THIS ANNOUNCEMENT IS NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, THE REPUBLIC OF SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH IT WOULD BE UNLAWFUL TO DO SO.
3 December 2014
NewRiver Retail Limited ("NewRiver" or the "Company")
Proposed Placing to raise up to £75 million (the "Placing")
Acquisition of Remaining 90% of Shopping Centre Joint Venture from LVS Luxembourg IV Sarl ("LVS") for £71 million (the "Acquisition")
Declaration of Third Quarterly Dividend of 4.25 pence per Ordinary Share
Introduction
NewRiver Retail Limited (AIM: NRR), the UK REIT specialising in value-creating retail property investment and active asset management, is pleased to announce a proposed placing to raise up to £75 million to fund the Acquisition.
Placing
The Placing is being conducted by way of an accelerated bookbuild on the Company's behalf by Liberum. The bookbuild will open with immediate effect following this announcement. The timing of the closing of the bookbuild, pricing and allocations are at the discretion of the Company and Liberum. A further announcement will be made following closing of the placing book, confirming the final size of the Placing.
Liberum is acting as sole bookrunner and will be sole underwriter in relation to the Placing.
The Company has today entered into a placing agreement with Liberum (the "Placing Agreement") pursuant to which Liberum has agreed to use its reasonable endeavours to procure institutional and certain other investors (including certain existing shareholders) for the Placing Shares and, failing which, subject to final size and pricing of the Placing, to subscribe itself for the Placing Shares.
The Placing will not be structured as a rights issue or open offer and the Placing Shares will not be offered generally to shareholders on a pre-emptive basis. The Placing will be subject to certain resolutions being passed at an extraordinary general meeting of the Company (the "EGM") expected to be convened for on or about 8 January 2015.
In addition, the Placing is conditional, amongst other things, on:
· the passing of certain resolutions at the EGM and the waiver of pre-emption rights contained in the Company's articles of incorporation;
· the Placing Agreement becoming unconditional in all respects and not having been terminated in accordance with its terms prior to admission of the Placing Shares to trading on AIM ("Admission");
· the agreement relating to the Acquisition, inter alia, not having been terminated in accordance with its terms prior to Admission; and
· Admission becoming effective by 12 January 2015 (or such later date as the Company and Liberum may agree, being no later than 8.00 a.m. on 30 January 2015).
The Placing Shares are not being made available to the public and are not being offered or sold in any jurisdiction where it would be unlawful to do so.
Acquisition
The net proceeds of the Placing will be used to finance the acquisition from LVS, a subsidiary of Bravo (a fund advised or managed by Pacific Investment Management Company LLC), of the 90 per cent. of a joint venture (the "NewRiver Retail Property Unit Trust") not already owned by NewRiver for a cash consideration of £71 million. The underlying property portfolio comprises five shopping centres and a single high street asset which together have a net lettable area of approximately one million square feet across over 200 tenancies which have an average lease length outstanding of 7.2 years.Since NewRiver's acquisition of its initial 10 per cent. interest in 2012, the assets have performed well and have benefited from the Company's active asset management. Looking forward, the assets present a range of significant further opportunities to enhance value through asset management and risk-controlled development activities which are already being progressed by the Company. Whilst these opportunities are being pursued the portfolio will also continue to provide an attractive income return.
The acquisition is being made off market at the equivalent to a net initial yield of 7.75 per cent. on the acquisition price. The Acquisition is expected to be enhancing to NAV and EPS in the current financial year and beyond. Profit Before Tax for the year ended 31 December 2013 (audited) attributable to Unitholders of the NewRiver Property Unit Trust was £6.3 million (recurring) with £3.6 million of fair value adjustments, resulting in a total Profit Before Tax attributable to Unitholders for the year ended 31 December 2013 of £9.9 million.
The Acquisition is conditional, inter alia, upon the Placing being completed. The Placing is subject to the Agreement relating to the Acquisition becoming unconditional in all respects (save for any condition relating to the Placing Agreement) and to shareholder approval. A circular convening an EGM will be sent to Shareholders shortly.
Dividends
With effect from the financial year commencing 1 April 2014 the Company commenced the payment of quarterly dividends. Prior to today's announcement, two quarterly dividends of 4.25 pence per Ordinary Share have been announced. The first quarterly dividend was paid by the Company on 31 October 2014 whilst the second quarterly dividend is payable on 30 January 2015 to Shareholders on the register on 30 December 2014.
NewRiver is today announcing a third quarterly dividend for the current year of a further 4.25 pence per Ordinary Share, payable on 30 January 2015 to shareholders on the register on 5 January 2015. Ordinary Shares will be marked ex-dividend in respect of the third quarterly dividend on 2 January 2015.
The Placing Shares will not be entitled to receive the second or the third quarterly dividends but will rank pari passu in all other respects with the Ordinary Shares currently in issue and will have the right to receive all dividends and distributions declared in respect of the issued Ordinary Share capital of the Company after Admission.
As a REIT, NewRiver distributes at least 90 per cent of its recurring profits as dividends. The policy of quarterly dividends provides a source of regular income for Shareholders, thus improving their cashflow return profile.
The next quarterly dividend, which will be for the final quarter of the year ending 31 March 2015, is, in keeping with an ongoing policy where quarterly dividends will be announced around the relevant quarter end, expected to be announced before the end of March 2015 and payable by 30 April 2015.
David Lockhart, Chief Executive of NewRiver Retail, commented:
"NewRiver is delighted to announce the Placing and the Acquisition. This portfolio provides an attractive income stream on assets already known to the Company and will allow NewRiver to pursue a number of exciting value-enhancing asset management and risk controlled development opportunities. We are confident the Acquisition will add significant long term value and it is expected to be NAV and EPS enhancing in the current financial year and beyond. The commercial relationship with our joint venture partner, Bravo*, remains strong and both parties continue to pursue further joint venture opportunities, including through their 50:50 Bravo II joint venture."
*Bravo refers to a fund advised or managed by Pacific Investment Management Company LLC.
For further information:
NewRiver Retail Limited David Lockhart, Chief Executive Mark Davies, Finance Director |
Tel: 020 3328 5800 |
Bell Pottinger David Rydell/David Bass/James Newman |
Tel: 020 3772 2500 |
Liberum (Nominated Adviser, Broker, Sole Bookrunner and Sole Underwriter) Chris Bowman/Jamie Richards Kinmont Mat Thackery |
Tel: 020 3100 2000 Tel: 0207 087 9100 |
Liberum Capital Limited, which is authorised and regulated in the United Kingdom by the Financial Conduct Authority, is acting as nominated adviser, broker, sole bookrunner and underwriter to the Company in connection with the Placing. Persons receiving this announcement should note that Liberum Capital Limited will not be responsible to anyone other than the Company for providing the protections afforded to customers of Liberum Capital Limited, or for advising any other person on the arrangements described in this announcement.
