REG - Big Yellow Group PLC - Proposed Capital Raise
10/10/2023 16:45
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RNS Number : 6801P Big Yellow Group PLC 10 October 2023
THIS ANNOUNCEMENT, INCLUDING THE APPENDIX AND THE INFORMATION CONTAINED
HEREIN, IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN
WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM THE UNITED STATES,
AUSTRALIA, CANADA, JAPAN, SOUTH AFRICA OR ANY OTHER JURISDICTION WHERE TO DO
SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF THAT
JURISDICTION. PLEASE SEE THE IMPORTANT NOTICE AT THE END OF THIS ANNOUNCEMENT.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION AS STIPULATED UNDER THE MARKET
ABUSE REGULATION (EU NO. 596/2014) AS IT FORMS PART OF UK LAW BY VIRTUE OF THE
EUROPEAN UNION (WITHDRAWAL) ACT 2018, AS AMENDED.
10 October 2023
Big Yellow Group PLC ("Big Yellow" or the "Company" and, together with its
subsidiaries, the "Group")
Proposed capital raise
Big Yellow, the UK's brand leader in self storage, today announces its
intention to raise gross proceeds of approximately £110 million (the "Capital
Raise").
The Capital Raise is comprised of a proposed non-pre-emptive placing of new
Ordinary Shares (the "Placing") to both existing shareholders and new
institutional investors, and a separate offer made by the Company of new
Ordinary Shares via the PrimaryBid platform (the "Retail Offer Shares") at the
Placing Price (the "Retail Offer"), to provide retail investors with an
opportunity to acquire Retail Offer Shares. A separate announcement will be
made shortly regarding the Retail Offer and its associated terms.
Highlights
§ Intention to raise gross proceeds of approximately £110 million to build
out the Group's existing pipeline of stores
§ A number of factors have contributed to this decision:
o In May 2022, we suspended construction on all projects that were not already
on site because conditions in the construction market were unfavourable. Those
conditions have improved considerably
o We will press on with the construction of an initial six sites including
Farnham Road, Slough, Wapping, Wembley, Queensbury, Staines, and Slough Bath
Road, all of which have planning consent at an incremental cost of £90
million
o Subject to receipt of planning and vacant possession, construction will then
follow in due course on the remaining sites we own at a further incremental
cost of £147 million
o The projected net operating income of the increase in our total capacity of
902,000 sq ft when stabilised is £30.4 million representing an approximate
13% return on the incremental capital deployed
o On a proforma basis at stabilisation, the return for the 11 new stores and
two replacement stores is approximately 8.7% on the total development cost,
including land already expensed, of £389 million
o Trading conditions are explained in more detail below, but London has
outperformed, and we have been encouraged by the performance of our new store
at Kings Cross which has moved into profitability only four months after
opening
o 11 of the 13 pipeline sites are in London, or within close proximity. The
recently secured planning consent at Wapping brings us closer to our
long-pursued strategy of ringing central London with large strategic stores
§ There is evidence that land prices have, and are, dropping materially and
this will provide an opportunity to replenish the pipeline
§ We have made it clear for many years that we believe that a low level of
debt is appropriate. That belief has been reinforced by the rise in interest
rates over the last 18 months. We believe it is therefore optimal that future
capital expenditure over the medium term should be funded from equity, cash
flow and surplus land and property sales
§ The Placing will be marginally earnings accretive in the short term and the
Directors expect it to be significantly so over the medium to long term
§ The Executive Directors are expected to participate in the Placing with an
aggregate subscription amount of £2.85 million
Trading Update
Revenue for the six months to 30 September 2023 is up 6%, with storage income
up 7%, offset by lower growth in non-storage income. Our average occupied
space for the period was down 1% from last year, with average rate growth of
8% (2022: 10%).
Our demand and revenue growth in London and the South East, representing 74%
of our revenue, has been stronger than that of our regional stores.
Occupancy across all 109 stores increased by 140,000 sq ft over the six months
compared to a gain of 154,000 sq ft in the same period last year. Demand from
domestic customers has been stronger than last year, up 133,000 sq ft.
Business occupancy dropped by 1.6% or 31,000 sq ft, on 1.9 million sq ft
occupied at the beginning of the period and student occupancy rose by 38,000
sq ft. Our larger rooms, which are occupied in the main by businesses, remain
highly occupied, particularly in London. 68% of our revenue derives from
domestic and student customers, with the balance from our business customers.
Like-for-like closing occupancy for the Big Yellow stores has increased to
84.6% from 83.1% at 31 March 2023, and is down 2.2 ppts from the same time
last year. Closing occupancy, which includes the impact of new store openings
and the Armadillo stores, was 81.4%.
Property and Funding
The Group owns its assets largely freehold, representing some 99% by value of
our portfolio, shielding us from historic rises in industrial and warehouse
rents and allowing for high operating margins and operational advantages.
In addition, we view rent liabilities as quasi-debt. Once we have relocated
our Farnham Road Slough and Staples Corner stores (the latter subject to
planning) we expect our total rent liability to fall to approximately £1
million per annum.
Our net debt stands at £498.2 million, and in current circumstances we
believe that it should not increase from this level, and preferably be lower,
particularly in a higher interest rate environment. The net proceeds of the
Placing will in the first instance reduce debt significantly and allow us to
build out our sites with planning without increasing absolute levels of debt.
Further funding should come from the sale of surplus land and property of
approximately £90 million over the next 18 months, in addition to retained
cash flow.
We are well progressed in refinancing our medium-term revolving credit
facility and will report further when matters are concluded.
Current Development Pipeline - With Planning
Site Location Status Anticipated capacity (sq ft)
Wapping, London On the Highway, adjacent to existing Big Yellow store Planning consent granted Additional 95,000
Wembley, London Towers Business Park Discussions ongoing to secure 70,000
vacant possession
Queensbury, London Honeypot Lane Site acquired in November 2018 70,000
Staines, London The Causeway Site acquired in December 2020. Consent also received to develop 9 industrial 65,000
units totalling 99,000 sq ft
Slough Farnham Road Construction commenced in Summer 2023 with a view to opening in Summer 2024 Replacement for existing leasehold store
Slough Bath Road Site acquired in April 2019 90,000
Newcastle Scotswood Road Planning consent granted 60,000
Current Development Pipeline - Without Planning
Site Location Status Anticipated capacity (sq ft)
Leicester Belgrave Gate, Central Leicester Site acquired in June 2023. Planning discussions underway with Leicester 58,000
City Council
Epsom, London East Street Site acquired in March 2021. Planning application refused by Epsom and Ewell 58,000
Council and an appeal to be submitted
Kentish Town, London Regis Road Site acquired in April 2021. Planning application refused by Camden Council 68,000
and an appeal to be submitted
West Kensington, London Hammersmith Road Site acquired in June 2021. Planning application submitted to Hammersmith and 175,000
Fulham Council in February 2023
Old Kent Road, London Old Kent Road Site acquired in June 2022. Planning application submitted to Southwark 75,000
Council in August 2023
Staples Corner, London North Circular Road Site acquired in December 2022. Planning discussions underway with Barnet Replacement for existing leasehold store, additional 18,000 sq ft
Council
Total Additional Capacity 902,000 sq ft
Commenting on the Placing, Nicholas Vetch CBE, Big Yellow's Executive
Chairman, said:
"The net proceeds will allow us to expand capacity in London, our strongest
market, and monetise land that we already own. It will also be marginally
accretive to earnings in the short term, and the Directors expect it to be
significantly so over the medium to long term.
We now have many years' experience of opening stores in London and towns
proximate to it and therefore have good reason to believe that these stores
will achieve profitability quickly and make a significant contribution to
earnings. The replacement stores at Farnham Road, Slough and Staples Corner
(subject to planning) will further reduce operational leverage as rent
liabilities are extinguished.
We continue to have high conviction that REITs should be largely equity
financed with low levels of debt and this Placing is a continuation of that
strategy."
Details of the Placing
The Company intends to raise gross proceeds of approximately £110 million by
way of a Placing with both existing shareholders and new institutional
investors and a Retail Offer with retail investors in the UK.
The number of new ordinary shares of 10p each in the capital of the Company
("Ordinary Shares") to be issued pursuant to the Capital Raise will not exceed
18,429,865 Ordinary Shares, being the number of ordinary shares which the
Directors are authorised to allot generally on a non pre-emptive basis
pursuant to the shareholder authorities granted at the Company's most recent
Annual General Meeting on 20 July 2023 and, which at that date, represented
approximately 10% of the Company's issued share capital.
The Placing is being conducted through an accelerated bookbuild process
("Bookbuild") which will be launched immediately following this Announcement,
in accordance with the terms and conditions set out in the Appendix to this
Announcement.
Barclays Bank PLC, acting through its investment bank ("Barclays") and J.P.
Morgan Securities plc (which conducts its UK investment banking business as
J.P. Morgan Cazenove) ("JPMC") have been appointed as Joint Global
Coordinators and Joint Bookrunners in respect of the Placing.
The timing of the closing of the book, pricing and allocations is at the
discretion of Barclays and JPMC. The number of new Ordinary Shares to be
issued pursuant to the Placing ("Placing Shares") and the price at which the
Placing Shares are to be placed (the "Placing Price") are subject to agreement
between the Company and Barclays and JPMC at the close of the Bookbuild.
Details of the number of Placing Shares and the Placing Price will be
announced as soon as practicable after the close of the Bookbuild.
The Placing Shares will, when issued, be credited as fully paid and will rank
pari passu in all respects with the existing Ordinary Shares including the
right to receive all dividends and other distributions declared, made or paid
on or in respect of such shares after the date of issue of the Placing Shares.
The Placing will be made on a non-pre-emptive basis.
Prior to launch of the Placing, the Company consulted with a significant
number of its top shareholders to gauge their feedback as to the terms of the
Placing. Feedback from this consultation was supportive and as a result the
board of directors of the Company ("Board") has chosen to proceed with the
Placing. The Placing is being structured as a Bookbuild to minimise execution
and market risk. The Board intends to apply the principles of pre-emption when
allocating Placing Shares to those shareholders that participate in the
Placing.
The Company has made an application to the Financial Conduct Authority (the
"FCA") for admission of the Placing Shares and the Retail Offer Shares to
listing on the premium segment of Official List of the FCA (the "Official
List") and to the London Stock Exchange for admission to trading on its main
market for listed securities (together, "Admission"). It is expected that
Admission will become effective on or around 13 October 2023 and that dealings
in the Placing Shares and the Retail Offer Shares will commence at that time.
