TIDMKAPE
RNS Number : 6144L
Kape Technologies PLC
13 September 2021
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13 September 2021
Kape Technologies plc
("Kape", the "Group" or the "Company")
Proposed US$936 million acquisition of ExpressVPN
Underwritten Placing to raise US$354 million & Retail Offer
via PrimaryBid
Kape (AIM: KAPE), the digital privacy and security software
business, announces that its wholly owned subsidiary has entered
into a sale and purchase agreement to acquire certain assets,
liabilities and service entities together comprising the ExpressVPN
business ("ExpressVPN") from Access Global Limited and its
subsidiaries ("Access Global") for a total consideration of
approximately US$936 million (the "Acquisition").
At the same time, and in order to part fund the Acquisition,
Kape announces that it intends to raise gross proceeds of US$354
million by means of an underwritten placing to institutional
investors (the "Placing"). In addition to the Placing, new and
existing retail investors will be offered the opportunity to
participate on the PrimaryBid platform (the "Retail Offer"). A
separate announcement will be made by the Company shortly regarding
the Retail Offer.
Acquisition highlights:
-- ExpressVPN is one of the most recognised brands in the
digital privacy space with premium products serving over 3 million
customers - of which over 40% are in North America - and generating
revenue of c. US$279.4 million and Adjusted Proforma IFRS Adjusted
EBITDA (Note 1) of c. US$74.8 (Note 2) million for the year ended
31 December 2020, up 37.0% and 34.9% respectively year on year
-- Acquisition will create a premium digital privacy and
security player best positioned to capitalise on the growth in the
digital privacy market
-- Delivers significant additional scale for Kape, with the
enlarged group servicing c. 6 million paying subscribers, with an
average aggregated retention rate of 82% (Note 3)
-- ExpressVPN's first-rate management team will join Kape and
continue to lead ExpressVPN's operation with c. 290 team members
joining as employees, of which 48% are R&D engineers, not
including the larger ExpressVPN team of contractors and customer
support agents
-- Significant cross sell and revenue opportunities across the
platform; top line and operational synergies greatly improve
LTV/CAC ratios and are anticipated to generate cost savings of
US$19 million in 2022 and US$30 million on an annualised cost basis
from 2023
-- Distribution - ExpressVPN brings a strong network of channel
partners where it is pre-installed on customers' hardware. Adding a
distribution partner to Kape's already robust go to market
capabilities
1. Adjusted EBITDA is a non-GAAP company-specific measure which
excludes other operating income and expenses which are considered
to be one off and non-recurring in nature.
2. In accordance with IFRS 15 accounting principles and not US
GAAP accounting standards as currently followed by ExpressVPN,
which resulted in US$24.8 million of reported EBITDA in 2020
3. As of 30 June 2021 on a six-month basis
Financial highlights:
-- Highly earnings enhancing transaction from completion, with
the enlarged group expected to generate revenues for the year ended
31 December 2022 of between US$610-624 million and proforma
Adjusted EBITDA of between US$166-172 million
-- Earnings accretion of c.28% anticipated for the year ending 31 December 2022
-- Operating cash conversion from adjusted EBITDA in enlarged
group expected to increase from 76% for Kape alone to above 85% on
a combined basis in 2022 with expected ongoing strong cash
generation
-- Consideration represents a 10.8x multiple of anticipated 2022
Adjusted EBITDA pre-synergies and 7.8x
multiple post synergies (Note 4)
4. Assuming realisation of full annualised synergies of US$30m
in 2022
Deal structure:
-- ExpressVPN to be acquired for a total consideration of US$936 million, comprised of:
o US$354 million in cash, to be satisfied by a combination of
US$334 million payable on completion plus $20 million in cash
within six months of completion paid from excess cash of the Buyer
group;
o US$237 million in Ordinary Shares to be issued to the
co-founders of ExpressVPN, Peter Burchhardt and Dan Pomerantz and
their families (the "Vendors") (or to their wholly-owned affiliated
entities); and
o Deferred cash consideration to be paid in two instalments of
US$172.5 million each, 12 and 24 months post-completion of the
Acquisition ("Deferred Consideration")
-- The Deferred Consideration is expected to be fully funded
from Kape's operational cashflow and by using the existing but
uncommitted capacity within its existing facility agreements. Ahead
of this, a standby facility has been arranged with an affiliate of
the Company's largest shareholder, Unikmind, to cover the Deferred
Consideration and Kape's existing bank debt. No additional equity
capital raise will be required to satisfy the Deferred
Consideration.
-- Given the highly accretive nature of the Acquisition, by
December 2022 Kape expects its net debt to EBITDA ratio to decline
from 3x immediately following the Acquisition to c. 1.5x pro-forma
EBITDA, and thereafter Kape expects to maintain a moderate level of
financial indebtedness
-- The Vendors will become significant shareholders in Kape with
approximately 14% of the enlarged group and will enter into
graduated lock-up arrangements over a 24-month period post
completion of the Acquisition with an orderly market provision
Transaction rationale
The Acquisition is a key step in Kape's ongoing strategy to
become the leading provider of consumer-focused digital privacy and
security solutions and is expected to create an augmented platform
set to define its next generation of consumer digital privacy and
security protection tools and services. It is anticipated the
Acquisition will:
-- Position Kape as one of the leading pure play consumer
digital privacy and security players, in a fast-growing global
market
o The Acquisition will enable Kape to deploy a comprehensive
range of high-quality products; setting the standards in the
industry through its technology, product-depth and thought
leadership
o ExpressVPN's products and well-known consumer brand are highly
complementary to Kape's existing portfolio, enabling the enlarged
group to capture growth across the spectrum of the market
o The Acquisition enables Kape to further capitalise on the
growing need to bring digital control back to consumers
o ExpressVPN and Kape share the distinctive characteristic of
being businesses that are built with privacy as their core
business, in contrast with other market entrants / players, making
them well positioned to capture growth in the fast-growing market
for digital privacy protection
-- Provide ongoing benefits through the leveraging of significant economies of scale
o With significant operational cost savings greatly improving
LTV / CAC ratios, Kape expects to realise c. US$30 million of
synergies on an annualised costs basis from 2023
o It is anticipated that following completion of the
Acquisition, Kape will benefit from economies of scale, underpinned
by the Company's proven track-record of acquiring and integrating
businesses and leveraging greater scale as it has expanded
-- Provide access to ExpressVPN's extensive talent pool within
digital privacy to drive future R&D
o It is expected that the enlarged group will benefit from
ExpressVPN's expertise in digital privacy in driving growth and
developing a full end-to-end suite of capabilities. ExpressVPN's
team of c. 290 employees will join Kape, of which 48% are R&D
engineers, not including the larger ExpressVPN team of contractors
and customer support agents
o ExpressVPN's co-founders, Peter Burchhardt and Dan Pomerantz,
will continue to manage ExpressVPN's operations, and are fully
aligned with the growth strategy for the combined business
-- Enable Kape to benefit from ExpressVPN's strong growth rates and attractive financial profile
o ExpressVPN has a significant track record of delivering user
growth organically through strong brand recognition, highly
efficient performance marketing and OEM channel partners (e.g. HP,
HMD Global (home of Nokia phones), Acer, Dynabook (formerly
Toshiba) and Philips)
o Over the past four years, ExpressVPN has achieved a revenue
CAGR of 35.1%
Ido Erlichman, Chief Executive Officer of Kape, commented:
"In acquiring ExpressVPN, we are creating a business at the
forefront of delivering to consumers worldwide the most advanced
privacy and security solutions, empowering them to regain control
of their digital lives.
We are thrilled that ExpressVPN will be joining Kape and believe
that this transaction is testament to the strength of our existing
business and growth strategy. This acquisition is directly in line
with our mission to provide a privacy-first end-to-end suite of
services capable of capturing the increasing demand in the digital
privacy market.
With the quality of ExpressVPN's people and products, combined
with the scale of their business, this transaction ideally
positions Kape to continue to expand our global footprint and
product portfolio at a time when digital security and privacy has
never been more important."
Dan Pomerantz, Co-founder of ExpressVPN, commented:
"The ExpressVPN team is delighted to be joining the Kape
Technologies family. It was essential to us that anyone we teamed
up with shared our strong fundamental commitment to user privacy,
and Kape has demonstrated that in spades through its family of
brands. With the infusion of Kape's support, we're excited to be
able to accelerate our product development, deliver even more
innovation to our users, and protect them from a wider range of
threats."
Fundraising highlights:
-- Proposed underwritten Placing to raise minimum gross proceeds
of US$354 million (the equivalent of c. GBP256.5 million (at an
exchange rate of US$1.38:GBP1.00)) at a minimum price of 337.5
pence per share (the "Placing Price"). The Placing will be
conducted by way of an accelerated bookbuild which will be launched
immediately following the release of this announcement
-- The Company's largest shareholder, Unikmind, has entered into
an agreement with the Company (the "Subscription Agreement") in
which it has agreed to subscribe in the Placing for shares with an
aggregate value in Sterling at the Placing Price of up to c.
GBP256.5 million (equivalent to c. US$354 million based upon an
exchange rate of US$1.38:GBP1.00), although it is intended that
Unikmind's Placing participation will be reduced, depending on
demand generated in the Placing, such that Unikmind participates in
the Placing on a pro-rata basis. Pursuant to the Subscription
Agreement, Unikmind has also agreed that if the Placing does not
proceed then it will, following the satisfaction or waiver of all
of the conditions to completion in the Acquisition agreement (other
than admission to trading on AIM of the Consideration Shares) and
subject to certain other limited conditions (including the passing
of the resolutions at a general meeting of shareholders (the
"General Meeting") required to authorise the allotment and issue of
the relevant shares), itself subscribe at 337.5 pence per share for
Ordinary Shares with an aggregate value of c. GBP256.5 million (the
equivalent of US$354 million (at an exchange rate of
US$1.38:GBP1.00) to enable Kape to satisfy the cash consideration
element of the Initial Consideration
-- In conjunction with the Placing, it is intended that there
will be a retail offer made by the Company on the PrimaryBid
platform of additional new ordinary shares at the Placing Price
(the "Retail Offer"). Any proceeds of the Retail Offer will be
additional to the proceeds of the Placing
-- The net proceeds of the Placing and the Retail Offer will be
used to fund the upfront cash consideration for the Acquisition and
costs related to the Acquisition and its funding
-- Shore Capital Stockbrokers Limited ("Shore Capital") and
Stifel Nicolaus Europe Limited ("Stifel") are acting as joint
bookrunners in respect of the Placing
About ExpressVPN
Founded in 2009, by Peter Burchhardt and Dan Pomerantz,
ExpressVPN was founded to help build a digital world that is free,
private and secure. Through providing premium products and services
in the digital privacy space, ExpressVPN has grown to become a
leading provider in the consumer market, enabling over 3 million
active users in over 180 countries to protect their privacy and
security online. ExpressVPN's service is multi-award winning and
provides superior protection for users' information and identities
across a wide range of platforms and devices.
