NOT FOR RELEASE, DISTRIBUTION, PUBLICATION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR INTO OR FROM THE UNITED STATES, CANADA, AUSTRALIA, OR JAPAN OR ANY OTHER JURISDICTION WHERE TO DO SO MIGHT CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF SUCH JURISDICTION.
This announcement is an advertisement and not an admission document or a prospectus. This announcement is not and does not constitute or form part of, and should not be construed as, an offer of securities for subscription or sale in any jurisdiction nor a solicitation of any offer to buy or subscribe for, any securities, nor shall it or any part of it, or the fact of its distribution, form the basis of, or be relied on in connection with, any contract or commitment whatsoever. This announcement does not constitute a recommendation regarding any securities. Prospective investors should not subscribe for or purchase any securities referred to in this announcement except in compliance with applicable securities laws and regulation and on the basis of the information in the final admission document (the "Admission Document") to be published by the Company, and any supplement thereto, in connection with the placing (the "Placing") of its ordinary shares of 1 pence each (the "Shares") and the proposed admission (the "Admission") of the Shares to trading on the AIM market of London Stock Exchange plc (the "London Stock Exchange"). A copy of the Admission Document will, following publication, be available for viewing on the Company's website at www.team17.com.
18 May 2018
Team17 Group plc
("Team17", the "Company" or the "Group")
Placing and Proposed Admission to trading on AIM
Following the intention to float announcement on 8 May 2018, Team17, a global games label, creative partner and developer of independent, premium video games, today announces the successful pricing of its initial public offering (the "IPO") and conditional placing of 27,325,482 new (the "New Shares") and 37,849,200 existing (the "Sale Shares", together with the New Shares, the "Placing Shares") Shares (the "Placing") at 165 pence per share (the "Issue Price") with institutional investors, to raise gross proceeds of approximately £107.5 million.
· The Company's market capitalisation on Admission, based on the Issue Price, is expected to be approximately £217 million.
· The Company has conditionally raised net proceeds of £42.8 million, which will primarily be used to repay existing shareholder loans.
· £59.4 million (net of expenses) has been raised for the selling shareholders. Debbie Bestwick, the Company's Chief Executive Officer, will retain a substantial shareholding in the Company, amounting to approximately 22.2% and LDC, the private equity arm of Lloyds Banking Group, will retain a shareholding in the Company of 16.6% of the Shares in issue following Admission. On Admission, management and employees will hold approximately 31.2% of the issued share capital of the Company.
· The Directors believe that the IPO will enable the Company to invest in its future expansion, enhance its profile and provide the ability to incentivise key employees.
· It is expected that dealings in the Shares on AIM will commence at 8.00 a.m. on 23 May 2018 and trade under the ticker TM17. Its ISIN number is GB00BYVX2X20 and its SEDOL is BYVX2X2.
· The Placing saw strong demand from institutional investors with the book covered multiple times.
· On Admission, the Company will have 131,288,276 Shares in issue and is expected to have a free float of approximately 49.6%.
· Berenberg is acting as Sole Global Coordinator and Broker and GCA Altium as Nominated Adviser to the Company.
Team17 Group plc
Debbie Bestwick MBE, Chief Executive Officer
Paul Bray, Chief Financial Officer & Chief Operating Officer
via Vigo Communications
+44 (0)20 7830 9701
GCA Altium (Nominated Adviser)
Phil Adams / Adrian Reed / Paul Lines
+44 (0)845 505 4343
Berenberg (Sole Global Coordinator and Broker)
Chris Bowman / Toby Flaux / Marie-Agnes Stolberg
+44 (0)20 3207 7800
Vigo Communications (Financial Public Relations)
Jeremy Garcia / Fiona Henson
+44 (0)20 7830 9701
This announcement does not constitute, or form part of, any offer or invitation to sell, allot or issue, or any solicitation of any offer to purchase or subscribe for, any securities in the Company in any jurisdiction nor shall it, or any part of it, or the fact of its distribution, form the basis of, or be relied on in connection with or act as an inducement to enter into, any contract or commitment therefor.
Recipients of this announcement who are considering subscribing for or acquiring Shares following publication of the Admission Document are reminded that any such acquisition or subscription must be made only on the basis of the information contained in the final Admission Document, which may be different from the information contained in this announcement. No reliance may be placed, for any purpose whatsoever, on the information or opinions contained in this announcement or on its completeness. To the fullest extent permitted by applicable law or regulation, no undertaking, representation or warranty, express or implied, is given by or on behalf of the Company, GCA Altium Limited ("GCA Altium"), Joh. Berenberg Gossler & Co. KG, (London Branch) ("Berenberg") or their respective parent or subsidiary undertakings or the subsidiary undertakings of any such parent undertakings or any of their respective directors, officers, partners, employees, agents, affiliates, representatives or advisers or any other person as to the accuracy, sufficiency, completeness or fairness of the information, opinions or beliefs contained in this announcement and, save in the case of fraud, no responsibility or liability is accepted by any of them for any errors, omissions or inaccuracies in such information or opinions or for any loss, cost or damage suffered or incurred, howsoever arising, from any use, as a result of the reliance on, or otherwise in connection with this announcement.