The Placing is conditional upon, amongst other things, Admission becoming
effective and the placing agreement between the Company and Barclays and JPMC
and dated today's date (the "Placing Agreement") becoming unconditional and
not being terminated, in accordance with its terms. A description of the
Placing Agreement can be found in the Appendix to this Announcement.
The Appendix to this Announcement (which forms part of this Announcement) sets
out further information relating to the Bookbuild and the terms and conditions
of the Placing.
This Announcement should be read in its entirety. In particular, you should
read and understand the information provided in the "Important Notice" section
of this Announcement. Investors who have chosen to participate in the
Placing, by making an oral or written offer to acquire Placing Shares, will be
deemed to have read and understood this Announcement in its entirety
(including the Appendix) and to be making such offer on the terms and subject
to the conditions herein, and to be providing the representations, warranties,
agreements, acknowledgements and undertakings contained in the Appendix.
This Announcement contains inside information for the purposes of Article 7 of
the Market Abuse Regulation (EU) No. 596/2014 as it forms part of UK law by
virtue of the European Union (Withdrawal) Act 2018, as amended. The person
responsible for arranging for the release of this Announcement on behalf of
the Company is John Trotman, Chief Financial Officer.
For further information, please contact:
Big
Yellow
01276 477 811
Nicholas Vetch CBE (Executive Chairman)
James Gibson (Chief Executive)
John Trotman (Chief Financial Officer)
Shauna Beavis (Company Secretary)
Barclays (Joint Global Coordinator and Joint Bookrunner)
020 7623 2323
Bronson Albery
Tom Macdonald
Edouard Asselin
Dominic Harper
J.P. Morgan Cazenove (Joint Global Coordinator and Joint Bookrunner)
020 7742 4000
James A. Kelly
Paul Pulze
Virginie de Grivel Nigam
Roie Spitzer
Teneo
Charlie
Armitstead
020 7260 2700
IMPORTANT NOTICE
The distribution of this Announcement in jurisdictions other than the United
Kingdom may be restricted by law and therefore persons coming into possession
of this Announcement and/or any related communications should inform
themselves about and observe such restrictions. Any failure to comply with
such restrictions may constitute a violation of the securities law of any such
jurisdiction.
No offering document or prospectus will be made available in connection with
the matters contained in this Announcement and no such prospectus is required
to be published in accordance with Prospectus Regulation (EU) 2017/1129 (the
"EU Prospectus Regulation") or the EU Prospectus Regulation as it forms part
of UK law by virtue of the European Union (Withdrawal) Act 2018 (as amended)
(the "UK Prospectus Regulation").
THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY, IS NOT INTENDED TO AND
DOES NOT CONSTITUTE OR FORM PART OF ANY OFFER OR INVITATION TO PURCHASE OR
SUBSCRIBE FOR, UNDERWRITE, SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO
PURCHASE OR SUBSCRIBE, SELL, ACQUIRE, DISPOSE OF THE PLACING SHARES OR ANY
OTHER SECURITY IN THE UNITED STATES (INCLUDING ITS TERRITORIES AND
POSSESSIONS, ANY STATE OF THE UNITED STATES AND THE DISTRICT OF COLUMBIA,
COLLECTIVELY THE "UNITED STATES"), AUSTRALIA, CANADA, JAPAN, OR SOUTH AFRICA
OR IN ANY JURISDICTION IN WHICH, OR TO ANY PERSONS TO WHOM, SUCH OFFERING,
SOLICITATION OR SALE WOULD BE UNLAWFUL.
The Placing Shares have not been and will not be registered under the United
States Securities Act of 1933, as amended (the "Securities Act"), or under the
securities laws of any state or other jurisdiction of the United States, and
may not be offered, sold, resold, transferred or delivered, directly or
indirectly, in or into the United States except pursuant to an exemption from,
or in a transaction not subject to, the registration requirements of the
Securities Act and in accordance with any applicable securities laws of any
state or other jurisdiction of the United States. There will be no public
offering of the Placing Shares in the United States, the United Kingdom or
elsewhere.
The Placing Shares have not been approved or disapproved by the United States
Securities and Exchange Commission, any state securities commission or any
other regulatory authority in the United States, nor have any of the foregoing
authorities passed upon or endorsed the merits of the Placing or the accuracy
or adequacy of this Announcement. Any representation to the contrary is a
criminal offence in the United States.
A prospectus qualifying the Placing Shares for distribution has not been, and
will not be, filed with any securities commission or similar regulatory
authority of any jurisdiction of Canada. No such authority has reviewed,
expressed an opinion about or in any way passed upon the Placing or the
Placing Shares, and it is an offence to claim otherwise. Any offering of the
Placing Shares in Canada will be made on a private placement basis only in the
provinces of British Columbia, Alberta, Ontario and Quebec, in reliance on
exemptions from the requirements under applicable Canadian securities laws
that the Company file and obtain a receipt for a prospectus for any
distribution of securities. No offer of securities is made in Canada except to
a person who has represented to the Company and each of the Joint Bookrunners
(as defined below) that such person (i) is purchasing as principal for its own
account, or is deemed under applicable Canadian securities laws to be
purchasing as principal, for investment only and not with a view to resale or
distribution; (ii) is both an "accredited investor" as defined in section 1.1
of National Instrument 45-106 - Prospectus Exemptions of the Canadian
Securities Administrators (or, in Ontario, as defined in section 73.3(1) of
the Securities Act (Ontario), as applicable) and also a "permitted client" as
defined in section 1.1 of National Instrument 31-103 - Registration
Requirements, Exemptions and Ongoing Registrant Obligations of the Canadian
Securities Administrators; and (iii) was not created, and is not used, solely
to purchase or hold securities as an accredited investor. Any resale of
Placing Shares into Canada or acquired by a Canadian investor in the Placing
must be made in accordance with applicable Canadian securities laws, which may
vary depending on the relevant jurisdiction (both of the investor and the
person to whom the Placing Shares are being resold), and may require that
resales be made in accordance with Canadian prospectus requirements or
pursuant to an available exemption therefrom. These resale restrictions may
under certain circumstances apply to resales of Placing Shares outside of
Canada.
This Announcement and the Placing of the Placing Shares as set out in this
Announcement does not constitute, advertise or relate to an offer to the
public (as defined in the South African Companies Act, No 71 of 2008, as
amended (the "SA Companies Act")) for the sale of or subscription for, or the
solicitation of an offer to buy or subscribe for, securities or an opportunity
to invest in a collective investment scheme in South Africa (as contemplated
in the South African Collective Investment Scheme Control Act, No 45 of 2002).
In South Africa, the Placing Shares will only be offered to financial
institutions and other persons who are referred to in section 96(1)(a) of the
SA Companies Act, or persons who subscribe, as principal, for the Placing
Shares at a total acquisition cost of ZAR1 000 000 or more, as contemplated in
section 96(1)(b) of the SA Companies Act ("SA Qualifying Investor"). Any
person who is not a SA Qualifying Investor will not be entitled to acquire any
securities offered for sale or subscription as described in this Announcement
or otherwise act thereon. This Announcement does not, nor is it intended to,
constitute a prospectus registered under the SA Companies Act and accordingly,
does not comply with the substance and form requirements for prospectuses set
out in the SA Companies Act and the South African Companies Regulations of
2011. No prospectus has been lodged with, or registered by, the South African
Companies and Intellectual Property Commission. Nothing in this Announcement
should be viewed, or construed, as "advice" as that term is used in the South
African Financial Markets Act, No 19 of 2012, as amended ("FMA") or "advice"
and/or an "intermediary service" as those terms are used in the South African
Financial Advisory and Intermediary Services Act, No 37 of 2002, as amended
(the "SA FAIS Act") and nothing in this Announcement should be construed as
constituting the canvassing for, or marketing or advertising of, financial
services in South Africa. It is the responsibility of any SA Qualifying
Investor to ensure they or it have obtained all required approvals in terms of
the financial surveillance or "exchange control" regulations promulgated under
the South African Currency and Exchanges Act, No 9 of 1933, and any rulings
issued pursuant thereto.
No prospectus has been lodged or filed with, or registered by, the Australian
Securities and Investments Commission, any securities commission or similar
regulatory authority of any Canadian jurisdiction, the Japanese Ministry of
Finance or the South African Companies and Intellectual Property Commission;
and the Placing Shares have not been, and nor will they be, registered or
qualified for public distribution under the securities laws of any state,
province or territory of Australia, Canada, Japan or South Africa.
Accordingly, the Placing Shares may not (unless an exemption under the
relevant securities laws is applicable) be offered, sold, resold or delivered,
directly or indirectly, in or into, Australia, Canada, Japan or South Africa
or any other jurisdiction outside the United Kingdom or to, or for the account
or benefit of any national, resident or citizen of Australia, Canada, Japan or
South Africa.
This Announcement does not constitute, or purport to include the information
required of, a disclosure document under Chapter 6D of the Australian
Corporations Act 2001 (Cth) ("Corporations Act") and will not be lodged with
the Australian Securities and Investments Commission. No offer of shares is or
will be made in Australia pursuant to this Announcement, except to a person
who is a "sophisticated investor" within the meaning of section 708(8) of the
Corporations Act or a "professional investor" within the meaning of section
708(11) of the Corporations Act. If any shares are issued, they may not be
offered for sale (or transferred, assigned or otherwise alienated) to
investors in Australia for at least 12 months after their issue, except in
circumstances where disclosure to investors is not required under Part 6D.2 of
the Corporations Act.
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 which would permit an offer of the Placing Shares or
possession or distribution of this Announcement or any other offering or
publicity material relating to such Placing Shares in any jurisdiction where
action for that purpose is required. Persons distributing any part of this
Announcement must satisfy themselves that it is lawful to do so. Persons
(including, without limitation, nominees and trustees) who have a contractual
or other legal obligation to forward a copy of this Announcement should seek
appropriate advice before taking any such action. Persons into whose
possession this Announcement comes are required to inform themselves about,
and to observe, any such restrictions. Any failure to comply with these
restrictions may constitute a violation of the securities laws of any such
jurisdiction.