Kinmont Limited, which is authorised and regulated in the United Kingdom by the Financial Conduct Authority, is acting as financial adviser to the Company in connection with the matters described in this announcement. Persons receiving this announcement should note that Kinmont Limited will not be responsible to anyone other than the Company for providing the protections afforded to customers of Kinmont Limited, or for advising any other person on the arrangements described in this announcement.
Liberum Capital Limited and Kinmont Limited have not authorised the contents of, or any part of, this announcement and no liability whatsoever is accepted by Liberum Capital Limited or Kinmont Limited for the accuracy of any information or opinions contained in this announcement or for the omission of any information.
No representation or warranty, express or implied, is made by Liberum Capital Limited or Kinmont Limited as to the accuracy, completeness or verification of the information set out in this announcement, and nothing contained in this announcement is, or shall be relied upon as, a promise or representation in this respect, whether as to the past or the future. Liberum Capital Limited and Kinmont Limited do not assume any responsibility for its accuracy, completeness or verification and accordingly each disclaims, to the fullest extent permitted by applicable law, any and all liability whether arising in tort, contract or otherwise which they might otherwise be found to have in respect of this announcement or any such statement.
This announcement includes statements that are, or may be deemed to be, "forward-looking statements" including, without limitation, those regarding New River's financial position, business strategy, plans and objectives of management for future operations or statements relating to expectations in relation to dividends. These statements can be identified by the use of forward-looking terminology, including statements preceded by, followed by or that include the words "targets", "believes", "expects", "aims", "estimates", "intends", "plans", "projects", "will", "may", "anticipates", "would", "could" or similar expressions or the negative thereof. These forward-looking statements include all statements that are not matters of historical fact. They appear in a number of places throughout this announcement and include, but are not limited to, statements regarding the Directors' and/or the Company's intentions, beliefs or current expectations concerning, among other things, New River's results of operations, financial position, prospects, growth, strategies and the industry in which it operates.
By their nature, forward-looking statements involve known and unknown risks, uncertainties and other important factors beyond New River's control that could cause the actual results, performance, achievements of or dividends paid by the Company to be materially different from the results, performance or achievements, or dividend payments expressed or implied by such forward-looking statements. Such forward-looking statements are not guarantees of future performance and are based on numerous assumptions regarding New River's net asset value, present and future business strategies and income flows and the environment in which New River will operate in the future. In addition, even if the results of operations, financial position and the development of the markets and industry in which New River operates in any given period are consistent with the forward-looking statements contained in this document, those results or developments may not be indicative of results or developments in subsequent periods. A number of factors could cause results and developments to differ materially from those expressed or implied by forward-looking statements contained in this announcement, including, without limitation, general economic and business conditions, industry trends, competition, changes in regulation, regulatory activity, currency fluctuations, changes in business strategy, political and economic uncertainty and other factors.
Any forward-looking statements speak only as of the date of this document. Subject to the requirements of AIM and the AIM Rules for Companies (and/or any other applicable regulatory requirements) or applicable law, each of the Company, the Directors, Liberum Capital Limited and Kinmont Limited expressly disclaim any obligation or undertaking to disseminate any updates or revisions to any forward-looking statements contained herein to reflect any change in the Company's expectations with regard thereto, any new information or any change in events, conditions or circumstances after the date of this document on which any such statements are based, unless required to do so by law or any appropriate regulatory authority.
If you are in any doubt about the contents of this announcement you should consult your accountant, legal or professional adviser or financial adviser. It should be remembered that the price of securities and the income from them can go up as well as down.
No Ordinary Shares have been offered or sold or will be offered or sold to persons in the United Kingdom prior to publication of this announcement except in circumstances which have not resulted in an offer to the public in the United Kingdom within the meaning of section 102B of the FSMA.
This announcement is only addressed to, and the Placing is only directed at, persons in member states of the European Economic Area ("EEA") who are "qualified investors" within the meaning of Article 2(1)(e) of the Prospectus Directive ("Qualified Investors"). This announcement must not be acted or relied upon in any member state of the EEA, by persons who are not Qualified Investors. Any investment or investment activity to which this announcement relates is available, in any member state of the EEA, only to Qualified Investors, and will be engaged in only with such persons. This announcement has been prepared on the basis that all offers of Placing Shares will be made pursuant to any exemption under the Prospectus Directive, as implemented in member states of the EEA, from the requirement to produce a prospectus for offers of Placing Shares. Accordingly, any person making or intending to make any offer within the EEA of or for Ordinary Shares which are not the subject of the Placing contemplated in this announcement should only do so in circumstances in which no obligation arises for the Company or Liberum Capital Limited to produce a prospectus for such Placing. None of the Company or Liberum Capital Limited has authorised, nor do they authorise, the making of any offer of Ordinary Shares through any financial intermediary, other than offers made by Liberum Capital Limited which constitute the final placement of Ordinary Shares contemplated in this announcement.
In the case of any Placing Shares being, or which will be, offered to a financial intermediary as that term is used and defined in section 86(7) of the Financial Services and Markets Act 2000, such financial intermediary will also be deemed to have represented, acknowledged and agreed that the Placing Shares acquired by it, or to be 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 Placing Shares to the public other than their offer or resale in a relevant member state to qualified investors as so defined or in circumstances in which the prior consent of the Company and Liberum Capital Limited has been obtained to each such proposed offer or resale. Each of the Company, Liberum Capital Limited and their respective affiliates will rely on the truth and accuracy of the foregoing representation, acknowledgement and agreement.
The Placing Shares are being, or will be, offered (i) outside of the United States to persons who are not U.S. persons as defined in Rule 902(k) of Regulation S ("US Persons") in offshore transactions in reliance on Regulation S under the United States Securities Act of 1933, as amended (the "US Securities Act") ("Regulation S").
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. In addition, the Company has not been, and will not be, registered under the Investment Company Act, and investors will not be entitled to the benefits of the Investment Company Act.
This announcement does not constitute or form part of any offer or invitation to sell or issue, or any solicitation of any offer to purchase or subscribe for, any Placing Shares (i) in any jurisdiction in which such offer, invitation or solicitation is not authorised; (ii) in any jurisdiction in which the person making such offer, invitation or solicitation is not qualified to do so; or (iii) to any person to whom it is unlawful to make such offer, invitation or solicitation. The distribution of this announcement and any accompanying announcements, and the offer of the Placing Shares may be restricted by law. Persons into whose possession this announcement and any accompanying announcements come must therefore inform themselves about and observe any such restrictions. Any failure to comply with these restrictions may constitute a violation of the securities laws of any such jurisdiction. In particular, no announcement may be distributed, forwarded to or transmitted in, into or from the United States, Australia, Canada, Japan or the Republic of South Africa or to any US person where to do so would breach any applicable law or regulation.
No public offering of the Placing Shares is being made in any jurisdiction. No action has been or will be taken by the Company, or Liberum Capital Limited that would permit the offer of the Placing Shares or possession or distribution of this announcement or any accompanying announcements in any jurisdiction where action for that purpose is required.
APPENDIX 1
FURTHER DETAILS ON THE PLACING AND ACQUISITION
The net proceeds of the fundraising will be used to finance the Acquisition as described in more detail below.
