THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM THE UNITED STATES, AUSTRALIA, CANADA, THE REPUBLIC OF SOUTH AFRICA, NEW ZEALAND OR JAPAN OR ANY OTHER JURISDICTION IN WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL.
15 October 2019
(EPIC: SRC / Market: AIM / Sector: Construction Materials)
SIGMAROC PLC
("SigmaRoc", the "Company" and, together with its subsidiaries, the "Group")
Proposed Acquisition of Carrières du Hainaut
and
Proposed Placing of £32.8m at 41 pence per share
SigmaRoc, the AIM quoted buy-and-build construction materials group, is pleased to announce that it intends to acquire CDH Développement SA ("CDH"), the holding company of Carrières du Hainaut SCA and CDH International SCA, the Belgian blue limestone ("Bluestone") and aggregates business, for consideration of, in aggregate, €45.1 million (the "Proposed Acquisition"). The total enterprise value of the Proposed Acquisition is €81.3 million.
CDH Acquisition Highlights and Rationale
· SigmaRoc has entered into a share purchase agreement (the "SPA"), whereby it has conditionally agreed to purchase the entire issued share capital of CDH from Compagnie Benelux Participations (Cobepa) SA ("Cobepa"), Verlinvest SA ("Verlinvest") and CDH Management SPRL ("CDH1") (together, the "Vendors") for an enterprise value of €81.3 million, a multiple of 6.8x CDH's underlying EBITDA for the twelve month period ended 30 June 2019.
· For the 12 months to 30 June 2019, CDH generated unaudited revenue of €45.9 million and underlying EBITDA of €12.0 million.
· The Proposed Acquisition, on completion, will be double-digit percentage accretive to earnings for the Company.
· Founded in 1888, CDH is Europe's largest Bluestone quarry, with a 50% global market share. It is also a major aggregates quarry, producing 1.5m - 2m tonnes per year.
· The site has 150 years of reserves remaining and 352ha of freehold land and minerals (subject to current consultation regarding an extension).
· CDH is situated in a prime location and has infrastructure to deliver products into Brussels as well as into neighbouring countries. Currently 27% of revenue is generated internationally through more than 40 global partners. CDH has a diverse customer base, with less than 3% of revenue being generated from its largest Bluestone customer in 2018.
· Due to its high quality and distinctive characteristics, Bluestone is a Global Heritage Resource and a highly prized product that travels worldwide (unlike most aggregates). Bluestone can be used in residential, commercial and infrastructure projects, as well as for architectural and cosmetic applications.
· 15% of volume from the quarry currently generates 100% of CDH's profit, as profit is only currently generated from Bluestone sales. The 1.5m - 2m tonnes of limestone aggregate produced as a result of mining Bluestone each year is deemed by the current owners to be a waste product and is quarried under an unprofitable third-party agreement, which ends in 2022.
· With its expertise in aggregate production and distribution, SigmaRoc believes it can generate additional profit from the significant reserves of quality limestone aggregate.
· Integrating CDH into the Group will be value accretive, bringing an increased product offering, >150 years of mineral reserves and resources and provide further diversification into the Benelux region.
Consideration and Proposed Placing
The consideration for the Proposed Acquisition is, in aggregate, €45.1 million. In addition, net debt of €36.2 million as at 30 June 2019, comprising existing senior third party bank debt with local lenders, will remain in CDH. The consideration of €45.1 million, will comprise initial consideration of €29.1 million (the "Initial Consideration") and deferred consideration of €16.0 million in cash, with €2.0 million to be paid on the first anniversary of completion of the Proposed Acquisition (the "First Anniversary") and €14.0 million to be paid on the second anniversary of completion of the Proposed Acquisition (the "Second Anniversary") (the "Deferred Consideration").
The Company intends to raise gross proceeds of approximately £32.8 million through a placing of 79,921,640 new ordinary shares of 1p each in the capital of the Company ("Ordinary Shares") ("Placing Shares"), at a price of 41 pence per share (the "Placing Price") (the "Placing"). The Placing is to be effected by way of a cash placing and a vendor placing. £25.8 million (€29.1 million) of the proceeds raised will be used to fund the Initial Consideration and the balance will be used by the Company for future investment opportunities and general working capital.
The Placing Price is equal to the closing middle market price of 41 pence per ordinary share in the Company ("Ordinary Share") on 14 October 2019 (being the latest practicable date prior to this announcement).
The Placing Shares will, on Admission to AIM, represent approximately 31.5 per cent. of the Company's enlarged total voting rights and will be issued pursuant to the Company's existing shareholder authorities granted at the Company's Annual General Meeting of 11 June 2019 and the General Meeting held on 27 September 2019.
The Placing is being conducted through an accelerated bookbuild process, in accordance with the terms and conditions set out in the Appendix to this announcement (the "Bookbuild"), which will be launched immediately following this announcement. Liberum Capital Limited ("Liberum") is acting as sole bookrunner in relation to the Placing (the "Bookrunner").
The Placing Shares are not being made available to the public. The Bookbuild will be closed at the discretion of the Bookrunner, it is envisaged this will be no later than 4:30 p.m. today, 15 October 2019. The Placing is not being underwritten.
Director Participation in the Placing
David Barrett, Executive Chairman, and Tim Hall, Non-Executive Director, intend to invest, in aggregate, £261,500 in the Placing, which are likely to constitute related party transactions pursuant to AIM Rule 13 on completion of the Placing.
Commenting on the Proposed Acquisition and the Placing, Max Vermorken, CEO of SigmaRoc said:
"This acquisition, which is consistent with our strategy of growth, provides us with an exciting opportunity to substantially strengthen our existing presence in Belgium, one of the highest infrastructure densities in the EU. Across the Group, I am extremely proud of what we have already achieved and excited about this next stage of our expansion. CDH is over 130 years old, has over 150 years of remaining reserves, is Europe's largest Dimension Stone quarry and one of Belgium's largest construction aggregate producers. This unique combination offers SigmaRoc significant potential in the Benelux market."