This communication is directed only at: (a) persons in a member state of the
European Economic Area who are "qualified investors" (within the meaning of
the EU Prospectus Regulation), (b) persons in the United Kingdom who are
"qualified investors" (within the meaning of the UK Prospectus Regulation) (i)
who have professional experience in matters relating to investments who fall
within the definition of "investment professionals" in Article 19(5) of the
Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the
"Order") or (ii) who are high net worth entities or other persons falling
within Article 49(2)(a) to (d) of the Order; (c) persons in the United States,
who are certain qualified institutional buyers ("QIBs") (as defined in Rule
144A under the US Securities Act of 1933, as amended (the "Securities Act"));
(d) persons in Canada who are both "accredited investors" within the meaning
of National Instrument 45-106 (or, in Ontario, section 73.3(1) of the
Securities Act (Ontario), as applicable) and "permitted clients" within the
meaning of National Instrument 31-103; (e) perons in Australia who are
"sophisticated investors" or "professional investors" (within the meaning of
sections 708(8), and 708(11), respectively, of the Australian Corporations Act
2001 (Cth) (the "Corporations Act")), being persons to whom an offer of
securities can be made without a disclosure document under chapter 6D of the
Corporations Act; (f) persons in the Republic of South Africa ("South Africa")
who fall within the exemptions set out in sections 96(1)(a) or 96(1)(b) of the
South African Companies Act, No 71 of 2008 ("SA Companies Act"); and (g) those
persons to whom it may otherwise be lawfully communicated (all such persons
referred to above being "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. Any investment in
connection with the Placing will only be available to, and will only be
engaged with, Relevant Persons. Any person who is not a Relevant Person should
not act or rely on this Announcement or any of its contents.
Each of Barclays Bank PLC ("Barclays") and J.P. Morgan Securities plc (which
conducts its UK investment banking business as J.P. Morgan Cazenove) ("JPMC"
and, together with Barclays, the "Joint Bookrunners") is authorised in the
United Kingdom by the Prudential Regulation Authority (the "PRA") and
regulated in the United Kingdom by the PRA and the Financial Conduct Authority
(the "FCA"). Each of the Joint Bookrunners is acting exclusively for the
Company and no-one else in connection with the Placing and will not regard any
other person (whether or not a recipient of this Announcement) as its client
in relation to the Placing or any other matter referred to in this
Announcement, and will not be responsible to anyone other than the Company for
providing the protections afforded to clients of Barclays or its affiliates or
of JPMC or its affiliates, or for providing advice in relation to the Placing
or any other matter referred to in this Announcement. None of the Joint
Bookrunners or any of their respective affiliates is acting for the Company
with respect to the Retail Offer.
This Announcement is being 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 either of the Joint Bookrunners or any of their respective
affiliates or agents (or any of their respective directors, officers,
employees or advisers) for the contents of the information contained in this
Announcement, or any other written or oral information made available to or
publicly available to any interested party or its advisers, or any other
statement made or purported to be made by or on behalf of either of the Joint
Bookrunners or any of their respective affiliates in connection with the
Company, the Placing Shares or the Placing and any responsibility and
liability whether arising in tort, contract or otherwise therefore is
expressly disclaimed. No representation or warranty, express or implied, is
made by either of the Joint Bookrunners or any of their respective affiliates
as to the accuracy, fairness, verification, completeness or sufficiency of the
information contained in this Announcement 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.
This Announcement does not identify or suggest, or purport to identify or
suggest, the risks (direct or indirect) that may be associated with an
investment in the Placing Shares. Any investment decision to buy Placing
Shares in the Placing must be made solely on the basis of publicly available
information, which has not been independently verified by either of the Joint
Bookrunners.
This Announcement contains (or may contain) certain forward-looking
statements, beliefs or opinions, with respect to certain of the Company's
current expectations and projections about future performance, anticipated
events or trends and other matters that are not historical facts. These
forward-looking statements, which sometimes use words such as "aim",
"anticipate", "believe", "intend", "plan" "estimate", "expect" and words of
similar meaning or the negative thereof, include all matters that are not
historical facts and reflect the Company's directors' beliefs and expectations
and involve a number of risks, uncertainties and assumptions that could cause
actual results and performance to differ materially from any expected future
results or performance expressed or implied by the forward-looking statement.
These statements are subject to unknown risks, uncertainties and other factors
that could cause actual results to differ materially from those expressed or
implied by such forward-looking statements. Statements contained in this
Announcement regarding past trends or activities should not be taken as a
representation that such trends or activities will continue in the future. The
information contained in this Announcement is subject to change without notice
and, except as required by applicable law, none of the Company, the Joint
Bookrunners or any of such persons' respective directors, officers, employees,
agents, affiliates or advisers assume any responsibility or obligation to
update, amend or revise publicly or review any of the forward-looking
statements contained in this Announcement. You should not place undue reliance
on forward-looking statements, which speak only as of the date of this
Announcement. Any indication in this Announcement of the price at which the
Company's shares have been bought or sold in the past cannot be relied upon as
a guide to future performance. No statement in this Announcement is or is
intended to be a profit forecast or profit estimate or to imply that the
earnings of the Company for the current or future financial years will
necessarily match or exceed the historical or published earnings of the
Company. The price and value of securities can go down as well as up. Past
performance of the Company cannot be relied on as a guide to future
performance. Persons reading this Announcement are cautioned not to place
undue reliance on such forward-looking statements.
In connection with the Placing, each of the Joint Bookrunners and any of their
respective affiliates, acting as investors for their own account, may take up
a portion of the shares in the Placing as a principal position and in that
capacity may retain, purchase, sell, offer to sell for their own accounts such
shares and other securities of the Company or related investments in
connection with the Placing or otherwise. Accordingly, references to Placing
Shares being offered, acquired, placed or otherwise dealt in should be read as
including any issue or offer to, or acquisition, placing or dealing by, the
Joint Bookrunners and any of their respective affiliates acting in such
capacity. In addition, the Joint Bookrunners and any of their respective
affiliates may enter into financing arrangements (including swaps, warrants
and contracts for difference) with investors in connection with which the
Joint Bookrunners and any of their respective affiliates may from time to time
acquire, hold or dispose of shares. Neither of the Joint Bookrunners intends
to disclose the extent of any such investment or transactions otherwise than
in accordance with any legal or regulatory obligations to do so.
Each of the Joint Bookrunners and their respective affiliates may have engaged
in transactions with, and provided various commercial banking, investment
banking, financial advisory transactions and services in the ordinary course
of their business with the Company and/or its affiliates for which they would
have received customary fees and commissions. Each of the Joint Bookrunners
and their respective affiliates may provide such services to the Company
and/or its affiliates in the future.
The Placing Shares to be issued pursuant to the Placing will not be admitted
to trading on any stock exchange other than the London Stock Exchange.
Neither the content of the Company's website (or any other website) nor any
website accessible by hyperlinks on the Company's website (or any other
website) is incorporated in, or forms part of, this Announcement.
This Announcement does not constitute a recommendation concerning any
investor's options with respect to the Placing. Investors and prospective
investors should conduct their own investigation, analysis and evaluation of
the business and data described in this Announcement. 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.
UK Product Governance Requirements
Solely for the purposes of the product governance requirements of Chapter 3 of
the FCA Handbook Product Intervention and Product Governance Sourcebook (the
"UK Product Governance Requirements"), and disclaiming all and any liability,
whether arising in tort, contract or otherwise, which any 'manufacturer' (for
the purposes of the UK Product Governance Requirements) may otherwise have
with respect thereto, the Placing Shares have been subject to a product
approval process, which has determined that the Placing Shares are: (i)
compatible with an end target market of retail investors and investors who
meet the criteria of professional clients and eligible counterparties, each
defined in Chapter 3 of the FCA Handbook Conduct of Business Sourcebook; and
(ii) eligible for distribution through all permitted distribution channels
(the "UK Target Market Assessment"). Notwithstanding the UK Target Market
Assessment, distributors should note that: the price of the Placing Shares may
decline and investors could lose all or part of their investment; the Placing
Shares offer no guaranteed income and no capital protection; and an investment
in the Placing Shares is compatible only with investors who do not need a
guaranteed income or capital protection, who (either alone or in conjunction
with an appropriate financial or other adviser) are capable of evaluating the
merits and risks of such an investment and who have sufficient resources to be
able to bear any losses that may result therefrom. The UK Target Market
Assessment is without prejudice to any contractual, legal or regulatory
selling restrictions in relation to the 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) an assessment of suitability or appropriateness for the
purposes of Chapters 9A or 10A respectively of the FCA Handbook Conduct of
Business Sourcebook; 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 Placing Shares. Each distributor is responsible for undertaking
its own target market assessment in respect of the Placing Shares and
determining appropriate distribution channels.
APPENDIX
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS
ANNOUNCEMENT (INCLUDING THIS APPENDIX) AND THE TERMS AND CONDITIONS SET OUT IN
THIS APPENDIX (COLLECTIVELY, 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) IN MEMBER STATES OF THE
EUROPEAN ECONOMIC AREA (THE "EEA"), PERSONS WHO ARE QUALIFIED INVESTORS WITHIN
THE MEANING OF ARTICLE 2 OF REGULATION (EU) 2017/1129, AS AMENDED (THE "EU
PROSPECTUS REGULATION") ("EU QUALIFIED INVESTORS"); (B) IN THE UNITED KINGDOM,
QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2 OF REGULATION (EU)
2017/1129, AS AMENDED, AS IT FORMS PART OF UK LAW BY VIRTUE OF THE EUROPEAN
UNION (WITHDRAWAL) ACT 2018 (AS AMENDED) (THE "UK PROSPECTUS REGULATION") (I)
WHO HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS WHO FALL
WITHIN THE DEFINITION OF "INVESTMENT PROFESSIONALS" IN ARTICLE 19(5) OF THE
FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE
"ORDER") OR (II) WHO ARE HIGH NET WORTH ENTITIES OR OTHER PERSONS FALLING
WITHIN ARTICLE 49(2)(A) TO (D) OF THE ORDER ("UK QUALIFIED INVESTORS"); (C) IN
THE UNITED STATES, CERTAIN QUALIFIED INSTITUTIONAL BUYERS ("QIBS") (AS DEFINED
IN RULE 144A UNDER THE US SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"); (D) IN CANADA, PERSONS WHO ARE BOTH "ACCREDITED INVESTORS" WITHIN THE
MEANING OF NATIONAL INSTRUMENT 45-106 (OR, IN ONTARIO, SECTION 73.3(1) OF THE
SECURITIES ACT (ONTARIO), AS APPLICABLE) AND "PERMITTED CLIENTS" WITHIN THE
MEANING OF NATIONAL INSTRUMENT 31-103; (E) IN AUSTRALIA, PERSONS WHO ARE
"SOPHISTICATED INVESTORS" OR "PROFESSIONAL INVESTORS" (WITHIN THE MEANING OF
SECTIONS 708(8), AND 708(11), RESPECTIVELY, OF THE AUSTRALIAN CORPORATIONS ACT
2001 (CTH) (THE "CORPORATIONS ACT")), BEING PERSONS TO WHOM AN OFFER OF
SECURITIES CAN BE MADE WITHOUT A DISCLOSURE DOCUMENT UNDER CHAPTER 6D OF THE
CORPORATIONS ACT; (F) IN THE REPUBLIC OF SOUTH AFRICA ("SOUTH AFRICA"),
PERSONS WHO FALL WITHIN THE EXEMPTIONS SET OUT IN SECTIONS 96(1)(A) OR
96(1)(B) OF THE SOUTH AFRICAN COMPANIES ACT, NO 71 OF 2008 ("SA COMPANIES
ACT"); AND (G) OTHERWISE, PERSONS TO WHOM IT MAY OTHERWISE BE LAWFUL TO
COMMUNICATE IT TO (EACH A "RELEVANT PERSON").
