THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE INFORMATION CONTAINED HEREIN IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, BY ANY MEANS OR MEDIA, IN OR INTO THE UNITED STATES, CANADA, AUSTRALIA, NEW ZEALAND, JAPAN, THE REPUBLIC OF SOUTH AFRICA, ANY MEMBER STATE OF THE EUROPEAN ECONOMIC AREA ("EEA") (OTHER THAN THE UNITED KINGDOM) OR ANY OTHER JURISDICTION IN WHICH IT WOULD BE UNLAWFUL TO DO SO, SAVE WHERE EXPRESSLY PERMITTED BY THE COMPANY.
Neither this Announcement nor any part of it constitutes an offer or invitation to underwrite, an offer to sell or issue or the solicitation of an offer to buy, subscribe or acquire any new ordinary shares in any jurisdiction in which any such offer or solicitation would be unlawful. The securities referred to herein have not been and will not be registered under the U.S. Securities Act of 1933 (as amended), under the securities legislation of any state of the United States or under the securities laws of Canada, Australia, New Zealand, Japan, the Republic of South Africa or any member state of the EEA.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION
20 June 2017
("Assura" or the "Company")
Proposed equity Issue of new ordinary shares to fund acquisition and development pipeline
The Board of Assura is pleased to announce a proposed placing, by way of accelerated bookbuild, of up to 163,999,820 new ordinary shares of 10 pence each in the Company ("Placing Shares"), representing up to 9.9 per cent of the Company's existing issued share capital (the "Placing").
The Placing, which is being conducted by way of an accelerated bookbuilding process (the "Bookbuild") available to qualifying new and existing investors, will be launched immediately following this announcement (being together with the appendix, the "Announcement"), in accordance with the terms and conditions set out in the appendix to this Announcement. The Company will determine the price of the Placing Shares following the Bookbuild, with the price expected to be set in the range of 58 to 60 pence per Placing Share.
The books are expected to close later today. However, the timing of the closing of the Bookbuild and the final number, pricing and allocation of Placing Shares to be issued, are to be determined at the discretion of the Company, Liberum and Stifel. A further announcement will be made following closing of the Placing, confirming the final details of the fundraising.
Rationale for the Placing
The Board believes that the Placing will enable the Company to fund its near term pipeline of acquisition and development opportunities as well as provide the necessary financial headroom to continue to maintain a low loan-to-value ratio ("LTV"). The Company continues to pursue its strategy of sourcing attractive investment opportunities.
Use of Proceeds
As at 31 March 2017, the Company had an immediate pipeline of further property acquisitions and developments of £153 million, split as follows:
· £86 million of acquisition opportunities, consisting of individual properties rather than substantial portfolio deals. In the two months following 31 March 2017, the Company has made considerable progress with these acquisition opportunities and has invested £46 million. The acquisition of the remaining opportunities are expected to be complete within the next six months; and
· £67 million of development opportunities comprising £31 million of developments on site and £36 million of developments that are expected to commence in the next 6 - 12 months. A number of these projects will be carried out using the Company's in-house development capability, allowing the Company to capture a development margin.
In addition, the Company continues to source investment opportunities and so expects to continue to replenish its pipeline of acquisitions and development opportunities.
Background to the Placing
During the financial year ended 31 March 2017, the Company delivered superior risk adjusted returns built on a secure and long-term income stream funded by the NHS. In that fiscal year, the Company's property return was 9.7 per cent., driven by an income return of 5.3 per cent. with an increase in property values adding a further 4.4 per cent. The Company's property portfolio also expanded significantly during that year, through £156 million of acquisitions and £14 million of completed developments. These investments were made at an average yield on cost of 5.7 per cent., with a 14 year weighted average unexpired lease term.
In light of the current pace of acquisitions and the immediate pipeline of investment opportunities, the Company intends to raise equity by way of a non pre-emptive placing of up to 163,999,820 new ordinary shares. The Board of Directors believes that this will allow the Company to take advantage of these investment opportunities in the market whilst maintaining its LTV at approximately 38 per cent. following the Placing. Following the deployment of the anticipated proceeds of the Placing, the Company will have access to a further £200 million of existing debt capacity to invest in further property acquisitions before reaching the mid-point of its medium term LTV guidance range of 40 to 50 per cent.
Terms of the Placing
Under the terms of the Placing, the Company intends to issue up to 163,999,820 Placing Shares pursuant to the authorities granted at the Company's Annual General Meeting held on 19 July 2016, conditional on Admission becoming effective.
The Placing Shares will, when issued, be subject to the Company's articles of association. They will be credited as fully paid and will rank pari passu in all respects with the existing ordinary shares in issue in the capital of the Company, including the right to receive all future dividends and distributions declared, made or paid on or in respect of such ordinary shares by reference to a record date falling after the date of issue of the Placing Shares. For the avoidance of doubt, the Placing Shares shall not qualify for the next quarterly interim dividend of 0.60 pence per share payable on 19 July 2017 to holders of ordinary shares on the register on 16 June 2017.