Commenting on the Proposed Acquisition and the Placing, David Barrett, Executive Chairman of SigmaRoc said:
"We are very pleased to announce the acquisition of CDH following on from the acquisition of Stone Holdings S.A. CDH is a well-managed business that has both a long history of success and great potential. We will continue to seek out businesses where we believe we can create significant value for shareholders".
Further Information
Future Growth Opportunities at CDH
Post completion, SigmaRoc plans to invest approximately €8 million in CDH's quarrying operations over a two year period, to extend the site, build a new road and increase efficiencies. The directors of the Company (the "Board") also believe there is potential to improve sales by expanding CDH's existing market share in Belgium, France and Germany and selling Bluestone into new geographies, such as the UK and Scandinavia. The Board believes that, subject to market conditions, a combination of increased efficiencies and expanding sales, CDH has the potential to increase EBITDA by up to €2 million progressively over the next 12 to 24 months.
Furthermore, as approximately 85 per cent. of rock volumes (non-Bluestone aggregates) are currently extracted by a third party on a contract that expires in 2022, at a loss to CDH, the Board believes that it has two potential options to significantly improve the EBITDA of the aggregates business as a whole, which are set out below.
Option 1 - Renegotiate the existing third-party non-Bluestone aggregates contract, putting in place a certain-rent take or pay agreement, following the expiry of the current contract in 2022. The Board believes this could generate up to an additional €2 million of EBITDA, with no additional investment required, beyond that set out above.
Option 2 - Operate and commercialise the aggregate business directly, rather than using a third party. The Board believes this could generate up to an additional €6 million of EBITDA, following an estimated €15 million of additional investment to build a new rock crushing plant. Given CDH's excellent location near Brussels, the Board believes it would make a suitable platform from which to build a national Belgian aggregates business.
Consideration for CDH
The total consideration of €45.1 million for the Proposed Acquisition comprises:
· Initial Consideration which shall be satisfied by the issue of the Placing Shares pursuant to the vendor placing. The cash net proceeds of the vendor placing totalling £25.8 million* (€29.1 million), will be paid to the Vendors. In the event that cash net proceeds of the vendor placing are less than €29.1 million on Completion, the Company will pay such shortfall in euros to the Sellers from its readily available cash.
· Deferred Consideration of €16.0 million, of which €2.0 million is to be paid in cash on or by the Company on the First Anniversary and the payment of €14.0 million (the "Second Deferred Payment") is to be paid in cash from immediately available funds of the Company on the Second Anniversary. In the event that the Company does not pay the Second Deferred Payment on or by the Second Anniversary, the Vendors (subject to the Company having obtained relevant shareholder authorities to allot such Ordinary Shares) shall have the right to (i) be issued with such number of Ordinary Shares equal to the value of the Second Deferred Payment at a 20 per cent discount to the 5 business day volume weighted average price of the Ordinary Shares immediately preceding the Second Anniversary or (ii) defer payment to the third anniversary of completion whereupon it shall accrue interest of 5 per cent. per annum up to the date of payment, such interest being payable on that payment date.
If, following completion of the Proposed Acquisition, the Company raises funds through a share issue, placing, share subscription or rights issue (but excluding any vendor placing or in respect of any obligation or transaction announced by the Company prior to Completion) in excess of £12.5 million (if completed before the First Anniversary of completion) or £15.0 million (if completed between the First Anniversary and the Second Anniversary), it shall upon receipt of such proceeds apply an amount equal to the higher of (i) 20 per cent. of the net cash proceeds, and (ii) €5.0 million (in case of a capital raising prior to the First Anniversary) or €7.5 million (in case of a capital raising between the First Anniversary and the Second Anniversary), to prepay the Deferred Consideration then outstanding.
* GBP:EUR conversion rate of 1.1280 assumed throughout this announcement (based on previous 30 day average)
Proposed refinancing of existing senior third party bank debt
Following completion of the Proposed Acquisition, the Company intends to refinance the existing senior third party bank debt in CDH. The term loan facility in aggregate as at 30 June 2019 amounted to €30.5 million, with the fully drawn balance due on 31 December 2019. CDH also has a revolving credit facility in aggregate amounting to €2 million of which no balance was drawn as at 30 June 2019. The Company, with assistance from the Vendors, is well advanced in discussions with the lenders, namely BNP Paribas Fortis NV/SA, ING Belgium NV/SA, Belfius Bank NV/SA and KBC Bank NV/SA (together, the "Lenders"), to refinance the third party bank debt in CDH prior to 31 December 2019. The Lenders have agreed to waive prohibitions relating to a change of control of CDH. The Company and the Vendors are grateful for the continued support of the Lenders, one of which has been with CDH for over a century.
Information on the Vendors
The Vendors of CDH immediately prior to completion of the Acquisition will be Cobepa, Verlinvest and CDH1. Cobepa and Verlinvest will each own 46.8 per cent. and CDH1 will own the remaining 6.4 per cent of CDH's equity.
Cobepa is headquartered in Belgium and New York, and is a privately-owned investment company that undertakes private equity transactions across a range of sectors throughout Europe and North America.
Verlinvest is a private, family-backed global investment company with over €1.6 billion of assets under management, whose mission it is to invest in growing branded food & beverage and health & care businesses with international acceleration potential.
CDH1 is incorporated in Belgium and is owned by existing management of CDH.
Relationship Agreement
The Vendors and the SigmaRoc have agreed conditional on Admission to enter into a customary relationship agreement to regulate the relationship between them following Admission.
In the event that the Vendors together hold 5 per cent. or more of the voting rights in SigmaRoc, SigmaRoc shall, subject to compliance with any applicable laws, offer the Vendors the right to participate in any non-pre-emptive issue, placing or subscription of shares in SigmaRoc on the same terms and on a pro rata basis to the Vendor's shareholding in the Company at the time of such issue, placing or subscription.
In the event that the Vendors hold, in aggregate, at least 15 per cent. of SigmaRoc's issued share capital from time to time, the Vendors will have the right to appoint a nominee to the Company's Board, such appointee would be subject to approval by the Company's nominated adviser.