The joint venture was set up between LVS (a subsidiary of Bravo, a fund advised or managed by Pacific Investment Management Company LLC) and NewRiver (in the ratio of 90:10, respectively) in December 2012 to acquire a portfolio of 5 shopping centres for a price of £85 million, reflecting a net initial yield of 9.7 per cent. Since that acquisition, 50 new leasing events have been completed, contributing to net operating income growth and occupancy across the portfolio rising from 94.3 per cent. to a current level of 97.7 per cent.
The Acquisition of the 90 per cent. of the joint venture which the Company does not already own is being made off market at the equivalent to a 7.75 per cent. net initial yield on the acquisition price. The Acquisition brings 100 per cent. control of an attractive portfolio into NewRiver's ownership. Debt of £42.5m is secured on the assets of the joint venture. Looking forward there are a number of value enhancing asset management and development prospects which have been identified across the joint venture portfolio. Whilst these opportunities are being pursued the portfolio will also continue to provide an attractive income return.
NewRiver Holdings Limited ("NewRiver Holdings"), a wholly owned subsidiary of the Company, currently holds 10 per cent. of the units in the JPUT and intends to acquire the remaining 90 per cent. from LVS. Upon completion NewRiver Holdings will become the 100 per cent. owner of the JPUT.
On 2 December 2014, (1) LVS, (2) NewRiver Trustee 1 Limited, (3) NewRiver Trustee 2 Limited and (4) NewRiver Holdings entered into a sale and purchase agreement in respect of the Acquisition (the "Acquisition Agreement"), the principal terms of which are as follows:
· the consideration payable is £71 million;
· accrued income from the JPUT in the period from 1 October to 31 December 2014 is to be apportioned 50:50 between NewRiver Holdings and LVS and LVS is waiving all rights to distributions in respect of any period after 31 December 2014;
· a deposit of £1 million has been paid which is returnable after deduction of costs of LVS if the Acquisition does not complete;
· NewRiver Holdings is receiving limited warranties as it is an existing unitholder in the JPUT and NewRiver Retail (UK) Limited is the asset manager operating the JPUT's portfolio;
· the Acquisition is conditional upon the obtaining of funding, which the Company intends to be by means of the Placing proceeds; and
· the Acquisition is also conditional on obtaining of necessary bank consents and release of security over the units of the JPUT which are being transferred.
The Placing is conditional upon the Acquisition Agreement becoming unconditional in all respects (save for any condition relating to the Company being in receipt of the proceeds of the Placing in order to enable it to complete the Acquisition). Should this condition not be satisfied, the Placing will not proceed.
The 5 shopping centres and single high street asset being acquired comprise a net lettable area of approximately one million square feet across over 200 tenancies. Average lease length outstanding is 7.2 years. Since NewRiver's acquisition of its initial 10% interest, the assets have performed well and have benefited from the Company's active asset management. Looking forward, the assets present a range of significant further opportunities to enhance value through asset management and risk controlled development activities which NewRiver is already progressing. Further details of each of the properties are set out below.
Templars Square, Oxford
Templars Square is one of Oxford's largest covered shopping centres, attracting over 5 million visitors each year. The centre comprises 290,000 sq ft of retail accommodation and is let to retailers including Wilkinson, Co-Op, Boots, WH Smith and Superdrug.
The Promenades, Bridlington
The Promenades in Bridlington is the town's only covered and managed retail centre comprising 97,000 sq ft of retail space and 30 retail units. Tenants are a variety of high street retailers including New Look, Argos, Poundland, Sports Direct, Peacocks and Greggs.
Burns Mall, Kilmarnock
Burns Mall comprises 185,000 sq ft of space and is Kilmarnock's only shopping centre, strategically located adjacent to the town's bus station. The centre is let to a range of value and convenience retailers including New Look, Home Bargains, BHS, Boots and JD Sports. Also included within the ownership is a 20,000 sq ft office building, which is leased to East Ayrshire Council.
Regent Court, Leamington Spa
Regent Court in Leamington Spa is a food and leisure-led scheme developed by NewRiver over the past 18 months and comprises a modern open 54,000 sq ft retail centre with a Grade II Listed hotel and private residences situated above the retail accommodation. Tenants include Nandos, Yo! Sushi, Las Iguanas, Zou Bisou, Turtle Bay and Wagamama.
The Prospect Centre, Hull
The Prospect Centre in Hull provides the city's principal value focused retail offer comprising circa 240,000 sq ft of retail space, some 30,700 sq ft of office accommodation and a secure 250-space multi-storey car park. Key retailers include Currys, Wilkinson, WH Smith, Boots, Poundland and a multi-branded food court anchored by Burger King.
Ferensway, Hull
Ferensway, a 49,000 sq ft former department store, was acquired in July 2014. The asset is adjacent to the Prospect Centre and is one of the largest single retail spaces in Hull presently fully let to Poundland and a Chinese restaurant with further food and leisure development underway.
APPENDIX 2
TERMS AND CONDITIONS OF THE PLACING
THIS ANNOUNCEMENT, INCLUDING THE APPENDIX AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR INTO THE UNITED STATES, CANADA, AUSTRALIA, JAPAN, SOUTH AFRICA OR ANY OTHER JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL.
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES ONLY.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE TERMS AND CONDITIONS SET OUT HEREIN ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT PERSONS WHOSE ORDINARY ACTIVITIES INVOLVE THEM IN ACQUIRING, HOLDING, MANAGING AND DISPOSING OF INVESTMENTS (AS PRINCIPAL OR AGENT) FOR THE PURPOSES OF THEIR BUSINESS AND WHO HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS AND ARE: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA WHO ARE QUALIFIED INVESTORS (WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE EU PROSPECTUS DIRECTIVE (WHICH MEANS DIRECTIVE 2003/71/EC AS AMENDED, AND INCLUDES THE 2010 PD AMENDING DIRECTIVE (DIRECTIVE 2010/73/EU) TO THE EXTENT IMPLEMENTED IN THE RELEVANT MEMBER STATE) (THE "PROSPECTUS DIRECTIVE") ("QUALIFIED INVESTORS"); AND (B) IN THE UNITED KINGDOM, QUALIFIED INVESTORS WHO ARE PERSONS WHO (I) HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS FALLING WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER"); (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"). THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS ANNOUNCEMENT IS NOT AN OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY OR ACQUIRE SECURITIES IN THE UNITED STATES. THE SECURITIES REFERRED TO HEREIN HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES. NO PUBLIC OFFERING OF SECURITIES IS BEING MADE IN THE UNITED STATES OR ELSEWHERE.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISORS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF A PURCHASE OF PLACING SHARES.