The Placing will be non-pre-emptive and launched immediately following this Announcement. The number of Placing Shares and the price per Placing Share (the "Placing Price") will be determined at the close of the Bookbuild which is expected to close later today. The results of the Placing will be announced shortly thereafter on a Regulatory Information Service. Liberum Capital Limited ("Liberum") and Stifel Nicolaus Europe Limited ("Stifel") (Liberum and Stifel together the "Placing Agents") are acting as joint bookrunners in connection with the Placing pursuant to an agreement entered into between the Company and the Placing Agents dated 20 June 2017 (the "Placing Agreement").
The Placing Agents will determine the level of demand from potential investors for participation in the Placing. Any discount to the market price of the ordinary shares will be determined within the limits specified by the Listing Rules of the UK Listing Authority, as published pursuant to Part 6 of the Financial Services and Markets Act 2000. The timing of the closing of the bookbuild and the decision to proceed with the Placing after the Bookbuild shall be at the absolute discretion of the Placing Agents in consultation and agreement with the Company.
Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by Liberum or Stifel.
To bid for Placing Shares in the Placing, investors should communicate their bid by telephone to Liberum or Stifel. If the number of applications exceeds the maximum number of Placing Shares available under the Placing it may be necessary to scale back applications. In such event, Placing Shares will be allocated at the discretion of the Placing Agents in consultation with the Company. The Placing Agents may, in agreement with the Company, accept bids that are received after the Bookbuild has closed.
Application will be made for the Placing Shares to be admitted to listing on the premium listing segment of the Official List of the Financial Conduct Authority (the "FCA") and to be admitted to trading on the main market for listed securities of the London Stock Exchange plc (the "London Stock Exchange") (together, "Admission"). Subject to Admission becoming effective, it is expected that settlement of subscriptions in respect of the Placing Shares and trading in the Placing Shares will commence at 8.00 a.m. on Friday 23 June 2017.
The Placing is conditional upon, inter alia, Admission becoming effective not later than 8.00 a.m. (London time) on Friday 23 June 2017 (or such later time and/or date, being not later than 8.00 a.m. (London time) on 30 June 2017, as Liberum and Stifel may jointly agree with the Company) and the Placing Agreement not being terminated in accordance with its terms before that time.
The above proposed dates may be subject to change at the discretion of the Company, Liberum and Stifel.
By choosing to participate in the Placing and by making an oral and legally binding offer to subscribe for Placing Shares, investors will be deemed to have read and understood this Announcement in its entirety and to be making such offer on the terms and subject to the conditions in this Announcement, and to be providing the representations, warranties and acknowledgements contained in the Appendix.
Your attention is drawn to the detailed Terms and Conditions of the Placing set out in the Appendix to this Announcement.
+44 1925 420660
Stifel Nicolaus Europe Limited
+44 20 7710 7600
Liberum Capital Limited
+44 203 100 2000
ISIN for the Placing Shares
SEDOL for the Placing Shares
Notes to Editors
Assura plc, a constituent of the FTSE 250 and the EPRA/NAREIT* indices, is a UK REIT and long-term investor in and developer of primary care property. The company, headquartered in Warrington, works with GPs, health professionals and the NHS to create innovative property solutions in order to facilitate delivery of high quality patient care in the community. At 31 March 2017, Assura's property portfolio was valued at £1,345 million.
*EPRA is a registered trademark of the European Public Real Estate Association
This Announcement contains inside information for the purposes of Article 7 of EU Regulation 596/2014 ("MAR"). In addition, market soundings (as defined in MAR) were taken in respect of the Placing with the result that certain persons became aware of inside information (as defined in MAR), as permitted by MAR. This inside information is set out in this Announcement. Therefore, those persons that received inside information in a market sounding are no longer in possession of such inside information relating to the Company and its securities.
This Announcement is not for release, publication or distribution, in whole or in part, directly or indirectly, by any means or media, in or into the United States, Canada, Australia, New Zealand, Japan, the Republic of South Africa, any member state of the European Economic Area ("EEA") (other than the United Kingdom) or any other jurisdiction where it would be unlawful to do so (the "Excluded Territories"), save where expressly permitted by the Company.
This Announcement does not constitute or form part of any offer or invitation to purchase, otherwise acquire, subscribe for, sell, otherwise dispose of or issue, or any solicitation of any offer to sell, otherwise dispose of, issue, purchase, otherwise acquire or subscribe for, any security in the capital of the Company in any jurisdiction.
This Announcement and any materials distributed in connection with this Announcement are not directed to, or intended for distribution to or use by, any person or entity that is a citizen or resident or located in any Excluded Territory where such distribution, publication, availability or use would be contrary to law or regulation or would require any registration or licensing within such jurisdiction.
This Announcement is not an offer of securities or an invitation to sell or issue, or any solicitation of any offer to purchase or subscribe for, any securities in any Excluded Territory. The Company's securities have not been and will not be registered under the United 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, pledged, re-sold, taken up, delivered, distributed or otherwise transferred, directly or indirectly, within the United States (as defined in Regulation S under the Securities Act), except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and any applicable state or local securities laws. There will be no public offer of the securities in the United States.
Stifel Nicolaus Europe Limited, a foreign broker-dealer, is acting as agent for and on behalf of its group affiliate Stifel Nicolaus & Company, Inc., a U.S. SEC registered broker-dealer pursuant to a Rule 15a6 intra-group company agreement.