GCA Altium, which is authorised and regulated by the Financial Conduct Authority, and Berenberg, which is authorised by the German Federal Financial Supervisory Authority and subject to limited regulation in the United Kingdom by the Financial Conduct Authority, are acting only for the Company in connection with the proposed Placing and Admission and are not acting for or advising any other person, or treating any other person as their respective client, in relation thereto and will not be responsible for providing the regulatory protection afforded to clients of GCA Altium or Berenberg or advice to any other person in relation to the matters contained herein. Such persons should seek their own independent legal, investment and tax advice as they see fit. GCA Altium's responsibilities as the Company's nominated adviser under the AIM Rules for Nominated Advisers and AIM Rules for Companies will be owed solely to the London Stock Exchange and not to the Company, to any of its directors or any other person in respect of a decision to subscribe for or otherwise acquire Shares in reliance on the Admission Document. Neither GCA Altium nor Berenberg, have authorised or approved the contents of, or any part of, this announcement and no representation or warranty, express or implied, is made by GCA Altium and Berenberg or their affiliates as to any of its contents.
This announcement is only addressed to, and directed at, persons in member states of the European Economic Area who are qualified investors within the meaning of Article 2(1)(e) of the Prospectus Directive ("Qualified Investors"). For these purposes, the expression "Prospectus Directive" means Directive 2003/71/EC, as amended, and includes any relevant implementing measure in each member state of the European Economic Area which has implemented the Prospectus Directive. In addition, in the United Kingdom, this announcement is addressed to and directed only at Qualified Investors who are (i) persons having professional experience in matters relating to investments, i.e., investment professionals within the meaning of Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the "FPO"); (ii) high net-worth companies, unincorporated associations and other bodies within the meaning of Article 49, (2) (a) to (d) of the FPO; and (iii) persons to whom it is otherwise lawful to communicate it under the FPO. It is not intended that this announcement be distributed or passed on, directly or indirectly, to any other class of person and in any event, and under no circumstances should persons of any other description rely on or act upon the contents of this announcement.
Neither this announcement nor any copy of it may be (i) taken or transmitted into or distributed, directly or indirectly, in the United States (within the meaning of regulations made under the US Securities Act of 1933, as amended), (ii) taken or transmitted into, distributed, published, reproduced or otherwise made available or disclosed in Canada, Australia, New Zealand or the Republic of South Africa or to any resident thereof, except in compliance with applicable securities laws, or (iii) taken or transmitted into or distributed in Japan or to any resident thereof for the purpose of solicitation or subscription or offer for sale of any securities or in the context where the distribution thereof may be construed as such a solicitation or offer. Any failure to comply with these restrictions may constitute a violation of the securities laws or the laws of any such jurisdiction. The distribution of this announcement in other jurisdictions may be restricted by law and the persons into whose possession this announcement comes should inform themselves about, and observe, any such restrictions.
The Shares have not been and will not be registered under the US Securities Act of 1933, as amended, and may not be offered or sold in the United States, except pursuant to an applicable exemption from registration. No public offering of securities is being made in the United States. No securities commission or similar authority in Canada has in any way passed on the merits of the securities offered hereunder and any representation to the contrary is an offence. No document in relation to the proposed placing of the Shares has been, or will be, lodged with, or registered by, the Australian Securities and Investments Commission, and no registration statement has been, or will be, filed with the Japanese Ministry of Finance. Accordingly, subject to certain exceptions, the Shares may not be, directly or indirectly, offered, sold, taken up, delivered or transferred in or into or from any other jurisdiction or offered or sold to a person within a any other jurisdiction.
The date of Admission may be influenced by factors such as market conditions. There is no guarantee that the Admission Document will be published or that Admission will occur, and you should not base your financial decisions on the Company's intentions in relation to Admission at this stage. Acquiring investments to which this announcement relates may expose an investor to a significant risk of losing all of the amount invested. The value of shares can decrease as well as increase.
APPENDIX: TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS IN RELATION TO ANY PURCHASE OF PLACING SHARES.
1. Details of the Placing
The Company will allot and issue 27,325,482 New Shares pursuant to the Placing, raising proceeds of £45.1 million before commissions and other estimated fees and expenses of approximately £2.3 million. Selling Shareholders will sell 37,849,200 Shares pursuant to the Placing.
Berenberg has conditionally placed the New Shares and Sale Shares at the Placing Price with certain institutional and qualified professional investors in circumstances which do not give rise to a public offer in respect of which the Company would be obliged to publish a prospectus. The Placing Shares will, in aggregate, represent 49.6 per cent. of the issued share capital of the Company on Admission.
Further details, terms and conditions of the Placing are set out in paragraphs 2 to 10 (inclusive) below.
Each person that is invited to and which confirms its agreement (whether orally or in writing) to Berenberg to subscribe for or acquire Placing Shares under the Placing (the "Placee") will be irrevocably bound by these terms and conditions and will be deemed to have accepted them.
Berenberg may require any Placee to agree to such further terms and/or conditions and/or give such additional warranties and/or representations as it may, in its absolute discretion, see fit and/or may require such Placee to execute a separate placing letter.
Upon being notified of the Placing Price and its allocation of Placing Shares in the Placing, a Placee shall be contractually committed to subscribe for or acquire and pay for the number of Placing Shares allocated to it at the Placing Price ("Placing Participation") and, to the fullest extent permitted by law, will be deemed to have agreed not to exercise any rights to rescind or terminate or otherwise withdraw from such commitment. Dealing may not begin before any notification is made.