Financial Information on CDH
The profit and loss statement and balance sheet for the three years to 31 December 2018 have been extracted from CDH's management accounts which reflect the Group's accounting policies and have been reconciled to CDH's audited financial statements and summarised below (the profit and loss has been adjusted, as set out in the notes):
P&L 2016-2018: Adjusted |
|
|
FY 2016 |
FY 2017 |
FY 2018 |
|
|
|
€'000 |
€'000 |
€'000 |
|
|
Notes |
|
|
|
Revenue |
|
|
42,150 |
44,787 |
45,261 |
Cost of goods sold |
|
|
(21,746) |
(25,763) |
(25,807) |
Overheads |
|
|
(8,468) |
(8,749) |
(8,384) |
EBITDA |
|
|
11,936 |
10,275 |
11,070 |
Depreciation |
|
Note 1 |
(4,661) |
(3,132) |
(3,456) |
EBITA |
|
|
7,275 |
7,143 |
7,614 |
Goodwill amortisation |
|
Note 2 |
- |
- |
- |
Financial |
|
Note 3 |
(1,000) |
(1,000) |
(1,000) |
Exceptional items |
|
Note 4 |
(298) |
(572) |
(693) |
Tax |
|
Note 5 |
(69) |
(1) |
(202) |
Profit after tax |
|
|
5,908 |
5,570 |
5,719 |
Notes
1. Removed €2.0 million of amortisation charges relating to capitalised overburden which will be impaired on acquisition
2. Removed €1.27 million of amortisation charges relating to goodwill on transition to IFRS
3. Estimate of new LMA structure in Q1 2020 and elimination of shareholder loan
4. Adjusted for non-recurring exceptional items
5. Tax losses carried forward
Balance Sheet 2016-2018 |
|
|
FY 2016 |
FY 2017 |
FY 2018 |
|
|
|
€'000 |
€'000 |
€'000 |
|
Notes |
|
|
|
|
Assets |
|
|
93,112 |
95,614 |
94,138 |
Working capital |
|
|
8,397 |
7,556 |
3,505 |
Loan to CDH1 |
Note 1 |
|
3,315 |
3,315 |
3,315 |
Total net assets |
|
|
104,824 |
106,485 |
100,958 |
|
|
|
|
|
|
Equity |
|
|
59,219 |
60,294 |
58,471 |
Provisions |
|
|
8,907 |
9,227 |
6,796 |
Net debt |
|
|
36,698 |
36,964 |
35,691 |
Total liabilities & shareholders' equity |
|
|
104,824 |
106,485 |
100,958 |
Notes
1. Loan to CDH1 will be offset against loans from shareholders that will be converted into equity prior to completion of the Transaction
Details of the Placing
· The Placing, which is being conducted by way of an accelerated book-building process, will be launched immediately following this announcement, in accordance with the terms and conditions set out in the Appendix to this announcement.
· The timing of the closing of the Bookbuild, and allocation are at the discretion of the Bookrunner.
· The Placing is to be effected by way of a cash placing ("Cash Placing") of £7.0 million and a vendor placing ("Vendor Placing") of £25.8 million. Net proceeds from the Vendor Placing shall be paid to the Vendors. In respect of the Cash Placing element, the Company will use the proceeds to pay Acquisition costs as well as for future investment opportunities and general working capital.
· The Placing Shares will, when issued, rank pari passu in all respects with the existing issued Ordinary Shares.
· The Placing Shares will total 79,921,640 Ordinary Shares and represent approximately 31.5 per cent. of the Company's enlarged total voting rights and will be issued pursuant to the Company's existing shareholder authorities granted at the Annual General Meeting on 11 June 2019 and the General Meeting on 27 September 2019.
· It is expected that admission of the Placing Shares to trading on AIM ("Admission") will become effective and that dealings in such shares will commence on AIM at 8.00 a.m. on 17 October 2019.
· The Placing is conditional upon Admission by no later than 8.00 a.m. on 22 October 2019.
· On Admission of the Placing Shares, the Company will have 253,739,186 Ordinary Shares in issue. Accordingly, the number of 253,739,186 Ordinary Shares can be used by shareholders as the denominator for the calculations by which they will determine if they are required to notify their interest in, or a change in their interest in, the share capital of the Company under the FCA's Disclosure Guidance and Transparency Rules.
The information contained within this announcement is deemed by the Company to constitute inside information as stipulated under the Market Abuse Regulations (EU) No. 596/2014. Upon the publication of this announcement via Regulatory Information Service, this inside information is now considered to be in the public domain.
For further information, please contact:
SigmaRoc |
Tel: +44(0)207 002 1080 |
Max Vermorken, CEO |
|
|
|
Strand Hanson (Nominated and Financial Adviser) |
Tel: +44(0)207 409 3494 |
James Spinney / James Dance / Jack Botros |
|
|
|
Liberum (Sole Broker and Bookrunner) |
Tel: +44(0)203 3100 2222 |
Neil Patel / Jamie Richards / Jonathan Wilkes-Green / William Hall |
|
|
|
Investor Relations |
Tel: +44(0)207 129 7828 |
Ben Feder |
[email protected] |
About SigmaRoc
SigmaRoc was established as a cash shell in August 2016, by a combination of entrepreneurs and experienced industry executives, most of whom had previously worked at Holcim in northern and western Europe, including Aggregate Industries in the UK.
The express purpose of SigmaRoc is to create value for shareholders through consolidating heavy material assets in the UK, Europe and peripheral regions. SigmaRoc drives value creation from the purchase of assets at attractive prices due to motivated sellers, including both small independents and majors looking to divest, and by using management experience and specialist knowledge to better operate assets, especially smaller ones, improve sales and marketing efforts and merge relevant functions across the Group to create cluster and corporate efficiencies.
