TIDMASC
RNS Number : 7279A
ASOS PLC
25 May 2023
THIS ANNOUNCEMENT (INCLUDING THE APPIX) AND THE INFORMATION
HEREIN , IS RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE,
TRANSMISSION, DISTRIBUTION, OR FORWARDING DIRECTLY OR INDIRECTLY,
IN WHOLE OR IN PART, IN OR INTO THE UNITED STATES, AUSTRALIA,
CANADA, THE REPUBLIC OF SOUTH AFRICA, JAPAN OR ANY OTHER
JURISDICTION IN WHICH SUCH PUBLICATION, RELEASE OR DISTRIBUTION
WOULD BE UNLAWFUL.
FURTHER, THIS ANNOUNCEMENT IS FOR INFORMATION PURPOSES ONLY AND
IS NOT AN OFFER OF SECURITIES IN ANY JURISDICTION.
PLEASE SEE THE IMPORTANT NOTICES AT THE OF THIS
ANNOUNCEMENT.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION.
For immediate release
25 May 2023
ASOS plc
("ASOS" or the "Company")
New Financing Arrangements & Equity Raise
ASOS, the global online fashion platform, today announces
another important milestone in its "Driving Change agenda" with the
strengthening of its balance sheet through a new long-term GBP275
million financing facility alongside a fully underwritten
non-pre-emptive cash placing of new ordinary shares to raise
proceeds of c.GBP75 million.
This new capital structure provides increased flexibility
against a challenging macro-economic backdrop and the stability to
focus on long-term value creation. The new asset-based financing
facility provides simplicity under a single lender and is covenant
light.
Further details of the New Financing Arrangements
The Company has entered into a GBP200 million senior term loan
and a GBP75 million super senior revolving facility (the "New
Facilities") with specialist lender Bantry Bay Capital Limited
through to April 2026, with the optionality to further extend. The
New Facilities will replace the existing GBP350 million revolving
credit facility (the "Existing RCF") which was due to expire in
November 2024 following the amendment and extension announced
alongside the Company's interim results on 10 May 2023.
The New Facilities are subject only to a minimum liquidity
covenant. The Company estimates an average annual interest rate of
c.11 per cent on the New Facilities and c.5 per cent across its
total facilities(1) . The Company's total cash financing cost to be
incurred in H2 FY23 is now expected to be c.GBP55 million(2) .
Further details of the Equity Raise
As part of its long-term financing arrangement, ASOS announces
its intention to conduct an equity raise (the "Equity Raise"),
comprising a fully underwritten non-pre-emptive cash placing of
c.GBP75 million (the "Placing") and a separate retail offer of up
to GBP5 million (the "Retail Offer") of new ordinary shares at a
price of 418.1 pence per share, representing the closing price of
the shares on 25 May 2023 (the "Issue Price"). The Retail Offer
will be made using the PrimaryBid platform.
Aktieselskabet Af 5.5.2010 and Camelot Capital Partners, the
Company's two largest shareholders, as well as I.G.Y. Limited(3)
have each confirmed their intention to significantly participate in
the Equity Raise and have provided underwriting commitments that
will, together, cover the full amount of the Placing, reflecting
their confidence in the long-term prospects of the business (the
"Shareholder Commitments").
The Placing will be conducted through an accelerated bookbuild
(the "Bookbuild") which will be launched immediately following the
release of this announcement. J.P. Morgan Securities plc, which
conducts its UK investment banking activities as J.P. Morgan
Cazenove ("J.P. Morgan" or "JPMC") and Numis Securities Limited
("Numis") are acting as joint global coordinators (the "Joint
Global Coordinators"). Joh. Berenberg, Gossler & Co. KG, London
Branch ("Berenberg") together with the Joint Global Coordinators
are acting as joint bookrunners (together, the "Managers") in
connection with the Placing.
The Board supports the Pre-Emption Group guidance that
encourages companies to consider the inclusion of retail
shareholders when issuing shares non-pre-emptively and,
accordingly, the Board determined to offer retail shareholders an
opportunity to participate in the Equity Raise. The Retail Offer is
not subject to the terms and conditions set out in the Appendix to
this announcement and instead a separate announcement will be made
regarding the Retail Offer and its terms and the new ordinary
shares issued pursuant to the Retail Offer (the "Retail Offer
Shares").
ASOS acknowledges that it is seeking to issue new ordinary
shares up to c.20 per cent of its existing issued ordinary share
capital on a non-pre-emptive basis. The Board has chosen this
structure to minimise costs and reduce the time to completion of
the Equity Raise as part of the broader refinancing, as well as
incorporating a Retail Offer alongside the non-pre-emptive issue to
broaden participation in the Equity Raise as a whole.
Reasons for the Equity Raise
Alongside its FY22 results, ASOS set out a number of changes to
its operating model designed to return the business to sustainable
profitability and cash generation in H2 FY23 and beyond (the
"Driving Change agenda").
The Driving Change agenda is structured around four pillars:
1. Renewed commercial model: comprehensively changing ASOS'
approach to buying and merchandising, with improved stock
management discipline and reduced complexity across its supply
chain;
2. Stronger order economics and a lighter cost profile:
optimising the cost base, improving order economics and maximising
operating model efficiency to ensure a sustainable level of
profitability and cash generation in all markets;
3. Robust and flexible balance sheet: ensuring a more effective
allocation of capital, while continuing with strategic investment
into the customer experience. In addition, ensuring sufficient
financial headroom to provide flexibility and stability to the
business;
4. Reinforced leadership and refreshed culture: simplifying
ASOS' decision-making processes, developing a culture of innovation
across the business, and reinforcing the senior leadership team
with strategic key hires.
As highlighted in the interim results announcement on 10 May
2023, the Driving Change agenda is progressing as planned with
positive adjusted earnings before interest and tax ("EBIT")(4) and
a free cash inflow expected in the second half of the year despite
challenging trading conditions(5) .
The Company believes that the combination of: (1) the new longer
term financing facility; (2) the Equity Raise; and (3) actions
taken by the Company under its Driving Change agenda culminating in
a return to sustainable profitability and cash generation, create a
stable base for ASOS' continued execution of its strategy and
future return to growth.
The Board's unanimous view is that the Placing and Retail Offer
are in the best interests of shareholders, as well as wider
stakeholders in ASOS.
Details of the Placing
The Managers will commence the bookbuilding process immediately
following the release of this Announcement in respect of the
Placing. Shares to be issued in the Placing (the "Placing Shares")
are to be placed at the Issue Price, being 418.1 pence per
share.
The Placing is subject to the terms and conditions set out in
Appendix 1 to this announcement (which forms part of this
announcement, such announcement and its Appendix together being
this "Announcement").
The book will open with immediate effect following this
Announcement. The timing of the closing of the book and allocations
are at the absolute discretion of the Joint Global Coordinators and
the Company.
The Placing Shares and the Retail Offer Shares when issued, will
be fully paid and will rank pari passu in all respects with each
other and with the existing ordinary shares of the Company,
including, without limitation, the right to receive all dividends
and other distributions declared, made or paid after the date of
issue.
Applications have been made for the Placing Shares and Retail
Offer Shares to be admitted to the premium listing segment of the
Official List of the Financial Conduct Authority (the "FCA") and to
trading on the main market for listed securities of the London
Stock Exchange plc (the "London Stock Exchange") (together
"Admission"). It is expected that settlement for the Placing Shares
and the Retail Offer Shares and Admission will take place at or
around 8.00 a.m. (London time) on 31 May 2023.
The Placing is conditional upon, among other things, Admission
becoming effective. The Placing is also conditional upon the
placing agreement between the Company and the Managers (the
"Placing Agreement") not being terminated in accordance with its
terms. The Appendix to the Announcement sets out further
information relating to the terms and conditions of the
Placing.
