunners and the Company for the performance of all its
obligations as a Placee in respect of the Placing (regardless of the fact that
it is acting for another person);
16. it is acting as principal only in respect of the Placing,
or, if it is acting for any other person: (i) it is duly authorised to do so
and has full power to make the acknowledgments, representations and agreements
herein on behalf of each such person; (ii) it exercises sole investment
discretion as to each such person's account; (iii) it is and will remain
liable to the Joint Bookrunners and the Company for the performance of all its
obligations as a Placee in respect of the Placing (regardless of the fact that
it is acting for another person);
17. it is a Relevant Person and undertakes that it will acquire,
hold, manage or dispose of any Placing Shares that are allocated to it for the
purposes of its business;
18. it understands that any investment or investment activity to
which this Announcement relates is available only to Relevant Persons and will
be engaged in only with Relevant Persons, and further understands that this
Announcement must not be acted on or relied on by persons who are not Relevant
Persons;
19. if in a member state of the EEA, unless otherwise
specifically agreed with the Joint Bookrunners and the Company in writing, it
is an EU Qualified Investor and, to the extent applicable, any funds on behalf
of which it is acquiring the Placing Shares that are located in a member state
of the EEA are each such an EU Qualified Investor;
20. if it is a financial intermediary, as that term is used in
Article 2(d) of the EU Prospectus Regulation or UK Prospectus Regulation, as
applicable, any Placing Shares subscribed for by it in the Placing will not be
subscribed for on a non-discretionary basis on behalf of, nor will they be
acquired with a view to their offer or resale to, persons in circumstances
which may give rise to an offer of securities to the public other than an
offer or resale to Qualified Investors in a member state of the EEA or in the
UK, as applicable, or in circumstances in which the prior consent of the Joint
Bookrunners has been given to the proposed offer or resale;
21. it acknowledges that any offer of Placing Shares may only be
directed at persons in member states of the EEA and the United Kingdom who are
Qualified Investors and it represents, warrants and undertakes that it has not
offered or sold and will not offer or sell any Placing Shares to any persons
in a member state of the EEA or the United Kingdom prior to Admission except
to Qualified Investors or otherwise in circumstances which will not result in
an offer to the public in any member state of the EEA or the United Kingdom
within the meaning of the EU Prospectus Regulation or the UK Prospectus
Regulation, as applicable;
22. neither this Announcement nor any other offering, marketing
or other material in connection with the Placing constitutes an invitation,
offer or promotion to, or arrangement with, it or any person whom it is
procuring to subscribe for Placing Shares pursuant to the Placing unless, in
the relevant territory, such offer, invitation or other course of conduct
could lawfully be made to it or such person and such documents or materials
could lawfully be provided to it or such person and Placing Shares could
lawfully be distributed to and subscribed and held by it or such person
without compliance with any unfulfilled approval, registration or other
regulatory or legal requirements;
23. 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 Placing Shares
to persons in the United Kingdom, except to persons whose ordinary activities
involve them 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 the United Kingdom within the meaning of section 85(1)
of the Financial Services and Markets Act 2000 ("FSMA");
24. it has not offered or sold and will not offer or sell any
Placing Shares to persons in the EEA prior to Admission except to persons
whose ordinary activities involve them 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 EEA
within the meaning of the EU Prospectus Regulation and will not result in a
requirement for the publication of a prospectus pursuant to Article 3 of the
EU Prospectus Regulation;
25. it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of section 21 of FSMA)
relating to the Placing Shares in circumstances in which section 21(1) of FSMA
does not require approval of the communication by an authorised person;
26. it has complied and will comply with all applicable
provisions of FSMA with respect to anything done by it in relation to the
Placing in, from or otherwise involving, the United Kingdom;
27. if it is a natural person, it is not under the age of
majority (18 years of age in the United Kingdom) on the date of its agreement
to subscribe for Placing Shares under the Placing and will not be any such
person on the date any such Placing (as applicable) is accepted;
28. if it is within the United Kingdom, it is a person (i)
having professional experience in matters relating to investments who falls
within the definition of "investment professionals" in Article 19(5) of the
Order, (ii) who falls within Article 49(2)(a) to (d) ("High Net Worth
Companies, Unincorporated Associations, etc.") of the Order, and in either
case of (i) or (ii) who also constitutes a UK Qualified Investor, or (iii) to
whom this Announcement may otherwise lawfully be communicated or, if it is
receiving the offer in circumstances under which the laws or regulations of a
jurisdiction other than the United Kingdom would apply, that it is a person to
whom the Placing Shares may be lawfully offered under that other
jurisdiction's laws and regulations and is capable of being categorised as a
person who is a "professional client" or an "eligible counterparty" within the
meaning of chapter 3 of the FCA's Conduct of Business Sourcebook;
29. it and any person acting on its behalf has capacity and
authority and is otherwise entitled to acquire the Placing Shares under the
laws of all relevant jurisdictions which apply to it and that it has fully