Information to Distributors
Solely for the purposes of the product governance requirements contained within: (a) EU Directive 2014/65/EU on markets in financial instruments, as amended ("MiFID II"); (b) Articles 9 and 10 of Commission Delegated Directive (EU) 2017/593 supplementing MiFID II; and (c) local implementing measures (together, the "MiFID II Product Governance Requirements"), and disclaiming all and any liability, whether arising in tort, contract or otherwise, which any "manufacturer" (for the purposes of the MiFID II Product Governance Requirements) may otherwise have with respect thereto, the Placing Shares have been subject to a product approval process, which has determined that the Placing Shares are: (i) compatible with an end target market of retail investors and investors who meet the criteria of professional clients and eligible counterparties, each as defined in MiFID II; and (ii) eligible for distribution through all distribution channels as are permitted by MiFID II (the "Target Market Assessment"). Notwithstanding the Target Market Assessment, Distributors should note that: the price of the Placing Shares may decline and investors could lose all or part of their investment; the Placing Shares offer no guaranteed income and no capital protection; and an investment in the Placing Shares is compatible only with investors who do not need a guaranteed income or capital protection, who (either alone or in conjunction with an appropriate financial or other adviser) are capable of evaluating the merits and risks of such an investment and who have sufficient resources to be able to bear any losses that may result therefrom. The Target Market Assessment is without prejudice to the requirements of any contractual, legal or regulatory selling restrictions in relation to the Offer.
Furthermore, it is noted that, notwithstanding the Target Market Assessment, Liberum will only procure investors who meet the criteria of professional clients and eligible counterparties.
For the avoidance of doubt, the Target Market Assessment does not constitute: (a) an assessment of suitability or appropriateness for the purposes of MiFID II; or (b) a recommendation to any investor or group of investors to invest in, or purchase, or take any other action whatsoever with respect to the Placing Shares.
Each distributor is responsible for undertaking its own target market assessment in respect of the Placing Shares and determining appropriate distribution channels.
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING.
THIS ANNOUNCEMENT, INCLUDING THE APPENDIX (TOGETHER, THE "ANNOUNCEMENT") AND THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO OR FROM THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, NEW ZEALAND, THE REPUBLIC OF SOUTH AFRICA OR ANY JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL. PERSONS INTO WHOSE POSSESSION THIS ANNOUNCEMENT (INCLUDING THE APPENDIX) COMES ARE REQUIRED BY THE COMPANY AND LIBERUM TO INFORM THEMSELVES ABOUT AND TO OBSERVE ANY SUCH RESTRICTIONS.
THIS ANNOUNCEMENT DOES NOT ITSELF CONSTITUTE AN OFFER OR INVITATION TO UNDERWRITE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT IN THIS APPENDIX ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT PERSONS WHO ARE: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA ("EEA") WHO ARE QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(1)(E) OF EU DIRECTIVE 2003/71/EC AND AMENDMENTS THERETO (THE "PROSPECTUS DIRECTIVE") ("QUALIFIED INVESTORS"), (B) IF IN THE UNITED KINGDOM, PERSONS WHO (I) HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS WHO FALL WITHIN THE DEFINITION OF "INVESTMENT PROFESSIONALS" IN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMENDED (THE "ORDER"), OR ARE HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS OR PARTNERSHIPS OR TRUSTEES OF HIGH VALUE TRUSTS AS DESCRIBED IN ARTICLE 49(2) (A) to (D) OF THE ORDER AND (II) ARE "QUALIFIED INVESTORS" AS DEFINED IN SECTION 86 OF THE FINANCIAL SERVICES AND MARKETS ACT 2000, AS AMENDED ("FSMA"), AND (C) OTHERWISE, TO PERSONS TO WHOM IT MAY OTHERWISE BE LAWFUL TO COMMUNICATE IT TO (EACH A "RELEVANT PERSON"). NO OTHER PERSON SHOULD ACT OR RELY ON THIS ANNOUNCEMENT AND PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. BY ACCEPTING THE TERMS OF THIS ANNOUNCEMENT YOU REPRESENT AND AGREE THAT YOU ARE A RELEVANT PERSON. THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATE IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS. THIS ANNOUNCEMENT (INCLUDING THIS APPENDIX) DOES NOT ITSELF CONSTITUTE AN OFFER TO SELL OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY OR ACQUIRE ANY SECURITIES IN THE COMPANY.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF AN ACQUISITION OF THE PLACING SHARES.
Persons (including individuals, funds or otherwise) who have chosen to participate in the Placing, by making an oral or written offer to subscribe for Placing Shares 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 this Appendix, unless the context otherwise requires, "Placee" means a Relevant Person (including individuals, funds or others) by whom or on whose behalf a commitment to subscribe for Placing Shares has been given. In particular, each such Placee represents, warrants and acknowledges that:
1. 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;
2. 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 which has implemented the Prospectus Directive other than Qualified Investors or in circumstances in which the prior consent of 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 EEA 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;
3. (a) (i) it is not in the United States and (ii) it is not acting for the account or benefit of a person in the United States; (b) it is a dealer or other professional fiduciary in the United States acting on a discretionary basis for a non-US person (other than an estate or trust) in reliance on Regulation S; or (c) it is otherwise acquiring the Placing Shares in an "offshore transaction" meeting the requirements of Regulation S under the Securities Act;
4. it is acquiring the Placing Shares for its own account or is acquiring the Placing Shares for an account with respect to which it exercises sole investment discretion and has the authority to make and does make the representations, warranties, indemnities, acknowledgements and agreements contained in this Announcement; and
5. it understands (or, if acting for the account of another person, such person understands) the resale and transfer restrictions set out in this Appendix.
The Company and Liberum will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
Details of the Placing
Liberum has entered into the Placing Agreement with the Company under which, subject to the conditions set out in that agreement, Liberum will agree to use its reasonable endeavours to procure subscribers for the Placing Shares at the Placing Price.
The Placing is conditional upon the Placing Agreement becoming unconditional in all respects.
The Placing Shares will, when issued, rank pari passu in all respects with the existing issued Ordinary Shares, including the right to receive dividends and other distributions declared, made or paid following Admission.