ExpressVPN has a strong track record of significant growth with
a revenue CAGR of 35.1% over the past four years. In the year ended
31 December 2020, ExpressVPN generated revenues of c. US$279.4
million, an increase of 37.0% (2019: US$203.9 million), and
delivered Proforma IFRS Adjusted EBITDA of c. US$74.8 million (Note
5), up 34.9% on the prior year (2019: US$55.5 million).
ExpressVPN server networks covers over 160 VPN server locations
across 94 countries, providing a fast and reliable connection for
ExpressVPN's global user base. ExpressVPN has c. 290 employees
worldwide, not including the larger ExpressVPN team of contractors
and customer support agents.
ExpressVPN's VPN apps are available for Windows, Mac, iOS,
Android, Linux and select routers, alongside alternative
configurations for consoles and streaming boxes, as well as
extensions for select popular browsers. An advocate for internet
privacy, ExpressVPN is also a supporter of non-profit
organisations, such as the VPN Trust Initiative, that advance the
cause of digital rights.
ExpressVPN is owned by co-founders Peter Burchhardt and Dan
Pomerantz and their family members and affiliated entities. Both
founders will be retained in key management roles within the
enlarged group. Peter Burchhardt is an entrepreneur and software
engineer, providing strategic counsel to ExpressVPN's product and
technology teams. Prior to co-founding ExpressVPN, Peter was Lead
Program Manager at Microsoft and was involved in the full product
cycle. He has more than 15 years' experience in technology and
product development. Dan Pomerantz is a serial entrepreneur who
started his first company when he was 21 years old. He has more
than 15 years' experience in business leadership and is skilled in
operations, marketing, finance and management.
5. In accordance with IFRS 15 accounting principles and not US
GAAP accounting standards as currently followed by ExpressVPN,
which resulted in US$24.8 million of reported EBITDA in 2020
Transaction summary
The Acquisition is structured as a hybrid asset and share
acquisition. Kape, through a wholly owned subsidiary (the "Buyer"),
will acquire certain assets, rights, liabilities and service
entities comprising the ExpressVPN business from Access Global and
its subsidiaries, which are entities owned by the Vendors.
The total consideration for the Acquisition is c. US$936 million
(the "Consideration") to be satisfied by a combination of US$354
million in cash, to be satisfied by a combination of US$334 million
payable on completion plus US$20 million in cash within 6 months of
completion paid from excess cash of the Buyer group, c. US$237
million in new ordinary shares in the capital of Kape (amounting to
47,782,800 ordinary shares) ("Consideration Shares") to be issued
on completion of the Acquisition (the "Initial Consideration") and
US$345 million in cash to be paid in two equal instalments of
US$172.5 million each on the first and second anniversaries of
completion of the transaction (the "Deferred Consideration"). The
cash element of the Initial Consideration is subject to adjustment
for net cash or debt in the two corporate service entities being
acquired as part of the hybrid asset and share acquisition. The
Deferred Consideration is not subject to performance or other
conditions and its payment by Kape will be secured by way of a
charge over the shares in the Buyer.
The Acquisition agreement contains customary warranties for a
transaction of this nature, given by the selling entities in favour
of the Buyer and certain limited warranties given by Kape. In
addition, the Acquisition agreement contains certain indemnities to
the Buyer in respect of a limited number of specific issues
identified by Kape. The warranties and indemnities are each subject
to certain limitations. The co-founders of ExpressVPN have
personally guaranteed to the Buyer the performance by the selling
entities of their obligations in respect of the Acquisition. The
Company has guaranteed the performance by the Buyer of certain of
its obligations in respect of the Acquisition.
C. 10.8 million of the Consideration Shares will be held in
escrow for 24 months from completion of the Acquisition to provide
security for claims under the Acquisition documents which are
agreed or determined in favour of the Buyer.
It is anticipated that completion of the Acquisition will occur
in Q4 2021. Completion of the Acquisition is conditional upon,
inter alia, certain merger control consents having been received or
the relevant waiting periods having expired, shareholder approval
at the General Meeting in respect of the issue of the Consideration
Shares and the shares to be issued in the Placing (the "Placing
Shares"), and certain other conditions which are customary for an
acquisition of this nature, including certain key third party
supplier consents. In addition to the conditions, each of the
parties has limited termination rights in the period before
completion of the Acquisition. In the event that the Acquisition is
not permitted to proceed by any competition authorities or
otherwise is not completed for any reason, Kape will seek to use
the proceeds of the Placing at a later date as part of its strategy
for acquisitive growth.
Following completion of the Acquisition, Peter Burchhardt will
have the right to appoint one non-executive director to the Board
of Kape. This right will continue for so long as the ExpressVPN
founders, their close family members and their respective
wholly-owned companies, taken together, hold at least 5% of Kape's
ordinary shares, subject to certain anti-dilution protections.
The cash element of the Initial Consideration will be funded
through the Placing. It is Kape's intention that the Deferred
Consideration will be funded from its operational cashflow and by
using the existing but uncommitted capacity within its existing
facility agreements. The use of the existing but uncommitted
capacity within its existing facility agreements is subject to the
consent of Kape's existing lender group. This consent is being
sought, but if given may not be given until after completion of the
Acquisition. To assist Kape in making the Acquisition, an affiliate
of Unikmind, TS Next Level Investments Limited ("TSNLI"), has
agreed, subject to limited conditions, to make available to Kape,
if required, loan facilities of up to US$345 million in aggregate
in connection with Kape's obligation to pay the Deferred
Consideration (the "Deferred Consideration Facility"). Once such
facility is utilised, the Company expects net leverage to be c.
1.5x on a pro forma basis by 31 December 2022. Immediately
following completion of the Acquisition the Company expects net
leverage to be c. 3.0x on a pro forma basis. It is the Company's
intention to maintain low levels of financial indebtedness.
Further details of the Deferred Consideration Facility, which is
a related party transaction, are set out below.
Further, prior to completion of the Acquisition, Kape will seek
consent from its existing lender group (the "Banks") for the
Company's existing US$120 million senior secured term facility and
$10 million revolving credit facility to remain in place, absent
which the existing senior secured term facility and revolving
credit facility will become repayable on completion of the
Acquisition. TSNLI has agreed to make available to Kape a loan
facility of up to US$130 million (the "Refinancing Facility") to
refinance the existing term facility and revolving credit facility
from the Banks if the Banks do not provide their consent to the
Acquisition. Further details of the Refinancing Facility, which is
a related party transaction, are set out below. The Refinancing
Facility is being made available by TSNLI in order to facilitate
timely signing and completion of the Acquisition and Kape intends
to arrange third party bank debt in substitution for the
Refinancing Facility as soon as practicable.
Bryan Cave Leighton Paisner LLP acted as legal advisor to Kape
Technologies plc. Tiro Capital acted as exclusive financial advisor
and Freshfields Bruckhaus Deringer LLP acted as legal advisor to
ExpressVPN.
Details of the Placing
The Placing will be conducted by way of an accelerated
bookbuilding process (the "Bookbuild") which will be launched with
immediate effect following this announcement in accordance with the
terms and conditions set out in Appendix I. The Placing Shares are
not being made available to the public. It is envisaged that the
Bookbuild will close no later than 7.00 a.m. BST on 14 September
2021 . The results of the Placing will be announced as soon as
practicable after the closing of the Bookbuild.
The Company's largest shareholder, Unikmind, has entered into
the Subscription Agreement with the Company in which it has agreed
to subscribe in the Placing for shares with an aggregate value in
Sterling at the Placing Price of up to c. GBP256.5 million
(equivalent to US$354 million based upon an exchange rate of
US$1.38:GBP1.00), although it is intended that Unikmind's Placing
participation will be reduced, depending on demand generated in the
Placing, such that Unikmind participates in the Placing on a
pro-rata basis. In the Subscription Agreement, Unikmind has also
agreed that if the Placing is not completed then it will, following
the satisfaction or waiver of all of the conditions to completion
in the Acquisition agreement (other than admission to trading on
AIM of the Consideration Shares) and subject to certain other
limited conditions (including the passing of the resolutions at the
General Meeting required to authorise the allotment and issue of
the relevant shares) itself subscribe at 337.5 pence per share for
Ordinary Shares with an aggregate value of c. GBP256.5 million (the
equivalent of US$354 million (at an exchange rate of
US$1.38:GBP1.00)).
As a reflection of their confidence in the prospects and growth
of the combined business under Kape, ExpressVPN's co-founders, Dan
Pomerantz and Peter Burchhardt, via their family investment holding
companies, intend to participate in the Placing. Any such
participation will be funded through their own resources, and is
separate from the consideration the co-founders are receiving from
the Acquisition.
Shore Capital and Stifel are acting as joint bookrunners in
respect of the Placing.
To bid in the Bookbuild, Placees should communicate their bid by
telephone or in writing to their usual sales contact at either
Shore Capital or Stifel.
Planned Retail Offer
In conjunction with the Placing, the planned Retail Offer will
provide both new and existing retail investors with an opportunity
to participate in the equity fundraising alongside institutional
investors. A separate announcement will be made shortly regarding
the Retail Offer and its terms. For the avoidance of doubt, the
Retail Offer is not part of the Placing.
Lock-in arrangements applicable to the Consideration Shares
The Vendors ' Consideration Shares will be subject to a
graduated lock-in, whereby 50% of the Consideration Shares will be
subject to a 12-month lock-in from completion of the Acquisition,
25% will be subject to an 18-month lock-in from completion and the
remaining 25% will be subject to a 24-month lock-in from
completion. Each tranche of shares will be subject to a 12-month
orderly market period once they are released from lock-in. All of
the lock-in arrangements will be subject to customary
exclusions.
General Meeting
The Company's existing share issuance authorities, reflecting
customary general annual authority limits, are insufficient to
allow the issue of the Placing Shares, any shares to be issued
under the Retail Offer (together, the "Fundraising Shares") and the
Consideration Shares. The General Meeting will therefore be
convened to seek shareholders' approval to the allotment and issue
of such shares. It is currently anticipated that the General
Meeting will be convened for 1 October 2021 and it is anticipated
that a circular (containing notice of general meeting) will be
issued on or around 15 September 2021.