This Announcement contains inside information for the purposes
of Article 7 of the Market Abuse Regulation EU 596/2016 as it forms
part of UK law by virtue of the European Union (Withdrawal) Act
2018. The person responsible for releasing this announcement is
Emma Whyte (General Counsel and Company Secretary).
(1) Including the GBP275m New Facilities, GBP500m convertible
bond and GBP22m Nordstrom loan.
(2) Total cash financing cost of c.GBP55m for H2 FY23 includes
interest and fees relating to the Existing RCF, convertible bond
and Nordstrom loan, interest on lease liabilities, and interest,
arrangement and advisor fees relating to the New Facilities. The H2
FY23 incremental cash cost of refinancing related to the New
Facilities is now expected to be c.GBP45m (previously guided at
c.GBP25m at the H1 FY23 results). The expected H2 FY23 interest
expense of c.GBP30m is unchanged.
(3) I.G.Y. Limited is a private investment company of Nick
Sleep.
(4) Adjusted EBIT is defined as profit before tax, interest and
adjusting items relating to (i) implementation of the Driving
Change agenda, (ii) non-underlying sales tax and (iii) amortisation
of acquired intangible assets.
(5) No change to the guidance for H2 FY23 issued in the Interim
Results announcement of 10 May 2023 except in relation to the
P&L and cash impacts of refinancing as detailed above.
For further information:
ASOS plc Tel: 020 7756
1000
Jose Antonio Ramos Calamonte, Chief Executive
Officer
Sean Glithero, Interim Chief Financial Officer
Michelle Wilson, Senior Director of Strategy
& Corporate Development
Holly Cassell, Head of Investor Relations
Website: www.asosplc.com/investors
Tel: 020 7742
JPMorgan Cazenove 4000
Bill Hutchings / Will Vanderspar / Virginie
de Grivel Nigam / Jessica Murray
Numis Tel: 020 7260
1000
Alex Ham / Jonathan Wilcox / Tom Jacob / Jamie
Loughborough
Berenberg Tel: 020 3207
7800
Matthew Armitt / Richard Bootle / Marie Moy
Headland Consultancy Tel: 020 3805
4822
Susanna Voyle / Stephen Malthouse / Rob Walker
Background note
ASOS is a destination for fashion-loving 20-somethings around
the world, with a purpose to give its customers the confidence to
be whoever they want to be. Through its app and mobile/desktop web
experience, available in nine languages and in over 200 markets,
ASOS customers can shop a curated edit of over 60,000 products,
sourced from nearly 900 global and local third-party brands
alongside a mix of fashion-led own-brand labels - ASOS Design, ASOS
Edition, ASOS 4505, Collusion, Reclaimed Vintage, Topshop, Topman,
Miss Selfridge and HIIT. ASOS aims to give all of its customers a
truly frictionless experience, with an ever-greater number of
different payment methods and hundreds of local deliveries and
return options, including Next-Day Delivery and Same-Day Delivery,
dispatched from state-of-the-art fulfilment centres in the UK, US
and Germany.
IMPORTANT NOTICES
This announcement including its Appendix (together, the "
Announcement ") and the information contained in it is not for
publication, release, transmission distribution or forwarding, in
whole or in part, directly or indirectly, in or into the United
States, Australia, Canada, Japan or South Africa or any other
jurisdiction in which publication, release or distribution would be
unlawful. This Announcement is for information purposes only and
does not constitute an offer to sell or issue, or the solicitation
of an offer to buy, acquire or subscribe for shares in the capital
of the Company in the United States, Australia, Canada, Japan or
South Africa or any other state or jurisdiction. This Announcement
has not been approved by the London Stock Exchange. Any failure to
comply with these restrictions may constitute a violation of the
securities laws of such jurisdictions.
The Placing Shares 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
other jurisdiction of the United States and may not be offered,
sold, pledged, taken up, exercised, resold, renounced, transferred
or delivered, directly or indirectly, in or into the United States
absent registration under the Securities Act, except pursuant to an
exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and in compliance
with any applicable securities laws of any state or other
jurisdiction of the United States. The Placing Shares have not been
approved, disapproved or recommended by the U.S. Securities and
Exchange Commission, any state securities commission in the United
States or any other U.S. regulatory authority, nor have any of the
foregoing authorities passed upon or endorsed the merits of the
offering of the Placing Shares. Subject to certain exceptions, the
securities referred to herein may not be offered or sold in the
United States, Australia, Canada, Japan, South Africa or to, or for
the account or benefit of, any national, resident or citizen of the
United States, Australia, Canada, Japan, the Republic of South
Africa.
No public offering of the Placing Shares is being made in the
United States, United Kingdom or elsewhere. All offers of the
Placing Shares will be made pursuant to an exemption under the
Prospectus Regulation (EU) 2017/1129 as amended from time to time
(the " EU Prospectus Regulation ") or the Prospectus Regulation
(EU) 2017/1129 as it forms part of UK domestic law by virtue of the
European Union (Withdrawal) Act 2018, as amended from time to time,
(the " UK Prospectus Regulation ") from the requirement to produce
a prospectus. This Announcement is being distributed to persons in
the United Kingdom only in circumstances in which section 21(1) of
the Financial Services and Markets Act 2000, as amended from time
to time (" FSMA ") does not apply.
No prospectus will be made available in connection with the
matters contained in this Announcement and no such prospectus is
required (in accordance with the UK Prospectus Regulation) to be
published. This Announcement and the terms and conditions set out
herein are for information purposes only and are directed only at:
(a) in Member States of the European Economic Area persons who are
"qualified investors" within the meaning of article 2(e) of the EU
Prospectus Regulation (" Qualified Investors "); and (b) in the
United Kingdom, persons who are "qualified investors" (within the
meaning of article 2(e) of the UK Prospectus Regulation who (i)
have professional experience in matters relating to investments
falling 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 "); (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 and the terms and conditions
set out herein must not be acted on or relied on by persons who are
not relevant persons, if in the United Kingdom, or Qualified
Investors, if in a Member State of the European Economic Area.
Persons distributing this Announcement must satisfy themselves that
it is lawful to do so. Any investment or investment activity to
which this Announcement 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 has been issued by, and is the sole
responsibility of, the Company. No representation or warranty,
express or implied, is or will be made as to, or in relation to,
and no responsibility or liability is or will be accepted by the
Managers, or by any of its or their respective affiliates or agents
as to or in relation to, the accuracy or completeness of this
Announcement or any other written or oral information made
available to or publicly available to any interested party or its
advisers, and any liability therefore is expressly disclaimed.
JPMC is authorised by the Prudential Regulatory Authority and
regulated in the United Kingdom by the Prudential Regulatory
Authority and the Financial Conduct Authority (the " FCA "). Numis
is authorised and regulated in the United Kingdom by the FCA.
Berenberg is authorised by the German Federal Financial Supervisory
Authority (BaFin) and in the United Kingdom is deemed authorised
and subject to limited regulation by the FCA. Each of the Managers
is acting solely for the Company and no one else in connection with
the Placing and will not be responsible to anyone other than the
Company for providing the protections afforded to their respective
clients nor for providing advice in relation to the Placing and/or
any other matter referred to in this Announcement. Apart from the
responsibilities and liabilities, if any, which may be imposed on
the Managers by FSMA or by the regulatory regime established under
it, none of the Managers nor any of their respective affiliates
accepts any responsibility whatsoever for the contents of the
information contained in this Announcement or for any other
statement made or purported to be made by or on behalf of the
Managers or any of their respective affiliates in connection with
the Company, the Placing Shares or the Placing. The Managers and
each of their respective affiliates accordingly disclaim all and
any responsibility and liability whatsoever, whether arising in
tort, contract or otherwise (save as referred to above) in respect
of any statements or other information contained in this
Announcement and no representation or warranty, express or implied,
is made by the Managers or any of their respective affiliates as to
the accuracy, completeness or sufficiency of the information
contained in this Announcement.