Persons who are invited to and who choose to participate in the Placing, by making an oral or written offer to acquire Placing Shares (as defined below), will be deemed to have read and understood this Announcement, including this Appendix, in its entirety and to be making such offer on the terms and conditions, and to be providing the representations, warranties, acknowledgements, and undertakings contained in this Appendix. In particular each such Placee (as defined below) represents, warrants and acknowledges that:
(a) it is a Relevant Person (as defined above) and undertakes that it will acquire, hold, manage or dispose of any Placing Shares that are allocated to it for the purposes of its business;
(b) in the case of any Placing Shares acquired by it 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 Member State of the European Economic Area other than Qualified Investors or in circumstances in which the prior consent of the Company and Liberum Capital Limited ("Liberum") has been given to the offer or resale, or (ii) where Placing Shares have been acquired by it on behalf of persons in any member state of the European Economic Area 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; and
(c) (i) it is not within the United States, (ii) it is not in any jurisdiction in which it is unlawful to make or accept an offer to acquire the Placing Shares, (iii) it is not exercising for the account of any person who is located in the United States, unless (a) the instruction to exercise was received from a person outside the United States and (b) the person giving such instruction has confirmed that (1) it has the authority to give such instruction, and (2) either (A) has investment discretion over such account or (B) is an investment manager or investment company that it is acquiring the Placing Shares in an "offshore transaction" within the meaning of Regulation S, and (iv) it is not acquiring the Placing Shares with a view to the offer, sale, resale, transfer, delivery or distribution, directly or indirectly, of any such Placing Shares into the United States or any other jurisdiction referred to in (ii) above.
The Company and Liberum will rely upon the truth and accuracy of the foregoing representations, warranties and acknowledgements.
Save as expressly set out, this Announcement (including the Appendix) is for information only and does not constitute an offer or invitation to underwrite, subscribe for or otherwise acquire or dispose of any securities or investment advice in any jurisdiction, including without limitation, the United Kingdom, the United States, Australia, Canada, Japan or South Africa. Past performance is not a good guide to future performance. Persons needing advice should consult an independent financial advisor. This Announcement and the information contained herein is not for publication or distribution, directly or indirectly, to persons in the United States, Canada, Australia, Japan or South Africa or in any jurisdiction in which such publication or distribution is unlawful. No public offer of securities of the Company is being made in the United Kingdom, the United States or elsewhere.
In particular, the Placing Shares referred to in this Announcement have not been and will not be registered under the Securities Act or with any securities regulatory authority of any State or other jurisdiction of the United States.
The Placing Shares may not be offered, sold or transferred within the United States. The Placing Shares are being offered and sold outside the United States in accordance with Regulation S under the Securities Act.
The Placing Shares have not been approved or disapproved by the US Securities and Exchange Commission, any State securities commission or other regulatory authority in the United States, nor have any of the foregoing authorities passed upon or endorsed the merits of the Placing or the accuracy or adequacy of this Announcement. Any representation to the contrary is a criminal offence in the United States. The relevant clearances have not been, and nor will they be, obtained from the securities commission of any province or territory of Canada; no prospectus has been lodged with or registered by, the Australian Securities and Investments Commission or the Japanese Ministry of Finance; and the Placing Shares have not been, and nor will they be, registered under or offered in compliance with the securities laws of any state, province or territory of the United States, Canada, Australia, Japan or South Africa. Accordingly, the Placing Shares may not (unless an exemption under the relevant securities laws is applicable) be offered, sold, resold or delivered, directly or indirectly, in or into the United States, Canada, Australia, Japan or South Africa or any other jurisdiction outside the United Kingdom.
Persons (including, without limitation, nominees and trustees) who have a contractual or other legal obligation to forward a copy of this Appendix or the Announcement of which it forms part should seek appropriate advice before taking any action.
In this Appendix, unless the context otherwise requires, Placee means a Relevant Person (including individuals, funds or others) on whose behalf a commitment to acquire Placing Shares has been given.
Details of the Placing Agreement and the Placing Shares
Liberum has entered into a placing agreement (the "Placing Agreement") dated 3 December 2014 with the Company under which Liberum has, on the terms and subject to the conditions set out therein, undertaken as agent for and on behalf of the Company, to use its reasonable endeavours to procure placees (the "Placees") for new ordinary shares of no par value in the capital of the Company (or such larger amount of shares as the Company and Liberum may agree) (the "Placing Shares") in an amount and at a price to be determined following completion of an accelerated bookbuild process (the "Placing").
In accordance with the terms of the Placing Agreement between the Company and Liberum, Liberum has agreed, subject to agreement with the Company as to the number of the Placing Shares to be placed and the amount of the Placing Price (as defined below), to underwrite the settlement risk in the event that any Placees fail to take up their allocation of the Placing Shares.
The Placing Shares have been duly authorised and will, when issued, be credited as fully paid and will be issued subject to the Company's articles of association and will rank pari passu in all respects with the existing issued ordinary shares of no par value in the capital of the Company ("Ordinary Shares"), including the right to receive all dividends and other distributions declared, made or paid on or in respect of such Ordinary Shares after the date of issue of the Placing Shares. The Placing Shares shall not carry the right to receive any dividends and other distributions declared prior to Admission, and in particular, will not carry the right to receive the second or third quarterly interim dividends as described in more detail in the announcement relating to the Placing to which these Terms and Conditions are appended.
Application for admission
Application will be made for the Placing Shares to be admitted to trading on AIM ("Admission"). It is expected that Admission will become effective on or around 12 January 2015 and that dealings in the Placing Shares will commence at that time.
Bookbuild
Liberum will today commence the bookbuilding process in respect to the Placing (the "Bookbuild") to determine demand for participation in the Placing by Placees. This Appendix gives details of the terms and conditions of, and the mechanics of participation in, the Placing. No commissions will be paid to Placees or by Placees in respect of any Placing Shares.
Liberum and the Company shall be entitled to effect the Placing by such alternative method to the Bookbuild as they may, in their sole discretion, determine.
Participation in, and principal terms of, the Placing
1. Liberum is arranging the Placing as sole bookrunner and agent of the Company.
2. Participation in the Placing will only be available to persons who may lawfully be, and are, invited to participate by Liberum. Liberum and its affiliates are entitled to enter bids in the Bookbuild as principal.
3. The Bookbuild will establish a single price payable to Liberum by all Placees whose bids are successful (the "Placing Price"). The Placing Price, the number of Placing Shares and the aggregate proceeds to be raised through the Placing will be agreed between Liberum and the Company following completion of the Bookbuild. The Placing Price and the number of Placing Shares will be announced on a Regulatory Information Service following the completion of the Bookbuild (the "Pricing Announcement").
4. To bid in the Bookbuild, prospective Placees should communicate their bid orally by telephone or in writing to their usual sales contact at Liberum. Each bid should state the number of Placing Shares which the prospective Placee wishes to acquire at either the Placing Price, which is ultimately established by the Company and Liberum, or at prices up to a price limit specified in its bid. Bids may be scaled down by Liberum on the basis referred to in paragraph 8 below. Liberum reserves the right not to accept bids or to accept bids in part rather than in whole. The acceptance of the bids shall be at Liberum's absolute discretion.
5. The timing of the closing of the Bookbuild is at the discretion of Liberum. Liberum may, in agreement with the Company, accept bids that are received after the Bookbuild has closed.