Members of the public are not eligible to take part in the Placing. This Announcement and the information contained herein are for information purposes only and are directed only at: (a) persons in member states of the EEA who are qualified investors as defined in section 86(7) of the Financial Services and Markets Act 2000, as amended, ("Qualified Investors") being persons falling within the meaning of Article 2(1)(e) of the EU Prospectus Directive (which means Directive 2003/71/EC and includes any relevant implementing directive measure in any member state) (the "Prospectus Directive"); (b) in the United Kingdom, to Qualified Investors who are persons who (i) have professional experience in matters relating to investments falling within Article 19(1) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the "Order"); (ii) are persons falling within Article 49(2)(a) to (d) ("high net worth companies, unincorporated associations, etc") of the Order; or (iii) are persons to whom it may otherwise be lawfully communicated (all such persons together being referred to as "Relevant Persons"). Any investment or investment activity 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 document or any of its contents.
This Announcement is not being distributed by, nor has it been approved for the purposes of section 21 of the Financial Services and Markets Act 2000 (as amended) ("FSMA") by, a person authorised under FSMA. This Announcement is being distributed and communicated to persons in the United Kingdom only in circumstances in which section 21(1) of FSMA does not apply.
This Announcement has been issued by, and is the sole responsibility, of the Company. No prospectus will be made available in connection with the matters contained in this Announcement and no such prospectus is required (in accordance with the Prospectus Directive) to be published. Persons needing advice should consult an independent financial adviser.
This Announcement should not be considered a recommendation by the Placing Agents or any of their respective directors, officers, employees, advisers or affiliates in relation to any purchase of or subscription for securities. Neither of the Placing Agents nor any of their respective directors, officers, employees, advisers or affiliates accepts any responsibility or liability whatsoever for or makes any representation or warranty, express or implied, as to this Announcement, including the truth, accuracy, fairness, sufficiency or completeness of the information or the opinions or the beliefs contained in this Announcement (or any part hereof). None of the information contained in this Announcement has been independently verified or approved by the Placing Agents or any of their respective directors, officers, employees, advisers or any of their affiliates. Save in the case of fraud, no liability is accepted by the Placing Agents or any of their respective directors, officers, employees, advisers or affiliates for any errors, omissions or inaccuracies in such information or opinions or for any loss, cost or damage suffered or incurred howsoever arising, directly or indirectly, from any use of this Announcement or its contents or otherwise in connection with this Announcement. No person has been authorised to give any information or to make any representations other than those contained in this Announcement and, if given or made, such information or representations must not be relied on as having been authorised by the Company or either of the Placing Agents. Subject to the Listing Rules, the Prospectus Rules and the Disclosure Rules and Transparency Rules, the issue of this Announcement and any subsequent announcement shall not, in any circumstances, create any implication that there has been no change in the affairs of the Group since the date of this Announcement or that the information in it is correct as at any subsequent date.
Liberum and Stifel are both regulated and authorised in the United Kingdom by the FCA. Liberum and Stifel are acting exclusively for the Company and for no one else in connection with the Placing and Admission and will not regard any person (whether or not a recipient of this Announcement) as a client in relation to the Placing and Admission and will not be responsible to anyone other than the Company for providing the protections afforded to their clients or for providing advice in relation to the Placing or Admission, the contents of this Announcement and the accompanying documents or any matters or arrangements referred to herein or therein.
FORWARD LOOKING STATEMENTS
This Announcement includes statements that are, or may be deemed to be "forward-looking statements". The words "believe", "anticipate", "expect", "intend", "estimate", "forecast", "project", "aim", "hope", "plan", "seek", "predict", "continue", "assume", "positioned", "may", "will", "should", "shall", "risk", "assurance" and other similar expressions that are predictions of or indicate future events and future trends identify forward-looking statements. Others can be identified from the context in which they are made. These forward-looking statements include all matters that are not historical facts. An investor should not place undue reliance on forward-looking statements because they involve known and unknown risks, uncertainties and other factors that are in many cases beyond the Company's control. By their nature, forward-looking statements involve risks and uncertainties because they relate to future events and circumstances which are beyond the control of the Company, including amongst other things, domestic and global economic business conditions, market-related risks such as fluctuations in interest rates and exchange rates, the policies and actions of governmental and regulatory authorities, the effect of competition, inflation, deflation, the timing effect and other uncertainties of future acquisitions or combinations within relevant industries, the effect of tax and other legislation and other regulations in the jurisdictions in which the Company and its respective affiliates operate, the effect of volatility in the equity, capital and credit markets on the Company's profitability and ability to access capital and credit, a decline in the Company's credit ratings; the effect of operational risks; and the loss of key personnel. The Company cautions investors that forward-looking statements are not guarantees of future performance and that its actual results of operations and financial condition, and the development of the industry in which it operates, may differ materially from those made in or suggested by the forward-looking statements contained in this Announcement. The cautionary statements set forth above should be considered in connection with any subsequent written or oral forward-looking statements that the Company, or persons acting on its behalf, may issue.