In the event that Berenberg has procured acceptances from Placees in connection with the Placing prior to the date of the despatch of this announcement and/or the Admission Document to a Placee, Berenberg will, prior to Admission, request confirmation from any such Placee that its Placing Participation as agreed in any earlier commitment remains firm and binding upon these terms and conditions and referable to the contents of the Admission Document. Upon such confirmation being given (whether orally, in writing or by conduct (including, without limitation, by receipt of the relevant placing proceeds by Berenberg)) any agreement made in respect of the Placing Shares shall be varied, amended and/or ratified in accordance with these terms and conditions and based upon this announcement and no reliance may be placed by a Placee on any earlier version or draft of the Admission Document, including any pathfinder or P-Proof.
3. Agreement to subscribe for or acquire Placing Shares
Application will be made to the London Stock Exchange for the admission of the Placing Shares to be issued pursuant to the Placing to trading on AIM. Except as otherwise set forth herein, it is anticipated that dealings in the Placing Shares will commence on AIM at 8.00 a.m. on 23 May 2018 for normal account settlement and that Admission will become effective on that date. The Placing Shares will not be admitted to trading on any stock exchange other than AIM. Each Placee will be deemed to have read these terms and conditions in their entirety. Berenberg is acting for the Company and is acting for the Selling Shareholders and no one else in connection with the Placing and will not regard any other person (whether or not a recipient of these terms and conditions) as a client in relation to the Placing and, to the fullest extent permitted by law and applicable FCA rules, neither Berenberg nor any of its affiliates will have any liability to Placees or to any person other than the Company and the Selling Shareholders in respect of the Placing.
The Company reserves the right, in its sole and absolute discretion, to scale back applications in such amounts as it considers appropriate. Each of Berenberg and the Company also reserves the right to decline, in whole or in part, any application for Placing Shares pursuant to the Placing. Accordingly, applicants for Placing Shares may, in certain circumstances, not be allotted and/or sold the number of Placing Shares for which they have applied. The balance of subscription monies in the event of scaling back (or unsuccessful applications) will be posted to applicants by cheque (or, in the case of payment by electronic transfer, transferred to the bank from which payment was made), without interest, at the applicant's own risk.
The Placing Shares will rank equally in all respects with the other Shares in issue on Admission, including the right to receive dividends or other distributions, if any.
Each Placee's Placing Participation is in all respects conditional upon:
(a) the Placing Agreement becoming unconditional in all respects and not having been terminated in accordance with its terms; and
(b) Admission having become effective,
in each case by 23 May 2018 or such later time and/or date as the Company and Berenberg agree, but in any event being no later than 31 May 2018.
Pursuant to the Placing Agreement, Berenberg has agreed, on behalf of and as agent for the Company, to use reasonable endeavours to procure subscribers or purchasers for the Placing Shares at the Placing Price, subject to these terms and conditions. For the avoidance of doubt, the Placing will not be underwritten and no commissions are payable to a Placee in respect of their Placing Participation.
The Placing Agreement will (inter alia) contain certain warranties from the Company and the Directors and certain indemnities given by the Company for the benefit of GCA Altium and Berenberg. Berenberg may terminate the Placing Agreement if prior to Admission, inter alia, a force majeure or certain material adverse events occur, or any statement contained in the Admission Document or certain other documents in connection with this offering is untrue, or any crisis of international or national effect occurs that is materially adverse to the Placing or materially and adversely affects the market's perception or financial position or prospects of the Group, or changes involving a prospective change in taxation adversely affects any member of the Group occur, or there is a breach of any of the warranties or undertakings or any fact or circumstance arises which causes a warranty to become untrue, inaccurate or misleading in any respect, or the Company or the Company's directors fail to comply with their respective obligations under the Placing Agreement in any respect. The exercise by GCA Altium or Berenberg of any right of termination or any right of waiver exercisable by GCA Altium or Berenberg contained in the Placing Agreement or the exercise of any discretion under the Admission Document and the Terms and Conditions set out herein is within the absolute discretion of GCA Altium and Berenberg acting in good faith and they will not have any liability to a Placee whatsoever in connection with any decision to exercise or not exercise any such rights.
By accepting the Placing Shares referred to in the Admission Document, each Placee agrees that Berenberg without having any liability to them, may, in its absolute discretion, exercise the right, (i) not to enter into the Placing Agreement; (ii) to extend the time for fulfilment of any of the conditions in the Placing Agreement (provided that the Placee's commitment is not extended beyond 31 May 2018), (iii) to waive, in whole or in part, fulfilment of certain of the conditions; or (iv) to terminate the Placing Agreement, in each case without consulting such Placee.
If: (a) any of the conditions in the Placing Agreement are not satisfied (or, where relevant, waived); (b) the Placing Agreement is terminated; or (c) the Placing Agreement does not otherwise become unconditional in all respects, the Placing will not proceed and all funds delivered by a Placee to Berenberg will be returned to such Placee at their risk without interest, their rights and obligations hereunder shall cease and determine at such time and no claim shall be made by such Placee in respect thereof.