1.1.1 Application for admission to trading
Application will be made to the London Stock Exchange for admission of the Placing Shares ("Admission") to trading on AIM. It is expected that Admission will become effective and that dealings in the Placing Shares will commence on AIM at 8.00 a.m. on 17 October 2019.
1.1.2 Participation in and principal terms of, the Placing
Liberum is arranging the Placing as agent for and on behalf of the Company. Participation in the Placing will only be available to Placees who may lawfully be, and are, invited to participate by Liberum.
The number of Placing Shares to be allocated will be agreed between Liberum and the Company following completion of a bookbuilding exercise by Liberum (the "Bookbuild"). The number of Placing Shares will be announced on a Regulatory Information Service following the completion of the Bookbuild.
Liberum will determine in its absolute discretion the extent of each Placee's participation in the Placing, which will not necessarily be the same for each Placee and this will be confirmed orally or in writing by Liberum as agent of the Company ("Confirmation"). No element of the Placing will be underwritten. Confirmation will constitute an irrevocable legally binding commitment upon that person (who will at that point become a Placee) to subscribe for the number of Placing Shares allocated to it at the Placing Price on the terms and conditions set out in this Appendix (a copy of the terms and conditions having been provided to the Placee prior to or at the same time as such oral or written confirmation) and in accordance with the Company's articles of association. For the avoidance of doubt, the Confirmation constitutes each Placee's irrevocable legally binding agreement, subject to the Placing Agreement not having been terminated, to pay the aggregate settlement amount for the Placing Shares to be acquired by that Placee regardless of the total number of Placing Shares (if any) acquired by any other investor(s).
Liberum reserves the right to scale back the number of Placing Shares to be acquired by any Placee in the event of an oversubscription under the Placing. Liberum also reserves the right not to accept offers for Placing Shares or to accept such offers in part rather than in whole.
Each Placee will be required to pay to Liberum the Placing Price for each Placing Share agreed to be acquired by it under the Placing in accordance with the terms set out herein. Each Placee's obligation to acquire and pay for Placing Shares under the Placing will be owed to Liberum. Each Placee has an immediate, separate, irrevocable and binding obligation, owed to Liberum, to pay to Liberum (or as Liberum 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 subscribe for. Each Placee will be deemed to have read and understood the Appendix in its entirety, to the participating in the Placing upon the terms and conditions contained in the Appendix, and to be providing the representations, warranties, agreements, acknowledgements and undertakings, in each case as contained in the Appendix. To the fullest extent permitted by law and applicable FCA rules (the "FCA Rules"), neither (i) Liberum, (ii) any of its directors, officers, employees or consultants, or (iii) to the extent not contained within (ii) any person connected with Liberum as defined in the FCA Rules ((ii) and (iii) being together "affiliates" of Liberum and individually an "affiliate"), shall have any liability to Placees or to any person other than the Company in respect of the Placing.
Irrespective of the time at which a Placee's participation in 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'.
Completion of the Placing will be subject to the fulfilment of the conditions referred to below under 'Conditions of the Placing' and to the Placing not being terminated on the basis referred to below under 'Termination of the Placing Agreement'. In the event that the Placing Agreement is not entered into or does not otherwise become unconditional in any respect or, after having been entered into, is terminated, the Placing will not proceed and all funds delivered by the Placee to the Bookrunner in respect of the Placee's participation will be returned to the Placee at the Placee's risk without interest.
By participating in the Placing, each Placee agrees that its rights and obligations in respect of the Placing will terminate only in the circumstances described below and will not otherwise be capable of rescission or termination by the Placee.
By participating in the Placing, each Placee is deemed to have read and understood this Announcement, including the 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 the Appendix.
To the fullest extent permissible by law, neither the Company, Liberum nor any of their affiliates shall have any liability to Placees (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 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 obligations of Liberum under the Placing Agreement in respect of the Placing Shares are conditional on, amongst other things:
a) the Company having complied with all of its obligations under the Placing Agreement or under the terms or conditions of the Placing (to the extent that such obligations fall to be performed prior to Admission);
b) there having been no material adverse change which could, in the opinion of Liberum (acting in good faith), materially and adversely affect the Placing or dealings in the Ordinary Shares immediately following Admission;
c) none of the warranties in the Placing Agreement being untrue, inaccurate or misleading at the date of the Placing Agreement or ceasing to be true and accurate or having become misleading at any time following the date of the Placing Agreement;
d) the share purchase agreement (the "Share Purchase Agreement") made between the Company, Compagnie Benelux Participations (Cobepa) SA ("Cobepa"), Verlinvest SA ("Verlinvest") and CDH Management SPRL (the "Vendors") relating to the acquisition of, inter alia, CDH Development SA not having lapsed or been terminated and having become unconditional in all respects, subject only to Admission;
e) the Placing Shares having been allotted and issued to Placees, subject only to Admission;
f) Admission having occurred not later than 8.00 a.m. on 17 October 2019 or such later date as the Company and Liberum may agree, but in any event not later than 8.00 a.m. on 22 October 2019.
If (i) any of the conditions contained in the Placing Agreement in relation to the Placing Shares are not fulfilled or waived by Liberum by the relevant time or date where specified, (ii) any of such conditions becomes incapable of being fulfilled or (iii) the Placing Agreement is terminated in the circumstances specified below, the Placing will not proceed and the 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, at its discretion and upon such terms as it thinks fit, may 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. Any such extension or waiver will not affect Placees' commitments as set out in this Announcement.
None of Liberum, the Company nor any other person shall have any liability to any Placee (or to any other person whether acting on behalf of a Placee or otherwise) in respect of any decision they may make as to whether or not to waive or to extend the time and/or the date for the satisfaction of any condition to the Placing nor for any decision they may make as to the satisfaction of any condition or in respect of the Placing generally, and by participating in the Placing each Placee agrees that any such decision is within the absolute discretion of Liberum.