Forward-looking statements contained in this Announcement that are based on past trends or activities should not be taken as a representation that such trends or activities will continue in the future. No statement in this Announcement is intended to be a profit forecast or to imply that the earnings of the Company and its subsidiary undertakings (the "Group") for the current year or future years necessarily will match or exceed the historical or published earnings of the Group.
The information contained in this Announcement is subject to change without notice and the Company does not undertake any responsibility or obligation nor does it intend to revise or update publicly or review any of the forward-looking statements in this Announcement to reflect events or circumstances after the date of this Announcement (except to the extent required by the FCA, the London Stock Exchange or by applicable law, the Listing Rules or the Disclosure Rules and Transparency Rules). Prospective investors should not place undue reliance on forward-looking statements, which speak only as of the date of this Announcement, as a prediction of actual results or otherwise.
In light of these risks, uncertainties and assumptions, the events described in the forward-looking statements in this Announcement may not occur.
The price of shares and any income expected from them may go down as well as up and an investor may not get back the full amount invested upon disposal of the shares. Past performance is no guide to future performance, and persons needing advice should consult an independent financial adviser.
The Placing Shares to be issued pursuant to the Placing will not be admitted to trading on any stock exchange other than the London Stock Exchange.
Neither the content of the Company's website nor any website accessible by hyperlinks on the Company's website is incorporated in, or forms part of, this Announcement.
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR INVITED PLACEES ONLY
1.1 Each person (a "Placee") which confirms its agreement to the Company and/or Liberum and/or Stifel to subscribe for Placing Shares under the Placing will be bound by these terms and conditions and will be deemed to have accepted them.
1.2 The Company and/or Liberum and/or Stifel may require any Placee to agree to such further terms and/or conditions and/or give such additional warranties and/or representations as it/they (in its/their absolute discretion) sees fit and/or may require any such Placee to execute a separate placing letter.
2 Agreement to subscribe for Placing Shares
Conditional on: (i) Admission occurring and becoming effective by 8.00 a.m. on 23 June 2017 (or such later time and/or date, not being later than 8.00 a.m. on 30 June 2017, as the Company, Liberum and Stifel may jointly agree); and (ii) the Placing Agreement becoming otherwise unconditional in all respects and not having been terminated in accordance with its terms on or before the time of Admission becoming effective, a Placee agrees to become a member of the Company and agrees to subscribe for those Placing Shares allocated to it by Liberum and/or Stifel at the Placing Price. To the fullest extent permitted by law, each Placee acknowledges and agrees that it will not be entitled to exercise any remedy of rescission at any time. This does not affect any other rights the Placee may have.
3 Payment for Placing Shares
3.1 Each Placee must pay the relevant Placing Price for the Placing Shares to be issued to the Placee in the manner and by the time directed by Liberum and/or Stifel. If any Placee fails to pay as so directed and/or by the time required, the relevant Placee's application for Placing Shares may, at the discretion of Stifel and Liberum, either be rejected or accepted and in the latter case paragraph 3.2 of these terms and conditions shall apply.
3.2 Each Placee is deemed to agree that if it does not comply with its obligation to pay the relevant Placing Price for the Placing Shares allocated to it in accordance with paragraph 3.1 of these terms and conditions and Stifel or Liberum elects to accept that Placee's application, Stifel or Liberum may sell all or any of the Placing Shares allocated to the Placee on such Placee's behalf and retain from the proceeds, for Stifel or Liberum's own account and profit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The Placee will, however, remain liable and fully indemnify Stifel or Liberum (as applicable) and its nominees and affiliates for any shortfall below the aggregate amount owed by such Placee and any tax or other charges (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf.