observed such laws and obtained all such governmental and other guarantees,
permits, authorisations, approvals and consents which may be required
thereunder and complied with all necessary formalities and paid any issue,
transfer or other taxes due in connection with its application in any
territory for, and acceptance in any jurisdiction of, the Placing Shares and
that it has not taken any action or omitted to take any action which will or
may result in the Company, the Joint Bookrunners or the Company's registrar
(the "Registrar") or any of their respective directors, officers, agents,
employees or advisers acting in breach of the legal or regulatory
requirements, directly or indirectly, of any territory or jurisdiction in
connection with the Placing and that the subscription for and purchase of the
Placing Shares by it or any person acting on its behalf will be in compliance
with applicable laws and regulations in the jurisdiction of its residence, the
residence of the Company, or otherwise;
30. it and any person acting on its behalf is entitled to
acquire the Placing Shares under the laws of all relevant jurisdictions and
has all necessary capacity and has obtained all necessary consents and
authorities to enable it to commit to its participation in the Placing and to
perform its obligations in relation thereto (including, without limitation, in
the case of any person on whose behalf it is acting, all necessary consents
and authorities to agree to the terms set out or referred to in this
Announcement) and will honour such obligations;
31. it and any person acting on its behalf will make payment for
the Placing Shares allocated to it in accordance with this Announcement on the
due time and date set out herein;
32. it accepts that the allocation of Placing Shares shall be
determined by the Joint Bookrunners (in consultation with the Company) in
their absolute discretion and that allocation (if any) of Placing Shares will
represent a maximum number of Placing Shares which it will be entitled, and
required, to subscribe for, and that the Joint Bookrunners may call upon it to
subscribe for a lower number of Placing Shares (if any), but in no event in
aggregate more than the aforementioned maximum;
33. that the person whom it specifies for registration as holder
of the Placing Shares will be (i) itself; (ii) its nominee, as the case may
be; or (iii) a person for whom it is contracting as agent or nominee. None of
the Joint Bookrunners, the Company, any of their respective affiliates or any
person acting on behalf of any of them will be responsible for any liability
to stamp duty or stamp duty reserve tax or other similar duties or taxes
resulting from a failure to observe this requirement. Each Placee and any
person acting on behalf of such Placee agrees to indemnify the Joint
Bookrunners and the Company in respect of the same (together with any and all
costs, losses, claims, liabilities, penalties, interest, fines and expenses
(including legal fees and expenses)) on an after-tax basis on the basis that
the Placing Shares will be allotted to the CREST stock account or the
Euroclear Nederland securities account of Numis, Investec or ABN AMRO, as
appropriate, who will hold them as nominee on behalf of such Placee until
settlement in accordance with its standing settlement instructions;
34. it acknowledges that none of the Joint Bookrunners, nor any
of their respective affiliates, nor any person acting on its or their behalf,
is making any recommendations to it or, advising it regarding the suitability
of any transactions it may enter into in connection with the Placing or
providing advice in relation to the Placing and that participation in the
Placing is on the basis that it is not and will not be a client of any Joint
Bookrunner and none of the Joint Bookrunners has any duties or
responsibilities to it for providing the protections afforded to their clients
or customers or for providing advice in relation to the Placing nor in respect
of any representations, warranties, undertakings or indemnities contained in
the Placing Agreement nor for the exercise or performance of any of its rights
and obligations thereunder including any rights to waive or vary any
conditions or exercise any termination right;
35. in making any decision to subscribe for the Placing Shares,
it has knowledge and experience in financial, business and international
investment matters as is required to evaluate the merits and risks of
subscribing for or purchasing the Placing Shares. It further confirms that it
is experienced in investing in securities of this nature in this sector and is
aware that it may be required to bear, and is able to bear, the economic risk
of participating in, and is able to sustain a complete loss in connection
with, the Placing. It further confirms that it relied on its own examination
and due diligence of the Company and its associates taken as a whole, and the
terms of the Placing, including the merits and risks involved, and not upon
any view expressed or information provided by or on behalf of the Joint
Bookrunners. It further confirms that it has had sufficient time to consider
and conduct its own investigation with respect to the offer and purchase of
the Placing Shares, including the legal, regulatory, tax, business, currency
and other economic and financial considerations relevant to such investment
and it will not look to the Company, any of the Joint Bookrunners, any of
their respective affiliates or any person acting on their behalf for all or
part of any such loss or losses it or they may suffer;
36. it acknowledges that it may not rely on any investigation
that any of the Joint Bookrunners or any person acting on its behalf may or
may not have conducted with respect to the Company and its affiliates or the
Placing and the Joint Bookrunners have not made any representation or warranty
to it, express or implied, with respect to the merits of the Placing, the
subscription for or purchase of the Placing Shares, or as to the condition,
financial or otherwise, of the Company and its affiliates, or as to any other