The distribution of this Announcement and/or the offering of the
Placing Shares in certain jurisdictions may be restricted by law.
No action has been taken by the Company or the Managers or any of
their respective affiliates that would, or which is intended to,
permit an offering of the Placing Shares in any jurisdiction or
result in the possession or distribution of this Announcement or
any other offering or publicity material relating to Placing Shares
in any jurisdiction where action for that purpose is required.
Persons distributing any part of this Announcement must satisfy
themselves that it is lawful to do so. Persons (including, without
limitation, nominees and trustees) who have a contractual or other
legal obligation to forward a copy of this Announcement should seek
appropriate advice before taking any such action. Persons into
whose possession this Announcement comes are required by the
Company and the Managers to inform themselves about, and to
observe, such restrictions.
This Announcement contains (or may contain) certain
forward-looking statements with respect to certain of the Company's
current expectations and projections about future events. These
statements, which sometimes use words such as "aim", "anticipate",
"believe", "intend", "plan", "estimate", "expect" and words of
similar meaning, reflect the directors' beliefs and expectations
and involve a number of risks, uncertainties and assumptions which
may occur in the future, are beyond the Company's control and could
cause actual results and performance to differ materially from any
expected future results or performance expressed or implied by the
forward-looking statement. Statements contained in this
Announcement regarding past trends or activities should not be
taken as a representation that such trends or activities will
continue in the future. The information contained in this
Announcement is subject to change without notice and, except as
required by applicable law, the Company does not assume any
responsibility or obligation to update publicly or review any of
the forward-looking statements contained in it, nor do they intend
to. You should not place undue reliance on forward-looking
statements, which speak only as of the date of this Announcement.
No statement in this Announcement is or is intended to be a profit
forecast or profit estimate or to imply that the earnings of the
Company for the current or future financial years will necessarily
match or exceed the historical or published earnings of the
Company. As a result of these risks, uncertainties and assumptions,
the recipient should not place undue reliance on these
forward-looking statements as a prediction of actual results or
otherwise. This Announcement does not identify or suggest, or
purport to identify or suggest, the risks (direct or indirect) that
may be associated with an investment in the Placing Shares. Any
investment decision to buy Placing Shares in the Placing must be
made solely on the basis of publicly available information, which
has not been independently verified by the Managers.
The information in this Announcement may not be forwarded or
distributed to any other person and may not be reproduced in any
manner whatsoever. Any forwarding, distribution, reproduction or
disclosure of this information in whole or in part is unauthorised.
Failure to comply with this directive may result in a violation of
the Securities Act or the applicable laws of other
jurisdictions.
This Announcement does not constitute an invitation to
underwrite, subscribe for or otherwise acquire or dispose of any
securities in any jurisdiction. This Announcement does not
constitute a recommendation concerning any investor's option with
respect to the Placing. Each investor or prospective investor
should conduct his, her or its own investigation, analysis and
evaluation of the business and data described in this Announcement
and publicly available information. The price and value of
securities can go down as well as up. Past performance is not a
guide to future performance.
The Placing Shares to be issued pursuant to the Placing will not
be admitted to trading on any stock exchange other than the main
market of the London Stock Exchange.
Neither the content of the Company's website nor any website
accessible by hyperlinks on the Company's website is incorporated
in, or forms part of, this Announcement.
This Announcement has been prepared for the purposes of
complying with applicable law and regulation in the United Kingdom
and the information disclosed may not be the same as that which
would have been disclosed if this Announcement had been prepared in
accordance with the laws and regulations of any jurisdiction
outside the United Kingdom.
UK Product Governance Requirements
Solely for the purposes of the product governance requirements
contained within the FCA Handbook Product Intervention and Product
Governance Sourcebook (the " UK Product Governance Rules "), and
disclaiming all and any liability, whether arising in tort,
contract or otherwise, which any 'manufacturer' (for the purposes
of the UK Product Governance Rules) may otherwise have with respect
thereto, the Placing Shares have been subject to a product approval
process, which has determined that such Placing Shares are: (i)
compatible with an end target market of: (a) investors who meet the
criteria of professional clients as defined in point (8) of Article
2(1) of Regulation (EU) No 600/2014 as it forms part of domestic UK
law by virtue of the European Union (Withdrawal) Act 2018 and the
European Union (Withdrawal Agreement) Act 2020; (b) eligible
counterparties, as defined in the FCA Handbook Conduct of Business
Sourcebook (" COBS "); and (c) retail clients who do not meet the
definition of professional client under (b) or eligible
counterparty per (c); and (ii) eligible for distribution through
all permitted distribution channels (the " UK target market
assessment ").
Notwithstanding the UK target market assessment, distributors
should note that: the price of the Placing Shares may decline and
investors could lose all or part of their investment; the Placing
Shares offer no guaranteed income and no capital protection; and an
investment in the Placing Shares is compatible only with investors
who do not need a guaranteed income or capital protection, who
(either alone or in conjunction with an appropriate financial or
other adviser) are capable of evaluating the merits and risks of
such an investment and who have sufficient resources to be able to
bear any losses that may result therefrom. The UK target market
assessment is without prejudice to the requirements of any
contractual, legal or regulatory selling restrictions in relation
to the Placing. Furthermore, it is noted that, notwithstanding the
UK target market assessment, the Managers will only procure
investors who meet the criteria of professional clients and
eligible counterparties. For the avoidance of doubt, the UK target
market assessment does not constitute: (a) an assessment of
suitability or appropriateness for the purposes of COBS 9A and COBS
10A, respectively; 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 UK
target market assessment in respect of the Placing Shares and
determining appropriate distribution channels.
NOTWITHSTANDING ANYTHING IN THE FOREGOING, NO PUBLIC OFFERING OF
THE PLACING SHARES IS BEING MADE BY ANY PERSON ANYWHERE AND THE
COMPANY HAS NOT AUTHORISED OR CONSENTED TO ANY SUCH OFFERING IN
RELATION TO THE PLACING SHARES.
APPIX: TERMS AND CONDITIONS OF THE PLACING
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN IS
RESTRICTED AND IS NOT FOR PUBLICATION, RELEASE, TRANSMISSION,
DISTRIBUTION OR FORWARDING, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN
PART, IN, INTO OR FROM THE UNITED STATES, AUSTRALIA, CANADA, JAPAN
OR SOUTH AFRICA OR ANY JURISDICTION IN WHICH THE SAME WOULD BE
UNLAWFUL (EACH A "RESTRICTED TERRITORY").
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES
ONLY.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THIS ANNOUNCEMENT (WHICH IS FOR INFORMATION PURPOSES ONLY)
AND THE TERMS AND CONDITIONS SET OUT IN THIS APPIX 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 INVSESTMENTS AND
ARE: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA
("EEA") WHO ARE "QUALIFIED INVESTORS" WITHIN THE MEANING OF ARTICLE
2(E) OF THE PROSPECTUS REGULATION (WHICH MEANS REGULATION 2017/1129
AS AMED FROM TIME TO TIME) (THE "EU PROSPECTUS REGULATION")
("QUALIFIED INVESTORS"); OR (B) IN THE UNITED KINGDOM, "QUALIFIED
INVESTORS" WITHIN THE MEANING OF ARTICLE 2(E) OF REGULATION (EU)
2017/1129 (AS AMED) AS IT FORMS PART OF UK LAW BY VIRTUE OF
EUROPEAN UNION (WITHDRAWAL) ACT 2018 (THE "UK PROSPECTUS
REGULATION"), 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"); OR (II) ARE PERSONS FALLING WITHIN
ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED
ASSOCIATIONS, ETC") OF THE ORDER; OR (C) ARE PERSONS TO WHOM IT MAY
OTHERWISE BE LAWFULLY COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING
REFERRED TO AS "RELEVANT PERSONS"). THIS APPIX AND THE TERMS AND
CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON: (I) IN
THE UNITED KINGDOM, BY PERSONS WHO ARE NOT RELEVANT PERSONS; AND
(II) IN ANY MEMBER STATE OF THE EEA, BY PERSONS WHO ARE NOT
QUALIFIED INVESTORS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH
THIS ANNOUNCEMENT AND THE TERMS AND CONDITIONS SET OUT HEREIN
RELATE IS AVAILABLE ONLY TO: (I) RELEVANT PERSONS IN THE UNITED
KINGDOM AND WILL BE ENGAGED IN ONLY WITH RELEVANT PERSONS IN THE
UNITED KINGDOM; AND (II) QUALIFIED INVESTORS IN MEMBER STATES OF
THE EEA.