None of the Company, the Directors, any Selling Shareholder or Berenberg owes any fiduciary duty to any Placee in respect of the representations, warranties, undertakings or indemnities in the Placing Agreement.
The Company has applied for the Ordinary Shares to be held in CREST and settlement of the Placing Shares will take place in CREST.
Placing Shares will be delivered direct into the Placee's CREST account, provided payment has been made in terms satisfactory to Berenberg and the details provided by the Placee have provided sufficient information to allow the CREST system to match to the CREST account specified. Placing Shares comprised in the Placee's Placing Participation are expected to be delivered to the CREST account which a Placee specifies by telephone to the Placee's usual sales contact at Berenberg.
If the Placee does not provide any CREST details or if the Placee provides insufficient CREST details to match within the CREST system to your details, Berenberg may, at its discretion, deliver the Placee's Placing Participation in certificated form provided payment has been made in terms satisfactory to Berenberg and all conditions in relation to the Placing have been satisfied or waived.
Subject to the conditions set out above, payment in respect of the Placee's Placing Participation is due as set out below. Placees should provide their settlement details in order to enable instructions to be successfully matched in CREST. The relevant settlement details are as follows:
CREST participant ID of Joh. Berenberg, Gossler & Co. KG:
Expected Trade date:
18 May 2018
23 May 2018
ISIN code for the Placing Shares:
Deadline for Placee to input instructions into CREST:
22 May 2018
In the event that the Placing Agreement does not become unconditional in all respects or is terminated, the Placing will not proceed. Once the Placing Shares are allotted and issued, such Placing Shares will be admitted to CREST with effect from Admission. It is expected that dealings on AIM in the Placing Shares will commence at 8.00 a.m. on 23 May 2018.
6. Payment for Placing Shares
In the event of any failure by any Placee to pay for its Placing Participation as so directed and/or by the time required by Berenberg, the relevant Placee shall be deemed hereby to have appointed Berenberg or any nominee of Berenberg as its agent to use its reasonable endeavours to sell (in one or more transactions) any or all of the Placing Shares in respect of which payment shall not have been made as directed by Berenberg and to indemnify Berenberg and its affiliates on demand in respect of any liability for stamp duty and/or stamp duty reserve tax or any other liability whatsoever arising in respect of any such sale or sales. A sale of all or any of such Placing Shares shall not release the relevant Placee from the obligation to make such payment for Placing Shares to the extent that Berenberg or their nominee has failed to sell such Placing Shares at a consideration which after deduction of the expenses of such sale and payment of stamp duty and/or stamp duty reserve tax as aforementioned, is equal to or exceeds the Placing Price per Placing Share.
7. Selling and Transfer Restrictions
7.1 The distribution of this announcement and the offer of the Placing Shares in certain jurisdictions may be restricted by law. This announcement does not constitute an offer or invitation to acquire, underwrite or dispose of, or any solicitation of any offer or invitation to acquire, underwrite or dispose of, any Ordinary Shares or other securities of the Company to any person in any jurisdiction to whom it is unlawful to make such offer, invitation or solicitation in such jurisdiction, and therefore persons into whose possession this announcement comes should inform themselves about and observe any restrictions, and must be persons who are able to lawfully receive this announcement in their jurisdiction (all such persons being "Relevant Persons"), including those set out in paragraphs that follow. Any failure to comply with these restrictions may constitute a violation of the securities laws of any such jurisdiction.
7.2 No action has been or will be taken in any jurisdiction that would permit a public offering of the Placing Shares, or possession or distribution of this announcement or any other offering material in any country or jurisdiction which action for that purpose is required. Accordingly, the Placing Shares may not be offered or sold, directly or indirectly, and neither this announcement nor any other offering material or advertisement in connection with the Placing Shares may be distributed or published in or from any country or jurisdiction except in circumstances that will result in compliance with any and all applicable rules and regulations of any such country or jurisdiction.
7.3 In particular, neither this announcement, nor these terms and conditions, constitutes an offer or invitation (or a solicitation of any offer or invitation) to acquire, underwrite or dispose of, or otherwise deal in, any Ordinary Shares or other securities of the Company in the United States, Canada, Australia, the Republic of South Africa, Japan or New Zealand, or in any other jurisdiction in which any such offer, invitation or solicitation is or would be unlawful ("Excluded Jurisdiction"). The offer and sale of Ordinary Shares has not been, and will not be, registered under the applicable securities laws of Canada, Australia, Japan, New Zealand or the Republic of South Africa. Subject to certain exemptions, the Ordinary Shares may not be offered to, or sold within, Canada, Australia, Japan, New Zealand or the Republic of South Africa or to any national, resident or citizen of Canada, Australia, Japan, New Zealand or the Republic of South Africa.
7.4 Prospective investors must inform themselves as to: (a) the legal requirements within their own countries for the purchase, holding, transfer, redemption or other disposal of the Ordinary Shares; (b) any foreign exchange restrictions applicable to the purchase, holding, transfer, redemption or other disposal of the Ordinary Shares which they might encounter; and (c) the income and other tax consequences which may apply in their own countries as a result of the purchase, holding, transfer, redemption or other disposal of the Ordinary Shares.