Unikmind has irrevocably agreed to vote in favour of the
resolutions to be proposed at the General Meeting to approve the
allotment and issue of the Consideration Shares and the Fundraising
Shares.
Admission of Shares
Application will be made for the Fundraising Shares to be
admitted to trading on the AIM market of London Stock Exchange plc
("Admission"). The Placing and Retail Offer are conditional upon,
inter alia, approval of shareholders being received at the General
Meeting to the allotment and issue of the Fundraising Shares and
the Consideration Shares, Admission becoming effective and the
placing agreement between the Company, Shore Capital and Stifel not
having been terminated. The Fundraising Shares will, when issued,
be credited as fully paid and will rank pari passu in all respects
with the Company's existing issued ordinary shares of US$0.0001
each ("Ordinary Shares"). The Placing is not conditional on the
completion of the Acquisition.
Related Party Transactions
Kape has entered into binding commitment letters with TSNLI
under which TSNLI has committed, subject to limited conditions, to
provide to Kape the Deferred Consideration Facility of up to US$345
million in aggregate (in connection with Kape's obligation to pay
the Deferred Consideration) and the Refinancing Facility of up to
US$130 million to, if required, repay the Banks in full.
The Deferred Consideration Facility will carry a variable
coupon, depending on the leverage ratio: if greater than or equal
to 3:1 the coupon will be 4.75% per annum, if greater than or equal
to 2:1 but less than 3:1, then the coupon will be 4.25% per annum
and if less than 2:1 then the coupon will be 4.00% per annum, in
each case, on funds drawn. The rates set out above will each
increase by 1.00% per annum on and from the second anniversary of
the completion of the Acquisition and will increase by a further
1.00% per annum on and from the third anniversary of the completion
of the Acquisition.
The Deferred Consideration Facility will also carry an
arrangement fee of 1.5% of the total commitments, payable on
completion of the Acquisition, and a commitment fee accruing at the
rate of 3.50% per annum on undrawn commitments, payable on the
earlier of the commitments being cancelled or utilised. Should Kape
find an alternative source of financing to fund the payment of the
Deferred Consideration or to refinance the Deferred Consideration
Facility, the commitment fees will only be payable pro rata for the
period during which the commitment under the Deferred Consideration
Facility is in place.
The Refinancing Facility will carry the same coupon set out
above, if drawn, and an arrangement fee of 1.5% of the total
commitments, payable on closing. If the Refinancing Facility is
drawn, TSNLI will be granted substantially the same security as has
been granted to the Banks in connection with the existing term and
revolving credit facilities that the Refinancing Facility will, if
drawn, refinance.
The Deferred Consideration Facility and Refinancing Facility
also include certain customary obligations on Kape in relation to,
inter alia, TSNLI's costs and expenses and in relation to
taxes.
Unikmind has entered into the Subscription Agreement with the
Company, details of which are set out above. No underwriting or
other fees are payable to Unikmind under the Subscription
Agreement.
Unikmind, as a substantial shareholder in the Company, is a
related party, and the entering into of the Subscription Agreement,
the Refinancing Facility and the Deferred Consideration Facility by
the Company are all related party transactions under Rule 13 of the
AIM Rules for Companies. The independent directors of Kape (in this
instance being Don Elgie, Ido Erlichman, Moran Laufer, David
Cotterell and Martin Blair) consider, having consulted with the
Company's nominated adviser, Shore Capital and Corporate Limited,
that the terms of the Subscription Agreement, the Refinancing
Facility and the Deferred Consideration Facility (and the
arrangements ancillary thereto, including the security arrangements
in respect of the Refinancing Facility and the Deferred
Consideration Facility) are fair and reasonable insofar as the
Company's shareholders are concerned.
Enquiries:
Kape Technologies plc via Vigo Consulting
Ido Erlichman, Chief Executive Officer
Moran Laufer, Chief Financial Officer
Shore Capital (Nominated Adviser, Joint Broker
& Joint Bookrunner)
Simon Fine / Toby Gibbs / Mark Percy / James +44 (0)20 7408
Thomas / Michael McGloin 4090
Stifel Nicolaus Europe Limited (Joint Broker
& Joint Bookrunner)
Alex Price / Brad Topchik / Alain Dobkin / Richard +44 (0) 20 7710
Short 7600
Vigo Consulting (Financial Public Relations)
Jeremy Garcia / Antonia Pollock +44 (0)20 7390
kape@vigoconsulting.com 0237
The person responsible for arranging for the release of this
announcement on behalf of Kape Technologies plc is Moran Laufer,
CFO.
About Kape
Kape is a leading 'privacy-first' digital security software
provider to consumers. Through its range of privacy and security
products, Kape focuses on protecting consumers and their personal
data as they go about their daily digital lives.
To date, Kape has over 2.7 million paying subscribers, supported
by a team of over 430 people across eight locations worldwide.
Through its subscription-based platform, Kape has fast
established a highly scalable SaaS-based operating model, geared
towards serving the vast global consumer digital privacy
market.
www.kape.com
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IMPORTANT NOTICES
FORWARD LOOKING STATEMENTS
This announcement includes "forward-looking statements" which
include all statements other than statements of historical facts,
including, without limitation, those regarding the Company's
business strategy, plans and objectives of management for future
operations, or any statements proceeded by, followed by or that
include the words "targets", "believes", "expects", "aims",
"intends", "will", "may", "anticipates", "would", "could" or
similar expressions or negatives thereof. Such forward-looking
statements involve known and unknown risks, uncertainties and other
important factors beyond the Company's control that could cause the
actual results, performance or achievements of the Company to be
materially different from future results, performance or
achievements expressed or implied by such forward-looking
statements. Such forward-looking statements are based on numerous
assumptions regarding the Company's present and future business
strategies and the environment in which the Company will operate in
the future. These forward-looking statements speak only as at the
date of this announcement. The Company expressly disclaims any
obligation or undertaking to disseminate any updates or revisions
to any forward-looking statements contained herein to reflect any
change in the Company's expectations with regard thereto or any
change in events, conditions or circumstances on which any such
statements are based, unless required to do so by applicable law or
the AIM Rules.
US SECURITIES LAW
This announcement is not for publication or distribution,
directly or indirectly, in or into the United States of America.
This announcement is not an offer of securities for sale into the
United States. The securities referred to herein have not been and
will not be registered under the U.S. Securities Act of 1933, as
amended, and may not be offered or sold in the United States,
except pursuant to an applicable exemption from registration. No
public offering of securities is being made in the United
States.
APPIX I
FURTHER DETAILS OF THE PLACING
TERMS AND CONDITIONS OF THE PLACING
THIS ANNOUNCEMENT, INCLUDING THIS APPIX (TOGETHER, THE
"ANNOUNCEMENT"), AND THE INFORMATION IN IT IS RESTRICTED AND IS NOT
FOR PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY,
IN WHOLE OR IN PART, IN OR INTO OR FROM THE UNITED STATES OF
AMERICA, AUSTRALIA, CANADA, NEW ZEALAND, JAPAN, THE REPUBLIC OF
SOUTH AFRICA OR IN OR INTO ANY OTHER JURISDICTION IN WHICH SUCH
PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THIS APPIX AND THE TERMS AND CONDITIONS SET OUT HEREIN ARE
FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT: (A) IF IN A
MEMBER STATE OF THE EUROPEAN ECONOMIC AREA ("EEA"), PERSONS WHO
ARE, UNLESS OTHERWISE AGREED BY THE JOINT BOOKRUNNERS, "QUALIFIED
INVESTORS" AS DEFINED IN ARTICLE 2(E) OF THE EU PROSPECTUS
REGULATION (WHICH MEANS REGULATION (EU) 2017/1129 AND INCLUDES ANY
RELEVANT IMPLEMENTING MEASURE IN ANY MEMBER STATE) (THE "EU
PROSPECTUS REGULATION"); AND (B) IF IN THE UNITED KINGDOM, PERSONS
WHO ARE QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(e) OF
THE EU PROSPECTUS REGULATION AS IT FORMS PART OF UK LAW BY VIRTUE
OF THE EU (WITHDRAWAL ACT) 2018 (THE "UK PROSPECTUS REGULATION")
AND WHO ARE: (I) "INVESTMENT PROFESSIONALS" WITHIN THE MEANING OF
ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000
(FINANCIAL PROMOTION) ORDER 2005 (THE "ORDER"); (II) PERSONS
FALLING WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES,
UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER; OR (III) PERSONS
TO WHOM IT MAY OTHERWISE BE LAWFULLY COMMUNICATED AND IN EACH CASE
HAVE BEEN INVITED TO PARTICIPATE IN THE PLACING BY A JOINT
BOOKRUNNER (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 BY PERSONS WHO ARE NOT
RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH
THIS APPIX AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATE IS
AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH
RELEVANT PERSONS.
PERSONS INTO WHOSE POSSESSION THIS ANNOUNCEMENT (INCLUDING THE
APPICES) COMES ARE REQUIRED BY THE COMPANY, SHORE CAPITAL AND
STIFEL TO INFORM THEMSELVES ABOUT AND TO OBSERVE ANY SUCH
RESTRICTIONS.
THIS ANNOUNCEMENT IS NOT AN OFFER FOR SALE OR SUBSCRIPTION IN
ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL UNDER THE SECURITIES LAWS OF ANY JURISDICTION. THIS
ANNOUNCEMENT DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR
SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
THIS ANNOUNCEMENT IS NOT FOR PUBLICATION OR DISTRIBUTION,
DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED STATES OF AMERICA.
THIS ANNOUNCEMENT IS NOT AN OFFER OF SECURITIES FOR SALE IN THE
UNITED STATES OF AMERICA. THE SECURITIES REFERRED TO HEREIN HAVE
NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED OR
SOLD IN THE UNITED STATES OF AMERICA, EXCEPT PURSUANT TO AN
APPLICABLE EXEMPTION FROM REGISTRATION. NO PUBLIC OFFERING OF
SECURITIES IS BEING MADE IN THE UNITED STATES OF AMERICA.
THIS DOCUMENT DOES NOT CONSTITUTE AN OFFER OF, OR THE
SOLICITATION OF AN OFFER TO BUY OR SUBSCRIBE FOR, ORDINARY SHARES
TO ANY PERSON TO WHOM, OR IN ANY JURISDICTION IN WHICH, SUCH OFFER
OR SOLICITATION IS UNLAWFUL AND IS NOT FOR DISTRIBUTION IN OR INTO
AUSTRALIA. THE ORDINARY SHARES HAVE NOT BEEN, AND WILL NOT BE,
REGISTERED UNDER ANY APPLICABLE SECURITIES LAWS OF AUSTRALIA.