THIS APPIX DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR
SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMED (THE
"SECURITIES ACT") OR UNDER ANY SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION OF THE UNITED STATES AND MAY NOT BE OFFERED,
SOLD, PLEDGED, TAKEN UP, EXERCISED, RESOLD, TRANSFERRED OR
DELIVERED, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES
ABSENT REGISTRATIONS UNDER THE SECURITIES ACT EXCEPT PURSUANT TO AN
APPLICABLE EXEMPTION FROM, OR IN A TRANSMISSION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE
WITH THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE
UNITED STATES. THERE WILL BE NO PUBLIC OFFER OF THE SECURITIES
MENTIONED HEREIN IN THE UNITED KINGDOM, THE UNITED STATES, ANY
OTHER RESTRICTED TERRITORY OR ELSEWHERE
THE SECURITIES MENTIONED HEREIN HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE U.S. SECURITIES AND EXCHANGE COMMISSION (THE
"SEC"), ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY
AUTHORITY IN THE UNITED STATES, NOR HAVE ANY OF THE FOREGOING
AUTHORITIES PASSED UPON ORORSED 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.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL,
TAX, BUSINESS, FINANCIAL AND RELATED ASPECTS OF AN ACQUISITION OF
PLACING SHARES. THE PRICE OF SHARES AND THE INCOME FROM THEM (IF
ANY) MAY GO DOWN AS WELL AS UP AND INVESTORS MAY NOT GET BACK THE
FULL AMOUNT INVESTED ON DISPOSAL OF SHARES.
The distribution of this Announcement and the Placing and/or the
offer or sale of the Placing Shares in certain jurisdictions may be
restricted by law. No action has been taken by the Company or by
the Managers (as defined below) or any of its or their respective
affiliates or any of its or their respective agents, directors,
officers or employees which would, or is intended to, permit an
offer of the Placing Shares or possession or distribution of this
Announcement or any other offering or publicity material relating
to such Placing Shares in any jurisdiction where action for that
purpose is required.
This Announcement is being distributed and communicated to
persons in the UK only in circumstances to which section 21(1) of
the Financial Services and Markets Act 2000, as amended ("FSMA")
does not apply.
Subject to certain exceptions, the securities referred to in
this Announcement may not be offered or sold in any Restricted
Territory or to, or for the account or benefit of, a citizen or
resident, or a corporation, partnership or other entity created or
organised in or under the laws of a Restricted Territory.
None of the Company or the Managers or any of its or their
respective affiliates or any of its or their respective agents,
directors, officers or employees makes any representation or
warranty, express or implied to any Placees regarding any
investment in the securities referred to in this Announcement under
the laws applicable to such Placees. Each Placee should consult its
own advisers as to the legal, tax, business, financial and related
aspects of an acquisition of Placing Shares.
Persons who are invited to and who choose to participate in the
placing (the "Placing") of new ordinary shares (the "Placing
Shares") in the capital of the Company, by making an oral or
written offer to acquire Placing Shares, including any individuals,
funds or others on whose behalf a commitment to acquire Placing
Shares is given (the "Placees"), will be deemed: (i) to have read
and understood this Announcement, including this Appendix, in its
entirety; and (ii) to be making such offer on the terms and
conditions contained in this Appendix, including being deemed to be
providing (and shall only be permitted to participate in the
Placing on the basis that they have provided) the representations,
warranties, acknowledgements and undertakings set out herein.
In particular each such Placee represents, warrants and
acknowledges that:
(a) if it is in the United Kingdom, 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) if it is a person in a member state of the EEA, it is a
Qualified Investor (as defined above);
(c) it is and, at the time the Placing Shares are acquired, will
be either: (i) outside the United States and is acquiring the
Placing Shares in an "offshore transaction" in accordance with Rule
903 or Rule 904 of Regulation S under the Securities Act
("Regulation S"); or (ii) a "qualified institutional buyer" (a
"QIB") as defined in Rule 144A under the Securities Act ("Rule
144A"), which is acquiring the Placing Shares for its own account
or for the account of one or more QIBs, each of which is acquiring
beneficial interests in the Placing Shares for its own account; if
acquiring the Placing Shares for the account of one or more other
persons, it has full power and authority to make the
representations, warranties, agreements and acknowledgements herein
on behalf of each such person ; or
(d) if it is a financial intermediary, as that term is used in
Article 2(d) of the EU Prospectus Regulation and Article 2(d) of
the UK Prospectus Regulation, that it understands the resale and
transfer restrictions set out in this Appendix and that any 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 circumstances
which may give rise to an offer of securities to the public other
than an offer or resale in a member state of the EEA to Qualified
Investors or in the United Kingdom to Relevant Persons, or in
circumstances in which the prior consent of the Managers (as
defined below) has been given to each such proposed offer or
resale.
The Company and the Managers will rely on the truth and accuracy
of the foregoing representations, warranties and
acknowledgements.
The Placing Shares are being offered and sold outside the United
States in accordance with Regulation S. Any offering to be made in
the United States will be made to a limited number of QIBs pursuant
to an exemption from registration under the Securities Act in a
transaction not involving any public offering.
Persons (including, without limitation, nominees and trustees)
who have a contractual or other legal obligation to forward a copy
of this Appendix or this Announcement of which it forms part should
seek appropriate advice before taking any action. Persons into
whose possession this Announcement comes are required by the
Company and the Managers to inform themselves about, and to
observe, any such restrictions.
Details of the Placing Agreement and the Placing Shares
J.P. Morgan Securities plc, which conducts its UK investment
banking activities as J.P. Morgan Cazenove ("J.P. Morgan"), Numis
Securities Limited ("Numis") and Joh. Berenberg, Gossler & Co.
KG, London Branch (together the "Managers") have entered into a
placing agreement with the Company (the "Placing Agreement") under
which the Managers have severally (and not jointly or jointly and
severally) agreed on the terms and subject to the conditions set
out therein, to use their reasonable endeavours to procure Placees
to take up the Placing Shares in such number and at such price, if
any, as may be agreed between the Managers and the Company and set
out in the executed terms of subscription (the "Terms of
Subscription") or to the extent that, following the execution of
the Terms of Subscription, any Placee defaults in paying the
Placing Price (as defined below) in respect of any of the Placing
Shares allotted to it, the Managers have severally (and not jointly
or jointly and severally) agreed to subscribe for such Placing
Shares at the Placing Price. The issue of the Placing Shares is to
be effected by way of a cashbox placing.
The Placing Shares will, when issued, be credited as fully paid
and will rank pari passu in all respects with the existing ordinary
shares of 3.5 pence each in the capital of the Company (the
"Ordinary Shares"), including the right to receive all dividends
and other distributions declared, made or paid on or in respect of
the Ordinary Shares after the date of issue of the Placing Shares,
and will on issue be free of all claims, liens, charges,
encumbrances and equities. The allotment and issue of the Placing
Shares will be effected by way of a placing of new Ordinary Shares
in the Company for non-cash consideration. J.P. Morgan will
subscribe for ordinary shares and redeemable preference shares in
Somerset Funding Limited, a Jersey incorporated wholly owned
subsidiary of the Company, for an amount approximately equal to the
net proceeds of the Placing. The Company will allot and issue the
Placing Shares on a non-pre-emptive basis to Placees in
consideration for the transfer of the ordinary shares and
redeemable preference shares in Somerset Funding Limited that will
be issued to J.P. Morgan.