BY ACCEPTING THE TERMS OF THIS ANNOUNCEMENT, YOU REPRESENT AND AGREE THAT YOU
ARE A RELEVANT PERSON. THIS ANNOUNCEMENT MUST NOT BE ACTED ON OR RELIED ON BY
PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT
MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR
INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT RELATES IS AVAILABLE ONLY TO
RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS
ANNOUNCEMENT DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF
ANY SECURITIES IN BIG YELLOW GROUP PLC (THE "COMPANY").
EACH PLACEE (AS DEFINED BELOW) SHOULD CONSULT WITH ITS OWN ADVISERS AS TO
LEGAL, TAX, BUSINESS, FINANCIAL AND RELATED ASPECTS OF A SUBSCRIPTION FOR THE
PLACING SHARES (AS DEFINED BELOW).
The Placing Shares have not been and will not be registered under the
Securities Act, or under the securities laws of any state or other
jurisdiction of the United States. Accordingly, the Placing Shares may not be
offered or sold directly or indirectly in, into or within the United States
except pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and in accordance with
applicable state securities laws. There will be no public offering of the
Placing Shares in the United States. The Placing Shares are being offered and
sold outside the United States in accordance with Regulation S under the
Securities Act. Any offering to be made in the United States will be made to a
limited number of qualified institutional buyers (as defined in Rule 144A
under the Securities Act), pursuant to an exemption from registration under
the Securities Act in a transaction not involving any public offering.
A prospectus qualifying the Placing Shares for distribution has not been, and
will not be, filed with any securities commission or similar regulatory
authority of any jurisdiction of Canada. No such authority has reviewed,
expressed an opinion about or in any way passed upon the Placing (as defined
below) or the Placing Shares, and it is an offence to claim otherwise. Any
offering of the Placing Shares in Canada will be made on a private placement
basis only in the provinces of British Columbia, Alberta, Ontario and Quebec,
in reliance on exemptions from the requirements under applicable Canadian
securities laws that the Company file and obtain a receipt for a prospectus
for any distribution of securities. No offer of securities is made pursuant to
this Announcement in Canada except to a person who has represented to the
Company and the Joint Bookrunners (as defined below) that such person (i) is
purchasing as principal for its own account, or is deemed under applicable
Canadian securities laws to be purchasing as principal, for investment only
and not with a view to resale or distribution; (ii) is both an "accredited
investor" as defined in section 1.1 of National Instrument 45-106 - Prospectus
Exemptions of the Canadian Securities Administrators (or, in Ontario, as
defined in section 73.3(1) of the Securities Act (Ontario), as applicable) and
also a "permitted client" as defined in section 1.1 of National Instrument
31-103 - Registration Requirements, Exemptions and Ongoing Registrant
Obligations of the Canadian Securities Administrators; and (iii) was not
created, and is not used, solely to purchase or hold securities as an
accredited investor. Any resale of Placing Shares into Canada or acquired by a
Canadian investor in the Placing must be made in accordance with applicable
Canadian securities laws, which may vary depending on the relevant
jurisdiction (both of the investor and the person to whom the Placing Shares
are being resold), and may require that resales be made in accordance with
Canadian prospectus requirements or pursuant to an available exemption
therefrom. These resale restrictions may under certain circumstances apply to
resales of Placing Shares outside of Canada.
No prospectus has been lodged or filed with, or registered by, the Australian
Securities and Investments Commission, any securities commission or similar
regulatory authority of any Canadian jurisdiction, the Japanese Ministry of
Finance or the South African Companies and Intellectual Property Commission;
and the Placing Shares have not been, and nor will they be, registered or
qualified for distribution under the securities laws of any state, province or
territory of Australia, Canada, Japan or South Africa. Accordingly, the
Placing Shares may not (unless an exemption under the relevant securities laws
is applicable) be offered, sold, resold or delivered, directly or indirectly,
in or into Australia, Canada, Japan or South Africa or any other jurisdiction
outside the United Kingdom or to, or for the account or benefit of any
national, resident or citizen of Australia, Canada, Japan or South Africa.
The Placing of the Placing Shares as set out in this Announcement does not
constitute, advertise or relate to an offer to the public (as defined in the
SA Companies Act) for the sale of or subscription for, or the solicitation of
an offer to buy or subscribe for, securities or an opportunity to invest in a
collective investment scheme in South Africa (as contemplated in the South
African Collective Investment Scheme Control Act, 2002). In South Africa, the
Placing Shares will not be offered to any person in any manner which could be
construed as an offer to the public in terms of the SA Companies Act and is
only directed at financial institutions and other persons who are referred to
in section 96(1)(a) of the SA Companies Act, or persons who subscribe, as
principal, for the Placing Shares at a total acquisition cost of ZAR1 000 000
or more, as contemplated in section 96(1)(b) of the SA Companies Act ("SA
Qualifying Investor"). Any person who is not a SA Qualifying Investor will not
be entitled to acquire any securities offered for sale or subscription as
described in this Announcement or otherwise act thereon. The offering of the
Placing Shares to SA Qualifying Investors is exempt from the requirement that
the Company prepare and file a prospectus with the relevant securities
regulatory authorities in South Africa. This Announcement and the terms and
conditions set out in this appendix do not, nor are they intended to,
constitute a prospectus registered under the SA Companies Act and accordingly,
do not comply with the substance and form requirements for prospectuses set
out in the SA Companies Act and the South African Companies Regulations of
2011. No prospectus has been lodged with, or registered by, the South
African Companies and Intellectual Property Commission. Nothing in this
Announcement should be viewed, or construed, as "advice" as that term is used
in the FMA and/or the SA FAIS Act and nothing in this Announcement or pursuant
to the Placing should be construed as constituting the canvassing for, or
marketing or advertising of, financial services in South Africa.
This Announcement, and the information contained herein, is not for release,
publication or distribution, directly or indirectly, to persons in the United
States, Australia, Canada, South Africa or Japan or in any jurisdiction in
which such publication or distribution is unlawful (each a "Restricted
Territory"). 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 Barclays Bank PLC
("Barclays") or J.P. Morgan Securities plc, which conducts its UK investment
banking business as J.P. Morgan Cazenove ("JPMC" and, together with Barclays,
the "Joint Bookrunners") or any of their respective affiliates or agents which
would permit an offer of the Placing Shares or possession or distribution of
this Announcement or any other offering or publicity material relating to such
Placing Shares in any jurisdiction where action for that purpose is required.
Persons distributing any part of this Announcement must satisfy themselves
that it is lawful to do so. Persons (including, without limitation, nominees
and trustees) who have a contractual or other legal obligation to forward a
copy of this Announcement should seek appropriate advice before taking any
such action. Persons into whose possession this Announcement comes are
required by the Company and the Joint Bookrunners to inform themselves about,
and to observe, any such restrictions.
All offers of the Placing Shares will be made pursuant to an exemption under
the EU Prospectus Regulation and the UK Prospectus Regulation from the
requirement to produce a prospectus. This Announcement is being distributed
and communicated to persons in the UK only in circumstances to which section
21(1) of the Financial Services and Markets Act 2000, as amended ("FSMA") does
not apply.
The Placing Shares have not been approved or disapproved by the US Securities
and Exchange Commission, any state securities commission or any other
regulatory authority in the United States, nor have any of the foregoing
authorities passed upon or endorsed the merits of the Placing or the accuracy
or adequacy of this Announcement. Any representation to the contrary is
unlawful.
Subject to certain exceptions, the securities referred to in this Announcement
may not be offered or sold in any Restricted Territory or to, or for the
account or benefit of, a citizen or resident, or a corporation, partnership or
other entity created or organised in or under the laws of a Restricted
Territory.
This Announcement is being 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 either of the Joint Bookrunners or any of their respective
affiliates or agents (or any of their respective directors, officers,
employees or advisers) for the contents of the information contained in this
Announcement, or any other written or oral information made available to or
publicly available to any interested party or its advisers, or any other
statement made or purported to be made by or on behalf of either of the Joint
Bookrunners or any of their respective affiliates in connection with the
Company, the Placing Shares or the Placing and any responsibility and
liability whether arising in tort, contract or otherwise therefore is
expressly disclaimed. No representation or warranty, express or implied, is
made by either of the Joint Bookrunners or any of their respective affiliates
as to the accuracy, fairness, verification, completeness or sufficiency of the
information contained in this Announcement 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.
Each of the Joint Bookrunners is acting exclusively for the Company and no-one
else in connection with the Placing and will not regard any other person
(whether or not a recipient of this Announcement) as its client in relation to
the Placing or any other matter referred to in this Announcement, and will not
be responsible to anyone other than the Company for providing the protections
afforded to its clients or for providing advice in relation to the Placing or
any other matter referred to in this Announcement.
None of the Company, the Joint Bookrunners or their respective affiliates or
agents makes any representation or warranty, express or implied, to any
Placees regarding any 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.
Persons who are invited to and who choose to participate in the Placing, by
making an oral or written offer to subscribe for Placing Shares, including any
individuals, funds or others on whose behalf a commitment to subscribe for
Placing Shares is given (the "Placees"), will be deemed to have read and
understood this Announcement in its entirety and to be making such offer on
the terms and conditions, and to be providing (and shall only be permitted to
participate in the Placing on the basis that they have provided) the
representations, warranties, acknowledgements and undertakings, contained in
this Appendix. In particular each such Placee represents, warrants and
acknowledges that:
(A) it is a Relevant Person and undertakes that it will subscribe
for, hold, manage or dispose of any Placing Shares that are allocated to it
for the purposes of its business; and
(B) if it is a financial intermediary, as that term is used in
Article 5(1) of the UK Prospectus Regulation: (i) any Placing Shares acquired
by it in the Placing have not been acquired on behalf of, nor have they been
acquired with a view to their offer or resale to, persons in the United
Kingdom or to which the UK Prospectus Regulation otherwise applies other than
UK Qualified Investors or in circumstances in which the prior consent of the
Joint Bookrunners have been given to the offer or resale; or (ii) where
Placing Shares have been acquired by it on behalf of persons in the United
Kingdom other than UK Qualified Investors, the offer of those Placing Shares
to it is not treated under the UK Prospectus Regulation as having been made to
such persons; or
(C) if it is a financial intermediary, as that term is used in
Article 5(1) of the EU Prospectus Regulation: (i) any Placing Shares acquired
by it in the Placing have not been acquired on behalf of, nor have they been
acquired with a view to their offer or resale to, persons in any member state
of the EEA or to which the EU Prospectus Regulation otherwise applies other
than EU Qualified Investors or in circumstances in which the prior consent of
the Joint Bookrunners have been given to the offer or resale; or (ii) where
Placing Shares have been acquired by it on behalf of persons in any member
state of the EEA other than EU Qualified Investors, the offer of those Placing
Shares to it is not treated under the EU Prospectus Regulation as having been
made to such persons.