7.5 In relation to each Member State, no Placing Shares have been offered or will be offered pursuant to the Placing to the public in that Member State, except that offers of Placing Shares may be made to the public in that Member State at any time under the following exemptions under the Prospectus Directive, if they are implemented in that Member State:
(a) to any legal entity which is a "qualified investor" as defined under the Prospectus Directive;
(b) to fewer than 150 natural or legal persons (other than "qualified investors" as defined under the Prospectus Directive); or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of Placing Shares shall result in a requirement for the publication of a prospectus pursuant to Article 3 of the Prospectus Directive or any measure implementing the Prospectus Directive in a Member State and each person who initially acquires any Placing Shares or to whom any offer is made under the Placing will be deemed to have represented, acknowledged and agreed that it is a "qualified investor" within the meaning of the law in that Member State implementing Article 2(1)(e) of the Prospectus Directive.
7.6 The expression an "offer of any shares to the public" in relation to any Placing Shares in any Member State means a communication to persons in any form and by any means presenting sufficient information on the terms of the offer and the Placing Shares to be offered, so as to enable a Placee to decide to acquire any Placing Shares, as the same may be varied for that Member State by any measure implementing the Prospectus Directive in that Member State.
7.7 In the case of any Placing Shares being offered to a financial intermediary as that term is used in Article 3(2) of the Prospectus Directive, such financial intermediary will also be deemed to have represented, acknowledged and agreed that the Placing Shares acquired by it in the Placing have not been acquired on a non-discretionary basis on behalf of, nor have they been acquired with a view to their offer or resale to persons in circumstances which may give rise to an offer of any Ordinary Shares to the public other than their offer or resale in a Member State to "qualified investors" as so defined or in circumstances in which the prior consent of Berenberg has been obtained to each such proposed offer or resale. The Group and Berenberg and their respective affiliates, and others will rely upon the truth and accuracy of the foregoing representation, acknowledgement and agreement. Notwithstanding the above, a person who is not a "qualified investor" and who has notified Berenberg of such fact in writing may, with the prior consent of Berenberg, be permitted to acquire Placing Shares in the Placing.
7.8 The Placing Shares have not been and will not be registered under the US Securities Act, or with any securities regulatory authority of any State or other jurisdiction of the United States and, subject to certain exceptions, may not be offered or sold within the United States. The Placing Shares are being sold outside of the United States in reliance on Regulation S.
8. Representations and Warranties
By agreeing to acquire or subscribe for Placing Shares, each Placee who confirms their agreement to acquire or subscribe for Placing Shares will (for itself and any person(s) procured by it to acquire or subscribe for Placing Shares and any nominee(s) for any such person(s)) be deemed to irrevocably agree, undertake, represent, warrant and acknowledge to each of the Company, the Registrar, GCA Altium and Berenberg that:
8.1 the exercise by Berenberg of any rights or discretion under the Placing Agreement shall be within the absolute discretion of Berenberg and Berenberg need not have any reference to a Placee and shall have no liability to a Placee whatsoever in connection with any decision to exercise or not to exercise any such right. Each Placee agrees that it has no rights against either of Berenberg, the Company and any of their respective directors and employees under the Placing Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999;
8.2 in agreeing to acquire or subscribe for Placing Shares under the Placing, it is relying solely on this announcement and any supplementary admission document issued by the Company and not on any other information given, or representation or statement made at any time (including, without limitation, the roadshow presentation prepared by the Company or research by any party containing information about the Company), by any person concerning the Company, the Placing Shares, the Placing or Admission. It agrees that none of the Company, Berenberg, GCA Altium nor any of their affiliates, nor any of their respective directors, 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, representation or statements;
8.3 it acknowledges that the content of this announcement is exclusively the responsibility of the Company and the Board and none of Berenberg, GCA Altium nor any person acting on their behalf nor any of their affiliates makes any representation, express or implied, nor accepts any responsibility whatsoever for the contents of this announcement nor for any information, representation or statement made or purported to be made by them or on their behalf in connection with the Company, the Placing Shares, the Placing or Admission;
8.4 it will indemnify on an after-tax basis and hold harmless the Company, Berenberg and GCA Altium and their respective affiliates and any person acting on their behalf 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 these terms and conditions;
8.5 if the laws of any territory or jurisdiction outside the United Kingdom are applicable to its agreement to acquire Placing Shares under the Placing, it undertakes, represents and warrants that it is a person to whom the Placing Shares may be lawfully offered under that other jurisdiction's laws and regulations 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 and that it has not taken any action or omitted to take any action which will result in the Company or Berenberg or any of its respective affiliates or any of their respective officers, agents, employees or affiliates 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;
8.6 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 nondiscretionary basis for any such person;
8.7 it is liable for any capital duty, stamp duty, stamp duty reserve tax and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the United Kingdom by it or any other person on the acquisition by it of any Placing Shares or the agreement by it to acquire any Placing Shares;
8.8 it agrees that, having had the opportunity to read this announcement, it shall be deemed to have had notice of all information, undertakings, representations and warranties contained in this announcement, that it is acquiring Placing Shares solely on the basis of this announcement and no other information and that in accepting a Placing Participation it has had access to all information it believes necessary or appropriate in connection with its decision to acquire Placing Shares;