1.1.3 Termination of the Placing Agreement
Liberum is entitled at any time before Admission, to terminate the Placing Agreement in relation to their obligations in respect of the Placing Shares by giving notice in writing to the Company if, amongst other things:
a) in the sole judgement of Liberum acting in good faith there has been a material breach by the Company of any of its obligations under the Placing Agreement or any law in respect of the Placing, or there has been a breach of or there has taken place or arisen an event rendering untrue or incorrect in any respect any of the warranties given in the Placing Agreement; or
b) it comes to the notice of Liberum that any statement contained in the placing documents (the "Placing Documents") issued in connection with the Placing was untrue, inaccurate, incorrect or misleading at the date thereof or has become untrue, incorrect or misleading or that any matter has arisen which would, if the Placing were made at that time, constitute an omission therefrom; or
c) any of the warranties given by the Company in the Placing Agreement has, in the sole judgment of Liberum acting in good faith, become untrue, inaccurate or misleading in any respect; or
d) in the sole judgment of Liberum acting in good faith there shall have occurred a material adverse change since the date of the Placing Agreement;
e) there has been a breach of any provision of the Share Purchase Agreement made between the Company, and the Vendors by any party to it which Liberum considers (in its sole judgement (acting in good faith)) to be material; or
f) there happens, develops or comes into effect: i) a general moratorium on commercial banking activities in London or New York declared by the United States, the United Kingdom, the New York authorities or the European Central Bank or a suspension or material limitation in trading in securities, generally on the London Stock Exchange, the New York Stock Exchange or NASDAQ, or is likely to occur, in the judgement of Liberum (acting reasonably); or ii) in the judgement of Liberum (acting in good faith) an outbreak or escalation of hostilities or acts of terrorism or other calamity or crisis, national or international emergency or war, or any change (or development involving a prospective change) in national or international monetary, political, financial or economic conditions or currency exchange rates or foreign exchange controls or any material adverse change in the financial markets in the United States, the United Kingdom, in any member of the European Union or the international markets; or iii) disruption in trading generally on any stock exchange or in any over the counter market or minimum or maximum prices for trading are fixed, or maximum ranges for prices have been required, by any exchange or by any governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, United Kingdom or Europe, in the judgement of Liberum (acting reasonably); or iv) any actual or prospective change or development in the United Kingdom or any other taxation that would have a materially adverse effect on the Group or on the allotment, issue or delivery of ordinary shares, and which would either singularly or together in the sole judgment of Liberum (acting in good faith) be likely to prejudice the success of the Placing or which makes it impractical to proceed with the Placing and/or Admission on the terms and in the manner set out in the Placing Documents.
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 they need not make any reference to Placees and that they shall have no liability to Placees whatsoever in connection with any such exercise or failure so to exercise.
1.1.4 No prospectus
No offering document, prospectus or admission document has been or will be submitted to be approved by the FCA or submitted to the London Stock Exchange in relation to the Placing and Placees' commitments will be made solely on the basis of the information contained in this Announcement (including the Appendix) released by the Company today, and subject to any further terms set forth in the trade confirmation to be provided to individual prospective Placees.
Each Placee, by accepting a participation in the Placing, agrees that the content of this Announcement (including the Appendix) is exclusively the responsibility of the Company and confirms that it has neither received nor relied on any other information, representation, warranty, or statement made by or on behalf of the Company, Liberum or any other person and neither Liberum nor the Company nor 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. Each Placee acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in accepting a participation in the Placing. Nothing in this paragraph shall exclude the liability of any person for fraudulent misrepresentation.
1.1.5 Registration and settlement
Settlement of transactions in the Placing Shares following Admission will take place within the system administered by CREST, subject to certain exceptions. The Company reserves the right to require settlement for and delivery of the Placing Shares (or a portion thereof) to Placees in certificated form if, in the opinion of Liberum, delivery or settlement is not possible or practicable within the CREST system or would not be consistent with the regulatory requirements in the Placee's jurisdiction.
Participation in the Placing is only available to persons who are invited to participate in it by Liberum.
A Placee's commitment to acquire a fixed number of Placing Shares under the Placing will be agreed orally or in writing with Liberum. Such agreement will constitute a legally binding commitment on such Placee's part to acquire that number of Placing Shares at the Placing Price on the terms and conditions set out or referred to in the Appendix and subject to the Company's Articles of Association.
Following the close of the Bookbuild, each Placee allocated Placing Shares in the Placing will be sent a trade confirmation in accordance with the standing arrangements in place with the Bookrunner, stating the number of Placing Shares allocated to it at the Placing Price, the aggregate amount owed by such Placee to the Bookrunner or and settlement instructions.
Each Placee agrees that it will do all things necessary to ensure that delivery and payment is completed in accordance with the standing CREST or certificated settlement instructions that it has in place with the Bookrunner. Settlement should be through: Liberum against CREST ID: ENQAN. For the avoidance of doubt, Placing allocations will be booked with a trade date of 15 October 2019 and settlement date of 17 October 2019. Settlement will take place on a delivery versus payment basis.
The Company will deliver the Placing Shares to the CREST account operated by the Bookrunner as agent for the Company and the Bookrunner will enter their delivery (DEL) instruction into the CREST system. The input to CREST by a Placee of a matching or acceptance instruction will then allow delivery of the relevant Placing Shares to that Placee against payment.
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 is deemed to agree that, if it does not comply with these obligations, the Company may sell any or all of the Placing Shares allocated to that Placee on such Placee's behalf and retain from the proceeds, for the Company's account and benefit, an amount equal to the aggregate amount owed by the Placee plus any interest due. The relevant Placee will, however, remain liable for any shortfall below the aggregate amount owed by it and may be required to bear any stamp duty or stamp duty reserve tax (together with any interest or penalties) which may arise upon the sale of such Placing Shares on such Placee's behalf.
If Placing Shares are to be delivered to a custodian or settlement agent, Placees should ensure that the trade confirmation is copied and delivered immediately to the relevant person within that organisation. Insofar as Placing Shares are registered in a Placee's name or that of its nominee or in the name of any person for whom a Placee is contracting as agent or that of a nominee for such person, such Placing Shares should, subject as provided below, be so registered free from any liability to UK stamp duty or stamp duty reserve tax. Placees will not be entitled to receive any fee or commission in connection with the Placing.