Persons (including without limitation, nominees and trustees) who have a
contractual or other legal obligation to forward a copy of this Appendix or
the Announcement of which it forms part should seek appropriate advice before
taking any action.
Details of the Placing Agreement and of the Placing Shares
The Joint Bookrunners and the Company have today entered into a placing
agreement (the "Placing Agreement") under which, subject to the terms and
conditions set out therein, each of the Joint Bookrunners has agreed,
severally and not jointly or jointly and severally, that it will, as agent for
and on behalf of the Company, use its reasonable endeavours to procure Placees
for new ordinary shares of 10 pence each in the share capital of the Company
(the "Placing Shares"), with the number of Placing Shares and price per
Placing Share (the "Placing Price") to be determined following completion of
the Bookbuild (as defined below) and, to the extent any Placee defaults in
paying the Placing Price in respect of any of the Placing Shares allocated to
it, to itself as principal subscribe for the Placing Shares at the Placing
Price (the "Placing").
The Placing Shares will, when issued, be credited as fully paid and will rank
pari passu in all respects with the existing ordinary shares of 10 pence each
in the share capital of the Company (the "Ordinary Shares"), including the
right to receive all dividends and other distributions declared, made or paid
in respect of the Ordinary Shares after the date of issue.
Applications for listing and admission to trading
Applications have been made to the Financial Conduct Authority (the "FCA") for
admission of the Placing Shares to the premium listing segment of the Official
List of the FCA (the "Official List") and to London Stock Exchange plc (the
"London Stock Exchange") for admission of the Placing Shares to trading on its
main market for listed securities (together, "Admission"). It is expected that
Admission will become effective on or before 8.00 a.m. (London time) on 13
October 2023 and that dealings in the Placing Shares will commence at that
time.
Bookbuild
The Joint Bookrunners will today commence an accelerated bookbuilding process
to determine demand for participation in the Placing by Placees (the
"Bookbuild"). This Appendix gives details of the terms and conditions of, and
the mechanics of participation in, the Placing. No commissions will be paid to
Placees or by Placees in respect of any Placing Shares.
The Joint Bookrunners shall be entitled to effect the Placing by such
alternative method to the Bookbuild as they may, in their absolute discretion
following consultation with the Company, determine.
Participation in, and principal terms of, the Placing
1. Each of Barclays and JPMC is acting as a joint global
coordinator and joint bookrunner and agent of the Company in connection with
the Placing.
2. Participation in the Placing will only be available to
persons who may lawfully be, and are, invited to participate by either of the
Joint Bookrunners. Each of the Joint Bookrunners and their respective
affiliates are entitled to enter bids in the Bookbuild as principal.
3. The Bookbuild, if successful, will establish a single price
per Placing Share payable to the Joint Bookrunners, as agents for and on
behalf of the Company, by all Placees whose bids are successful. The Placing
Price and the final number of Placing Shares will be determined by the Company
(in consultation with the Joint Bookrunners) following completion of the
Bookbuild and any discount to the market price of the Ordinary Shares will be
determined in accordance with the Listing Rules of the FCA. The Placing Price
and the final number of Placing Shares to be issued will be announced via a
Regulatory Information Service ("RIS") following the completion of the
Bookbuild.
4. To bid in the Bookbuild, prospective Placees should
communicate their bids by telephone or in writing to their usual sales contact
at either of the Joint Bookrunners. Each bid should state the number of
Placing Shares which the prospective Placee wishes to acquire at either the
Placing Price which is ultimately established by the Company and the Joint
Bookrunners or at prices up to a price limit specified in its bid. Bids may be
scaled down by the Joint Bookrunners on the basis referred to in paragraph 9
below.
5. A bid in the Bookbuild will be made on the terms and
subject to the conditions in this Appendix and will be legally binding on the
Placee on behalf of which it is made and, except with the Joint Bookrunners'
consent, will not be capable of variation or revocation after the time at
which it is submitted. Each Placee will have an immediate, separate,
irrevocable and binding obligation, owed to each of the Joint Bookrunners, as
agent for and on behalf of the Company, to pay it in cleared funds immediately
on the settlement date, in accordance with the registration and settlement
requirements set out below, 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.
6. The Bookbuild is expected to close no later than 7.00 a.m.
(London time) on 11 October 2023 but may be closed earlier or later at the
discretion of the Joint Bookrunners and the Company. The Joint Bookrunners
may, in agreement with the Company, accept bids that are received after the
Bookbuild has closed.
7. Each prospective Placee's allocation will be agreed between
the Joint Bookrunners and the Company and will be confirmed orally or in
writing by the relevant Joint Bookrunner (as agent for and on behalf of the
Company) following the close of the Bookbuild and a trade confirmation will be
despatched thereafter. This oral or written confirmation to such Placee will
constitute an irrevocable legally binding commitment upon that person (who
will at that point become a Placee) in favour of the Joint Bookrunners and the
Company, under which such Placee agrees to acquire the number of Placing
Shares allocated to it and to pay the Placing Price for each such Placing
Share on the terms and conditions set out in this Appendix and in accordance
with the Company's articles of association.
8. The allocation of Placing Shares to Placees located in the
United States shall be conditional on the execution by each Placee of an
investor representation letter in the form provided to it by the relevant
Joint Bookrunner.
9. Each of the Joint Bookrunners may choose to accept bids,
either in whole or in part, on the basis of allocations determined in
agreement with the Company and may scale down any bids for this purpose on
such basis as they may determine. Each of the Joint Bookrunners may also,
notwithstanding paragraphs 4 and 5 above, and subject to prior consent of the
Company, (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 (upon agreement with the Joint
Bookrunners) to reduce or seek to increase the amount to be raised pursuant to
the Placing, in its absolute discretion.
10. Irrespective of the time at which a Placee's allocation
pursuant to the Placing is confirmed, settlement for all Placing Shares to be
acquired pursuant to the Placing will be required to be made at the same time,
on the basis explained below under "Registration and settlement".
11. Except as required by law or regulation, no press release or
other announcement will be made by either of the Joint Bookrunners or the
Company using the name of any Placee (or its agent), in its capacity as Placee
(or agent), other than with such Placee's prior written consent.
12. All obligations under the Bookbuild and Placing will be
subject to fulfilment or (where applicable) waiver of the conditions referred
to below under "Conditions of the Placing" and to the Placing not being
terminated on the basis referred to below under "Right to terminate under the
Placing Agreement".
13. By participating in the Bookbuild, each Placee agrees 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 after confirmation (oral or otherwise) by a Joint
Bookrunner.
14. To the fullest extent permissible by law, none of the Joint
Bookrunners, the Company or any of their respective affiliates, agents,
directors, officers or employees shall have any responsibility or liability to
Placees (or to any other person whether acting on behalf of a Placee or
otherwise). In particular, none of the Joint Bookrunners, the Company or any
of their respective affiliates, agents, directors, officers or employees shall
have any liability (including to the fullest extent permissible by law, any
fiduciary duties) in respect of the Joint Bookrunners' 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 the Placing Agreement becoming unconditional
and not having been terminated in accordance with its terms. The obligations
of each of the Joint Bookrunners under the Placing Agreement are conditional
on, amongst other things:
1. agreement being reached between the Company and the Joint
Bookrunners on the Placing Price and the final number of Placing Shares to be
issued pursuant to the Placing;
2. in the opinion of the Joint Bookrunners (acting in good
faith), the representations and warranties of the Company contained in the
Placing Agreement being true and accurate and not misleading on and as of the
date of the Placing Agreement and at all times before Admission by reference
to the facts and circumstances then subsisting, save to the extent, in the
absolute discretion of the Joint Bookrunners and after such consultation with
the Company as the Joint Bookrunners may deem appropriate, any breach of a
representation or warranty is not material;
3. the fulfilment by the Company of its obligations under the
Placing Agreement to the extent that the same fall to be performed prior to
Admission, save to the extent, in the absolute discretion of the Joint
Bookrunners, the failure to fulfil any such obligation is not material;
4. the Company allotting, subject only to Admission, the
Placing Shares to the Placees in accordance with the Placing Agreement;
5. in the opinion of the Joint Bookrunners (acting in good
faith) and after such consultation with the Company as the Joint Bookrunners
may deem appropriate, no material adverse change having occurred between the
date of the Placing Agreement and Admission; and
6. Admission occurring not by not later than 8.00 a.m. (London
time) on 13 October 2023 (or such later date as may be agreed by the Company
and the Joint Bookrunners, being not later than 31 October 2023).
The Joint Bookrunners have discretion to waive compliance by the Company with
the whole or any part of certain of the Company's obligations in relation to
the conditions in the Placing Agreement and/or agree an extension in time for
their satisfaction. Any such extension or waiver will not affect Placees'
commitments as set out in this Announcement.
If: (i) any of the conditions contained in the Placing Agreement, including
those described above, are not fulfilled or, where permitted, waived or
extended in writing 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 satisfied; or
(iii) the Placing Agreement is terminated in the circumstances specified
below, 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.
None of the Joint Bookrunners or any of their respective affiliates, agents,
directors, officers or employees shall have any liability to any Placee (or to
any other person whether acting on behalf of a Placee or otherwise) in respect
of any decision they may make as to whether or not to waive or to extend the
time and/or 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 Placing each
Placee agrees that any such decision is within the absolute discretion of each
of the Joint Bookrunners.
By participating in the Placing, each Placee agrees that its rights and
obligations hereunder terminate only in the circumstances described above and
under "Right to terminate under the Placing Agreement" and will not be capable
of rescission or termination by the Placee after confirmation (oral or
otherwise) by a Joint Bookrunner.