8.9 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 and the Articles as in force at the date of Admission, and that such agreement is legally binding and irrevocable, and is not capable of termination or rescission in any circumstances save for fraud, whether concluded by telephone or otherwise. Such Placee agrees that these terms and conditions represent the whole and only agreement between the Placee, Berenberg and the Company in relation to the Placee's Placing Participation and supersede any previous agreement between any of such parties in relation to such participation. Accordingly, all other terms, conditions, representations, warranties and other statements which would otherwise be implied (by law or otherwise) shall not form part of these terms and conditions. Such Placee agrees that none of the Company, Berenberg nor any of their respective officers or directors will have any liability for any such other information or representation and irrevocably and unconditionally waives any rights it may have in respect of any such other information or representation;
8.10 that, save in the event of fraud on the part of Berenberg, none of Berenberg, its ultimate holding companies nor any direct or indirect subsidiary undertakings of such holding companies, nor any of their respective partners, directors, officers and employees shall be responsible or liable to a Placee or any of its clients for any matter arising out of Berenberg's role whether as sole bookrunner or broker, or otherwise in connection with the Placing and that where any such responsibility or liability nevertheless arises as a matter of law, the Placee and, if relevant, its clients, will, to the fullest extent permitted by law, immediately waive any claim against any of such persons which the Placee or any of its clients may have in respect thereof;
8.11 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 the Admission Document, and, if given or made, any information or representation must not be relied upon as having been authorised by Berenberg or the Company;
8.12 it is not applying as, nor is it applying as nominee or agent for, a person who is or may be liable to notify and account for tax under the Stamp Duty Reserve Tax Regulations 1986 at any of the increased rates referred to in section 67, 70, 93 or 96 (depository receipts and clearance services) of the Finance Act 1986;
8.13 it has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of its subscription for the Placing Shares and it is able to bear the economic risk and financial risk (including sustaining a complete loss) of the acquisition of such Placing Shares;
8.14 it has investigated independently and made its own assessment and satisfied itself concerning the relevant tax, legal, currency and other economic considerations relevant to its investment in the Placing Shares, including any federal, state and local tax consequences, affecting it in connection with its purchase and any subsequent disposal of the Placing Shares;
8.15 it is duly incorporated and validly existing under the laws of its jurisdiction of incorporation;
8.16 it has the power under its constitutional documents and has obtained all necessary consents and authorities (including, without limitation, all relevant members' resolutions) to acquire and pay for the Placing Shares comprised in the manner proposed and to enter into and perform its obligations pursuant to these terms and conditions, and there are no governmental or regulatory consents or other third party approvals, authorisations or orders required in order for it to acquire and pay for the Placing Shares in the manner proposed and to enter into and perform its obligations pursuant to these terms and condition that have not been or will not prior to Admission have been obtained;
8.17 the agreement to acquire or subscribe for the Placing Shares and payment therefor will comply with and will not violate any agreements to which it is a party or by which it or any of its properties or assets is bound and which is material to its participation and its obligations in respect thereof and will constitute its valid and legally binding agreement and it has the funds available to make payment for the full amount in respect of the Placing Shares as and when due;
8.18 it accepts and acknowledges that (i) the Placing Shares have not been and will not be registered under the US Securities Act or with any securities regulatory authority of any State or other jurisdiction of the United States, and may not be offered, sold, transferred or delivered directly in or into the United States except pursuant to an effective registration statement under the US Securities Act, an exemption from, or in a transaction not subject to, the registration requirements of the US Securities Act and any applicable state securities laws and, in connection with any such transfer, the Group will have the right to obtain, as a condition to transfer, a legal opinion of counsel, in form and by counsel reasonably satisfactory to the Group, that no such US Securities Act registration is or will be required along with appropriate certifications by the transferee as to appropriate matters. No representation has been made as to the availability of any exemption under the US Securities Act for the reoffer, resale, transfer or delivery of the Placing Shares; (ii) the Company has not filed a prospectus or similar document with any applicable securities regulatory authority of any province or territory of Canada, no document in relation to the Placing has been or will be lodged with, or registered by, the Australian Securities and Investments Commission and no registration statement has been, the Japanese Ministry of Finance in relation to the Placing Shares the Financial Markets Authority in New Zealand or will be filed with Financial Services Board of the Republic of South Africa; and (iii) the Placing Shares have not been, and will not be, registered under the securities laws of any Excluded Jurisdiction and, subject to certain exceptions, the Placing Shares may not be offered or sold directly or indirectly within Canada, Australia, Japan, New Zealand, the Republic of South Africa or any other Excluded Jurisdiction or to or for the account or benefit of any national, citizen or resident of such countries or of the Excluded Jurisdictions;
8.19 it is not, and any person on whose behalf it is acting is not, and at the time the Placing Shares are subscribed for or acquired will not be, a resident of, or with an address in, or subject to the laws of, the United States and it acknowledges and agrees that the Placing Shares have not been and will not be registered or otherwise qualified under the securities legislation of the United States and may not be offered, sold, or acquired, directly or indirectly, within the United States;
8.20 it and the beneficial owner of the Placing Shares is, and at the time the Placing Shares are subscribed for or acquired will be, outside the United States and acquiring the Shares in an "offshore transaction" as defined in, and in accordance with, Regulation S under the Securities Act;