The proceeds raised through the Placing (net of expenses) will
be retained for the benefit of the Company.
Applications for listing and admission to trading
Applications will be made for the Placing Shares to be admitted
to the premium listing segment of the Official List of the
Financial Conduct Authority (the "FCA") and to be admitted to
trading on the main market for listed securities of the London
Stock Exchange plc (the "London Stock Exchange") ("Admission").
It is expected that Admission will become effective not later
than 8.00 a.m. (London time) on 31 May 2023 (or such later time
and/or date as the Managers may agree with the Company) (the
"Closing Date") and that dealings in the Placing Shares will
commence at that time.
Bookbuild
The Managers will today commence the bookbuilding process in
respect of the Placing (the "Bookbuild") to determine demand for
participation in the Placing by Placees. The book will open with
immediate effect. This Appendix gives details of the terms and
conditions of, and the mechanics of participation in, the Placing.
No commissions will be paid to Placees or by Placees in respect of
any Placing Shares.
The Managers 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. The Managers are acting as joint global coordinators and
joint bookrunners in relation to the Placing severally, and not
jointly, nor jointly and severally, as agents of the Company.
Participation in the Placing will only be available to persons who
may lawfully be, and are, invited to participate by any of the
Managers. Each of the Managers and their respective affiliates are
entitled to enter bids as principal in the Bookbuild.
2. The single price payable in respect of the Placing Shares
will be 418.1 pence which is the closing price of the Ordinary
Shares on 25 May 2023 (the "Placing Price").
3. To bid in the Bookbuild, prospective Placees should
communicate their bid by telephone or in writing to their usual
sales contact at one of the Managers. Each bid should state the
number of Placing Shares which the prospective Placee wishes to
acquire at the Placing Price. Bids may be scaled down by the
Managers on the basis referred to in paragraph 6 below.
4. The Bookbuild is expected to close no later than 7.00 a.m.
(London time) on 26 May 2023, but may be closed earlier or later,
at the discretion of the Managers. The Managers may, in agreement
with the Company, accept bids that are received after the Bookbuild
has closed.
5. Each prospective Placee's allocation will be agreed by the
Managers and the Company and will be confirmed to Placees orally by
the relevant Manager following the close of the Bookbuild, and a
trade confirmation will be dispatched as soon as possible
thereafter. The relevant Manager's oral confirmation to such Placee
will constitute an irrevocable legally binding commitment upon such
person (who will at that point become a Placee) in favour of such
Manager and the Company, under which such Placee agrees to acquire
the number of Placing Shares allocated to it and to pay the
relevant Placing Price for each such Placing Share on the terms and
conditions set out in this Appendix and in accordance with the
Company's corporate documents.
6. The Managers will, in effecting the Placing, agree with the
Company the identity of the Placees and the basis of allocation of
the Placing Shares. The Managers may choose to accept bids, either
in whole or in part, on the basis of allocations determined in
agreement with the Company and may scale down any bids for this
purpose on such basis as it may determine. The Managers may also,
notwithstanding paragraphs 3 and 5 above, in agreement with the
Company: (i) allocate Placing Shares after the time of any initial
allocation to any person submitting a bid after that time; and (ii)
allocate Placing Shares after the Bookbuild has closed to any
person submitting a bid after that time. The Company reserves the
right (upon agreement with the Managers) to reduce or seek to
increase the amount to be raised pursuant to the Placing, at its
absolute discretion. The acceptance of the bids shall be at the
relevant Manager's absolute discretion, subject to agreement with
the Company.
7. A bid in the Bookbuild will be made on the terms and subject
to the conditions in this Appendix and will be legally binding on
the Placee on behalf of which it is made and except with the
relevant Manager'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 the relevant Manager, 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 that such Placee has
agreed to acquire. Each Placee's obligations will be owed to the
relevant Manager.
8. Except as required by law or regulation, no press release or
other announcement will be made by the Managers 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.
9. 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".
10. All obligations under the Bookbuild and Placing will be
subject to fulfilment or (where applicable) waiver of the
conditions referred to below under "Conditions of the Placing" and
to the Placing not being terminated on the basis referred to below
under "Right to terminate under the Placing Agreement".
11. By participating in the Bookbuild, each Placee agrees that
its rights and obligations in respect of the Placing will terminate
only in the circumstances described below and will not be capable
of rescission or termination by the Placee after confirmation (oral
or otherwise) by a Manager.
12. To the fullest extent permissible by law, none of the
Managers, the Company nor any of their respective directors,
officers, employees, agents or affiliates nor any person acting on
their respective behalf shall have any responsibility or liability
(whether in contract, tort or otherwise) to any Placee (or to any
other person whether acting on behalf of a Placee or otherwise). In
particular, none of the Managers, nor the Company, nor any of their
respective directors, officers, employees, agents or affiliates nor
any person acting on their respective behalf shall have any
responsibility or liability (whether in contract, tort or otherwise
and including to the fullest extent permissible by law, any
fiduciary duties) in respect of the Managers' conduct of the
Bookbuild or of such alternative method of effecting the Placing as
the Managers and the Company may agree.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming
unconditional and not having been terminated in accordance with its
terms. The Managers' obligations under the Placing Agreement are
conditional on customary terms and conditions, including among
others:
(a) the warranties of the Company contained in the Placing
Agreement being true and accurate and not misleading on and as of
the date of the Placing Agreement and the Closing Date;
(b) Admission occurring not later than 8:00 a.m. (London time)
on the Closing Date (or such later time or date as the Managers may
agree with the Company);
(c) the Company having complied with its obligations under the
Placing Agreement and the terms and conditions of the Placing which
fall to be performed on or prior to the Closing Date;
(d) the Terms of Subscription having been executed by the
Company and the Managers (which shall be at the absolute discretion
of the Company and the Managers);
(e) the commitment letters entered into by Aktieselskabet Af
5.5.2010, Camelot Capital Partners LLC and IGY Limited, and the
facilities agreement between the Company and Bantry Bay Capital
entered to by the Company remain in full force and effect;
(f) the publication by the Company of, among other
announcements, the results of the Placing through a Regulatory
Information Service; and
(g) the Company allotting, subject only to Admission, the
relevant Placing Shares in accordance with the Placing
Agreement.
If: (i) any of the conditions contained in the Placing
Agreement, including those described above, are not fulfilled or
(where applicable) waived by the Managers by the relevant time or
date specified (or such later time or date as the Company and the
Managers may agree); or (ii) the Placing Agreement is terminated in
the circumstances specified below, the Placing will lapse and the
Placees' rights and obligations hereunder in relation to the
Placing Shares shall cease and terminate at such time and each
Placee agrees that no claim can be made by it in respect
thereof.
The Managers may, at their discretion and upon such terms as
they think fit, waive compliance by the Company with the whole or
any part of any of the Company's obligations in relation to the
conditions contained in the Placing Agreement save that conditions
(b), (d), (e) and (f) above may not be waived. Any such waiver will
not affect Placees' commitments as set out in this
Announcement.
By participating in the Placing each Placee agrees that none of
the Managers, nor any of their respective directors, officers,
employees, agents or affiliates shall have any liability (whether
in contract, tort or otherwise) to any Placee (or to any other
person whether acting on behalf of a Placee or otherwise) in
respect of any decision it may make as to whether or not to waive
or to extend the time and/or date for the satisfaction of any
condition to the Placing 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 the
Managers.
By participating in the Bookbuild, each Placee agrees that its
rights and obligations hereunder terminate only in the
circumstances described above and under "Right to terminate under
the Placing Agreement" below, and will not be capable of rescission
or termination by the Placee.