matter relating thereto, and nothing herein shall be construed as a
recommendation to it to subscribe for the Placing Shares. It acknowledges,
understands and agrees that no information has been prepared or verified by,
or is the responsibility of, the Joint Bookrunners for the purposes of this
Placing;
37. it acknowledges that, in connection with the Placing, the
Joint Bookrunners and any of their affiliates acting as an investor for its
own account may take up Placing Shares in the Company and in that capacity may
retain, purchase or sell for its own account such Placing Shares in the
Company and any securities of the Company or related investments and may offer
or sell such securities or other investments otherwise than in connection with
the Placing. Investec does not intend to disclose the extent of any such
investment or transactions otherwise than in accordance with any legal or
regulatory obligation to do so;
38. it acknowledges that the Joint Bookrunners, the Company and
their respective affiliates and others will rely upon the truth and accuracy
of the representations, warranties and acknowledgements set forth herein and
which are given to the Joint Bookrunners on their own behalf and to the
Company on its own behalf and are irrevocable and it agrees that if any of the
representations or warranties made or deemed to have been made by its
subscription of the Placing Shares are no longer accurate, it shall promptly
notify the Joint Bookrunners and the Company. It irrevocably authorises the
Joint Bookrunners and the Company to produce this Announcement, pursuant to,
in connection with, or as may be required by any applicable law or regulation,
administrative or legal proceeding or official inquiry with respect to the
matters set forth herein;
39. the exercise or non-exercise by the Joint Bookrunners of any
right of termination or other discretion under the Placing Agreement shall be
within the absolute discretion of the Joint Bookrunners and the Joint
Bookrunners need not make any reference to Placees and it accepts that if the
Placing does not proceed or the relevant conditions to the Placing Agreement
are not satisfied for any reason whatsoever, then neither the Company nor the
Joint Bookrunners, nor any persons controlling, controlled by or under common
control with any of them nor any of their respective employees, agents,
officers, members, stockholders, partners or representatives, shall have any
liability to whatsoever to it or any other person;
40. it will indemnify on an after-tax basis and hold the Joint
Bookrunners, the Company 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 and further agrees that the provisions of this Appendix shall
survive after completion of the Placing;
41. its commitment to subscribe for Placing Shares on the terms
set out in this Appendix and in the contract note or 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 the Placing;
42. it acknowledges that where it is subscribing for the Placing
Shares as a fiduciary or agent for one or more discretionary, advisory or
investor accounts, that it is authorised in writing for each such account: (i)
to subscribe for the Placing Shares; (ii) to make, and does make, the
foregoing representations, warranties, acknowledgements, agreements and
undertakings on such account's behalf; and (iii) to receive on behalf of each
such account any documentation relating to the Placing (as applicable) in the
form provided by the Company and/or the Joint Bookrunners. It agrees that the
provisions of this paragraph shall survive any resale of the Placing Shares by
or on behalf of any such account;
43. it acknowledges and agrees that information provided by it
to the Company or the Registrar may be stored on the Registrar's computer
system and in hard copy. It acknowledges and agrees that for the purposes of
applicable data protection legislation and regulations ("Data Protection
Law"), the Registrar is required to specify the purposes for which it may hold
personal data. The Registrar will only use such information for the purposes
set out below (collectively, the "Purposes"), being to:
a) process a Placee's personal data (including sensitive
personal data) as required by or in connection with its holding of Placing
Shares, including processing personal data in connection with credit and money
laundering checks on it;
b) communicate with a relevant Placee as necessary in
connection with its affairs and generally in connection with its holding of
Placing Shares;
c) provide personal data to such third parties as the
Registrar may consider necessary in connection with its affairs and generally
in connection with a relevant Placee's holding of Placing Shares or as the
Data Protection Law may require, including to third parties outside the United
Kingdom or the EEA; and
d) without limitation, provide such personal data to the
Company, the Joint Bookrunners and their respective associates for processing,
notwithstanding that any such party may be outside the United Kingdom or the
EEA;
44. in providing the Company and the Registrar with information,
it hereby represents and warrants to the Company and the Registrar that it has
obtained the consent of any data subjects to the Company and the Registrar and
its associates holding and using their personal data for the Purposes
(including the explicit consent of the data subjects for the processing of any
sensitive personal data for the purpose set out in paragraph 43(a) above);
45. time is of the essence as regards its obligations under this
Appendix, including to settle payment for the Placing Shares;
46. it acknowledges that any document that is to be sent to it
in connection with the Placing will be sent at its own risk and may be sent to
it at any address provided by it to the Joint Bookrunners; and
47. it, and any account for which it is acting, is located
outside the United States and acquiring the Placing Shares in an "offshore
transaction", as defined in Regulation S, conducted in accordance with
Regulation S and that the Placing Shares were not offered to it by means of
"directed selling efforts", as defined in Regulation S.