6. Each Placee's allocation will be confirmed to it orally or in writing by Liberum following the close of the Placing, and a contract note will be dispatched as soon as possible thereafter. Liberum's oral confirmation to such Placee will constitute an irrevocable legally binding commitment upon that person (who will at that point become a Placee) in favour of Liberum and the Company, under which it agrees to acquire the number of Placing Shares allocated to it at the Placing Price on the terms and conditions set out in this Appendix and in accordance with the Company's Articles of Association.
7. The Company will make a further announcement following the close of the Bookbuild detailing the number of Placing Shares to be issued and the price at which Placing Shares have been placed, referred to in paragraph 3 above as the Pricing Announcement.
8. Subject to paragraphs 4 and 5 above, Liberum may, subject to agreement with the Company, choose to accept bids, either in whole or in part, on the basis of allocations determined at its absolute discretion and may scale down any bids for this purpose on such basis as it may determine. Liberum may also, notwithstanding paragraphs 4 and 5 above, subject to the prior consent of the Company (i) allocate Placing Shares after the time of any initial allocation to any person submitting a bid after that time, and (ii) allocate Placing Shares after the Bookbuild has closed to any person submitting a bid after that time. The acceptance of offers shall be at the absolute discretion of Liberum.
9. A bid in the Bookbuild will be made on the terms and subject to the conditions in this Announcement (including this Appendix) and will be legally binding on the Placee on behalf of which it is made and except with Liberum's consent will not be capable of variation or revocation after the time at which it is submitted. Each Placee will also have an immediate, separate, irrevocable and binding obligation, owed to Liberum, to pay it (or as it may direct) in cleared funds an amount equal to the product of the Placing Price and the number of Placing Shares such Placee has agreed to acquire.
10. Except as required by law or regulation, no press release or other announcement will be made by Liberum or the Company using the name of any Placee (or its agent), in its capacity as Placee (or agent), other than with such Placee's prior written consent.
11. Irrespective of the time at which a Placee's allocation pursuant to the Placing is confirmed, settlement for all Placing Shares to be acquired pursuant to the Placing will be required to be made at the same time, on the basis explained below under "Registration and Settlement".
12. All obligations under the Bookbuild and Placing will be subject to fulfilment or (where applicable) waiver of the conditions referred to below under "Conditions of the Placing" and to the Placing not being terminated on the basis referred to below under "Termination of the Placing Agreement".
13. By participating in the Bookbuild, each Placee will agree that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not be capable of rescission or termination by the Placee.
14. To the fullest extent permissible by law, neither Liberum nor any of its affiliates shall have any responsibility or liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise). In particular, neither Liberum nor any of its affiliates shall have any responsibility or liability (including to the extent permissible by law, any fiduciary duties) in respect of Liberum's conduct of the Bookbuild or of such alternative method of effecting the Placing as Liberum and the Company may agree.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional and not having been terminated in accordance with its terms. Liberum's obligations under the Placing Agreement are conditional on, inter alia:
(a) publication of an announcement confirming the final size and pricing of the Placing and of a circular convening an extraordinary general meeting of the Company to grant the authorities needed for the Placing;
(b) the passing of the resolutions at an extraordinary general meeting of the Company to be convened for on or around 8 January 2015
(c) the Acquisition Agreement becoming unconditional in all respects (save for any condition relating to the Company being in receipt of the proceeds of the Placing in order to enable it to complete the Acquisition) and not having been terminated in accordance with its terms prior to Admission;
(d) the warranties contained in the Placing Agreement being true and accurate in all material respects and not misleading in any material respect;
(e) the Company complying with all of its material obligations under the Placing Agreement to the extent the same fall to be performed or satisfied prior to Admission and Liberum receiving a certificate from the Company confirming such is the case; and
(f) Admission taking place by 8.00 a.m. (London time) on 30 January 2015 (or such later date as the Company and Liberum may otherwise agree).
If (i) any of the conditions contained in the Placing Agreement in relation to the Placing Shares are not fulfilled or, where permitted, waived by Liberum, by the respective time or date where specified (or such later time and/or date as the Company and Liberum may agree), or (ii) the Placing Agreement is terminated in the circumstances specified below, the Placing will not proceed and each Placee's rights and obligations hereunder in relation to the Placing Shares shall cease and terminate at such time and each Placee agrees that no claim can be made by the Placee in respect thereof.
Liberum may, at its discretion and upon such terms as it thinks fit, extend the time for the satisfaction of any condition (subject to a backstop date of 30 January 2015, which may not be extended without the agreement of the Company) or waive compliance by the Company with the whole or any part of any of the Company's obligations in relation to the conditions in the Placing Agreement, save that certain conditions in the Placing Agreement (including the condition relating to Admission taking place) may not be waived. Any such extension or waiver will not affect Placees' commitments as set out in this Appendix.
None of Liberum, the Company or any other person shall have any responsibility or liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision made as to whether or not to waive or to extend the time and / or the date for the satisfaction of any condition to the Placing nor for any decision made as to the satisfaction of any condition or in respect of the Placing generally, and by participating in the Placing each Placee agrees that any such decision is within the absolute discretion of Liberum.
By participating in the Bookbuild, each Placee agrees that its rights and obligations hereunder terminate only in the circumstances described above and under "Termination of the Placing Agreement" below, and will not be capable of rescission or termination by the Placee.
Termination of the Placing Agreement
Liberum is entitled, at any time before Admission, to terminate the Placing Agreement in relation to its obligations in respect of the Placing Shares by giving notice to the Company if, amongst other things:
(a) there has occurred, in the reasonable opinion of Liberum, a material adverse change in the business of the Group (as defined below) or in the financial or trading position of the Group or the Company;
(b) any of the warranties contained in the Placing Agreement is not, or has ceased to be, true and accurate and not misleading in any material respect or the Company has failed to perform any of its material obligations under the Placing Agreement;
(c) there occurs, at any time before Admission, any change in national or international, military, diplomatic, monetary, economic, political, financial or market conditions which, in the opinion of Liberum acting in good faith, would or would be likely to materially prejudice the Company, the value of the Group's property portfolio or the Placing, or make the success of the Placing doubtful or make it impracticable or inadvisable to proceed with the Placing, or render the creation of a market in the ordinary share capital of the Company temporarily or permanently impracticable.
Upon such termination, the parties to the Placing Agreement shall be released and discharged (except for any liability arising before or in relation to such termination) from their respective obligations under or pursuant to the Placing Agreement subject to certain exceptions.
By participating in the Placing, Placees agree that the exercise by Liberum of any right of termination or other discretion under the Placing Agreement shall be within the absolute discretion of Liberum and that it need not make any reference to Placees in this regard and that, to the fullest extent permitted by law, Liberum shall have no responsibility or liability to Placees whatsoever in connection with any such exercise or failure so to exercise.