Right to terminate under the Placing Agreement
The Managers are entitled, at any time before Admission, to
terminate the Placing Agreement in accordance with its terms in
certain circumstance, including: (i) breach of the representation,
warranties or undertakings of the Company contained in the Placing
Agreement; or (ii) upon the occurrence, in the good faith opinion
of the Managers, of certain material adverse changes in the
financial condition or prospects of the Company; (iii) in the event
of certain force majeure events; or (iv) if application for
Admission is refused by the FCA or the London Stock Exchange.
Upon termination of the Placing Agreement, the parties to the
Placing Agreement shall be released and discharged (except for any
liability arising before or in relation to such termination) from
their respective obligations under or pursuant to the Placing
Agreement, subject to certain exceptions.
By participating in the Placing, Placees agree that the exercise
or non-exercise by any Manager of any right of termination or other
discretion arising under the Placing Agreement shall be within the
discretion of the relevant Manager, and neither the Company nor the
Managers need to make any reference to, or consultation with,
Placees and neither the Company nor the Managers nor any of their
respective directors, officers, employees, agents or affiliates
shall have any liability to Placees whatsoever in connection with
any such exercise or failure to exercise.
Lock-up
The Company has undertaken to the Managers that, between the
date of the Placing Agreement and 180 calendar days after the
Closing Date (inclusive), it will not, without the prior written
consent of the Managers, enter into certain transactions involving
or relating to the Ordinary Shares, subject to certain carve-outs
agreed between the Managers and the Company.
By participating in the Placing, Placees agree that the exercise
by the Managers of any power to grant consent to the undertaking by
the Company of a transaction which would otherwise be subject to
the lock-up under the Placing Agreement shall be within the
discretion of the Managers and that it need not make any reference
to, or consultation with, Placees and that it shall have no
liability to Placees whatsoever in connection with any such
exercise of the power to grant consent or failure to exercise such
power.
No Prospectus
No offering document or prospectus has been or will be submitted
to be approved by the FCA (or any other authority) in relation to
the Placing or Admission and no such prospectus is required (in
accordance with the UK Prospectus Regulation) to be published.
Placees' commitments will be made solely on the basis of the
information contained in this Announcement (including this
Appendix). Each Placee, by accepting a participation in the
Placing, agrees that the content of this Announcement (including
this Appendix) and all other publicly available information
previously or simultaneously published by the Company by
notification to a Regulatory Information Service or otherwise filed
by the Company is exclusively the responsibility of the Company and
confirms that it has neither received nor relied on any other
information, representation, warranty, or statement made by or on
behalf of the Company or the Managers or any other person and none
of the Company, the Managers nor any of their respective
affiliates, 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 (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. 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:
GB0030927254 ) following Admission will take place in CREST,
subject to certain exceptions. The Managers and the Company reserve
the right to require settlement of, and delivery of, some or all of
the Placing Shares to Placees by such other means that they deem
necessary if delivery or settlement is not practicable in CREST
within the timetable set out in this Announcement or would not be
consistent with the regulatory requirements in the Placee's
jurisdiction.
Following the close of the Bookbuild for the Placing, each
Placee allocated Placing Shares in the Placing will be sent a trade
confirmation in accordance with the standing arrangements in place
with the relevant Manager stating the number of Placing Shares
allocated to it at the Placing Price, the aggregate amount owed by
such Placee to the Managers 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 in respect of the
Placing Shares that it has in place with the relevant Manager
(unless otherwise agreed).
It is expected that settlement will be on 31 May 2023 in
accordance with the instructions set out in the trade
confirmation.
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 the Managers may agree that the Placing
Shares should be issued in certificated form. The Managers reserve
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 SONIA as
determined by the Managers.
Each Placee is deemed to agree that, if it does not comply with
these obligations, the Managers 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 Managers' 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 imposed in any jurisdiction (together
with any interest, fines 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 the
Managers all such authorities and powers necessary to carry out any
such sale and agrees to ratify and confirm all actions which the
Managers 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 trade confirmation
is copied and delivered immediately to the relevant person within
that organisation.
Insofar as Placing Shares are settled 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 settled
free from any liability to UK stamp duty or stamp duty reserve tax.
If there are any circumstances in which any other stamp duty or
stamp duty reserve tax (and/or any interest, fines or penalties
relating thereto) is payable in respect of the allocation,
allotment, issue or delivery of the Placing Shares (or for the
avoidance of doubt if any stamp duty or stamp duty reserve tax is
payable in connection with any subsequent transfer of or agreement
to transfer Placing Shares), none of the Managers nor the Company
shall be responsible for the payment thereof.
Representations, Warranties and Further Terms
By submitting a bid and/or participating in the Placing, each
Placee (and any person acting on such Placee's behalf) irrevocably
acknowledges, confirms, undertakes, represents, warrants and agrees
(for itself and for any such prospective Placee) with the Managers
and the Company, in each case as a fundamental term of its
application for Placing Shares, the following:
1 it has read and understood this Announcement in its entirety
(including this Appendix), and that its participation in the
Bookbuild and the Placing and its subscription for and purchase of
Placing Shares is subject to and based upon all the terms,
conditions, representations, warranties, indemnities,
acknowledgements, agreements and undertakings and other information
contained herein and undertakes not to redistribute or duplicate
this Announcement;
2 that it has made its investment decision based solely upon its
own judgement, due diligence and analysis and not upon any view
expressed or information provided by or on behalf of the Managers
or any other person otherwise than as set out in this
Announcement;
3 that no offering document, offering memorandum, admission
document or prospectus has been or will be prepared in connection
with the Placing or is required under the FSMA, the UK Prospectus
Regulation or any other applicable law and it has not received and
will not receive a prospectus or other offering document in
connection therewith;
4 that none of the Managers, the Company, nor any of their
respective affiliates or any person acting on behalf of any of them
has provided, nor will provide it, with any information regarding
the Placing Shares, the Bookbuild, the Placing or the Company other
than this Announcement; nor has it requested any of the Managers,
the Company, any of their affiliates or any person acting on behalf
of any of them to provide it with any such information;
5 that the Company's Ordinary Shares are listed on the premium
listing segment of the Official List of the FCA and admitted to
trading on the main market of the London Stock Exchange (the
"Exchange") and the Company is therefore required to publish
certain business and financial information in accordance with the
Market Abuse Regulation (EU) No.596/2014 (as it forms part of the
laws of the United Kingdom by virtue of the European Union
(Withdrawal) Act 2018, as amended from time to time) ("Market Abuse
Regulation") and the rules and practices of the Exchange and/or the
FCA (collectively, the "Exchange Information"), which includes a
description of the Company's business and the Company's financial
information, including balance sheets and income statements, and
similar statements for preceding financial years and that it is
able to obtain or access the Exchange Information without undue
difficulty and that it has reviewed such Exchange Information as it
has deemed necessary;
6 that the content of this Announcement is exclusively the
responsibility of the Company and that none of the Managers, nor
any of their respective affiliates nor any person acting on behalf
of any of them has or shall have any liability for any information,
representation or statement contained in, or omission from, this
Announcement or any information previously published by or on
behalf of the Company, including, but not limited to, the Exchange
Information, and will not be liable for any Placee's decision to
participate in the Placing based on any information, representation
or statement contained in this Announcement or otherwise. Each
Placee further represents, warrants and agrees that the only
information on which it is entitled to rely and on which such
Placee has relied in committing itself to acquire Placing Shares is
contained in this Announcement and any information previously or
simultaneously published by the Company by notification to a
Regulatory Information Service, such information being all that
such Placee deems necessary or appropriate and sufficient 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 any of the
Managers or the Company nor any of their respective affiliates and
none of the Managers or the Company will be liable for any Placee's
decision to accept an invitation to participate in the Placing