SUBJECT TO CERTAIN EXCEPTIONS, THE ORDINARY SHARES MAY NOT BE
OFFERED FOR SALE OR SUBSCRIPTION, OR SOLD OR SUBSCRIBED, DIRECTLY
OR INDIRECTLY, WITHIN AUSTRALIA OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, ANY NATIONAL, RESIDENT OR CITIZEN OF AUSTRALIA.
NO PLACEMENT DOCUMENT, PROSPECTUS, PRODUCT DISCLOSURE STATEMENT
OR OTHER DISCLOSURE DOCUMENT HAS BEEN LODGED WITH THE AUSTRALIAN
SECURITIES AND INVESTMENTS COMMISSION ("ASIC") IN RELATION TO THE
OFFERING. THIS DOCUMENT DOES NOT CONSTITUTE A PROSPECTUS, PRODUCT
DISCLOSURE STATEMENT OR OTHER DISCLOSURE DOCUMENT UNDER THE
CORPORATIONS ACT 2001 (THE "CORPORATIONS ACT") AND DOES NOT PURPORT
TO INCLUDE THE INFORMATION REQUIRED FOR A PROSPECTUS, PRODUCT
DISCLOSURE STATEMENT OR OTHER DISCLOSURE DOCUMENT UNDER THE
CORPORATIONS ACT. TO THE EXTENT THIS DOCUMENT IS DISTRIBUTED IN
AUSTRALIA, IT IS DISTRIBUTED FOR INFORMATION PURPOSES ONLY.
THIS DOCUMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR AN
INVITATION TO SUBSCRIBE FOR, OR SOLICITATION OF AN OFFER TO
SUBSCRIBE FOR OR BUY, ORDINARY SHARES TO ANY PERSON IN AUSTRALIA.
ANY OFFER IN AUSTRALIA OF THE ORDINARY SHARES MAY ONLY BE MADE TO
PERSONS (THE "EXEMPT INVESTORS") WHO ARE "SOPHISTICATED INVESTORS"
(WITHIN THE MEANING OF SECTION 708(8) OF THE CORPORATIONS ACT),
"PROFESSIONAL INVESTORS" (WITHIN THE MEANING OF SECTION 708(11) OF
THE CORPORATIONS ACT) OR OTHERWISE PURSUANT TO ONE OR MORE
EXCEPTIONS CONTAINED IN SECTION 708 OF THE CORPORATIONS ACT SO THAT
IT IS LAWFUL TO OFFER THE ORDINARY SHARES WITHOUT DISCLOSURE TO
INVESTORS UNDER CHAPTER 6D OF THE CORPORATIONS ACT.
THE ORDINARY SHARES APPLIED FOR BY EXEMPT INVESTORS IN AUSTRALIA
MUST NOT BE OFFERED FOR SALE IN AUSTRALIA FOR A PERIOD OF 12 MONTHS
AFTER THE DATE OF ALLOTMENT UNDER THE PLACING, EXCEPT IN
CIRCUMSTANCES WHERE DISCLOSURE TO INVESTORS UNDER CHAPTER 6D OF THE
CORPORATIONS ACT WOULD NOT BE REQUIRED PURSUANT TO AN EXEMPTION
UNDER SECTION 708 OF THE CORPORATIONS ACT OR OTHERWISE OR WHERE THE
OFFER IS PURSUANT TO A DISCLOSURE DOCUMENT WHICH COMPLIES WITH
CHAPTER 6D OF THE CORPORATIONS ACT. ANY PERSON ACQUIRING ORDINARY
SHARES MUST OBSERVE SUCH AUSTRALIAN ON-SALE RESTRICTIONS.
THE SECURITIES REFERRED TO IN THIS ANNOUNCEMENT ARE OFFERED TO
INVESTORS IN SWITZERLAND UNDER AN EXEMPTION TO PREPARE AND PUBLISH
A PROSPECTUS PURSUANT TO THE SWISS FINANCIAL SERVICES ACT
("FINSA"), BECAUSE THE SECURITIES ARE ONLY OFFERED TO PROFESSIONAL
INVESTORS AS DEFINED UNDER FINSA AND BECAUSE SUCH SECURITIES WILL
NOT BE ADMITTED TO TRADING ON ANY TRADING VENUE IN SWITZERLAND.
THIS ANNOUNCEMENT DOES NOT CONSTITUTE A PROSPECTUS PURSUANT TO
FINSA AND NO SUCH PROSPECTUS HAS BEEN OR WILL BE PREPARED FOR OR IN
CONNECTION WITH THE OFFERING OF THE SECURITIES.
MEMBERS OF THE GENERAL PUBLIC IN ISRAEL ARE NOT ELIGIBLE TO TAKE
PART IN THE PLACING. THIS ANNOUNCEMENT AND ANY OFFER OF SECURITIES
TO WHICH IT RELATES ARE ONLY ADDRESSED TO AND DIRECTED TO PERSONS
IN ISRAEL WHO ARE LISTED IN THE FIRST SCHEDULE OF THE ISRAELI
SECURITIES LAW - 1968 ("RELEVANT ISRAELI PERSONS"). THE INFORMATION
REGARDING THE PLACING SET OUT IN THIS ANNOUNCEMENT MUST NOT BE
ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT SUCH RELEVANT ISRAELI
PERSONS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH THIS
ANNOUNCEMENT RELATES IS AVAILABLE IN ISRAEL ONLY TO AND WILL BE
ENGAGED IN ONLY WITH SUCH RELEVANT ISRAELI PERSONS.
THIS DOCUMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR ISSUE OR A
SOLICITATION OF AN OFFER TO BUY OR SUBSCRIBE FOR PLACING SHARES IN
ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL
AND, IN PARTICULAR, IS NOT TO BE FORWARDED, DISTRIBUTED, MAILED OR
OTHERWISE TRANSMITTED IN OR INTO THE UNITED STATES OF AMERICA, ITS
TERRITORIES OR POSSESSIONS, SUBJECT TO CERTAIN LIMITED EXCEPTIONS.
THIS DOCUMENT IS NOT TO BE FORWARDED, DISTRIBUTED, MAILED OR
OTHERWISE TRANSMITTED IN OR INTO AUSTRALIA AND ITS RESPECTIVE
TERRITORIES AND POSSESSIONS (TOGETHER, THE "PROHIBITED TERRITORY")
OR TO ANY NATIONAL, RESIDENT OR CITIZEN OF THE PROHIBITED TERRITORY
OR TO ANY CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANISED UNDER THE LAWS THEREOF, OR TO ANY PERSONS IN ANY OTHER
COUNTRY OUTSIDE THE UK, WHERE SUCH DISTRIBUTION, FORWARDING OR
TRANSMISSION MAY LEAD TO A BREACH OF ANY LEGAL OR REGULATORY
REQUIREMENT. NO ACTION HAS BEEN TAKEN BY SHORE CAPITAL, STIFEL, THE
COMPANY NOR ANY OF THEIR RESPECTIVE AFFILIATES THAT WOULD PERMIT AN
OFFER OF THE PLACING SHARES OR POSSESSION OR DISTRIBUTION OF THIS
DOCUMENT OR ANY OTHER PUBLICITY MATERIAL RELATING TO SUCH PLACING
SHARES IN ANY JURISDICTION WHERE ACTION FOR THAT PURPOSE IS
REQUIRED. PERSONS RECEIVING THIS DOCUMENT ARE REQUIRED TO INFORM
THEMSELVES ABOUT AND TO OBSERVE ANY SUCH RESTRICTIONS.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL,
TAX, BUSINESS AND RELATED ASPECTS OF AN INVESTMENT IN PLACING
SHARES. THE PRICE OF THE PLACING 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 THE PLACING SHARES.
The relevant clearances have not been, nor will they be,
obtained from the securities commission of any province or
territory of Canada; no prospectus has been lodged with or
registered by the Japanese Ministry of Finance or the South African
Reserve Bank; and the Placing Shares have not been, nor will they
be, registered under or offered in compliance with the securities
laws of any state, province or territory of Canada, Japan or the
Republic of South Africa. Accordingly, the Placing Shares may not
(unless an exemption under the relevant securities laws is
applicable) be offered, sold, resold or delivered, directly or
indirectly, in or into Canada, Japan, the Republic of South Africa
or any other jurisdiction in which such offer, sale, resale or
delivery would be unlawful.
UK Product Governance Requirements
Solely for the purposes of the product governance requirements
contained within Chapter 3 of the FCA Handbook Product Intervention
and Product Sourcebook (the "UK Product Governance Requirements")
and disclaiming all and any liability, whether arising in tort,
contract or otherwise, which any "manufacturer" (for the purposes
of the UK 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: (a) retail investors,
(b) investors who meet the criteria of professional clients and (c)
eligible counterparties (each as defined in the FCA Handbook
Conduct of Business Sourcebook); 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. In all circumstances the
Joint Bookrunners 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 the FCA Handbook Conduct of Business
Sourcebook; 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.
EU Product Governance Requirements
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 end target market of: (a) retail investors, (b) investors who
meet the criteria of professional clients and (c) eligible
counterparties (each as defined in MiFID II); and (ii) eligible for
distribution through all distribution channels as are permitted by
MiFID II (the "EU Target Market Assessment"). Notwithstanding the
EU 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 EU Target Market Assessment
is without prejudice to the requirements of any contractual, legal
or regulatory selling restrictions in relation to the offer. In all
circumstances the Joint Bookrunners will only procure investors who
meet the criteria of professional clients and eligible
counterparties.
For the avoidance of doubt, the EU 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.
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.
These terms and conditions apply to persons making an offer to
acquire Placing Shares. Each Placee hereby agrees with the Placing
Parties and the Company to be bound by these terms and conditions
as being the terms and conditions upon which Placing Shares will be
issued or acquired. A Placee shall, without limitation, become so
bound if the relevant Joint Bookrunner confirms to such Placee its
allocation of Placing Shares.
Upon being notified of its allocation of Placing Shares, a
Placee shall be contractually committed to acquire the number of
Placing Shares allocated to it at the Placing Price and, to the
fullest extent permitted by law, will be deemed to have agreed not
to exercise any rights to rescind or terminate or otherwise
withdraw from such commitment.
In this Appendix, unless the context otherwise requires,
"Placee" means a Relevant Person (including individuals, funds or
others) who has been invited to participate in the Placing and on
whose behalf a commitment to subscribe for or acquire Placing
Shares has been given.