No Prospectus
The Placing Shares are being offered to a limited number of specifically invited persons only and will not be offered in such a way as to require a prospectus in the UK. No offering document, prospectus or admission document has been or will be published or submitted to be approved by the FCA in relation to the Placing and Placees' commitments will be made solely on the basis of their own assessment of the Company, the Placing Shares and the Placing based on the Company's publicly available information taken together with the information contained in this Announcement (including this Appendix) and the Exchange Information (as defined below) and subject to the further terms set forth in the contract note to be provided to individual prospective Placees. Each Placee, by accepting a participation in the Placing, agrees that the content of this Announcement (including this Appendix), the Company's publicly available information and the Exchange Information is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of the Company (other than publicly available information and the Exchange Information), Liberum or any other person and none of Liberum or the Company or any other person will be liable for any Placee's decision to participate in the Placing based on any other information, representation, warranty or statement which the Placees may have obtained or received (regardless of whether or not such information, representation, warranty or statement was given or made by or on behalf of any such persons). Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Placing. Each Placee should not consider any information in this Announcement to be legal, tax or business advice. Each Placee should consult its own attorney, tax advisor and business advisor for legal, tax and business advice regarding an investment in the Placing Shares. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
Registration and Settlement
Settlement of transactions in the Placing Shares (ISIN: GG00B4Z05859) following Admission will take place on a delivery versus payment basis within the CREST system, subject to certain exceptions. Liberum and the Company reserve the right to require settlement for and delivery of the Placing Shares to Placees by such other means that they deem necessary if delivery or settlement is not practicable within the CREST system within the timetable set out in this Announcement or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Following close of the Bookbuild, each Placee allocated Placing Shares in the Placing will be sent a contract note in accordance with the standing arrangements in place with Liberum stating the number of Placing Shares to be allocated to it at the Placing Price, the aggregate amount owed by such Placee to Liberum and settlement instructions. Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with either the standing CREST or certificated settlement instructions that it has in place with Liberum.
It is expected that settlement will be on 12 January 2015 in accordance with the instructions set out in the contract note.
In the event of any difficulties or delays in the admission of the Placing Shares to CREST or the use of CREST in relation to the Placing, the Company and Liberum may agree that the Placing Shares should be issued in certificated form. Liberum reserves the right to require settlement for the Placing Shares, and to deliver the Placing Shares to Placees, by such other means as they deem necessary if delivery or settlement to Placees is not practicable within the CREST system or would not be consistent with regulatory requirements in a Placee's jurisdiction.
Interest is chargeable daily on payments not received from Placees on the due date in accordance with the arrangements set out above at the rate of two percentage points above LIBOR as determined by Liberum.
Each Placee agrees that, if it does not comply with these obligations, Liberum may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for Liberum's account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax or other stamp, securities, transfer, registration, execution, documentary or other similar impost, duty or tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf. By communicating a bid for Placing Shares, each Placee confers on Liberum all such authorities and powers necessary to carry out any such sale and agrees to ratify and confirm all actions which Liberum lawfully takes in pursuance of such sale.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the contract note is copied and delivered immediately to the relevant person within that organisation.
Insofar as Placing Shares are registered in a Placee's name or that of its nominee or agent, such Placing Shares should, subject as provided below, be so registered free from any liability to UK stamp duty or stamp duty reserve tax. If there are any other circumstances in which any stamp duty or stamp duty reserve tax (including any interest and penalties relating thereto) is payable in respect of the allocation, allotment, issue or delivery of the Placing Shares (or for the avoidance of doubt if any stamp duty or stamp duty reserve tax is payable in connection with any subsequent transfer of or agreement to transfer Placing Shares), neither Liberum nor the Company shall be responsible for the payment thereof. Placees (or any nominee or other agent acting on behalf of a Placee) will not be entitled to receive any fee or commission in connection with the Placing.
Representations, Warranties and Further Terms
By participating in the Placing each Placee (and any person acting on such Placee's behalf) irrevocably acknowledges, confirms, undertakes, represents, warrants and agrees in each case as a fundamental term of their application for Placing Shares as set out below:
1 that it has read and understood this Announcement, including this Appendix, in its entirety and that its acquisition of Placing Shares is subject to and based upon all the terms, conditions, representations, warranties, acknowledgements, agreements and undertakings and other information contained herein and undertakes not to redistribute or duplicate this Announcement;
2 that no offering document, prospectus or admission document has been or will be prepared in connection with the placing of the Placing Shares and represents and warrants that it has not received and will not receive a prospectus, admission document or other offering document in connection therewith;
3 to be bound by the terms of the articles of association of the Company;
4 that the Ordinary Shares are admitted to trading on AIM and that the Company is therefore required to publish certain business and financial information in accordance with the AIM Rules for Companies (collectively, the "Exchange Information"), which includes a description of the nature of the Company's business and the Company's most recent balance sheet and profit and loss account, and similar statements for preceding financial years, and that it has reviewed such Exchange Information and is able to obtain or access such information without undue difficulty, and is able to obtain access to such information or comparable information concerning any other publicly traded company, without undue difficulty;
5 that none of Liberum or the Company or any of their respective affiliates or any person acting on behalf of any of them has provided, and will not provide it, with any material or information regarding the Placing Shares, the Placing or the Company other than this Announcement; nor has it requested any of Liberum, the Company, any of their respective affiliates or any person acting on behalf of any of them to provide it with any such material or information;
6 that the content of this Announcement is exclusively the responsibility of the Company and that none of Liberum, its affiliates or any person acting on Liberum's behalf has or shall have any responsibility or liability for any information, representation or statement contained in this Announcement or any information previously or subsequently published by or on behalf of the Company and will not be liable for any Placee's decision to participate in the Placing based on any information, representation or statement contained in this Announcement, any information previously published by or on behalf of the Company or otherwise. Each Placee further represents, warrants and agrees that it has made its own assessment of the Company, the Placing Shares and the terms of the Placing based on this Announcement (including this Appendix), the Company's publicly available information (including, without limitation, the information and certain risks highlighted in the unaudited interim results of the Group for the six months ended 30 September 2014) and the Exchange Information, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares and that it has neither received nor relied on any other information given or investigations, representations, warranties or statements made by Liberum or the Company and neither Liberum nor the Company will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person. Each Placee further acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placing;
7 that it has not relied on any information relating to the Company contained in any research reports prepared by Liberum, any of its affiliates or any person acting on Liberum or any of its affiliates' behalf and understands that (i) none of Liberum, any of its affiliates nor any person acting on its behalf has or shall have any liability for public information or any representation, (ii) none of Liberum, any of its affiliates nor any person acting on its behalf has or shall have any liability for any additional information that has otherwise been made available to such Placee, whether at the date of publication, the date of this document or otherwise, and that (iii) none of Liberum, any of its affiliates nor any person acting on its behalf makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of such information, whether at the date of publication, the date of this Announcement or otherwise;