4 Representations and warranties
By agreeing to subscribe for Placing Shares, each Placee which enters into a commitment to subscribe for Placing Shares will (for itself and any person(s) procured by it to subscribe for Placing Shares and any nominee(s) for any such person(s)) be deemed to represent and warrant to each of the Company, Liberum and Stifel that:
(a) in agreeing to subscribe for Placing Shares under the Placing, it is relying solely on this Announcement issued by the Company and not on any other information given, or representation or statement made at any time, by any person concerning the Company or the Placing. It agrees that none of the Company, Liberum or Stifel nor any of their respective officers, agents or employees, will have any liability for any other information or representation. It irrevocably and unconditionally waives any rights it may have in respect of any other information or representation;
(b) acknowledges that no offering document or prospectus has been prepared in connection with the Placing and that it has not received a prospectus or other offering document in connection therewith;
(c) it has carefully read and understands this Announcement in its entirety and acknowledges that it is acquiring Placing Shares on the terms and subject to the conditions set out in this Announcement, the memorandum and articles of association of the Company (the "Articles") in force as at the date of Admission becoming effective and the contract note and/or placing confirmation, as applicable, referred to in paragraph (i) below (the "Contract Note" or the "Placing Confirmation");
(d) it has not relied on Liberum, Stifel or any person affiliated with either or them in connection with any investigation of the accuracy of any information contained in this Announcement;
(e) the content of this Announcement is exclusively the responsibility of the Company and neither Liberum, Stifel nor any person acting on their respective behalf nor any of their respective affiliates are responsible for or shall have any liability for any information, representation or statement contained in this Announcement or any information published by or on behalf of the Company and will not be liable for any decision by a Placee to participate in the Placing based on any information, representation or statement contained in this Announcement or otherwise;
(f) it acknowledges that no person is authorised in connection with the Placing to give any information or make any representation other than as contained in this Announcement and, if given or made, any information or representation must not be relied upon as having been authorised by the Company, Liberum or Stifel;
(g) it is not applying as, nor is it applying as nominee or agent for, a person who is or may be liable to notify and account for tax under the Stamp Duty Reserve Tax Regulations 1986 at any of the increased rates referred to in section 67, 70, 93 or 96 of the Finance Act 1986 (depository receipts and clearance services);
(h) it has the funds available to pay in full for the Placing Shares for which it has agreed to subscribe and that it will pay the total subscription in accordance with the terms set out in this Announcement and, as applicable, as set out in the Contract Note and/or Placing Confirmation on the due time and date;
(i) its commitment to acquire Placing Shares under the Placing will be agreed orally with Liberum and/or Stifel as agent for the Company and that a Contract Note and/or Placing Confirmation will be issued by Liberum and/or Stifel as soon as possible thereafter. That oral confirmation will constitute an irrevocable, legally binding commitment upon that person (who at that point will become a Placee) in favour of the Company, Liberum and Stifel to subscribe for the number of Placing Shares allocated to it at the Placing Price on the terms and conditions set out in this Announcement and in the Contract Note and/or Placing Confirmation and in accordance with the Articles in force as at the date of Admission becoming effective. Except with the consent of Liberum and/or Stifel such oral commitment will not be capable of variation or revocation after the time at which it is made;
(j) its allocation of Placing Shares under the Placing will be evidenced by Contract Note and/or Placing Confirmation confirming: (i) the number of Placing Shares that such Placee has agreed to acquire; (ii) the aggregate amount that such Placee will be required to pay for such Placing Shares; and (iii) settlement instructions to pay Liberum or Stifel, as applicable, as agent for the Company. The terms of this Announcement will be deemed to be incorporated into that Contract Note and/or Placing Confirmation;
(k) it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation;
(l) it has such knowledge, sophistication and experience in financial and business matters that it is are capable of evaluating the merits and risks of purchasing the Placing Shares, and it is able to bear the economic risk and financial risk (including sustaining a complete loss) of the purchase of such Placing Shares;
(m) it has power under its constitutional documents and has obtained all necessary authorities (including, without limitation, all relevant members' resolutions) to subscribe and pay for the Placing Shares for which it has agreed to subscribe in the manner proposed and to enter into and perform its obligations pursuant to this Announcement and, as applicable, Contract Note and/or Placing Confirmation, and there are no governmental or regulatory consents or other third party approvals, authorisations or orders required in order for you to subscribe and pay for such Placing Shares in the manner proposed and to enter into and perform your obligations pursuant to this Announcement and the Contract Note and/or Placing Confirmation that have not been, or will not prior to Admission becoming effective have been, obtained;
(n) after giving effect to its acquisition of the Placing Shares for which it has agreed to subscribe, it will inform the Company, Liberum and Stifel if such acquisition will cause it to be required to make a notification to the Company in accordance with Rule 5.1.2R of the Disclosure, Guidance and Transparency Rules;
(o) after giving effect to its acquisition of the Placing Shares for which it has agreed to subscribe, its total aggregate holding of issued ordinary shares, together with any such ordinary shares held by any person acting in concert with it (as that term is used for the purposes of the City Code on Takeovers and Mergers), will not exceed 29.9 per cent. of the voting rights of the Company;
(p) settlement of transactions in the ordinary shares of the Company following Admission will take place in CREST but Stifel and Liberum reserve the right in their absolute discretion to require settlement in certificated form if, in their opinion, delivery or settlement is not possible or practicable within the CREST system within the timescales previously notified to the Placee (whether orally, in the Contract Note and/or Placing Confirmation or otherwise) or would not be consistent with the regulatory requirements in any Placee's jurisdiction;