Right to terminate under the Placing Agreement
The Joint Bookrunners are entitled, at their absolute discretion, at any time
before Admission, to terminate the Placing Agreement by giving notice to the
Company if, amongst other things:
1. any of the conditions to the Placing Agreement have not
been satisfied or (where permitted) waived or have become incapable of
satisfaction;
2. in the opinion of the Joint Bookrunners (acting in good
faith), any of the Company's representations and warranties are not true and
accurate or have become misleading (or would not be true and accurate or would
be misleading if they were repeated at any time before Admission) by reference
to the facts subsisting at the time and, in the absolute discretion of the
Joint Bookrunners and after such consultation with the Company as the Joint
Bookrunners may deem appropriate, any such breach of representation or
warranty is material;
3. in the opinion of the Joint Bookrunners (acting in good
faith), the Company has not fulfilled its obligations under the Placing
Agreement to the extent that the same fall to be performed prior to Admission,
and to the extent and, in the absolute discretion of the Joint Bookrunners and
after such consultation with the Company as the Joint Bookrunners may deem
appropriate, the failure to fulfil any such obligation is material;
4. it shall come to the notice of the Joint Bookrunners that
any statement contained in any of the press announcements or the management
presentation is or has become untrue or incorrect or misleading, or any matter
has arisen, which would, if the Placing were made at that time, constitute an
omission from the press announcements or the management presentation or an
omission from or misleading inaccuracy in the company disclosure, or any of
them, which in the good faith opinion of the Joint Bookrunners, and after such
consultation with the Company as the Joint Bookrunners may deem appropriate,
is material;
5. since the date of the Placing Agreement, there has been a
material adverse change; or
6. there has occurred a force majeure or market disruption
event as specified in the Placing Agreement which, in the opinion of the Joint
Bookrunners (acting in good faith) and after such consultation with the
Company may deem appropriate, is of such magnitude or severity as to make it
impracticable or inadvisable to proceed with the Placing or may adversely
impact dealings in the Placing Shares following Admission or is likely
materially and adversely to affect the price at which the Placing Shares are
traded on the London Stock Exchange.
Upon such notice being given, the parties to the Placing Agreement 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, subject to certain exceptions.
By participating in the Placing, Placees agree that 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 each of the Joint Bookrunners, that neither of the Joint Bookrunners need
to make any reference to, consult with or seek consent from the Placees in
this regard and that none of the Company, the Joint Bookrunners or any of
their respective directors, officers, employees, agents or affiliates shall
have any liability to Placees whatsoever in connection with any exercise or
failure to exercise any right of termination or other discretion.
Restriction on further issue of securities
The Company has agreed with the Joint Bookrunners that it will not, and will
procure that none of its subsidiaries will (save as required by law or the
rules or standards of the London Stock Exchange, the Listing Rules or the UK
version of EU Regulation No. 596/2014 as it forms part of UK law by virtue of
the European Union (Withdrawal) Act 2018, as amended), without the prior
written consent of the Joint Bookrunners (such consent not to be unreasonably
withheld or delayed), between the date of the Placing Agreement and 90 days
after the date of Admission, directly or indirectly allot or issue new
Ordinary Shares, subject to customary exceptions agreed between the Joint
Bookrunners and the Company.
By participating in the Placing, Placees agree that the exercise by the Joint
Bookrunners of any power to consent to waive the undertaking by the Company of
a transaction which would otherwise be subject to such undertaking shall be
within the absolute discretion of the Joint Bookrunners, and that they do not
need to make any reference to, consult with, or seek consent from, Placees and
that the Joint Bookrunners shall have no liability to Placees whatsoever in
connection with any such exercise (or failure to exercise) of the power to
grant consent.
No prospectus
No offering document or prospectus has been or will be submitted to be
approved by the FCA or submitted to the London Stock Exchange in relation to
the Placing and no such prospectus is required (in accordance with the EU
Prospectus Regulation or the UK Prospectus Regulation) to be published.
Placees' commitments will be made solely on the basis of the information
contained in this Announcement released by the Company today and any
information publicly announced to a RIS by or on behalf of the Company
simultaneously with or prior to the date of this Announcement and subject to
the further terms set forth in the contract note/trading confirmation to be
provided to individual prospective Placees.
Each Placee, by accepting a participation in the Placing, agrees that the
content of this Announcement and all other publicly available information
previously and simultaneously published by the Company by notification to a
RIS is exclusively the responsibility of the Company and confirms that it has
neither received nor relied on any other information, representation,
warranty, or statement made by or on behalf of the Company or either of the
Joint Bookrunners or any other person and none of the Company, the Joint
Bookrunners or any of their respective directors, officers, employees, agents
or affiliates will be liable for any Placee's decision to participate in the
Placing based on any other information, representation, warranty or statement
which the Placees may have obtained or received. Each Placee acknowledges and
agrees that it has relied on its own investigation of the business, financial
or other position of the Company in accepting a participation in the Placing.
Nothing in this paragraph shall exclude or limit the liability of any person
for fraudulent misrepresentation by that person.
Registration and settlement
Settlement of transactions in the Placing Shares (ISIN: GB0002869419)
following Admission will take place within the CREST system, subject to
certain exceptions. The Joint Bookrunners and the Company reserve the right to
require settlement for and delivery of the Placing Shares (or a portion
thereof) to Placees in certificated form or by such other means that they deem
necessary, if delivery or settlement is not possible or practicable in CREST
within the timetable set out in this Announcement or would not be consistent
with the regulatory requirements in the Placee's jurisdiction.
Following the close of the Bookbuild, each Placee allocated Placing Shares in
the Placing will be sent a contract note/trading confirmation stating the
number of Placing Shares to be allocated to it at the Placing Price, the
amount owed by such Placee to the relevant Joint Bookrunner and settlement
instructions. Each Placee agrees that it will do all things necessary to
ensure that delivery and payment is completed in accordance with the standing
CREST or certificated settlement instructions that it has in place with the
relevant Joint Bookrunner. It is expected that such contract note/trading
confirmation will be despatched on or around 11 October 2023 and that this
will also be the trade date.
The Company will deliver the Placing Shares to a CREST account operated by
JPMC as the Company's agent and JPMC will enter its delivery (DEL) instruction
into the CREST system. JPMC will hold any Placing Shares delivered to this
account as nominee for the Placees. The input to CREST 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 will be on 13 October 2023 on a delivery versus
payment basis in accordance with the instructions set out in the contract
note/trade confirmation.
Interest is chargeable daily on payments not received from Placees on the due
date in accordance with the arrangements set out above at the rate of two
percentage points above SONIA as determined by the Joint Bookrunners.
Each Placee is deemed to agree that, if it does not comply with these
obligations, the Joint Bookrunners (as agents for and on behalf of the
Company) may sell any or all of the Placing Shares allocated to that Placee on
such Placee's behalf and retain from the proceeds, for the Company's account
and benefit, an amount equal to the aggregate amount owed by the Placee plus
any interest due. The relevant Placee will, however, remain liable for any
shortfall below the aggregate amount owed by it and may be required to bear
any stamp duty, or stamp duty reserve tax or other stamp, securities,
transfer, registration, execution, documentary or other similar impost, duty
or tax (together with any interest, fines or penalties) or other similar taxes
imposed in any jurisdiction which may arise upon the sale of such Placing
Shares on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or settlement agent,
Placees should ensure that the contract note/trading confirmation is copied
and delivered immediately to the relevant person within that organisation.
Insofar as Placing Shares are registered in a Placee's name or that of its
nominee or in the name of any person for whom a Placee is contracting as agent
or that of a nominee for such person, such Placing Shares should, subject as
provided below, be so registered free from any liability to UK stamp duty or
stamp duty reserve tax. If there are any circumstances in which any other
stamp duty or stamp duty reserve tax (and/or any interest, fines or penalties
relating thereto) is payable in respect of the allocation, allotment, issue or
delivery of the Placing Shares (or for the avoidance of doubt if any stamp
duty or stamp duty reserve tax is payable in connection with any subsequent
transfer of or agreement to transfer Placing Shares), none of the Joint
Bookrunners or the Company shall be responsible for the payment thereof.
Placees shall not be entitled to receive any fee or commission in connection
with the Placing.