8.21 it will not offer, sell, renounce, transfer or deliver, directly or indirectly, any of the Placing Shares in Australia, Canada, Japan or Republic of South Africa or to any national, resident or citizen of Australia, Canada, Japan or Republic of South Africa other than as may be permitted under the applicable law in the relevant jurisdiction and it acknowledges that the Placing Shares have not been and will not be registered under the applicable securities laws of Australia, Canada, Japan or Republic of South Africa and that the same are not being offered for subscription or sale, and may not, directly or indirectly, be offered, sold, transferred or delivered, in Australia, Canada, Japan or Republic of South Africa other than as may be permitted under the applicable law in the relevant jurisdiction;
8.22 it accepts and acknowledges that there will be no public offer in the United States and the Ordinary Shares are offered by way of a placing of the Ordinary Shares to certain institutional and professional investors in the United Kingdom and elsewhere outside of the United States in reliance on Regulation S;
8.23 it acknowledges and agrees that it will not offer or sell any of the Placing Shares, directly or indirectly, in or into the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the US Securities Act;
8.24 it has not distributed, forwarded, transferred or otherwise transmitted this announcement, the Admission Document or any other presentation or offering materials concerning the Placing Shares within the United States, nor will it do any of the foregoing, and it understands that the information in the Admission Document, including financial information, may be materially different from any disclosure that would be provided in a registered offering in the United States;
8.25 if it is located in the United Kingdom, it is (i) a person whose ordinary activities involve it in acquiring, holding, managing or disposing of investments (as principal or agent) in the course of its business and a "Qualified Investor" (as defined above) and it will acquire, manage and dispose of the Placing Shares (as principal or agent) for the purposes of its business and (ii) not intending to offer or sell or otherwise deal with the Placing Shares in any way which would result in an offer to the public in the United Kingdom within the meaning of FSMA or in any other jurisdiction or require registration or prospectus publication or similar actions in any other jurisdiction;
8.26 if it is receiving the offer in circumstances under which the laws or regulations of a jurisdiction other than the United Kingdom would apply, that it is a person to whom the Placing Shares may be lawfully offered under that other jurisdiction's laws and regulations;
8.27 it is capable of being categorised as a person who is a "professional client" or an "eligible counterparty" within the meaning of Chapter 3 of the FCA's Conduct of Business Sourcebook;
8.28 to the extent that it is located outside the United Kingdom but in the EEA it is a "qualified investor" as defined under the Prospectus Directive;
8.29 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 for whom it is procuring to acquire 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 acquired and held by it or such person without compliance with any unfulfilled approval, registration or other regulatory or legal requirements;
8.30 it acknowledges that it is an "investment professional" (within the meaning of Article 19(5) of the Financial Promotion Order) or a "high net worth company" (within the meaning of Article 49(2) of the Financial Promotion Order) and a "Qualified Investor" (as defined above);
8.31 it confirms that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of FSMA) relating to the Placing Shares in circumstances in which it is permitted to do so pursuant to section 21 of FSMA;
8.32 it acknowledges that after giving effect to its acquisition of the Placing Shares, it will inform the Company and Berenberg 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 and Transparency Rules;
8.33 it acknowledges that neither Berenberg nor any of its directors, officers, agents or employees or its affiliates nor any person acting on its behalf is making any recommendations to it, 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 Placing Participation is on the basis that it is not and will not be a client of Berenberg nor any of their affiliates and that neither Berenberg nor any of its affiliates have any duties or responsibilities to it for providing protection afforded to their respective clients or for providing advice in relation to the Placing nor, if applicable, in respect of any representations, warranties, undertaking or indemnities otherwise required to be given by it in connection with its application under the Placing;
8.34 it acknowledges that where it is acquiring Placing Shares for one or more managed, discretionary or advisory accounts, it is authorised in writing for each such account: (i) to acquire 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 Berenberg. It agrees that the provision of this paragraph shall survive any resale of the Placing Shares by or on behalf of any such account;
8.35 it acknowledges that neither the Placee nor, as the case may be, their clients, expect Berenberg to have any duties or responsibilities to the Placee similar or comparable to the duties of "best execution" and "suitability" imposed by The Conduct of Business Source Book contained in The FCA's Handbook of Rules and Guidance, and that Berenberg is not acting for the Placee or its clients, and that Berenberg will not be responsible to the Placee or its clients for providing the protections afforded to its customers;
8.36 it irrevocably appoints any Director, duly authorised officer or employee and any director of Berenberg 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 acquisition of 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;
8.37 it accepts that if the Placing does not proceed or the relevant conditions to the Placing Agreement are not satisfied or the Placing Shares for which valid application are received and accepted are not admitted to listing and trading on AIM for any reason whatsoever, then none of the Company and Berenberg or any of their affiliates, nor persons controlling, controlled by or under common control with any of them nor any of their respective employees, agents, directors, officers, members, stockholders, partners or representatives, shall have any liability whatsoever to it or any other person;
8.38 it may lawfully acquire the Placing Shares comprising its Placing Participation and has complied with, and will comply with, all applicable provisions of FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving, the United Kingdom;