(q) none of the ordinary shares of the Company have been or will be registered under the laws of any member state of the EEA, the United States, Canada, Australia, New Zealand, Japan, the Republic of South Africa or any other jurisdiction where the extension or availability of the Placing would breach any applicable law. Accordingly, the Placing Shares may not be offered, sold, issued or delivered, directly or indirectly, within any member state of the EEA (other than the United Kingdom), the United States, Canada, Australia, New Zealand, Japan, the Republic of South Africa or any other jurisdiction where the extension or availability of the Placing would breach any applicable law unless an exemption from any registration requirement is available;
(r) it: (i) is entitled to subscribe for the Placing Shares under the laws of all relevant jurisdictions; and (ii) has obtained all necessary consents and authorities to enable it to enter into the transactions contemplated hereby and to perform its obligations in relation thereto;
(s) it is a person who: (i) falls within Articles 49(2)(a) to (d) or 19(5) of the Financial Services and Markets Act 2000 (Financial Promotions) Order 2005 or it is a person to whom the Placing Shares may otherwise lawfully be offered under such Order; (ii) is a qualified investor within the meaning of section 86(7) of the Financial Services and Markets Act 2000; and (iii) if it is receiving the offer in circumstances under which the laws or regulations of a jurisdiction other than the United Kingdom would apply, it is a person to whom the Placing Shares may be lawfully offered under that other jurisdiction's laws and regulations;
(t) if it is resident in any member state of the EEA, it is a qualified investor within the meaning of article 2(1)(e) of the EU Directive 2003/71/EC and amendments thereto;
(u) in the case of any Placing Shares acquired by a Placee as a financial intermediary as that term is used in Article 3(2) of the Prospectus Directive (i) the Placing Shares acquired by it in the Placing have not been acquired on behalf of, nor have they been acquired with a view to their offer or resale to, persons in any relevant Member State other than qualified investors, as that term is defined in the Prospectus Directive 2010/73/EU, or in circumstances in which the prior consent of Liberum or Stifel has been given to the offer or resale; or (ii) where Placing Shares have been acquired by it on behalf of persons in any relevant Member State other than qualified investors, the offer of those Placing Shares to it is not treated under the Prospectus Directive as having been made to such persons;
(v) if it is outside the United Kingdom, neither this Announcement nor any other offering, marketing or other material in connection with the Placing constitutes an invitation, offer or promotion to, or arrangement with, it or any person whom it is procuring to subscribe for Placing Shares pursuant to the Placing unless, in the relevant territory, such offer, invitation or other course of conduct could lawfully be made to it or such person and such documents or materials could lawfully be provided to it or such person and Placing Shares could lawfully be distributed to and subscribed and held by it or such person without compliance with any unfulfilled approval, registration or other regulatory or legal requirements;
(w) it does not have a registered address in, and is not a citizen, resident or national of, any jurisdiction in which it is unlawful to make or accept an offer of the Placing Shares and it is not acting on a non-discretionary basis for any such person;
(x) if the Placee is a natural person, such Placee is not under the age of majority (18 years of age in the United Kingdom) on the date of such Placee's agreement to subscribe for Placing Shares under the Placing and will not be any such person on the date any such agreement to subscribe under the Placing is accepted;
(y) it has not, directly or indirectly, distributed, forwarded, transferred or otherwise transmitted this Announcement or any other offering materials concerning the Placing or the Placing Shares to any persons within the United States, nor will it do any of the foregoing;
(z) no action has been taken, or will be taken, in any jurisdiction other than the United Kingdom that would permit a public offering of the Placing Shares in any country or jurisdiction where action for the purpose is required;
(aa) it represents, acknowledges and agrees to the representations, warranties and agreements as set out under the heading "United States Purchase and Transfer Restrictions" in paragraph 5, below;
(bb) it acknowledges that neither of Liberum, Stifel nor any of their respective affiliates, nor any person acting on Liberum's or Stifel's behalf is making any recommendations to it or advising it regarding the suitability of any transactions it may enter into in connection with the Placing or providing any advice in relation to the Placing and its participation in the Placing is on the basis that it is not and will not be a client of Liberum or Stifel and that neither Liberum nor Stifel has any duties or responsibilities to it for providing the protections afforded to their respective clients or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertaking or indemnities otherwise required to be given by it in connection with its application under the Placing;
(cc) that, save in the event of fraud on the part of Liberum, none of Liberum or any direct or indirect subsidiaries of Liberum or any other member of Liberum's group, nor any of their respective directors, members, partners, officers and employees shall be responsible or liable to a Placee or any of its clients for any matter arising out of Liberum's role as joint placing agent and financial adviser or otherwise in connection with the Placing and that where such responsibility or liability nevertheless arises as a matter of law, the Placee and, if relevant, its clients, will immediately waive any claim against such persons which the Placee or any of its clients may have in respect thereof;
(dd) that, save in the event of fraud on the part of Stifel, none of Stifel or any direct or indirect subsidiaries of Stifel or any other member of Stifel's group, nor any of their respective directors, members, partners, officers and employees shall be responsible or liable to a Placee or any of its clients for any matter arising out of Stifel's role as joint placing agent and financial adviser or otherwise in connection with the Placing and that where such responsibility or liability nevertheless arises as a matter of law, the Placee and, if relevant, its clients, will immediately waive any claim against such persons which the Placee or any of its clients may have in respect thereof;