Representations and warranties and further terms
By submitting a bid and/or participating in the Placing each prospective
Placee (and any person acting on such Placee's behalf) irrevocably
acknowledges, confirms, undertakes, represents, warrants and agrees (as the
case may be) with each of the Joint Bookrunners (in its capacity as a joint
bookrunner and placing agent of the Company) and the Company, in each case as
a fundamental term of its application for Placing Shares, the following:
(a) it has read and understood this Announcement, including this
Appendix, in its entirety and that its participation in the Bookbuild and the
Placing and its subscription for and purchase of Placing Shares is subject to
and based upon all the terms, conditions, representations, warranties,
indemnities, acknowledgements, agreements and undertakings and other
information contained herein and undertakes not to redistribute or duplicate
this Announcement and it has not relied on, and will not rely on, any other
information given or any representations, warranties or statements made at any
time by any person in connection with Admission, the Bookbuild, the Placing,
the Company, the Placing Shares or otherwise;
(b) 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;
(c) (i) it has made its own assessment of the Company, the
Placing Shares and the terms of the Placing based on this Announcement
(including this Appendix) and any information publicly announced to a RIS by
or on behalf of the Company simultaneously with or prior to the publication of
this Announcement (the "Publicly Available Information"); (ii) the Ordinary
Shares are admitted to the premium listing segment of the Official List and to
trading on the London Stock Exchange's main market for listed securities and
the Company is therefore required to publish certain business and financial
information in accordance with the market abuse regulation (EU No. 596/2014)
as it forms part of UK law by virtue of the European Union (Withdrawal) Act
2018 ("UK MAR"), and the rules and practices of the FCA and the London Stock
Exchange (collectively and together with the Publicly Available Information,
the "Exchange Information"), which includes a description of the nature of the
Company's business, most recent balance sheet and profit and loss account, and
similar statements for preceding years, and it has reviewed such Exchange
Information as it has deemed necessary or that it is able to obtain or access
the Exchange Information without undue difficulty; and (iii) it has had access
to such financial and other information (including the business, financial
condition, prospects, creditworthiness, status and affairs of the Company, the
Placing and the Placing Shares, as well as the opportunity to ask questions)
concerning the Company, the Placing and the Placing Shares as it has deemed
necessary in connection with its own investment decision to acquire any of the
Placing Shares and has satisfied itself that the information is still current
and relied on that investigation for the purposes of its decision to
participate in the Placing;
(d) that the content of this Announcement is exclusively the
responsibility of the Company and that none of the Joint Bookrunners or any of
their respective affiliates or any person acting on behalf of any of them has
or shall have any responsibility or liability for any information,
representation or statement contained in this Announcement or any information
previously or subsequently published by or on behalf of the Company,
including, without limitation, any Exchange Information, and will not be
liable for any Placee's decision to participate in the Placing based on any
information, representation or statement contained in this Announcement or any
information previously or simultaneously published by or on behalf of the
Company or otherwise. Each Placee further represents, warrants and agrees that
the only information on which it is entitled to rely and on which such Placee
has relied in committing itself to acquire the Placing Shares is contained in
this Announcement and any Exchange Information, 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 investigations, representations, warranties or statements
made by any of the Joint Bookrunners or the Company and none of the Joint
Bookrunners or 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. Each Placee further acknowledges and
agrees that it has relied solely on its own investigation, examination and due
diligence of the business, financial or other position of the Company in
deciding to participate in the Placing and that none of the Joint Bookrunners
or any of their respective affiliates have made any representations to it,
express or implied, with respect to the Company, the Bookbuild, 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;
(e) none of the Joint Bookrunners, the Company or any of their
respective affiliates, agents, directors, officers or employees or any person
acting on behalf of any of them has provided, and none of them will provide,
to it any material regarding the Placing Shares or the Company or any other
person other than this Announcement, nor has it requested that any of the
Joint Bookrunners, the Company, any of their respective affiliates, agents,
directors, officers or employees or any person acting on behalf of any of them
to provide it with any such information;
(f) (i) either (A) it is not within the United States, will not
be within the United States at the time that any buy order for Placing Shares
is originated by it and is acquiring the Placing Shares in an "offshore
transaction" within the meaning of and pursuant to Regulation S and not as a
result of any form of "directed selling efforts" as defined in Regulation S;
or (B) it is a "qualified institutional buyer" as defined in Rule 144A under
the Securities Act ("QIB") that has delivered to the Company and the Joint
Bookrunners an investor representation letter in the form provided to it and
is not acquiring the Placing Shares as a result of any "general solicitation"
or "general advertising" within the meaning of Rule 502(c) under the
Securities Act; and (ii) any Placing Shares it acquires will be for its own
account (or for the account to which it exercises sole investment discretion)
for investment purposes, and not with a view to distribution or resale,
directly or indirectly, in or into the United States or otherwise in violation
of the United States securities laws;
(g) 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 Australia, Canada, Japan or South Africa or any other jurisdiction in which
it would be unlawful to make or accept an offer to acquire the Placing Shares
and it further acknowledges that the Placing Shares have not been and will not
be registered or qualified for public distribution under the securities
legislation of Australia, Canada, Japan or South Africa and, subject to
certain exceptions, may not be offered, sold, transferred, delivered or
distributed, directly or indirectly, in or into those jurisdictions or in any
other jurisdiction where any such action for that purpose is required;
(h) if it has received any inside information (as defined under
UK MAR) about the Company in advance of the Placing, it has not: (i) dealt in
the securities of the Company; (ii) encouraged or required another person to
deal in the securities of the Company; or (iii) disclosed such information to
any person except as permitted by the UK MAR, prior to the information being
made publicly available;
(i) it has complied with its obligations under the Criminal
Justice Act 1993, UK MAR and in connection with money laundering and terrorist
financing under the Proceeds of Crime Act 2002 (as amended), the Terrorism Act
2000, the Anti-Terrorism Crime and Security Act 2001, the Terrorism Act 2006,
and the Money Laundering, Terrorist Financing and Transfer of Funds
(Information on the Payer) Regulations 2017 and the Money Laundering
Sourcebook of the FCA and any related or similar rules, regulations or
guidelines issued, administered or enforced by any government agency having
jurisdiction in respect thereof (the "Regulations") and, 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. If within a reasonable time after a request for verification of
identity, the Joint Bookrunners have not received such satisfactory evidence,
the Joint Bookrunners may, in their absolute discretion, terminate the
Placee's Placing participation in which event all funds delivered by the
Placee to the Joint Bookrunners will be returned without interest to the
account of the drawee bank or CREST account from which they were originally
debited;
(j) it is a Relevant Person and undertakes that it will
subscribe for, hold, manage or dispose of any Placing Shares that are
allocated to it for the purposes of its business;
(k) if it is a financial intermediary, as that term is used in
Article 5(1) of the UK Prospectus Regulation: (i) any Placing Shares acquired
by it in the Placing have not been acquired on behalf of, nor have they been
acquired with a view to their offer or resale to, persons in the United
Kingdom or to which the UK Prospectus Regulation otherwise applies other than
UK Qualified Investors or in circumstances in which the prior consent of the
Joint Bookrunners has been given to the offer or resale; or (ii) where Placing
Shares have been acquired by it on behalf of persons in the United Kingdom
other than UK Qualified Investors, the offer of those Placing Shares to it is
not treated under the UK Prospectus Regulation as having been made to such
persons;
(l) if it is a financial intermediary, as that term is used in
Article 5(1) of the EU Prospectus Regulation: (i) the Placing Shares acquired
by it in the Placing have not been acquired on behalf of, nor have they been
acquired with a view to their offer or resale to, persons in any member state
of the EEA or to which the EU Prospectus Regulation otherwise applies other
than EU Qualified Investors or in circumstances in which the prior consent of
the Joint Bookrunners has been given to the offer or resale; or (ii) where
Placing Shares have been acquired by it on behalf of persons in any member
state of the EEA other than EU Qualified Investors, the offer of those Placing
Shares to it is not treated under the EU Prospectus Regulation as having been
made to such persons;
(m) that any offer of Placing Shares may only be directed at
persons in the UK who are UK 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 persons in the United Kingdom, except to UK Qualified
Persons or otherwise in circumstances which have not resulted and which will
not result in an offer to the public in the United Kingdom within the meaning
of section 85(1) of FSMA;
(n) that any offer of Placing Shares may only be directed at
persons in member states of the EEA who are EU 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 persons in the EEA except to EU
Qualified Investors 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;
(o) 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 and
agrees that this Announcement has not been approved by either of the Joint
Bookrunners in their respective capacity as an authorised person under section
21 of FSMA and it may not therefore be subject to the controls which would
apply if it was made or approved as financial promotion by an authorised
person;
(p) it has complied and will comply with all applicable laws
(including all relevant provisions of FSMA) with respect to anything done by
it in relation to the Placing Shares in, from or otherwise involving, the
United Kingdom;
(q) if in the United Kingdom, it is a qualified person (within
the meaning of the UK Prospectus Regulation) and is a person (i) having
professional experience in matters relating to investments and who falls
within the definition of "investment professionals" in Article 19(5) of the
Order or (ii) who is a high net worth entity or other person falling within
Article 49(2)(a) to (d) of the Order, or (iii) to whom this Announcement may
otherwise lawfully be communicated;
(r) if in Australia, it is a person who is a "sophisticated
investor" or "professional investor" (within the meaning of sections 708(8),
and 708(11), respectively, of the Corporations Act, being a person to whom an
offer of securities can be made without a disclosure document under Chapter 6D
of the Corporations Act, and it will not offer for sale (or transfer, assign
or otherwise alienate) Placing Shares to investors in Australia for at least
12 months after their issue, except in circumstances where disclosure to
investors is not required under Part 6D.2 of the Corporations Act;
(s) if in Canada, it: (i) is purchasing as principal for its own
account, or is deemed under applicable Canadian securities laws to be
purchasing as principal , for investment only and not with a view to resale or
distribution; (ii) is both an "accredited investor" as defined in section 1.1
of National Instrument 45-106 Prospectus Exemptions of the Canadian Securities
Administrators (or, in Ontario, as defined in section 73.3(1) of the
Securities Act (Ontario), as applicable) and also a "permitted client" as
defined in section 1.1 of National Instrument 31-103 Registration
Requirements, Exemptions and Ongoing Registrant Obligations of the Canadian
Securities Administrators; (iii) was not created, and is not used, solely to
purchase or hold securities as an accredited investor; and (iv) will provide
such information regarding the Placee as may be required to enable the Company
and/or the Joint Bookrunners to comply with any filing obligations under
applicable Canadian securities laws in respect of a sale to the Placee of any
Placing Shares;
(t) if in South Africa, it is a financial institution or other
person who is referred to in section 96(1)(a) of the SA Companies Act, or a
person who has subscribed, as principal, for the Placing Shares at a total
acquisition cost of ZAR1 000 000 or more, as contemplated in section 96(1)(b)
of the SA Companies Act;
(u) if it is an institutional investor for the purposes of the
Currency and Exchanges Act 9 of 1933 ("Exchange Control Restrictions"),
specifically: (i) a retirement fund or a long-term insurer, then the aggregate
value of its Placing participation at the Placing Price does not and will not
exceed 25% of the aggregate value of its retail assets, calculated in
accordance with the Exchange Control Restrictions; or (ii) a collective
investment scheme management company, or investment manager registered as an
institutional investor with the Financial Surveillance Department, then the
aggregate value of its Placing participation at the Placing Price does not and
will not exceed 35% of the aggregate value of its retail assets, calculated in
accordance with the Exchange Control Restrictions; and (iii) it has complied
in all respects with the prudential regulations administered by the Financial
Sector Conduct Authority of South Africa;
(v) if resident in or registered under the laws of South Africa:
(i) it accepts and acknowledges that this Announcement is not a registered
prospectus (as that term is defined in the South African Companies Act) and
will not be filed or registered with the South African Companies and
Intellectual Property Commission or any other regulator in South Africa; (ii)
it is one or more of the persons or entities referred to in section 96(1) of
the South African Companies Act; and (iii) the Company will not be a
registered collective investment scheme under the South African Collective
Investment Scheme Control Act No. 45 of 2002 ("CISCA"), and nothing in this
Announcement should be construed as constituting an opportunity to invest in a
collective investment scheme in South Africa;
(w) no action has been or will be taken by either the Company or
either of the Joint Bookrunners or any person acting on behalf of any of them
that would, or is intended to, permit a public offer of the Placing Shares in
any country or jurisdiction where any such action for that purpose is
required;
(x) neither it, nor the person specified by it for registration
as holder of Placing Shares is, or is acting as nominee or agent for, and the
Placing Shares will not be allotted to, a person who is or may be liable to
stamp duty reserve tax under any sections 67,70, 93 and 96 of the Finance Act
1986 (depository receipts and clearance services) and the Placing Shares are
not being acquired in connection with arrangements to issue depository
receipts or to issue or transfer Placing Shares into a clearance system;
(y) (i) it is acting as principal in respect of the Placing and
has the power and authority to carry on the activities in which it is engaged,
to subscribe for Placing Shares and to execute and deliver all documents
necessary for such subscription; and/or (ii) if it is acting for any other
person (A) it is duly authorised to do so and has full power to make the
acknowledgments, representations and agreements herein on behalf of each such
person; and (B) it is and will remain liable to the Company and each of the
Joint Bookrunners for the performance of all its obligations as a Placee in
respect of the Placing (regardless of the fact that it is acting for another
person). Each Placee agrees that the provisions of this paragraph shall
survive the resale of the Placing Shares by or on behalf of any person for
whom it is acting;
(z) (i) it and any person acting on its behalf has the funds
available to pay for and is entitled to subscribe for the Placing Shares under
the laws of all relevant jurisdictions which apply to it; (ii) it has paid any
issue, transfer or other taxes due in connection with its participation in any
territory; (iii) 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 that it has not taken any action or omitted to take any action
which will or may result in either of the Joint Bookrunners, the Company or
any of their respective affiliates, directors, officers, agents, employees or
advisers acting in breach of the legal and/or regulatory requirements and/or
any anti-money laundering requirements of any jurisdiction in connection with
the Placing; and (iv) 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;
(aa) it 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;
(bb) it (and any person acting on its behalf) will make payment for
the Placing Shares allocated to it in accordance with the terms and conditions
of this Announcement, including this Appendix, on the due time and date set
out herein, failing which the relevant Placing Shares may be placed with other
persons or sold as the Joint Bookrunners may in their absolute discretion
determine and without liability to such Placee. It will, however, remain
liable for any shortfall below the net proceeds of such sale and the placing
proceeds of such Placing Shares and may be required to bear any stamp duty or
stamp duty reserve tax (together with any interest, fines or penalties) due
pursuant to the terms set out or referred to in this Announcement which may
arise upon the sale of such Placee's Placing Shares on its behalf;
(cc) its allocation (if any) of Placing Shares will represent a
maximum number of Placing Shares which it will be entitled, and required, to
acquire, and that either of the Joint Bookrunners or the Company may call upon
it to acquire a lower number of Placing Shares (if any), but in no event in
aggregate more than the aforementioned maximum;
(dd) the person whom it specifies for registration as holder of the
Placing Shares will be (i) itself or (ii) its nominee, as the case may be.