Details of the Placing Agreement and the Placing Shares
The Company has today entered into the Placing Agreement with
Shore Capital and Corporate Limited ("SCC") (the Company's
Nominated Adviser), Shore Capital Stockbrokers Limited ("SCS",
together with SCC "Shore Capital") and Stifel Nicolaus Europe
Limited ("Stifel") (Stifel, together with SCS, the "Joint
Bookrunners" and the Joint Bookrunners, together with SCC, the
"Placing Parties") , under which the Joint Bookrunners have, on the
terms and subject to the conditions set out therein, undertaken to
use their reasonable endeavours to procure subscribers for the
Placing Shares. It is expected that the Placing will raise up to
US$354 million in gross proceeds. The Placing is being fully
underwritten by Unikmind Holdings Limited, the Company's largest
shareholder.
The Placing Shares are expected to be issued on or around 4
October 2021. The Placing Shares will, when issued, be subject to
the articles of association of the Company, be credited as fully
paid and rank pari passu in all respects with the existing Ordinary
Shares, including the right to receive all dividends and other
distributions (if any) declared, made or paid on or in respect of
Ordinary Shares after the date of issue of the Placing Shares.
The proceeds raised through the Placing are intended to be used
for the purposes disclosed in this announcement.
The Placing Shares will trade on AIM under KAPE with ISIN:
IM00BQ8NYV14.
Application for admission to trading of the Placing Shares
Application will be made to the London Stock Exchange for the
Placing Shares to be admitted to trading on AIM. Admission for the
Placing Shares is expected to become effective and dealings in such
shares are expected to commence at 8.00 a.m. on or around 4 October
2021 (the "Admission"). In any event, the latest date for Admission
is 29 October 2021 (the "Long Stop Date").
Placing
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.
Participation in, and principal terms of, the Placing are as
follows:
1. The Joint Bookrunners are arranging the Placing as agents
for, and brokers to, the Company.
2. The Placing Price and the number of Placing Shares to be
issued will be determined by the Company (in consultation with the
Joint Bookrunners) following completion of a bookbuilding exercise
by the Joint Bookrunners (the "Bookbuild"). The results of the
Bookbuild will be released through a Regulatory Information Service
following the completion of the Bookbuild. The Joint Bookrunners
shall be entitled to effect the Placing by such alternative method
to the Bookbuild as they may, in their absolute discretion
determine, following consultation with the Company.
3. To bid in the Bookbuild, Placees should communicate their bid
by telephone or in writing to their usual sales contact at Shore
Capital or Stifel. Each bid should state the number of Placing
Shares which the prospective Placee wishes to acquire either at the
Placing Price which is ultimately established by the Company or at
prices up to a price limit specified in its bid. Bids may be scaled
down by the Joint Bookrunners on the basis referred to in paragraph
7 below.
4. The Bookbuild is expected to close no later than 7 a.m. on 14
September 2021 but may be closed earlier or later at the discretion
of the Joint Bookrunners. The Joint Bookrunners may, in agreement
with the Company, accept bids received after the Bookbuild has
closed.
5. Participation in the Placing is only available to persons who
are lawfully able to be, and have been, invited to participate by
the Joint Bookrunners. The Joint Bookrunners are entitled (but
under no obligation) to participate in the Placing as
principal.
6. Following the close of the Bookbuild for the Placing, each
Placee's allocation will be confirmed to Placees orally, or in
writing (which can include email), by Shore Capital or Stifel (as
applicable) and a trade confirmation or contract note will be
dispatched as soon as possible thereafter. The relevant Joint
Bookrunner's oral or written confirmation will give rise to an
irrevocable, legally binding commitment by that person (who at that
point becomes a Placee), in favour of the Joint Bookrunners and the
Company, under which it agrees to acquire by subscription the
number of Placing Shares allocated to it at the Placing Price and
otherwise on the terms and subject to the conditions set out in
this Appendix and in accordance with the Company's articles of
association. Except with the relevant Joint Bookrunner's consent,
such commitment will not be capable of variation or revocation.
7. Each Placee's allocation will, unless otherwise agreed
between the Placee and the relevant Joint Bookrunner, be evidenced
by a trade confirmation or contract note issued to each such Placee
by the relevant Joint Bookrunner. The terms and conditions of this
Announcement (including this Appendix) will be deemed to be
incorporated in that trade confirmation, contract note or such
other confirmation and will be legally binding on the Placee on
behalf of which it is made and, except with the relevant Joint
Bookrunner's consent, will not be capable of variation or
revocation from the time at which it is issued.
8. Each Placee will have an immediate, separate, irrevocable and
binding obligation, owed to the relevant Joint Bookrunner (as agent
for the Company), to pay to that Joint Bookrunner (or as that Joint
Bookrunner may direct) in cleared funds an amount equal to the
product of the Placing Price and the number of Placing Shares such
Placee has agreed to acquire and the Company has agreed to allot
and issue to that Placee.
9. The allocation of the Placing Shares to Placees located in
the United States of America shall be conditional on the execution
by each such Placee of an investor representation letter (each an
"Investor Representation Letter") in the form provided to it.
10. Except as required by law or regulation, no press release or
other announcement will be made by the Joint Bookrunners or the
Company using the name of any Placee (or its agent), in its
capacity as Placee (or agent), other than with such Placee's prior
written consent.
11. Irrespective of the time at which a Placee's allocation
pursuant to the Placing is confirmed, settlement for all Placing
Shares to be acquired pursuant to the Placing will be required to
be made at the same time, on the basis explained below under
"Registration and Settlement".
12. All obligations of the Joint Bookrunners under the Placing
will be subject to fulfilment of the conditions referred to below
"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".
13. 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 be capable
of rescission or termination by the Placee.
14. To the fullest extent permissible by law and the applicable
rules of the Financial Conduct Authority, none of the Joint
Bookrunners 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 whether or not a recipient of these terms and
conditions) in respect of the Placing. Each Placee acknowledges and
agrees that the Company is responsible for the allotment of the
Placing Shares to the Placees and the Joint Bookrunners and their
Affiliates shall have no liability to the Placees for the failure
of the Company to fulfil those obligations. In particular, none of
the Joint Bookrunners nor any of their Affiliates shall have any
liability (including to the extent permissible by law, any
fiduciary duties) in respect of the Joint Bookrunners' conduct of
the Placing or of such alternative method of effecting the Placing
as the Joint Bookrunners and the Company may determine.
Conditions of the Placing
The Joint Bookrunners' obligations under the Placing Agreement
in respect of, amongst other things, the Placing are conditional
on, inter alia:
1. the release of this Announcement to a Regulatory Information
Service by no later than 4:45 p.m. on 13 September 2021;
2. application having been made by or on behalf of the Company
for Admission to the London Stock Exchange not later than 8.00 a.m.
on 29 September 2021;
3. the publication of an announcement communicating the results
of the Placing not later than 5.00 p.m. on 14 September 2021 (or
such other time and/or date as agreed by the Company and the
Placing Parties);
4. the passing of the Resolutions at the General Meeting without
any amendment not approved by the Joint Bookrunners;
5. the delivery by the Company to the Placing Parties of certain
documents required under the Placing Agreement;
6. the Company having complied with its obligations under the
Placing Agreement to the extent that such obligations fall to be
performed prior to Admission;
7. none of the warranties given in the Placing Agreement being
untrue, inaccurate or misleading in a material respect at any time
between the date of the Placing Agreement and Admission, and no
matter having arisen prior to Admission which might reasonably
render any of the warranties untrue or inaccurate or misleading in
any material respect if it was repeated as at Admission;
8. the Subscription Agreement and Refinancing Facility having
been duly executed and not having been terminated in accordance
with its terms prior to the execution by the Placing Parties and
the Company of the Pricing Agreement (as defined in the Placing
Agreement);
9. the allotment of the Placing Shares, conditional only upon
admission of such Ordinary Shares to trading on AIM, in accordance
with the Placing Agreement;
10. the Company and/or the Joint Bookrunners not having become aware of:
10.1 any new material factor, mistake or inaccuracy in relation
to the information contained in this Announcement having arisen
such that the Company is or may be required to issue a notification
pursuant to Rule 11 of the AIM Rules or which is otherwise material
or required to make the statements in this Announcement not
misleading in any material respect (excluding any new material
factor relating to the Target Business);
10.2 any matter which is or might be material in the context of
any assumption or other matter relevant to any forecast or
statement about the prospects of the Company in this Announcement;
or
10.3 any matter which indicates that a significant change or new
matter in respect of the Company has or might have occurred before
Admission;
11. the Acquisition Agreement and certain related documents
having been duly executed by all parties thereto, remaining in full
force and effect and not having been terminated prior to Admission
pursuant to the terms thereof (there being no conditions thereunder
due to be fulfilled before Admission);
12. admission of the Placing Shares to trading on AIM becoming
effective in accordance with Rule 6 of Part 1 the AIM Rules not
later than 8.00 a.m. on 4 October 2021 or such later date as may be
agreed in writing between the Company and Shore Capital and Stifel,
but in any event not later than 8.00 a.m. on the Long Stop Date;
and
13. the Placing Agreement not having been terminated by either
of the Joint Bookrunners.
If: (i) any of the conditions contained in the Placing
Agreement, including those described above, are not fulfilled or
(where applicable) waived by the Placing Parties by the respective
time or date where specified (or such later time or date as the
Placing Parties may notify to the Company); (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 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 the Placee in respect thereof.
The Placing Parties may, at their discretion and upon such terms
as they think fit, waive, or extend the period for, compliance by
the Company with the whole or any part of any of the Company's
obligations in relation to the conditions in the Placing Agreement
save that the condition relating to Admission taking place by the
Long Stop Date may not be waived. Any such extension or waiver will
not affect Placees' commitments as set out in this
Announcement.
The Company shall not be obligated to allot any Placing Shares
to any Placees in the United States of America unless it has
received an executed Investor Representation Letter from each such
Placee attesting to certain factual representations, warranties and
acknowledgements, in a form satisfactory to the Company.
None of the Placing Parties, the Company nor any of their
respective Affiliates 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 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 the
Placing Parties.
The Placing is not conditional on the completion of the
Acquisition and for the avoidance of doubt funds will not be
required to be returned to Placees in the event that the
Acquisition does not complete.