1.1.6 Representations and warranties
By participating in the Placing, each Placee (and any person acting on such Placee's behalf) acknowledges, undertakes, represents, warrants and agrees (as the case may be) the following:
That it:
1. represents and warrants that it has read this Announcement, including the 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. acknowledges that it has received this Announcement solely for its use and has not redistributed or duplicated it;
3. acknowledges and agrees that no offering document, prospectus or admission document has been or will be prepared in connection with the Placing and represents and warrants that it has not received a prospectus, admission document or other offering document in connection with the Placing or the Placing Shares;
4. acknowledges that its participation in the Placing shall also be subject to the provisions of the Placing Agreement and the memorandum and articles of association of the Company in force both before and immediately after Admission;
5. acknowledges that the Ordinary Shares in the capital of the Company are admitted to trading on AIM, and the Company is therefore required to publish certain business and financial information in accordance with the rules and practices of AIM (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 that it is able to obtain or access such Exchange 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;
6. acknowledges that neither Liberum nor the Company nor 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 regarding the Placing Shares 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 information;
7. acknowledges that the content of this Announcement is exclusively the responsibility of the Company and that neither Liberum nor any person acting on its behalf has or shall have any liability for any information, representation or statement contained in this Announcement or any information previously 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 or otherwise. Each Placee further represents, warrants and agrees that the only information on which it is entitled to rely and on which such Placee has relied in committing itself to subscribe for the Placing Shares is contained in this Announcement and any information previously published by the Company by notification to a Regulatory Information Service, such information being all that it deems necessary to make an investment decision in respect of the Placing Shares and that it has neither received nor relied on any other information given or representations, warranties or statements made by Liberum or the Company or their respective affiliates and neither Liberum nor the Company nor their respective affiliates will be liable for any Placee's decision to accept an invitation to participate in the Placing based on any other information, representation, warranty or statement. Each Placee further acknowledges and agrees that it has relied on its own investigation of the business, financial or other position of the Company in deciding to participate in the Placing;
8. represents and warrants that it has neither received nor relied on any inside information (as defined in the Market Abuse Regulation) concerning the Company in accepting this invitation to participate in the Placing;
9. acknowledges that neither Liberum nor any person acting on its behalf nor any of their respective affiliates has or shall have any liability for any publicly available or filed information, or any representation relating to the Company, provided that nothing in this paragraph excludes the liability of any person for fraudulent misrepresentation made by that person;
10. represents and warrants that it has complied with its obligations under the Criminal Justice Act 1993, the Market Abuse Regulation and 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 Regulations 2007, the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (the "Regulations") and any related or similar rules, regulations or guidelines, issued, administered or enforced by any government agency having jurisdiction in respect thereof 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;
11. if a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive (including any relevant implementing measure in any member state), represents and warrants that the Placing Shares acquired by it in the Placing will not be acquired on a non-discretionary basis on behalf of, nor will they be acquired with a view to their offer or resale to, persons in a member state of the European Economic Area which has implemented the Prospectus Directive other than to qualified investors, or in circumstances in which the prior consent of Liberum has been given to the proposed offer or resale;
12. represents and warrants that it has not offered or sold and 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 an offer to the public in the United Kingdom within the meaning of section 85(1) of the FSMA;
13. 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 an offer to the public in any member state of the European Economic Area within the meaning of the Prospectus Directive (including any relevant implementing measure in any member state);
14. represents and warrants 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 section 21(1) of FSMA does not require approval of the communication by an authorised person;
15. represents and warrants that it has complied 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;
16. if within the United Kingdom, represents and warrants that it is a person falling within Article 19(5) and/or Article 49(2)(a) to (d) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 as amended, is a qualified investor as defined in Section 86 of FMSA or is a person to whom this Announcement may otherwise be lawfully communicated;
17. acknowledges that any offer of Placing Shares may only be 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 and represents and agrees that, if in the European Economic Area, it is such a qualified investor;
18. represents and warrants that it and any person acting on its behalf is entitled to acquire Placing Shares under the laws of all relevant jurisdictions which apply to it and that 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, and that its acquisition of Placing Shares will be in compliance with applicable laws and regulations in the jurisdiction of its residence, the residence of the Company, or otherwise.