None of the Joint Bookrunners or the Company will be responsible for any
liability to stamp duty or stamp duty reserve tax or other similar duties or
taxes (together with any interest, fines or penalties) resulting from a
failure to observe this requirement. Each Placee and any person acting on
behalf of such Placee agrees to indemnify the Company and each of the Joint
Bookrunners in respect of the same on an after-tax basis on the basis that the
Placing Shares will be allotted to the CREST stock account of a Joint
Bookrunner who will hold them as nominee on behalf of such Placee until
settlement in accordance with its standing settlement instructions;
(ee) the Placing does not constitute a recommendation or financial
product advice and neither of the Joint Bookrunners has had regard to its
particular objectives, financial situation and needs;
(ff) the Placing does not constitute "advice" as that term is used
in the FMA and/or the SA FAIS Act and should not be construed as constituting
the canvassing for, or marketing or advertising of, financial services in
South Africa;
(gg) none of the Joint Bookrunners, any of their respective
affiliates, agents, directors, officers or employees, or any person acting on
behalf of any of them, is making any recommendations to it or, advising it
regarding the suitability of any transactions it may enter into in connection
with the Placing and that participation in the Placing is on the basis that it
is not and will not be a client of either of the Joint Bookrunners and that
neither of the Joint Bookrunners has any duties or responsibilities to it for
providing the protections afforded to the Joint Bookrunners' respective
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 or other discretion;
(hh) that in making any decision to acquire the Placing Shares (i)
it has sufficient knowledge, sophistication 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, (ii) 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, (iii) it has relied on its own examination, due diligence
and analysis of the Company and its affiliates taken as a whole, including the
markets in which the Group operates, 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 either of the Joint Bookrunners, (iv) it has had
sufficient time and access to information 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 has so conducted
its own investigation to the extent it deems necessary for the purposes of its
investigation, and (v) it will not look to the Company, either of the Joint
Bookrunners, any of their respective affiliates or any person acting on behalf
of any of them for all or part of any such loss or losses it or they may
suffer;
(ii) in connection with the Placing, each of the Joint
Bookrunners and their respective 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. Accordingly, references in this Announcement to shares being
issued, offered or placed should be read as including any issue, offering or
placement of such shares in the Company to any of the Joint Bookrunners or
their respective affiliates acting in such capacity. In addition, each of the
Joint Bookrunners may enter into financing arrangements (including swaps,
warrants and contracts for difference) with investors in connection with which
the Joint Bookrunners or their respective affiliates may from time to time
acquire, hold or dispose of such securities of the Company, including the
Placing Shares. Neither of the Joint Bookrunners intends to disclose the
extent of any such investment or transactions otherwise than in accordance
with any legal or regulatory obligation to do so;
(jj) that a communication that the transaction or the book is
"covered" (i.e. indicated demand from investors in the book equals or exceeds
the amount of the securities being offered) is not any indication or assurance
that the book will remain covered or that the transaction and securities will
be fully distributed by the Joint Bookrunners. The Joint Bookrunners reserve
the right to take up a portion of the securities in the Placing as a principal
position at any stage at their sole discretion and will, inter alia, take
account of the Company's objectives, MiFID II requirements and/or their
allocation policies;
(kk) its commitment to acquire the Placing Shares on the terms set
out herein and in the contract note/trading confirmation will continue
notwithstanding any amendment that may in future be made to the terms of the
Placing and Placees will have no right to be consulted or require that their
consents be obtained with respect to the Company's or the Joint Bookrunners'
conduct of the Placing;
(ll) 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 and it submits (on
behalf of itself and on behalf of any person on whose behalf it is acting) to
the exclusive jurisdiction of the English courts as regards any claim, dispute
or matter arising out of any such contract, except that enforcement
proceedings in respect of the obligation to make payment for the Placing
Shares (together with any interest chargeable thereon) may be taken by the
Company or either of the Joint Bookrunners 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;
(mm) the Company, each of the Joint Bookrunners 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 each of the Joint Bookrunners on its own behalf and on behalf of
the Company and are irrevocable and it irrevocably authorises the Company and
each of the Joint Bookrunners to produce this announcement, pursuant to, in
connection with, or as may be required by any applicable law or regulation,
administrative or legal proceeding or official inquiry with respect to the
matters set forth herein. It agrees that if any of the acknowledgements,
representations, warranties and agreements made in connection with its
subscribing and/or acquiring of Placing Shares is no longer accurate, it shall
promptly notify the Company and the Joint Bookrunners;
(nn) it will indemnify on an after-tax basis and hold the Company
and each of the Joint Bookrunners and their respective affiliates harmless
from any and all costs, claims, liabilities and expenses (including legal fees
and expenses) arising out of or in connection with any breach of 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;
(oo) none of the Company or the Joint Bookrunners owes any fiduciary
or other duties to any Placee in respect of any acknowledgements,
confirmations, undertakings, representations, warranties or indemnities in the
Placing Agreement;
(pp) where it is acquiring the Placing Shares for one or more
managed accounts, it represents, warrants and undertakes that it is authorised
in writing by each managed account to acquire the Placing Shares for each
managed account and it has full power to make the acknowledgements,
representations and agreements herein on behalf of each such account; and
(qq) if it is a pension fund or investment company, its acquisition
of Placing Shares is in full compliance with applicable laws and regulations.
The foregoing acknowledgements, confirmations, undertakings, representations
and warranties are given for the benefit of each of the Company and the Joint
Bookrunners (for their own benefit and, where relevant, the benefit of their
respective affiliates and any person acting on behalf of any of them) and are
irrevocable.
No claim shall be made against the Company, the Joint Bookrunners or any of
their respective affiliates or any person acting on behalf of any of them by a
Placee to recover any damage, cost, charge or expense which it may suffer or
incur by reason of or arising from the carrying out by it of the work to be
done by it pursuant to this Announcement or the performance of its obligations
pursuant to this Announcement or otherwise in connection with the Placing.
Please also note that the agreement to allot and issue Placing Shares to
Placees (or the persons for whom Placees are contracting as agent) free of
stamp duty and stamp duty reserve tax relates only to their allotment and
issue to Placees, or such persons as they nominate as their agents, direct
from the Company for the Placing Shares in question. Such agreement is subject
to the representations, warranties and further terms above and assumes and is
based on the warranty from each Placee that the Placing Shares are not being
subscribed for in connection with arrangements to issue depositary receipts or
to issue or transfer the Placing Shares into a clearance service. If there are
any such arrangements, or the settlement relates to any other dealing in the
Placing Shares, stamp duty or stamp duty reserve tax or other similar taxes
may be payable, for which none of the Company or either of the Joint
Bookrunners will be responsible and the Placees shall indemnify on an
after-tax basis and hold harmless the Company and each of the Joint
Bookrunners and their respective affiliates, agents, directors, officers and
employees for any stamp duty or stamp duty reserve tax paid by them in respect
of any such arrangements or dealings. If this is the case, each Placee should
seek its own advice and notify the Joint Bookrunners accordingly.
None of the Company or the Joint Bookrunners is liable to bear any capital
duty, stamp duty and all other stamp, issue, securities, transfer,
registration, documentary or other duties or taxes (including any interest,
fines or penalties relating thereto) payable in or outside the United Kingdom
by any Placee or any other person on a Placee's acquisition of any Placing
Shares or the agreement by a Placee to acquire any Placing Shares. Each Placee
agrees to indemnify on an after-tax basis and hold harmless the Company, each
of the Joint Bookrunners and their respective affiliates, agents, directors,
officers and employees from any and all such stamp, issue, securities,
transfer, registration, documentary or other duties or taxes (including
interest, fines or penalties relating thereto).
In this Announcement, "after-tax basis" means in relation to any payment made
to the Company, either of 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.
When a Placee or person acting on behalf of the Placee is dealing with the
Joint Bookrunners, any money held in an account with a Joint Bookrunner on
behalf of the Placee and/or any person acting on behalf of the Placee will not
be treated as client money within the meaning of the rules and regulations of
the FCA made under FSMA. The Placee acknowledges that the money will not be
subject to the protections conferred by the client money rules; as a
consequence, this money will not be segregated from the Joint Bookrunners'
money in accordance with the client money rules and will be used by the Joint
Bookrunners in the course of their own business and the Placee will rank only
as a general creditor of the Joint Bookrunners.
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.
Past performance is no guide to future performance and persons needing advice
should consult an independent financial adviser.
The rights and remedies of the Joint Bookrunners 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 may be asked to disclose in writing or orally to the Joint
Bookrunners:
(a) if he or she is an individual, his or her nationality; or
(b) if he or she is a discretionary fund manager, the
jurisdiction in which the funds are managed or owned.
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