8 that it has neither received nor relied on any confidential price sensitive information concerning the Company in accepting this invitation to participate in the Placing;
9 that none of Liberum, its affiliates or any person acting on Liberum's behalf has or shall have any responsibility or liability for any publicly available or filed information (including, without limitation, the Exchange Information) or any information, representation, warranty or statement relating to the Company contained therein or otherwise, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
10 that it is not, and at the time the Placing Shares are acquired will not be, a resident of the United States, Australia, Canada, Japan or South Africa, and each of it and the beneficial owner of the Placing Shares is, and at the time the Placing Shares are acquired will be, a person satisfying the representation in paragraph (c) of page 2 of this Appendix, and has such knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of an investment in the Placing Shares, will not look to Liberum for all or part of any such loss it may suffer, is able to bear the economic risk of an investment in the Placing Shares, is able to sustain a complete loss of the investment in the Placing Shares and has no need for liquidity with respect to its investment in the Placing Shares;
11 that the Placing Shares have not been and will not be registered or qualified for offer and sale nor will a prospectus be published in respect of any of the Placing Shares under the securities laws or legislation of the United States, Australia, Canada, Japan or South Africa and, subject to certain exceptions, may not be offered, sold, or delivered or transferred, directly or indirectly, within those jurisdictions;
12 that if the Placing Shares were offered to or purchased by it outside the United States and not for and on behalf of persons in the United States, the Placing Shares are being offered and sold to it pursuant to Regulation S under the Securities Act and the offer and sale of the Placing Shares to it have been made outside of the United States in an "offshore transaction" (as such term is defined in Regulation S under the Securities Act);
13 that (i) neither it, nor any person to whom Placing Shares are allotted or issued on its behalf (as its nominee or agent) is, or is acting as nominee or agent for, and that the Placing Shares will not be allotted or issued to, a person whose business either is or includes issuing depositary receipts or the provision of clearance services and therefore that the allotment and issue to the Placee or any person to whom Placing Shares are allotted or issued on its behalf (as its nominee or agent), will not give rise to a liability under any of sections 67, 70, 93 and 96 of the Finance Act 1986 (depositary and clearance services) and (ii) the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer Placing Shares into a clearance system;
14 that it has complied with its obligations under the Criminal Justice Act 1993, section 118 of the Financial Services and Markets Act 2000 ("FSMA"), and in connection with money laundering and terrorist financing under the Proceeds of Crime Act 2002 (as amended), the Terrorism Act 2000, the Terrorism Act 2006, the Money Laundering Regulations 2007 (the "Regulations") and the Money Laundering Sourcebook of the FCA 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;
15 if a financial intermediary, as that term is used in Article 3(2) of the EU Prospectus Directive, that the Placing Shares purchased by it in the Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in a Member State of the European Economic Area other than Qualified Investors (within the meaning of the Prospectus Directive), or in circumstances in which the prior consent of the Company and Liberum has been given to the offer or resale;
16 that it has not offered or sold and, prior to the expiry of a period of six months from Admission, will not offer or sell any Placing Shares to persons in the United Kingdom, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted and which will not result in a requirement to publish a prospectus in the United Kingdom within the meaning of section 85(1) of the FSMA;
17 that any offer of Placing Shares may only be directed at persons in member states of the European Economic Area who are Qualified Investors and represents and warrants that it has not offered or sold and will not offer or sell any Placing Shares to persons in the European Economic Area prior to Admission except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their business or otherwise in circumstances which have not resulted in and which will not result in a requirement to publish a prospectus in any member state of the European Economic Area within the meaning of the Prospectus Directive;
18 that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) relating to the Placing Shares in circumstances in which section 21(1) of the FSMA does not require approval of the communication by an authorised person;
19 that it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Placing Shares in, from or otherwise involving, the United Kingdom;
20 if in a Member State of the European Economic Area, unless otherwise specifically agreed with Liberum in writing, that it is a Qualified Investor within the meaning of the Prospectus Directive;
21 if in the UK, that it is a person (i) who has professional experience in matters relating to investments falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the "Order"), (ii) falling within Article 49(2)(A) to (D) ("High Net Worth Companies, Unincorporated Associations, etc") of the Order, or (iii) to whom this Announcement may otherwise be lawfully communicated;
22 that (i) it and any person acting on its behalf has capacity and authority and is otherwise entitled to acquire and purchase the Placing Shares under the laws of all relevant jurisdictions which apply to it, (ii) it has paid any issue, transfer or other taxes due in connection with its participation in any territory, (iii) it has not taken any action which will or may result in the Company or Liberum or any of their respective affiliates or any person acting on their behalf being in breach of the legal and/or regulatory requirements of any territory in connection with the Placing, (iv) that the acquisition of the Placing Shares by it or any person acting on its behalf will be in compliance with applicable laws and regulations in the jurisdiction of its residence, the residence of the Company, or otherwise, and (v) it has all necessary capacity and has obtained all necessary consents and authorities to enable it to commit to this participation in the Placing and to perform its obligations in relation thereto (including, without limitation, in the case of any person on whose behalf it is acting, all necessary consents and authorities to agree to the terms set out or referred to in this Announcement) and will honour such obligations;
23 that it (and any person acting on its behalf) will make payment for the Placing Shares allocated to it in accordance with this Announcement on the due time and date set out herein, failing which the relevant Placing Shares may be placed with other acquirers or sold as Liberum may in its sole discretion determine and without liability to such Placee, provided always that, such Placee will remain liable for any shortfall below the net proceeds of such sale and the placing proceeds of such Placing Shares and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties due pursuant to the terms set out or referred to in this document) which may arise upon the sale of such Placee's Placing Shares on its behalf;
24 that its allocation (if any) of Placing Shares will represent a maximum number of Placing Shares which it will be entitled, and required, to acquire, and that the Company may call upon it to acquire a lower number of Placing Shares (if any), but in no event in aggregate more than the aforementioned maximum;
25 that none of Liberum, its affiliates or any person acting on Liberum's behalf, is making any recommendations to it, advising it regarding the suitability or merits of any transactions it may enter into in connection with the Placees and that participation in the Placing is on the basis that it is not and will not be a client of Liberum and that Liberum does not have any duties or responsibilities to it for providing the protections afforded to its clients or customers or for providing advice in relation to the Placing nor in respect of any representations, warranties, undertakings or indemnities contained in the Placing Agreement nor for the exercise or performance of any of its rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
26 that the person whom it specifies for registration as holder of the Placing Shares will be (i) itself or (ii) its nominee, as the case may be. Neither Liberum nor the Company will be responsible for any liability to stamp duty or stamp duty reserve tax (including any interest and penalties relating thereto) resulting from a failure to observe this requirement. Each Placee and any person acting on behalf of such Placee agrees to participate in the Placing and it agrees to indemnify the Company and Liberum in respect of the same on the basis that the Placing Shares will be allotted to the CREST stock account of Liberum who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions;