Right to terminate the Placing Agreement
Each of the Placing Parties is entitled to cease to participate
in the Placing by giving notice to the Company in certain
circumstances, including, inter alia, if before Admission:
1. it shall have come to the notice of the Company or any Placing Party that:
1.1 any statement contained in this announcement or certain
other documents is or has become untrue, incorrect or misleading,
or there shall have occurred any significant new factor relevant to
any of the foregoing (other than any significant new factor
relevant to the Target Business);
1.2 the Company has failed to comply with its obligations under
FSMA, MAR, the Isle of Man Companies Act 2006, the AIM Rules or the
Prospectus Regulation Rules;
1.3 there has been a breach of any of the Warranties (except for
certain warranties relating to the Target Group) or other
obligations of the Company under the Placing Agreement;
1.4 there has been a breach by the Company of any provision of
the Acquisition Agreement, the Subscription Agreement or the
Refinancing Facility;
1.5 there has been an event or matter on or after the date of
the Placing Agreement and before Admission which if it had occurred
or arisen at an earlier date would have rendered any of the
Warranties (except for certain warranties relating to the Target
Group) untrue or incorrect; or
1.6 any matter or series of matters has arisen or occurred in
relation to the Target Group which would give the Company or Kape
Acquisition Pte. Ltd the right to terminate the Acquisition
Agreement,
and, such event would, in the opinion of any Placing Party, have
a materially adverse effect on the Placing;
2. subject to certain exceptions, any event or omission has
occurred which in the opinion of any Placing Party is or might
reasonably be expected to be materially adverse to the financial
position or business or prospects of the Company or the
Placing;
3. any change in national or international, financial, monetary,
economic, political or stock market conditions (including any
suspension or material limitation in the trading of securities
generally on the London Stock Exchange's market for listed
securities or in commercial banking, securities settlement or
clearance services in the United Kingdom) has occurred which in the
opinion of any Placing Party is or might reasonably be expected to
be materially adverse to the Company or to the Placing;
4. any incident of terrorism has occurred which in the opinion
of any Placing Party is or might reasonably be expected to be
materially adverse to the Company or the Placing or the outbreak of
hostilities involving the United Kingdom or the declaration by the
United Kingdom of a national emergency or war; or
5. a deterioration or escalation in the United Kingdom's
response to the COVID-19 pandemic or any other epidemic and/or
pandemic which, in the opinion of any Placing Party, makes it
impractical or inadvisable to continue with the Placing.
If any Placing Party ceases to participate in the Placing, the
other Placing Party may, by notice to the Company, elect either to
continue with the Placing or to terminate the Placing Agreement. If
the Placing Agreement is terminated prior to Admission then the
Placing will not occur.
The rights and obligations of the Placees will not be subject to
termination by the Placees or any prospective Placees at any time
or in any circumstances. By participating in the Placing, Placees
agree that the exercise by the Placing Parties of any right of
termination or other discretion under the Placing Agreement shall
be within the absolute discretion of the Placing Parties and that
the Placing Parties need not make any reference to Placees in this
regard and that neither the Placing Parties nor any of their
Affiliates shall have any liability to Placees whatsoever in
connection with any such exercise or failure so to exercise.
No Admission Document or Prospectus
The Placing Shares are being offered to a limited number of
specifically invited persons only and have not been nor will be
offered in such a way as to require the publication of an admission
document or prospectus in the United Kingdom or any equivalent
document in any other jurisdiction. No offering document, admission
document or prospectus has been or will be submitted to be approved
by the FCA or 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 this
Appendix) and the business and financial information that the
Company is required to publish in accordance with the AIM Rules
(the "Exchange Information") or has published via a Regulatory
Information Service ("Publicly Available Information"). Each
Placee, by accepting a participation in the Placing, agrees that
the content of this Announcement is exclusively the responsibility
of the Company and confirms that it has neither received nor relied
on any other information (other than the Exchange Information
and/or Publicly Available Information), representation, warranty or
statement made by or on behalf of the Company or the Placing
Parties or any other person and none of the Placing Parties, 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 and, if given or made, such
information, representation, warranty or statement must not be
relied upon as having been authorised by the Placing Parties,
the
Company or their respective officers, directors, employees or
agents. 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. Neither
the Company nor any of the Placing Parties are making any
undertaking or warranty to any Placee regarding the legality of an
investment in the Placing Shares by such Placee under any legal,
investment or similar laws or regulations. Each Placee should not
consider any information in this Announcement to be legal, tax or
business advice. Each Placee should consult its own solicitor, tax
adviser and financial adviser for independent legal, tax and
financial advice regarding an investment in the Placing Shares.
Nothing in this paragraph shall exclude the liability of any person
for fraudulent misrepresentation.
Lock-up Arrangements
The Company has undertaken to the Placing Parties that, between
the date of the Placing Agreement and 31 December 2021, it will
not, without the prior written consent of the Placing Parties (such
consent not to be unreasonably withhold or delayed), offer, issue,
sell or otherwise dispose of (or announce intention of doing so)
any Ordinary Shares (or any interest therein or in respect thereof)
or any other securities exchangeable for or convertible into, or
carrying rights to acquire other shares of the Company, or enter
into any derivative transaction that has the economic effect of
such sale, transfer or disposition, whether settled in cash or
otherwise, save for the allotment and issue of Ordinary Shares
pursuant to the Placing and the Acquisition Agreement and the grant
and exercise of options or the issue of Ordinary Shares pursuant to
the exercise of options or warrants, in each case pursuant to any
employee incentive share schemes.
By participating in the Placing, Placees agree that the exercise
by the Placing Parties of any power to grant consent to the
undertaking by the Company of a transaction which would otherwise
be subject to the lock-up provisions under the Placing Agreement
shall be within the discretion of the Placing Parties and that it
need not make any reference to, or consult with, Placees and that
it shall have no liability to Placees whatsoever in connection with
any such exercise of the power to grant consent.
Registration and Settlement
Settlement of transactions in the Placing Shares will, unless
otherwise agreed, take place on a delivery versus payment basis
within the system administered by Euroclear UK & Ireland
Limited ("CREST"). Each Placee will be deemed to agree that it will
do all things necessary to ensure that delivery and payment is
completed as directed by the relevant Joint Bookrunner in
accordance with the standing CREST settlement instructions which
they have in place with such Joint Bookrunner.
Settlement of transactions in the Placing Shares following
Admission will take place within CREST provided that, subject to
certain exceptions, the Placing Parties reserve the right to
require settlement for, and delivery of, the Placing Shares (or a
portion thereof) to Placees by such other means that it deems
necessary if delivery or settlement is not possible or practicable
within CREST within the timetable set out in this Announcement or
would not be consistent with the regulatory requirements in any
Placee's jurisdiction.
It is expected that settlement of the Placing Shares will be on
4 October 2021 unless otherwise notified by the Placing Parties and
Admission is expected to occur by 4 October 2021 or such later time
as may be agreed between the Company and the Placing Parties, not
being later than the Long Stop Date.
Following the close of the Bookbuild, each Placee allocated
Placing Shares in the Placing will be sent a contract note or
electronic confirma ti on in accordance with the standing
arrangements in place with the relevant Joint Bookrunner stating
the number of Placing Shares to be allocated to it at the Placing
Price, the aggregate amount owed by such Placee to the relevant
Joint Bookrunner or its sub-agent and settlement instructions. Each
Placee will be deemed to agree that it will do all things necessary
to ensure that delivery and payment is completed in accordance with
the standing CREST or certificated settlement instruc ti ons that
it has in place with the relevant Joint Bookrunner. It is expected
that such contract note or electronic confirmation will be
despatched on or around 1 October 2021 and that this will be the
trade date.
The Company will deliver the Placing Shares to a CREST account
operated by the relevant Joint Bookrunner (as appropriate) or their
respec ti ve sub-agent, in each case, as agent for and on behalf of
the Company and will enter its delivery (DEL) instruction into the
CREST system. The input to CREST by a Placee of a matching or
acceptance instruc ti on will then allow delivery of the relevant
Placing Shares to that Placee against payment. It is expected that
se tt lement will be on 4 October 2021 on a T + 1 basis in
accordance with the instruc ti ons set out in the contract
note.
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 the relevant Joint Bookrunner.
Each Placee is deemed to agree that, if it does not comply with
these obligations, the Joint Bookrunners 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 Joint Bookrunners' account and
benefit (as agent for the Company), an amount equal to the
aggregate amount owed by the Placee plus any interest due. The
relevant Placee will, however, remain liable and shall indemnify
the Joint Bookrunners on demand 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 securities transfer tax (together
with any interest or penalties) which may arise upon the sale of
such Placing Shares on such Placee's behalf. By communicating a bid
for Placing Shares, each Placee confers on the Joint Bookrunners
such authorities and powers necessary to carry out any such sale
and agrees to ratify and confirm all actions which any of the Joint
Bookrunners lawfully takes in pursuance of such sale. Legal and/or
beneficial title in and to any Placing Shares shall not pass to the
relevant Placee until it has fully complied with its obligations
hereunder.
If Placing Shares are to be delivered to a custodian or
settlement agent, Placees should ensure that any form of
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
or securities transfer tax. None of the Placing Parties nor the
Company will be liable in any circumstances for the payment of
stamp duty, stamp duty reserve tax or securities transfer tax in
connection with any of the Placing Shares. Placees will not be
entitled to receive any fee or commission in connection with the
Placing.