based on any other information, representation, warranty or
statement, provided that nothing in this paragraph excludes the
liability of any person for fraudulent misrepresentation made by
that person;
7 that it may not rely, and has not relied, on any investigation
that the Managers, any of their affiliates or any person acting on
their behalf, may or may not have conducted with respect to the
Placing Shares or the Company, and none of such persons has made
any representation, express or implied, with respect to the
Company, the Placing Shares or the accuracy, completeness or
adequacy of the Exchange Information or any other information; each
Placee further acknowledges that it has conducted its own
investigation of the Company and the Placing Shares and has
received all information it believes necessary or appropriate in
connection with its investment in the Placing Shares;
8 that it has conducted its own investigation with respect to
the Company and the Placing Shares, received and reviewed all
information that it believes is necessary or appropriate in
connection with its purchase of Placing Shares and made its own
assessment and has satisfied itself concerning the relevant tax,
legal, regulatory, currency and other economic considerations
relevant to its investment in the Placing Shares;
9 that none of the Managers, nor any of their respective
affiliates or any person acting on behalf of any of them has or
shall have any liability for any information made publicly
available by or in relation to the Company or any representation,
warranty or statement relating to the Company or the Group
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 and, at the time the Placing Shares are acquired,
will be either: (i) outside the United States and is acquiring the
Placing Shares in an "offshore transaction" in accordance with Rule
903 or Rule 904 of Regulation S; or (ii) a QIB, which is acquiring
the Placing Shares for its own account or for the account of one or
more QIBs, each of which is acquiring beneficial interests in the
Placing Shares for its own account; if acquiring the Placing Shares
for the account of one or more other persons, it has sole
investment discretion with respect to each such account and full
power and authority to make the representations, warranties,
agreements and acknowledgements herein on behalf of each such
account;
11 that it: (i) has such knowledge and experience in financial,
business and international investment matters as is required to be
capable of evaluating the merits and risks of an investment in the
Placing Shares; (ii) will not look to the Managers for all or part
of any such loss it may suffer; (iii) is experienced in investing
in securities of this nature in this sector and is aware that it
might be required to bear and is able to bear the economic risk of
an investment in the Placing Shares for an indefinite period of
time; (iv) is able to sustain a complete loss of an investment in
the Placing Shares; and (v) has no need for liquidity with respect
to its investment in the Placing Shares;
12 unless otherwise specifically agreed with the Managers, that
they are not, and at the time the Placing Shares are acquired,
neither it nor the beneficial owner of the Placing Shares will be,
a resident of a Restricted Territory or any other jurisdiction in
which it would be unlawful to make or accept an offer to acquire
the Placing Shares, subject to certain restrictions;
13 that the Placing Shares have not been and will not be
registered under the Securities Act and that a prospectus will not
be published in respect of any of the Placing Shares under the
securities laws or legislation of the United States or any state or
jurisdiction thereof, and that the Placing Shares have not been and
will not be registered and that a prospectus will not be published
in respect of any of the Placing Shares under the securities laws
or legislation of Australia, Canada, South Africa or Japan and,
subject to certain exceptions, may not be offered, sold, or
delivered or transferred, directly or indirectly, in or into any of
these jurisdictions or any other jurisdiction where to do so would
be unlawful;
14 that the Placing Shares are being subscribed for investment
purposes, and not with a view to offer, resell or distribute,
directly or indirectly, within the meaning of the United States
securities laws;
15 that it is not acquiring any of the Placing Shares as a
result of any form of general solicitation or general advertising
(within the meaning of Rule 502(c) of Regulation D under the
Securities Act) or directed selling efforts (as defined in
Regulation S);
16 that it is not an affiliate (as defined in Rule 501(b) under
the Securities Act) of the Company, and is not acting on behalf of
an affiliate of the Company;
17 that no representation has been made as to the availability
of any exemption under the Securities Act for the reoffer, resale,
pledge or transfer of the Placing Shares;
18 that the Placing Shares offered and sold in the United States
are "restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act and further agrees that so long as the
Placing Shares are restricted securities, it will segregate such
Placing Shares from any other shares in the Company that it holds
that are not restricted securities, will not deposit the Placing
Shares into any depositary receipt facility maintained by any
depositary bank in respect of the Company's ordinary shares and
will notify any subsequent transferee of such Placing Shares of the
applicable transfer restrictions;
19 that, if the Placing Shares were offered to it in the United
States, it has consulted its own independent advisors or otherwise
has satisfied itself concerning, without limitation, the effects of
United States federal, state and local income tax laws and foreign
tax laws generally and the U.S. Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), the U.S. Investment Company Act
of 1940, as amended, and the Securities Act;
20 that either: (a) it is not and for so long as it holds the
Placing Shares (or any interests therein) will not be a "benefit
plan investor" as defined in Section 3(42) of ERISA, or a
governmental, church or non-U.S. plan which is subject to any
federal, state, local or non-U.S. law that is substantially similar
to Section 406 of ERISA or Section 4975 of the U.S. Internal
Revenue Code of 1986, as amended (the "Code") ("Similar Law"); or
(b) its acquisition, holding and disposition of the Placing Shares
will not result in a non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code, or, in the case
of such a governmental, church or non-U.S. plan, a violation of any
Similar Law;
21 that the allocation, allotment, issue and delivery to it of
Placing Shares or to the person specified by it as the person to
whom such Placing Shares are allocated will not give rise to a
liability under any of sections 67, 70, 93 or 96 of the Finance Act
1986 (depositary receipts and clearance services) and that 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 service for the purposes of those
sections;
22 that it has complied with its obligations under the Criminal
Justice Act 1993, Market Abuse Regulation, Section 118 of the
Financial Services and Markets Act 2000 (the "FSMA") and in
connection with money laundering and terrorist financing under the
Proceeds of Crime Act 2002, the Terrorism Act 2000, the
Anti-Terrorism Crime and Security Act 2001, the Terrorism Act 2006,
the Money Laundering, Terrorist Financing and Transfer of Funds
(Information on the Payer) Regulations 2017 and the Money
Laundering Sourcebook of the FCA and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
government agency having jurisdiction in respect thereof and it is
not a person: (a) with whom transactions are prohibited under the
Foreign Corrupt Practices Act of 1977 or any economic sanction
programmes administered by, or regulations promulgated by, the
Office of Foreign Assets Control of the U.S. Department of the
Treasury; (b) named on the Consolidated List of Financial Sanctions
Targets maintained by HM Treasury of the United Kingdom; or (c)
subject to financial sanctions imposed pursuant to a regulation of
the European Union or a regulation adopted by the United Nations
(together the "Regulations") and, if making payment on behalf of a
third party, that satisfactory evidence has been obtained and
recorded by it to verify the identity of the third party as
required by the Regulations;
23 that its commitment to acquire Placing Shares on the terms
set out herein will continue notwithstanding any amendment that may
in future be made to the terms and conditions 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 or the
Managers' conduct of the Placing;
24 that it is acting as principal only in respect of the Placing
or, if it is acting for any other person: (i) it is duly authorised
to do so and has full power to make the acknowledgements,
representations and agreements herein on behalf of each such
person; and (ii) it is and will remain liable to the Company and/or
the Managers for the performance of all its obligations as a Placee
in respect of the Placing (regardless of the fact that it is acting
for another person);
25 that it is a Relevant Person 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;
26 that it understands that any investment or investment
activity to which this Announcement relates is available only to
Relevant Persons in the United Kingdom and Qualified Investors in
any member state of the EEA and will be engaged in only with such
persons, and further understands that this Announcement must not be
acted on or relied on by persons who are not Relevant Persons or
Qualified Investors (as applicable);
27 if it is a person in a member state of the European Economic
Area ("EEA") that it is a Qualified Investor (as defined above)
and, to the extent applicable, any funds on behalf of which it is
acquiring the Placing Shares that are located in a member state of
the EEA are each themselves such a Qualified Investor;
28 if in the United Kingdom, that it is a Relevant Person (as defined above);
29 if a financial intermediary, as that term is used in Article
2(d) of the EU Prospectus Regulation and Article 2(d) of the UK
Prospectus Regulation, 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 EEA other than
Qualified Investors or persons in the United Kingdom other than