19. acknowledges and agrees that the Placing Shares have not been and will not be registered under the Securities Act or with any securities regulatory authority of any state or jurisdiction of the United States, or the relevant Australian, Canadian, Japanese, New Zealand or South African securities legislation and therefore the Placing Shares may not be offered, sold, transferred or delivered directly or indirectly into the United States, Australia, Canada, Japan, New Zealand or the Republic of South Africa or their respective territories and possessions, except subject to limited exemptions;
20. warrants that it has complied with all relevant laws of all relevant territories, obtained all requisite governmental or other consents which may be required in connection with the Placing Shares, complied with all requisite formalities and that it has not taken any action or omitted to take any action which will or may result in Liberum, the Company or any of their respective directors, officers, agents, employees or advisers acting in breach of the legal or regulatory requirements of any territory in connection with the Placing;
21. acknowledges and agrees that its subscription for Placing Shares does not trigger, in the jurisdiction in which it is resident or located: (i) any obligation to prepare or file a prospectus or similar document or any other report with respect to such subscriptions; (ii) any disclosure or reporting obligation of the Company; or (iii) any registration or other obligation on the part of the Company;
22. undertakes 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 subscribers or sold as Liberum may in its discretion determine and without liability to such Placee;
23. acknowledges that neither Liberum nor any of their affiliates, nor any person acting on behalf of any of them, is making any recommendations to it, advising it regarding the suitability of any transactions it may enter into in connection with the Placing and that participation in the Placing is on the basis that it is not and will not be a client of Liberum for the purposes of the Placing and that Liberum has no duties or responsibilities to it for providing the protections afforded to its clients 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 their rights and obligations thereunder including any rights to waive or vary any conditions or exercise any termination right;
24. undertakes 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 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 the Bookrunner who will hold them as nominee on behalf of such Placee until settlement in accordance with its standing settlement instructions;
25. acknowledges that these terms and conditions and any agreements entered into by it pursuant to these terms and conditions and any non-contractual obligations arising out of or in connection with such agreements shall be governed by and construed in accordance with the laws of England and Wales 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;
26. acknowledges that Liberum and its affiliates will rely upon the truth and accuracy of the representations, warranties and acknowledgements set forth herein and which are irrevocable and it irrevocably authorises Liberum 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;
27. agrees to indemnify on an after tax basis and hold the Company and Liberum and their respective affiliates harmless from any and all costs, claims, liabilities and expenses (including legal fees and expenses) arising out of or in connection with any breach of the representations, warranties, acknowledgements, agreements and undertakings in the Appendix and further agrees that the provisions of the Appendix shall survive after completion of the Placing;
28. represents and warrants that it will acquire any Placing Shares acquired by it for its account or for one or more accounts as to each of which it exercises sole investment discretion and it has full power to make the acknowledgements, representations and agreements herein on behalf of each such account;
29. acknowledges that its commitment to acquire Placing Shares on the terms set out herein and in the relevant trade confirmation will continue notwithstanding any amendment that may in future be made to the terms of the Placing and that Placees will have no right to be consulted or require that their consent be obtained with respect to the Company's conduct of the Placing. The foregoing representations, warranties and confirmations are given for the benefit of the Company and Liberum. The agreement to settle a Placee's subscription (and/or the subscription by a person for whom such Placee is contracting as agent) free of stamp duty and stamp duty reserve tax depends on the settlement relating only to the subscription by it and/or such person direct from the Company for the Placing Shares in question. Such agreement assumes, and is based on a warranty from each Placee, that neither it, nor the person specified by it for registration as holder, of Placing Shares is, or is acting as nominee or agent for, and that the Placing Shares will not be transferred to, a person who is or may be liable to stamp duty or stamp duty reserve tax under any of sections 67, 70, 93 and 96 of the Finance Act 1986 (depositary receipts and clearance services). If there are any such arrangements, or the settlement relates to any other dealing in the Placing Shares, stamp duty or stamp duty reserve tax may be payable. In that event the Placee agrees that it shall be responsible for such stamp duty or stamp duty reserve tax, and neither the Company nor Liberum shall be responsible for such stamp duty or stamp duty reserve tax. If this is the case, each Placee should seek its own advice and notify Liberum accordingly;
30. understands that no action has been or will be taken by either 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;
31. in making any decision to acquire the Placing Shares, confirms that it has knowledge and experience in financial, business and international investment matters as is required to evaluate the merits and risks of purchasing the Placing Shares. It further confirms that it is experienced in investing in securities of this nature in this sector and is aware that it may be required to bear, and is able to bear, the economic risk of, and is able to sustain a complete loss in connection with the Placing. It further confirms that it relied on its own examination and due diligence of the Company and its associates taken as a whole, and the terms of the Placing, including the merits and risks involved;
32. represents and warrants that it has (a) made its own assessment and satisfied itself concerning legal, regulatory, tax, business and financial considerations in connection herewith to the extent it deems necessary; (b) had access to review publicly available information concerning the Company that it considers necessary or appropriate and sufficient in making an investment decision; (c) reviewed such information as it believes is necessary or appropriate in connection with its subscription for Placing Shares; and (d) made its investment decision based upon its own judgment, due diligence and analysis and not upon any view expressed or information provided by or on behalf of Liberum;
33. understands and agrees 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, or the Placing and Liberum has not made any representation to it, express or implied, with respect to the merits of the Placing, the subscription for the Placing Shares, or as to the condition, financial or otherwise, of the Company, or as to any other matter relating thereto, and nothing herein shall be construed as a recommendation to it to subscribe for the Placing Shares. It acknowledges and agrees that no information has been prepared by Liberum or for the purposes of this Placing;
34. accordingly it acknowledges and agrees 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 Company or information made available (whether in written or oral form) in presentations or as part of roadshow discussions with investors relating to the Company (the "Information") 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. understands that the Placing Shares 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, and accordingly, may not be offered or sold or otherwise transferred in the United States except pursuant to a registration statement under the Securities Act or an exemption from the registration requirements of the Securities Act and, in connection with any such transfer, the Company shall be provided, as a condition to transfer, with a legal opinion of counsel, in form and by counsel reasonably satisfactory to the Company, that no such Securities Act registration is or will be required and with appropriate certifications by the transferee as to appropriate matters;
36. if Placees are purchasing the Placing Shares outside the United States, each Placee (and any person acting on such Placee's behalf) agrees, represents and warrants as follows:
a. it is aware that the Placing Shares are being offered outside the United States in reliance on Regulation S promulgated under the Securities Act; and
b. it is, at the time of the offer and acceptance of the Placing Shares, outside the United States for the purposes of Regulation S;
c. it did not purchase or otherwise acquire the Placing Shares based on or due to directed selling efforts (as defined in Rule 902 under the Securities Act), including based on an advertisement in a publication with a general circulation in the United States, nor has it seen or been aware of any activity that, to its knowledge, constitutes directed selling efforts in the United States; and/or
d. it is otherwise acquiring the Placing Shares in an "offshore transaction" as defined in and in accordance with Regulation S under the Securities Act.
The foregoing representations, warranties and confirmations are given for the benefit of each of the Company and Liberum.
In addition, Placees should note that they will be liable for any 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 United Kingdom by them or any other person on the subscription by them of any Placing Shares or the agreement by them to subscribe for any Placing Shares.
Each Placee and any person acting on behalf of each Placee acknowledges and agrees that Liberum or any of its affiliates may, at their absolute discretion, agree to become a Placee in respect of some or all of the Placing Shares.
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 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 money 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, as the case may be.
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.
Past performance is not a guide to future performance and persons needing advice should consult an independent financial adviser.