(ee) it acknowledges that where it is subscribing for Placing Shares for one or more managed, discretionary or advisory accounts, it is authorised in writing for each such account; (i) to subscribe for the Placing Shares for each such account; (ii) to make on each such account's behalf the representations, warranties and agreements set out in this Announcement; and (iii) to receive on behalf of each such account any documentation relating to the Placing in the form provided by the Company and/or Liberum and/or Stifel. It agrees that the provision of this paragraph shall survive any resale of the Placing Shares by or on behalf of any such account;
(ff) it irrevocably appoints any director of the Company and any director of Liberum and/or Stifel to be its agent and on its behalf (without any obligation or duty to do so), to sign, execute and deliver any documents and do all acts, matters and things as may be necessary for, or incidental to, its subscription for all or any of the Placing Shares for which it has given a commitment under the Placing, in the event of its own failure to do so;
(gg) it accepts that if the Placing does not proceed or the conditions to the Placing Agreement are not satisfied or the Placing Shares for which valid applications are received and accepted are not effectively admitted to the Official List of the FCA and to trading on the London Stock Exchange for any reason whatsoever then none of Liberum, Stifel or the Company, nor persons controlling, controlled by or under common control with any of them nor any of their respective employees, agents, officers, members, stockholders, partners or representatives, shall have any liability whatsoever to it or any other person;
(hh) in connection with its participation in the Placing it has observed all relevant legislation and regulations, in particular (but without limitation) those relating to money laundering and terrorist financing ("Money Laundering Legislation") and that its application is only made on the basis that it accepts full responsibility for any requirement to verify the identity of its clients and other persons in respect of whom it has applied. In addition, it warrants that it is a person: (i) subject to the Money Laundering Regulations 2007 in force in the United Kingdom; or (ii) subject to the Money Laundering Directive (2005/60/EC of the European Parliament and of the EC Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing) (the "Money Laundering Directive"); or (iii) acting in the course of a business in relation to which an overseas regulatory authority exercises regulatory functions and is based or incorporated in, or formed under the law of, a country in which there are in force provisions at least equivalent to those required by the Money Laundering Directive;
(ii) it acknowledges that due to anti-money laundering requirements, Liberum, Stifel and the Company may require proof of identity and verification of the source of the payment before the application can be processed and that, in the event of delay or failure by the applicant to produce any information required for verification purposes, Liberum, Stifel and the Company may refuse to accept the application and the subscription moneys relating thereto. It holds harmless and will indemnify Liberum, Stifel and the Company against any liability, loss or cost ensuing due to the failure to process such application, if such information as has been required has not been provided by it;
(jj) it is aware of, has complied with and will at all times comply with its obligations in connection with money laundering under the Money Laundering Regulations;
(kk) Liberum, Stifel and the Company are entitled to exercise any of their rights under the Placing Agreement or any other right in their absolute discretion without any liability whatsoever to it;
(ll) the representations, undertakings and warranties contained in this Announcement are irrevocable. It acknowledges that Liberum, Stifel and the Company and their respective affiliates will rely upon the truth and accuracy of the foregoing representations and warranties and it agrees that if any of the representations or warranties made or deemed to have been made by its subscription of the Placing Shares are no longer accurate, it shall promptly notify Liberum, Stifel and the Company;
(mm) where it or any person acting on behalf of it is dealing with Liberum or Stifel, any money held in an account with Liberum or Stifel on behalf of it and/or any person acting on behalf of it will not be treated as client money within the meaning of the relevant rules and regulations of the FCA which therefore will not require Liberum or Stifel to segregate such money, as that money will be held by Liberum or Stifel under a banking relationship and not as trustee;
(nn) it acknowledges and agrees that no steps have been taken to enable any of the Placing Shares to be acquired by Placees outside the United Kingdom, the United States, Belgium, Switzerland, the Netherlands or Australia and that the relevant clearances or registrations have not been, nor will they be, obtained or made in accordance with any securities laws of any member state of the EEA (other than the United Kingdom), the United States, Canada, Australia, New Zealand, Japan, the Republic of South Africa or any provision thereof or any area subject to their respective jurisdictions;
(oo) if the laws of any territory or jurisdiction outside the United Kingdom are applicable to its agreement to subscribe for Placing Shares under the Placing, it warrants that it has complied with all such laws, obtained all governmental and other consents which may be required, complied with all requisite formalities and paid any issue, transfer or other taxes due in connection with its application in any territory or jurisdiction and that it has not taken any action or omitted to take any action which will or might reasonably be expected to result in Liberum or Stifel or the Company or any of their respective officers, agents or employees or associates acting in breach of the regulatory or legal requirements, directly or indirectly, of any territory or jurisdiction outside the United Kingdom in connection with the Placing;
(pp) it has not solicited and will not solicit subscriptions, and has not procured and will not procure subscribers for Placing Shares, outside the United Kingdom in circumstances where such solicitation or procurement would otherwise result in the issue of Placing Shares in contravention of applicable securities laws outside the United Kingdom;
(qq) if it is resident in Switzerland, it is a qualified investor within the meaning of article 10 of the Swiss Federal Act on Collective Investment Schemes and it acknowledges that no Placing Shares are being publicly offered or distributed in Switzerland. Placing Shares are being offered in Switzerland privately only to it and a select circle of other investors. Accordingly, it hereby declares to purchase the Placing Shares (if any) for its own investment purposes and not for redistribution and not to copy, reproduce, distribute or pass the information provided to it to third parties without the prior written consent of the Company;