Relevant Persons, or in circumstances in which the prior consent of
the Managers has been given to the offer or resale;
30 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 an offer to the
public in the United Kingdom within the meaning of section 85(1) of
the FSMA;
31 that it has not offered or sold and will not offer or sell
any Placing Shares to persons in the EEA 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 EEA within the
meaning of the EU Prospectus Regulation and will not result in a
requirement for the publication of a prospectus pursuant to Article
3 of the EU Prospectus Regulation;
32 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;
33 that it has complied and will comply with all applicable laws
with respect to anything done by it in relation to the Placing
Shares (including all relevant provisions of the FSMA in the United
Kingdom);
34 that it and any person acting on its behalf is entitled to
acquire the Placing Shares under the laws of all relevant
jurisdictions 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 Appendix) and will honour such obligations;
35 that it (and any person acting on its behalf) has the funds
available to pay for, and will make payment in respect of the
Placing Shares allocated to it, in accordance with this Appendix on
the due time and date set out herein (unless otherwise agreed),
failing which the relevant Placing Shares may be placed with other
acquirers or sold as the Managers may in their sole discretion
determine and without liability to such Placee, who will remain
liable for any amount by which the net proceeds of such sale falls
short of the product of the Placing Price and the number of Placing
Shares allocated to it and may be required to bear any stamp duty,
stamp duty reserve tax or other similar taxes (together with any
interest, fines or penalties) which may arise upon the sale of such
Placee's Placing Shares;
36 that it (and any person acting on its behalf) is entitled to
purchase the Placing Shares under the laws of all relevant
jurisdictions which apply to it and that it has fully observed such
laws and obtained all such governmental and other guarantees,
permits, authorisations, approvals and consents which may be
required thereunder and complied with all necessary formalities and
that it has not taken any action or omitted to take any action
which will or may result in the Managers, the Company or any of
their respective directors, officers, agents, employees or advisers
acting in breach of the legal or regulatory requirements of any
jurisdiction in connection with the Placing;
37 that none of the Managers, nor any of their respective
affiliates, nor any person acting on behalf 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 any Manager and that the Managers have
in connection with their participation in the Placing and that the
Mangers have no duties or responsibilities to it for providing the
protections afforded to its respective clients or customers or for
providing advice in relation to the Placing nor in respect of any
representations, warranties, undertakings or indemnities contained
in the Placing Agreement nor for the exercise or performance of any
of the Managers' rights and obligations thereunder including any
rights to waive or vary any conditions or exercise any termination
right;
38 that the person whom it specifies as the person to whom the
Placing Shares are allocated will be: (i) itself; (ii) its nominee,
as the case may be; or (iii) a person for whom it is contracting as
agent or nominee. None of the Managers or the Company will be
responsible for any liability to stamp duty or stamp duty reserve
tax or other similar taxes resulting from a failure to observe this
requirement ("Indemnified Taxes"). 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 the Managers on
an after-tax basis in respect of any Indemnified Taxes;
39 that any agreements entered into by it pursuant to the terms
and conditions set out in this Appendix, and all non-contractual or
other obligations arising out of or in connection with them, 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 (including any dispute regarding
the existence, validity or termination of such contract or relating
to any non-contractual or other obligation arising out of or in
connection with 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
either the Company or the Managers 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;
40 to indemnify on an after tax basis and hold the Company, the
Managers and their respective directors, officers, employees,
agents and 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;
41 that if it has received any inside information about the
Company in advance of the Placing, it has not: (i) dealt in the
securities of the Company; (ii) encouraged or required another
person to deal in the securities of the Company; or (iii) disclosed
such information to any person, prior to such information being
made publicly available;
42 that the Placing Shares are expected to be issued to it through CREST;
43 where it is acquiring the Placing Shares for one or more
managed accounts, that it is authorised in writing by each managed
account to acquire the Placing Shares for each managed account and
it has full power to make the acknowledgements, representations and
agreements herein on behalf of each such account;
44 if it is a pension fund or investment company, that its
purchase of Placing Shares is in full compliance with applicable
laws and regulations; and
45 that the Company, the Managers and their respective
affiliates and others will rely upon the truth and accuracy of the
foregoing representations, warranties, acknowledgements and
undertakings which are given to each Manager on its own behalf and
on behalf of the Company and are irrevocable.
The foregoing representations, warranties, confirmations,
acknowledgements, agreements and undertakings are given for the
benefit of the Company as well as the Managers and are
irrevocable.
Each Placee not acquiring the Placing Shares in an "offshore
transaction" pursuant to Regulation S (each a "U.S. Placee") shall
make additional specific representations, warranties, agreements
and acknowledgements pursuant to a U.S. investor representation
letter. Each U.S. Placee acknowledges that it will not be permitted
to purchase, subscribe for or otherwise take up Placing Shares
unless it has signed and returned such representation letter in
accordance with the terms thereof.
The agreement to settle a Placee's acquisition of Placing Shares
(and/or the acquisition by a person for whom such Placee is
contracting as agent or nominee) free of UK stamp duty and stamp
duty reserve tax depends on the settlement relating only to an
acquisition by it and/or such person for whom it is contacting as
agent or nominee direct from the Company for the Placing Shares in
question. Such agreement also 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. If there are any such arrangements, or the
settlement relates to any other dealing in the Placing Shares,
stamp duty or stamp duty reserve tax or other similar taxes may be
payable, for which neither the Company nor the Managers will be
responsible and the Placees shall indemnify the Company and the
Managers on an after-tax basis for any stamp duty or stamp duty
reserve tax paid by them in respect of any such arrangements or
dealings. If this is the case, each Placee should seek its own
advice and notify the Managers accordingly.
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
UK by them or any other person on the acquisition by 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 the Managers do not owe any fiduciary or other
duties to any Placee in respect of any acknowledgments,
confirmations, representations, warranties, undertakings or
indemnities in the Placing Agreement.
Each Placee and any person acting on behalf of the Placee
acknowledges and agrees that any Managers or any of their
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 a Manager, any money held in an account with such
Manager 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. Each 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 such Manager's
money in accordance with the client money rules and will be used by
such Manager in the course of its own business and the Placee will
rank only as a general creditor of such Manager.
Past performance is no guide to future performance and persons
needing advice should consult an independent financial adviser.
The rights and remedies of the Managers 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.
All times and dates in this Announcement may be subject to
amendment. The Managers shall notify the Placees and any person
acting on behalf of the Placees of any changes.
The information contained herein is not for publication or
distribution, directly or indirectly, in or into the United States
(including its territories and possessions, any State of the United
States and the District of Columbia). This Announcement does not
contain or constitute an offer for sale or the solicitation of an
offer to purchase securities in the United States. The securities
referred to herein have not been and will not be registered under
the Securities Act, and may not be offered or sold in the United
States absent registration under the Securities Act, except
pursuant to an available exemption from, or in transaction not
subject to, the registration requirements of the Securities
Act.
This information is provided by RNS, the news service of the
London Stock Exchange. RNS is approved by the Financial Conduct
Authority to act as a Primary Information Provider in the United
Kingdom. Terms and conditions relating to the use and distribution
of this information may apply. For further information, please
contact rns@lseg.com or visit www.rns.com.
RNS may use your IP address to confirm compliance with the terms
and conditions, to analyse how you engage with the information
contained in this communication, and to share such analysis on an
anonymised basis with others as part of our commercial services.
For further information about how RNS and the London Stock Exchange
use the personal data you provide us, please see our Privacy
Policy.
END
IOESEIFMIEDSEII
(END) Dow Jones Newswires
May 25, 2023 12:57 ET (16:57 GMT)
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Asos (LSE:ASC)
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