Representations, Warranties and Further Terms
By participating in the Placing, each Placee (and any person
acting on such Placee's behalf) makes the following
representations, warranties, acknowledgements, agreements and
undertakings (as the case may be) to the Placing Parties (in their
capacity as placing agents of the Company) and the Company:
1. that it has read and understood this Announcement, including
this Appendix, in its entirety and that its subscription for or
purchase of Placing Shares is subject to and based upon all the
terms, conditions, representations, warranties, acknowledgements,
agreements, undertakings and other information contained herein and
undertakes not to redistribute or duplicate this Announcement;
2. that the shares in the capital of the Company are admitted to
trading on AIM, and the Company is therefore required to publish
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;
3. that its obligations are irrevocable and legally binding and
shall not be capable of rescission or termination by it in any
circumstances;
4. that the exercise by the Placing Parties of any right or
discretion under the Placing Agreement shall be within the absolute
discretion of the Placing Parties and the Placing Parties need not
have any reference to it and shall have no liability to it
whatsoever in connection with any decision to exercise or not to
exercise any such right and each Placee agrees that it has no
rights against the Placing Parties or the Company, or any of their
respective officers, directors or employees, under the Placing
Agreement pursuant to the Contracts (Rights of Third Parties Act)
1999;
5. that these terms and conditions (together with any Investor
Representation Letter, if applicable) represent the whole and only
agreement between it, the Placing Parties and the Company in
relation to its participation in the Placing and supersedes any
previous agreement between any of such parties in relation to such
participation. Accordingly, each Placee, in accepting its
participation in the Placing, is not relying on any information or
representation or warranty in relation to the Company or any of its
subsidiaries or any of the Placing Shares other than as contained
in this Announcement, the Exchange Information and the Publicly
Available Information, such information being all that it deems
necessary to make an investment decision in respect of the Placing
Shares. Each Placee agrees that none of the Company, the Placing
Parties nor any of their respective officers, directors or
employees will have any liability for any such other information,
representation or warranty, express or implied;
6. that in the case of any Placing Shares acquired by it as a
financial intermediary, as that term is used in Article 5 of the EU
Prospectus Regulation or the UK Prospectus Regulation (as
applicable) if in a member state of the EEA or the UK, it
understands that (i) the Placing Shares to be 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 any member state of the EEA which has implemented
the Prospectus Regulation other than Qualified Investors (as such
term is defined in the EU Prospectus Regulation or the UK
Prospectus Regulation (as applicable)) or in circumstances in which
the prior consent of the Joint Bookrunners and the Company 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 or the UK other than Qualified Investors, the offer of those
Placing Shares to it is not treated under the EU Prospectus
Regulation or UK Prospectus Regulation (as applicable) as having
been made to such persons;
7. that neither it nor, as the case may be, its clients expect
the Placing Parties to have any duties or responsibilities to such
persons similar or comparable to the duties of "best execution" and
"suitability" imposed by the FCA's Conduct of Business Source Book,
and that the Placing Parties are not acting for it or its clients,
and that the Placing Parties will not be responsible for providing
the protections afforded to customers of the Placing Parties or for
providing advice in respect of the transactions described
herein;
8. that it has made its own assessment of the Placing Shares and
has relied on its own investigation of the business, financial or
other position of the Company in accepting a participation in the
Placing and none of the Placing Parties nor the Company nor any of
their respective Affiliates, agents, directors, officers or
employees 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 or any other person other than the
information in this Announcement or the Publicly Available
Information; nor has it requested the Placing Parties, the Company
or any of their respective Affiliates, agents, directors, officers
or employees or any person acting on behalf of any of them to
provide it with any such information;
9. that the only information on which it is entitled to rely on
and on which it has relied in committing to subscribe for the
Placing Shares is contained in this Announcement and the Publicly
Available Information, such information being all that it deems
necessary to make an investment decision in respect of the Placing
Shares and it has made its own assessment of the Company, the
Placing Shares and the terms of the Placing based on this
Announcement and the Publicly Available Information;
10. that none of the Placing Parties nor the Company nor any of
their respective Affiliates, agents, directors, officers or
employees has made any representation or warranty to it, express or
implied, with respect to the Company, the Placing or the Placing
Shares or the accuracy, completeness or adequacy of this
Announcement or the Publicly Available Information;
11. that it and the person(s), if any, for whose account or
benefit it is subscribing for the Placing Shares is not subscribing
for and/or purchasing Placing Shares as a result of any "directed
selling efforts" as defined in Regulation S;
12. that it and the person(s), if any, for whose account or
benefit it is subscribing for the Placing Shares was given and it
is not acquiring Placing Shares with a view to the offer, sale,
resale, transfer, delivery or distribution, directly or indirectly,
of any Placing Shares into the United States of America;
13. that it and the person(s), if any, for whose account or
benefit it is subscribing for Placing Shares is, and at the time it
subscribes for the Placing Shares will be either (a) outside the
United States of America and acquiring the Placing Shares in an
"offshore transaction" as defined in and pursuant to Regulation S;
or (b) if in the United States of America, a qualified
institutional buyer within the meaning of Rule 144A under the
Securities Act and will have duly executed an investor letter in a
form provided to it;
14. that it is not a national or resident of Canada, Australia,
New Zealand, the Republic of South Africa or Japan or a
corporation, partnership or other entity organised under the laws
of Canada, Australia, New Zealand, the Republic of South Africa or
Japan and that it will not offer, sell, renounce, transfer or
deliver, directly or indirectly, any of the Placing Shares in
Canada, Australia, New Zealand, the Republic of South Africa or
Japan or to or for the benefit of any person resident in Canada,
Australia, New Zealand, the Republic of South Africa or Japan and
each Placee acknowledges that the relevant exemptions are not being
obtained from the Securities Commission of any province of Canada,
that no document has been or will be lodged with, filed with or
registered by the Australian Securities and Investments Commission
or Japanese Ministry of Finance and that the Placing Shares are not
being offered for sale and may not be, directly or indirectly,
offered, sold, transferred or delivered in or into Canada,
Australia, New Zealand, the Republic South Africa or Japan;
15. that it does not have a registered address in, and is not a
citizen, resident or national of, any jurisdiction in which it is
unlawful to make or accept an offer of the Placing Shares and it is
not acting on a non-discretionary basis for any such person;
16. that it has not, directly or indirectly, distributed,
forwarded, transferred or otherwise transmitted, and will not,
directly or indirectly, distribute, forward, transfer or otherwise
transmit, any presentation or offering materials concerning the
Placing or the Placing Shares to any persons within the United
States of America;
17. 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 the Joint Bookrunners may in their
discretion determine and without liability to such Placee;
18. that it is entitled to subscribe for and/or purchase Placing
Shares under the laws of all relevant jurisdictions which apply to
it and that it has fully observed such laws and obtained all
governmental and other consents which may be required thereunder or
otherwise and complied with all necessary formalities and that it
has not taken any action which will or may result in the Company or
the Placing Parties or any of their respective directors, officers,
employees or agents acting in breach of any regulatory or legal
requirements of any territory in connection with the Placing or its
acceptance;
19. that it has obtained all necessary consents and authorities
to enable it to give its commitment to subscribe for and/or
purchase the Placing Shares and to perform its subscription and/or
purchase obligations;
20. that where it is acquiring Placing Shares for one or more
managed accounts, it is authorised in writing by each managed
account: (a) to acquire the Placing Shares for each managed
account; (b) to make on its behalf the representations, warranties,
acknowledgements, undertakings and agreements in this Appendix and
this Announcement of which it forms part; and (c) to receive on its
behalf any investment letter relating to the Placing in the form
provided to it by the relevant Placing Party;
21. that if in a member state of the EEA, it is a "Qualified
Investor" within the meaning of Article 2(e) of the EU Prospectus
Regulation;
22. that if in the United Kingdom, it is a "Qualified Investor"
within the meaning of Article 2(e) of the UK Prospectus Regulation
and is either: (a) a person of a kind described in paragraph 5 of
Article 19 (persons having professional experience in matters
relating to investments and who are investment professionals) of
the Order; or (b) a person of a kind described in paragraph 2 of
Article 49 (high net worth companies, unincorporated associations,
partnerships or trusts or their respective directors, officers or
employees) of the Order; or (c) a person to whom it is otherwise
lawful for this Announcement to be communicated and in the case of
(a) and (b) undertakes that it will acquire, hold, manage or
dispose of any Placing Shares that are allocated to it for the
purposes of its business;
23. that, unless otherwise agreed by the relevant Joint
Bookrunner, it is a qualified investor (as defined in section 86(7)
of the Financial Services and Markets Act 2000, as amended
("FSMA"));
24. that, unless otherwise agreed by the relevant Joint
Bookrunner, it is a "professional client" or an "eligible
counterparty" within the meaning of Chapter 3 of the FCA's Conduct
of Business Sourcebook and it is purchasing Placing Shares for
investment only and not with a view to resale or distribution;
25. 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;
26. that any money held in an account with the relevant Joint
Bookrunner (or its nominees) on its behalf and/or any person acting
on its behalf will not be treated as client money within the
meaning of the rules and regulations of the FCA. Each Placee
further acknowledges that the money will not be subject to the
protections conferred by the FCA's client money rules. As a
consequence, this money will not be segregated from the relevant
Joint Bookrunner's (or its nominee's) money in accordance with such
client money rules and will be used by the relevant Joint
Bookrunner in the course of its own business and each Placee will
rank only as a general creditor of the Relevant Joint
Bookrunner;
27. that it will (or will procure that its nominee will) if
applicable, make notification to the Company of the interest in its
ordinary shares in accordance with the Disclosure Guidance and
Transparency Rules published by the FCA;
28. that it is not, and it is not acting on behalf of, a person
falling within subsections (6), (7) or (8) of sections 67 or 70
respectively or subsections (2) and (3) of section 93 or subsection
(1) of section 96 of the Finance Act 1986;
29. that if it has received any "inside information" as defined
in the EU Market Abuse Regulation as it forms part of UK domestic
law by virtue of the European Union (Withdrawal) Act 2018 ("UK
MAR") about the Company in advance of the Placing, it has not: (i)
dealt (or attempted to deal) in the securities of the Company; (ii)
encouraged, recommended, induced or required another person to deal
in the securities of the Company; or (iii) disclosed such
information to any person except as permitted by UK MAR and the EU
Prospectus Regulation, prior to the information being made publicly
available;
30. that it will not deal or cause or permit any other person to
deal in all or any of the Placing Shares which it is subscribing
for and/or purchasing under the Placing unless and until Admission
becomes effective;
31. that it appoints irrevocably any director of the relevant
Joint Bookrunner as its agent for the purpose of executing and
delivering to the Company and/or its registrars any document on its
behalf necessary to enable it to be registered as the holder of the
Placing Shares;
32. that, as far as it is aware it is not acting in concert
(within the meaning given in The City Code on Takeovers and
Mergers) with any other person in relation to the Company, save as
previously disclosed to the Placing Parties;
33. that this Announcement does not constitute a securities
recommendation or financial product advice and that none of the
Placing Parties nor the Company has considered its particular
objectives, financial situation and needs;
34. that it has sufficient knowledge, sophistication and
experience in financial, business and investment matters as is
required to evaluate the merits and risks of subscribing for or
purchasing the Placing Shares and is aware that it may be required