8.39 in connection with its Placing Participation (i) it has complied with its obligations in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act 2000 (as amended), the Terrorism Act 2006 and the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and (ii) it is not a person: (a) with whom transactions are prohibited under the Foreign Corrupt Practices Act of 1977 or any economic sanction programmes administered by, or regulations promulgated by, the Office of Foreign Assets Control of the U.S. Department of the Treasury; (b) named on the Consolidated List of Financial Sanctions Targets maintained by HM Treasury of the United Kingdom; or (c) subject to financial sanctions imposed pursuant to a regulation of the European Union or a regulation adopted by the United Nations (together, the Regulations); and, if making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the Regulations and, if making payment on behalf of a third party, that satisfactory evidence has been obtained and recorded by it to verify the identity of the third party as required by the Regulations and has obtained all governmental and other consents (if any) which may be required for the purpose of, or as a consequence of, such purchaser, and it will provide promptly to Berenberg such evidence, if any, as to the identity or location or legal status of any person which Berenberg may request from it in connection with the Placing (for the purpose of complying with such Regulations or ascertaining the nationality of any person or the jurisdiction(s) to which any person is subject or otherwise) in the form and manner requested by Berenberg on the basis that any failure by it to do so may result in the number of Placing Shares that are to be purchased by it or at its direction pursuant to the Placing being reduced to such number, or to nil, as Berenberg may decide at its sole discretion;
8.40 it holds harmless and will indemnify Berenberg and/or the Company against any liability, loss or cost ensuing due to the failure to process this application, if such information as has been required has not been provided by it or has not been provided on a timely basis;
8.41 it acknowledges and agrees that information provided by it to the Company or the Registrar will be stored on the Registrar's computer system and manually. It acknowledges and agrees that for the purposes of the Data Protection Act 1998 and other relevant data protection legislation which may be applicable, the Registrar is required to specify the purposes for which it will hold personal data including the General Data Protection Regulation (Regulation EU 2016/679) (together, the "Data Protection Law"). The Registrar will only use such information for the purposes set out below (collectively, the "Purposes"), being to: (i) process its personal data (including sensitive personal data) as required by or in connection with its holding of Placing Shares, including processing personal data in connection with credit and money laundering checks on it; (ii) communicate with it as necessary in connection with its affairs and generally in connection with its holding of Placing Shares; (iii) provide personal data to such third parties as the Registrar may consider necessary in connection with its affairs and generally in connection with its holding of Placing Shares or as the Data Protection Law may require, including to third parties outside the United Kingdom or the EEA; and (iv) without limitation, provide such personal data to the Company, Berenberg and their respective associates for processing, notwithstanding that any such party may be outside the United Kingdom or the EEA;
8.42 in providing the Registrar with information, it hereby represents and warrants to the Registrar that it has obtained the consent of any data subjects to the Registrar and their respective associates holding and using their personal data for the Purposes (including the explicit consent of the data subjects for the processing of any sensitive personal data for the Purposes). For the purposes of this announcement, "data subject", "personal data" and "sensitive personal data" shall have the meanings attributed to them in the Data Protection Law;
8.43 the representations, undertakings and warranties contained in this announcement are irrevocable. It acknowledges that Berenberg, the Company and their directors, officers, agents and employees 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 acquisition for Placing Shares is no longer accurate, it shall promptly notify each of Berenberg and the Company;
8.44 where it or any person acting on behalf of it is dealing with Berenberg, any money held in an account with Berenberg 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 Berenberg to segregate such money, as that money will be held by Berenberg under a banking relationship and not as trustee;
8.45 any of its clients, whether or not identified to Berenberg or any of its affiliates or agents, will remain its sole responsibility and will not become clients of Berenberg or any of its affiliates or agents for the purposes of the rules of the FCA or for the purposes of any other statutory or regulatory provision;
8.46 it accepts that the allocation of Placing Shares shall be determined by Berenberg (in consultation with the Company (to the extent permitted by applicable law and regulation)) in its absolute discretion and that such persons may scale down any Placing commitments for this purpose on such basis as it may determine; and
8.47 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.
9. Supply and Disclosure of Information
If either of Berenberg or the Company or any of their agents request any information in connection with a Placee's agreement to acquire Placing Shares under the Placing in order to comply with any relevant legislation, such Placee must promptly disclose it to them.
10.1 The rights and remedies of Berenberg 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.
10.2 On application, if a Placee is an individual, that Placee may be asked to disclose in writing, or orally, his or her nationality and 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.
10.3 All documents will be sent at the Placee's risk. They may be sent by post to such Placee at an address notified to Berenberg.
10.4 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 acquire pursuant to the Placing, have been acquired by the Placee.
10.5 The contract to acquire or subscribe for Placing Shares under the Placing and the appointments and authorities mentioned in this announcement and all disputes 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 Berenberg and the Company, 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 a Placee in any other jurisdiction.
10.6 In the case of a joint agreement to acquire 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.
10.7 Berenberg and the Company each expressly reserve the right to modify the Placing (including, without limitation, their timetable and settlement) at any time before allocations are determined. Each Placee agrees that its obligations pursuant to these terms and conditions are not capable of termination or rescission.
10.8 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 contained in paragraph 9.1 of Part V (Additional Information) of the Admission Document.
10.9 Monies received from applicants pursuant to the Placing will be held by Berenberg until such time as the Placing Agreement becomes unconditional in all respects. If the Placing Agreement does not become unconditional in all respects by 8.00 a.m. 23 May 2018, or such later date as the Company and Berenberg may agree in writing (not being later than 3.00 p.m. 31 May 2018), application monies will be returned without interest at the risk of the applicant.
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