(rr) if it is resident in Australia, it acknowledges that the Placing Shares are being offered in Australia privately only to it and a limited number of other "wholesale clients" (as defined in section 761G of the Corporations Act 2001 (Cth)). Accordingly, it hereby declares that it is purchasing the Placing Shares (if any) for its own investment purposes and not for redistribution and undertakes that it shall not copy, reproduce, distribute or pass the information provided to it to any other person;
(ss) if it is resident in Belgium, it qualifies as either (i) a professional client within the meaning of the Royal Decree of 3 June 2007 laying down detailed rules on the implementation of the directive on markets in financial markets or (ii) an eligible counterparty within the meaning of Article 3, § 1 of the same royal decree; and (b) acts for its own investment account;
(tt) if it is resident in the Netherlands, it is a qualified investor within the meaning of section 1:1 of the Dutch Act on Financial Supervision as amended from time to time;
(uu) any of its clients, whether or not identified to Liberum or Stifel, will remain its sole responsibility and will not become clients of Liberum or Stifel for the purposes of the rules of the FCA or for the purposes of any other statutory or regulatory provision;
(vv) it accepts that the allocation of Placing Shares shall be determined by Liberum and Stifel in their absolute discretion but in consultation with the Company and that Liberum and Stifel may scale down any commitments for this purpose on such basis as they may determine;
(ww) time shall be of the essence as regards its obligations to settle payment for the Placing Shares and to comply with its other obligations under the Placing;
(xx) it authorises Liberum and Stifel to deduct from the total amount subscribed under the Placing the commission (if any) payable to Liberum and Stifel in accordance with the terms of the Placing Agreement;
(yy) the commitment to subscribe for Placing Shares on the terms set out in this Announcement and in the Contract Note and/or Placing Confirmation will continue notwithstanding any amendment that may in the future be made to the terms of the Placing and that it will have no right to be consulted or require that its consent be obtained with respect to the Company's conduct of the Placing; and
(zz) the Company, Liberum and Stifel will rely upon the truth and accuracy of the foregoing representations, warranties, undertakings and acknowledgements. It agrees to indemnify and hold each of the Company, Liberum and Stifel 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, undertakings, agreements and acknowledgements in this Announcement.
5 United States purchase and transfer restrictions
By participating in the Placing, each Placee acknowledges and agrees that it will (for itself and any person(s) procured by it to subscribe for Placing Shares and any nominee(s) for any such person(s)) be further deemed to represent and warrant to each of the Company, Liberum and Stifel that:
(a) it acknowledges that the Placing Shares have not been and will not be registered under the US Securities Act of 1933, as amended (the "Securities Act") or with any securities regulatory authority of any state or other jurisdiction of the United States and may not be offered or sold within the United States except in an "offshore transaction" in accordance with Regulation S or in a transaction exempt from, or not subject to, the registration requirements of the Securities Act;
(b) it is either (i) located outside the United States and purchasing the Placing Shares outside the United States in an "offshore transaction" (within the meaning of Regulation S); or (ii) within the United States and a "qualified institutional buyer" as defined in Rule 144A under the Securities Act and is not acquiring the Placing Shares with a view to the offer, sale, resale, transfer, delivery or distribution, directly or indirectly, of any Placing Shares into the United States, and have executed and delivered a U.S. Investor Letter substantially in the form set out in the letter provided to it by Stifel or Liberum to the addressees specified therein; and
(c) it is not acquiring the Placing Shares as a result of any "directed selling efforts" as defined in Regulation S or as a result of any form of "general solicitation" or "general advertising" (within the meaning of Rule 502(c) of Regulation D under the Securities Act).
The Company, Liberum, Stifel and their respective directors, officers, agents, employees, advisers and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgments and agreements.
If any of the representations, warranties, acknowledgments or agreements made by the Placee are no longer accurate or have not been complied with, the Placee will immediately notify the Company.
6 Supply and disclosure of information
If Liberum, Stifel or the Company or any of their respective agents request any information about a Placee's agreement to subscribe for Placing Shares under the Placing, such Placee must promptly disclose it to them.
The rights and remedies of the Company, Liberum and Stifel 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.
On application, if a Placee is a discretionary fund manager, that Placee may be asked to disclose in writing or orally the jurisdiction in which its funds are managed or owned. All documents provided in connection with the Placing will be sent at the Placee's risk. They may be returned by post to such Placee at the address notified by such Placee.
Each Placee agrees to be bound by the Articles (as amended from time to time) once the Placing Shares, which the Placee has agreed to subscribe for pursuant to the Placing, have been acquired by the Placee. The contract to subscribe for Placing Shares under the Placing and the appointments and authorities mentioned in this Announcement and all disputes and claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) will be governed by, and construed in accordance with, the laws of England and Wales. For the exclusive benefit of the Company, Liberum and Stifel, each Placee irrevocably submits to the jurisdiction of the courts of England and Wales and waives any objection to proceedings in any such court on the ground of venue or on the ground that proceedings have been brought in an inconvenient forum. This does not prevent an action being taken against the Placee in any other jurisdiction.
In the case of a joint agreement to subscribe for Placing Shares under the Placing, references to a "Placee" in these terms and conditions are to each of the Placees who are a party to that joint agreement and their liability is joint and several.
Liberum, Stifel and the Company expressly reserve the right to modify the Placing (including, without limitation, the timetable and settlement) at any time before allocations are determined. The Placing is subject to the satisfaction of the conditions contained in the Placing Agreement and the Placing Agreement not having been terminated. Further details of the terms of the Placing Agreement are set out above under the heading "Terms of the Placing".
This information is provided by RNS