to bear, and it, and any accounts for which it may be acting, are
able to bear, the economic risk of, and is able to sustain, a
complete loss in connection with the Placing;
35. that it will indemnify and hold the Company and the Placing
Parties 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 this Appendix and further agrees that the Company
and the Placing Parties will rely on the truth and accuracy of the
confirmations, warranties, acknowledgements and undertakings herein
and, if any of the foregoing is or becomes no longer true or
accurate, the Placee shall promptly notify the Placing Parties and
the Company. All confirmations, warranties, acknowledgements and
undertakings given by the Placee, pursuant to this Announcement
(including this Appendix) are given to all Placing Parties and the
Company and will survive completion of the Placing and
Admission;
36. that time shall be of the essence as regards its obligations
pursuant to this Appendix;
37. that it is responsible for obtaining any legal, financial,
tax and other advice that it deems necessary for the execution,
delivery and performance of its obligations in accepting the terms
and conditions of the Placing, and that it is not relying on the
Company or the Placing Parties to provide any legal, financial, tax
or other advice to it;
38. that all dates and times in this Announcement (including
this Appendix) may be subject to amendment and that the Placing
Parties shall notify it of such amendments;
39. that (i) it has complied with its obligations under the
Criminal Justice Act 1993, Part VIII of FSMA and the Market Abuse
Regulation, (ii) in connection with money laundering and terrorist
financing, it has complied with its obligations under the Proceeds
of Crime Act 2002 (as amended), the Terrorism Act 2000 (as
amended),the Terrorism Act 2006 and the Money Laundering, Terrorist
Financing and Transfer of Funds (Information on the Payer)
Regulations 2017 and (iii) it is not a person: (a) with whom
transactions are prohibited under the Foreign Corrupt Practices Act
of 1977 or any economic sanction programmes administered by, or
regulations promulgated by, the Office of Foreign Assets Control of
the U.S. Department of the Treasury; (b) named on the Consolidated
List of Financial Sanctions Targets maintained by HM Treasury of
the United Kingdom; or (c) subject to financial sanctions imposed
pursuant to a regulation of the European Union or a regulation
adopted by the United Nations (together, the "Regulations"); and,
if making payment on behalf of a third party, that satisfactory
evidence has been obtained and recorded by it to verify the
identity of the third party as required by the Regulations and, if
making payment on behalf of a third party, that satisfactory
evidence has been obtained and recorded by it to verify the
identity of the third party as required by the Regulations and has
obtained all governmental and other consents (if any) which may be
required for the purpose of, or as a consequence of, such purchase,
and it will provide promptly to the relevant Placing Party such
evidence, if any, as to the identity or location or legal status of
any person which the relevant Placing Party may request from it in
connection with the Placing (for the purpose of complying with such
Regulations or ascertaining the nationality of any person or the
jurisdiction(s) to which any person is subject or otherwise) in the
form and manner requested by the relevant Placing Party on the
basis that any failure by it to do so may result in the number of
Placing Shares that are to be subscribed for and/or purchased by it
or at its direction pursuant to the Placing being reduced to such
number, or to nil, as the relevant Placing Party may decide in its
absolute discretion;
40. that it will not make any offer to the public of those
Placing Shares to be subscribed for and/or purchased by it for the
purposes of the Prospectus Regulation Rules made by the FCA
pursuant to Prospectus Regulation Rules Instrument 2019 (FCA
2019/80);
41. that, in relation to any Placees located in Australia, it is
a "wholesale investor" being a sophisticated or experienced
investor meeting the criteria in sections 708(8) or (10) of the
Corporations Act 2001 (the "Corporations Act") or a "professional
investor" (as defined in the Corporations Act) or does not
otherwise require disclosure pursuant to one or more exemptions
contained in section 708 of the Corporations Act so that it is
lawful to offer the Placing Shares without disclosure to investors
under Chapter 6D of the Corporations Act;
42. that it is not acquiring the Placing Shares for the purposes
of selling or transferring them, or granting, issuing or
transferring interests in, or options or warrants over, them,
within Australia within the period of 12 months after the date of
allotment except in circumstances where disclosure to investors
under Chapter 6D of the Corporations Act would not be required
pursuant to an exemption under section 708 of the Corporations Act
or otherwise or where the offer is pursuant to a disclosure
document which complies with Chapter 6D of the Corporations
Act;
43. that, in relation to any Placee located in Switzerland, it
is a professional investor as defined under FINSA;
44. that, in relation to any Placee located in Israel, it is a
person who is listed in the first schedule of the Israeli
Securities Law - 1968;
45. that, in relation to any Placee located in Hong Kong, it is
a professional investor as defined under the Securities and Futures
Ordinance (Cap. 571);
46. that, in relation to any Placee resident in Canada, it is
purchasing, or deemed to be purchasing, as principal and is an
accredited investor, as defined in National Instrument 45-106
Prospectus Exemptions or subsection 73.3(1) of the Securities Act
(Ontario), and is a permitted client, as defined in National
Instrument 31-103 Registration Requirements, Exemptions and Ongoing
Registrant Obligations;
47. that it will not distribute any document relating to the
Placing Shares and it will be acquiring the Placing Shares for its
own account as principal or for a discretionary account or accounts
(as to which it has the authority to make the statements set out
herein) for investment purposes only and it does not have any
contract, understanding or arrangement with any person to sell,
pledge, transfer or grant a participation therein to such person or
any third person with respect of any Placing Shares; save that if
it is a private client stockbroker or fund manager it confirms that
in purchasing the Placing Shares it is acting under the terms of
one or more discretionary mandates granted to it by private clients
and it is not acting on an execution only basis or under specific
instructions to purchase the Placing Shares for the account of any
third party;
48. that it acknowledges that these terms and conditions and any
agreements entered into by it pursuant to these terms and
conditions 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 the Placing
Parties in any jurisdiction in which the relevant Placee is
incorporated or in which its assets are located or any of its
securities have a quotation on a recognised stock exchange;
49. that any documents sent to Placees will be sent at the
Placees' risk. They may be sent by post to such Placees at an
address notified to the relevant Placing Party;
50. that neither the Placing Parties nor the Company owe any
fiduciary or other duties to any Placee in respect of any
representations, warranties, undertakings or indemnities in the
Placing Agreement;
51. that the Joint Bookrunners or any of their respective
Affiliates may, at their absolute discretion, agree to become a
Placee in respect of some or all of the Placing Shares;
52. that no prospectus, admission document or other offering
document has been or will be prepared in connection with the
Placing and it has not received and will not receive a prospectus,
admission document or other offering document in connection with
the Placing or the Placing Shares; and
53. that if it has received any confidential price sensitive
information concerning the Company in advance of the publication of
this Announcement, it has not: (i) dealt in the securities of the
Company; (ii) encouraged, required, recommended or induced 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.
The Company, the Placing Parties and their respective Affiliates
will rely upon the truth and accuracy of each of the foregoing
representations, warranties, acknowledgements and undertakings
which are given to the Placing Parties (for their own benefit and,
where relevant, the benefit of any person acting on their behalf)
and are irrevocable.
The provisions of this Appendix may be waived, varied or
modified as regards specific Placees or on a general basis by the
Placing Parties.
The agreement to settle a Placee's subscription and/or purchase
(and/or the subscription of 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 a subscription by it
and/or such person direct from the Company for the Placing Shares
in question. Such agreement assumes that the Placing Shares are not
being subscribed for in connection with arrangements to issue
depositary receipts or to transfer the Placing Shares into a
clearance service. If there are any such arrangements, or the
settlement relates to any other subsequent dealing in the Placing
Shares, stamp duty or stamp duty reserve tax may be payable, for
which neither the Company nor any of the Placing Parties will be
responsible, and the Placee to whom (or on behalf of whom, or in
respect of the person for whom it is participating in the Placing
as an agent or nominee) the allocation, allotment, issue or
delivery of Placing Shares has given rise to such UK stamp duty or
stamp duty reserve tax undertakes to pay such UK stamp duty or
stamp duty reserve tax forthwith and to indemnify on an after-tax
basis and to hold harmless the Company and the Placing Parties in
the event that any of the Company and/or any of the Placing Parties
have incurred any such liability to UK stamp duty or stamp duty
reserve tax. If this is the case, each Placee should seek its own
advice and notify the Placing Parties 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 subscription or purchase by
them of any Placing Shares or the agreement by them to subscribe
for or purchase any Placing Shares.
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
Placing Parties or by any of 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.
No statement in the Placing Documents is intended to be a profit
forecast or estimate, and no statement in the Placing Documents
should be interpreted to mean that earnings per share of the
Company for the current or future financial years would necessarily
match or exceed the historical published earnings per share of the
Company.
The Placing Shares to be issued pursuant to the Placing will not
be admitted to trading on any stock exchange other than AIM, a
market operated by 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, the Placing Documents.
Pursuant to the General Data Protection Regulation as
domesticated into UK law by virtue of the European Union
(Withdrawal) Act 2018 and implemented in the UK by the Data
Protection Act 2018 ("GDPR") the Company and/or the Placing Parties
may hold personal data (as defined in the GDPR) relating to past
and present shareholders. Personal data may be retained on record
for a period exceeding six years after it is no longer used. The
Company and/or the Placing Parties will only process such
information for the purposes set out below (collectively, the
"Purposes"), being to: (a) process its personal data to the extent
and in such manner as is necessary for the performance of their
obligations under the contractual arrangements between them,
including as required by or in connection with its holding of
Ordinary Shares, including processing personal data in connection
with credit and money laundering checks on it; (b) communicate with
it as necessary in connection with its affairs and generally in
connection with its holding of Ordinary Shares; (c) provide
personal data to such third parties as the Company and/or the
Placing Parties may consider necessary in connection with its
affairs and generally in connection with its holding of Ordinary
Shares or as the GDPR may require, including to third parties
outside the EEA; and (d) without limitation, provide such personal
data to their respective affiliates for processing, notwithstanding
that any such party may be outside the EEA; and (e) process its
personal data for the Company's and/or each Placing Party's
internal administration.
By becoming registered as a holder of Placing Shares, each
Placee acknowledges and agrees that the processing by the Company
and/or the Placing Parties of any personal data relating to it in
the manner described above is undertaken for the purposes of: (a)
performance of the contractual arrangements between them; and (b)
to comply with applicable legal obligations. In providing the
Company and/or the Placing Parties with information, it hereby
represents and warrants to each of them that it has notified any
data subject of the processing of their personal data (including
the details set out above) by the Company and/or the Placing
Parties and their respective affiliates and group companies, in
relation to the holding of, and using, their personal data for the
Purposes. Any individual whose personal information is held or
processed by a data controller: (a) has the right to ask for a copy
of their personal information held; (b) to ask for any inaccuracies
to be corrected or for their personal information to be erased; (c)
object to the ways in which their information is used, and ask for
their information to stop being used or otherwise restricted; and
(d) ask for their personal information to be sent to them or to a
third party (as permitted by law). A data subject seeking to
enforce these rights should contact the relevant data controller.
Individuals also have the right to complain to the UK Information
Commissioner's Office about how their
personal information has been handled.
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
ACQEXLFFFKLLBBK
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September 13, 2021 11:40 ET (15:40 GMT)
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