27 that these terms and conditions and any agreements entered into by it pursuant to these terms and conditions, and any non-contractual obligations arising out of or in connection with these terms and conditions or such agreements, shall be governed by and construed in accordance with the laws of England and Wales and it submits (on behalf of itself and on behalf of any person on whose behalf it is acting) to the exclusive jurisdiction of the English courts as regards any claim, dispute or matter arising out of any such contract, except that enforcement proceedings in respect of the obligation to make payment for the Placing Shares (together with any interest chargeable thereon) may be taken by the Company or Liberum in any jurisdiction in which the relevant Placee is incorporated or in which any of its securities have a quotation on a recognised stock exchange;
28 that Liberum reserves the right (acting together and subject to agreement with the Company) to waive or alter any of the provisions set out in this Announcement (including the Appendix). Any such alteration or waiver will not affect Placees' commitments as set out in this Announcement;
29 that the Company, Liberum and each of their respective affiliates and others will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements, agreements and undertakings which are given to the Company and Liberum on its own behalf and on behalf of the Company and are irrevocable and it irrevocably authorises Liberum and the Company to produce this announcement, pursuant to, in connection with, or as may be required by any applicable law or regulation, administrative or legal proceeding or official inquiry with respect to the matters set forth herein;
30 to indemnify on an after tax basis and hold the Company, Liberum and each of their respective affiliates harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in this Appendix and further agrees that the provisions of this Appendix shall survive after completion of the Placing;
31 that it irrevocably appoints any director of Liberum as its agent for the purposes of executing and delivering to the Company and/or its registrars any documents on its behalf necessary to enable it to be registered as the holder of any of the Placing Shares agreed to be taken up by it under the Placing;
32 in making any decision to acquire the Placing Shares, that (i) it has knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of acquiring the Placing Shares, (ii) it is experienced in investing in securities of this nature and is aware that it may be required to bear, and is able to bear, the economic risk of, and is able to sustain a complete loss in connection with, the Placing, (iii) it has relied on its own examination, due diligence and analysis of the Company and its affiliates taken as a whole, and the terms of the Placing, including the markets in which the Company and its subsidiary undertakings and associates (the "Group") operates, and the terms of the Placing, including the merits and risks involved, (iv) it has had sufficient time to consider and conduct its own investigation with respect to the offer and purchase of the Placing Shares, including the legal, regulatory, tax, business, currency and other economic and financial considerations relevant to such investment, and (v) will not look to the Company, Liberum, any of their respective affiliates or any person acting on their behalf for all or part of any such loss or losses it or they may suffer;
33 that it may not rely on any investigation that Liberum or any person acting on its behalf may or may not have conducted with respect to the Company and its affiliates or the Placing and Liberum has not made any representation or warranty to it, express or implied, with respect to the merits of the Placing, the acquisition of the Placing Shares, or as to the condition, financial or otherwise, of the Company and its affiliates, or as to any other matter relating thereto, and nothing herein shall be construed as a recommendation to it to acquire the Placing Shares. It acknowledges and agrees that no information has been prepared by, or is the responsibility of, Liberum for the purposes of this Placing;
34 that it will not hold Liberum or any of its affiliates or any person acting on its behalf responsible or liable for any misstatements in or omission from any publicly available information relating to the Group or Exchange Information made available (whether in written or oral form) relating to the Group and that neither Liberum nor any person acting on its behalf, makes any representation or warranty, express or implied, as to the truth, accuracy or completeness of such information or accepts any responsibility for any of such information;
35 that no action has been or will be taken by any of the Company, Liberum or any person acting on behalf of the Company or Liberum that would, or is intended to, permit a public offer of the Placing Shares in any country or jurisdiction where any such action for that purpose is required; and
36 that its commitment to acquire Placing Shares on the terms set out herein and in the contract note will continue notwithstanding any amendment that may in future be made to the terms of the Placing and that Placees will have no right to be consulted or require that their consent be obtained with respect to the Company's conduct of the Placing.
The foregoing acknowledgements, agreements, undertakings, representations, warranties and confirmations are given for the benefit of each of the Company and Liberum (for its own benefit and, where relevant, the benefit of their respective affiliates and any person acting on their behalf) and are irrevocable.
The agreement to allot and issue Placing Shares to Placees (or the persons acting on behalf of Placees as nominee or agent) free of UK stamp duty and stamp duty reserve tax relates only to their allotment and issue to Placees, or such persons as they nominate as their agents, direct from the Company. Such agreement is subject to the representations, warranties and further terms above and assumes that the Placing Shares are not being acquired in connection with arrangements to issue depositary receipts or to issue or transfer the Placing Shares into a clearance service. Neither the Company nor Liberum will be responsible for any UK stamp duty or stamp duty reserve tax (including any interest and penalties relating thereto) arising in relation to the Placing Shares in any other circumstances. Any Placee to whom (or on behalf of whom) Placing Shares are allocated, allotted, issued or delivered in breach of any of the representations, warranties or further terms above undertakes to pay any UK stamp duty or stamp duty reserve tax (including any interest and penalties relating thereto) arising in connection with such allocation, allotment, issue or delivery forthwith and to indemnify on an after-tax basis and to hold harmless the Company and Liberum in the event that any of the Company and/or Liberum has incurred any such liability to UK stamp duty or stamp duty reserve tax. If this is the case, each Placee should seek its own advice and notify Liberum accordingly.
In addition, Placees should note that they will be liable for any capital duty, stamp duty and all other stamp, issue, securities, transfer, registration, documentary or other duties or taxes (including any interest, fines or penalties relating thereto) payable outside the UK by them or any other person on the allotment to them of any Placing Shares or the agreement by them to acquire any Placing Shares.
Each Placee, and any person acting on behalf of the Placee, acknowledges that Liberum does not owe any fiduciary or other duties to any Placee in respect of any representations, warranties, undertakings or indemnities in the Placing Agreement.
Each Placee and any person acting on behalf of the Placee acknowledges and agrees that Liberum or any of its affiliates (acting as an investor for its own account) may, in its absolute discretion, take up Placing Shares and in that capacity may retain, purchase or sell for its own account such Placing Shares and any securities of the Company or related investments and may offer or sell such securities or other investments otherwise than in connection with the Placing. Accordingly, references in this Announcement to shares being issued, offered or placed should be read as including any issue, offering or placement of such shares in the Company to any of Liberum and any of its affiliates. In addition Liberum may enter into financing arrangements and swaps with investors in connection with which Liberum may from time to time acquire, hold or dispose of such securities of the Company, including the Placing Shares. Neither Liberum nor any of its affiliates intends to disclose the extent of any such investment or transactions otherwise than in accordance with any legal or regulatory obligation to do so.
When a Placee or person acting on behalf of the Placee is dealing with Liberum, any money held in an account with Liberum on behalf of the Placee and/or any person acting on behalf of the Placee will not be treated as client money within the meaning of the rules and regulations of the FCA made under the FSMA. The Placee acknowledges that the money will not be subject to the protections conferred by the client money rules; as a consequence, this money will not be segregated from Liberum's money (as applicable) in accordance with the client money rules and will be used by Liberum in the course of its own business and the Placee will rank only as a general creditor of Liberum.
Past performance is no guide to future performance and persons needing advice should consult an independent financial adviser.
The rights and remedies of Liberum 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.
If a Placee is a discretionary fund manager, he may be asked to disclose, in writing or orally to Liberum the jurisdiction in which the funds are managed or owned.
All times and dates in this Announcement may be subject to amendment. Liberum shall notify the Placees and any person acting on behalf of the Placees of any changes.