The foregoing representations, warranties and confirmations are given for the
benefit of the Company and the Joint Bookrunners and are irrevocable. Each
Placee and any person acting on behalf of the Placee acknowledges that neither
the Company nor any of the Joint Bookrunners owes any fiduciary or other
duties to any Placee in respect of any representations, warranties,
undertakings or indemnities in the Placing Agreement.
Miscellaneous
The rights and remedies of the Joint Bookrunners, the Registrar 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 of one will not prevent the exercise of others.
Each Placee and any person acting on behalf of each Placee acknowledges and
agrees that Joint Bookrunner or any of its affiliates may, at its absolute
discretion, agree to become a Placee in respect of some or all of the Placing
Shares.
Each Placee and any person acting on behalf of the Placee acknowledges and
agrees that it has neither received nor relied on any 'inside information'
(for the purposes of EU MAR, UK MAR and section 56 of the CJA) concerning the
Company in accepting this invitation to participate in the Placing.
All references to time in this Announcement are to London time unless
otherwise stated. All times and dates in this Announcement may be subject to
amendment by the Joint Bookrunners (in their absolute discretion). The Joint
Bookrunners shall notify the Placees and any person acting on behalf of the
Placees of any changes.
In this Announcement, "after-tax basis" means in relation to any payment made
to the Company, the Joint Bookrunners or their respective affiliates, agents,
directors, officers and employees pursuant to this Announcement where the
payment (or any part thereof) is chargeable to any tax, a basis such that the
amount so payable shall be increased so as to ensure that after taking into
account any tax chargeable (or which would be chargeable but for the
availability of any relief unrelated to the loss, damage, cost, charge,
expense or liability against which the indemnity is given on such amount
(including on the increased amount)) there shall remain a sum equal to the
amount that would otherwise have been so payable.
The price of an Ordinary Share and any income expected from them may go down
as well as up and investors may not get back the full amount invested upon
disposal of the shares. Past performance is no guide to future performance and
persons needing advice should consult an independent financial adviser.
In the case of a joint agreement to subscribe for Placing Shares under the
Placing, references to a Placee in these terms and conditions are to each of
the Placees who are a party to that joint agreement and their liability is
joint and several.
Each Placee agrees that these terms and conditions and any agreements entered
into by it pursuant to these terms and conditions, and any non-contractual
obligations arising out of or in connection with such agreements, shall be
governed by and construed in accordance with the laws of England and Wales.
For the exclusive benefit of the Joint Bookrunners, the Company and the
Registrar, each Placee irrevocably 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 and waives any objection to proceedings in any such court on the
ground of venue or on the ground that proceedings have been brought in an
inconvenient forum. Enforcement proceedings in respect of the obligation to
make payment for the Placing Shares (together with any interest chargeable
thereon) may be taken by the Joint Bookrunners or the Company 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.
The Joint Bookrunners and the Company expressly reserve the right to modify
the Placing (including, without limitation, its timetable and settlement) at
any time before allocations are determined. The Placing is subject to the
satisfaction of the conditions contained in the Placing Agreement and the
Placing Agreement not having been terminated.
This Announcement has been issued by, and is the sole responsibility, of the
Company. No representation or warranty express or implied, is or will be made
as to, or in relation to, and no responsibility or liability is or will be
accepted by the Joint Bookrunners or by any of their respective affiliates or
agents as to or in relation to, the accuracy or completeness of this
Announcement or any other written or oral information made available to or
publicly available to any interested party or its advisers, and any liability
therefore is expressly disclaimed.
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