TIDMOTB
RNS Number : 3556E
On the Beach Group PLC
06 July 2021
THIS ANNOUNCEMENT (INCLUDING THE APPIX) AND THE INFORMATION
CONTAINED HEREIN ARE RESTRICTED AND ARE NOT FOR PUBLICATION,
RELEASE OR DISTRIBUTION OR FORWARDING, DIRECTLY OR INDIRECTLY, IN
WHOLE OR IN PART, IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA,
THE REPUBLIC OF SOUTH AFRICA, JAPAN OR ANY OTHER JURISDICTION IN
WHICH SUCH PUBLICATION, RELEASE OR DISTRIBUTION WOULD BE
UNLAWFUL.
THIS ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN ARE FOR
INFORMATION PURPOSES ONLY AND DO NOT CONSTITUTE AN OFFER OF
SECURITIES IN ANY JURISDICTION. PLEASE SEE THE IMPORTANT NOTICES AT
THE OF THIS ANNOUNCEMENT.
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION AS STIPULATED
UNDER THE MARKET ABUSE REGULATION (EU NO. 596/2014) AS IT FORMS
PART OF UK LAW BY VIRTUE OF THE MARKET ABUSE (AMMENT) (EU EXIT)
REGULATIONS 2019 (SI 2019/310).
For immediate release
6 July 2021
On the Beach Group plc
("On the Beach", "OTB" , the "Company" or the "Group")
Proposed Placing of Ordinary Shares
On the Beach Group plc, the UK's leading online travel agent*,
today announces its intention to conduct a placing of new ordinary
shares of 1 pence each in the capital of the Company ("Ordinary
Shares") (the "Placing Shares") (the "Placing").
The Placing Shares are expected to represent approximately 5.0
per cent. of the Company's existing issued share capital.
The Placing will be conducted through an accelerated bookbuild
process (the "Bookbuild") which will be launched immediately
following this announcement in accordance with the terms and
conditions of the Placing set out in the Appendix to this
announcement. The price at which the Placing Shares are to be
placed (the "Placing Price") will be determined at the end of the
Bookbuild. All of the Directors of the Company and certain members
of the executive management team intend to participate in the
Placing.
Response to COVID-19
During FY20 (12 months to 30 September 2020), OTB undertook a
number of actions to provide greater resilience, flexibility and
firepower in order to trade through the pandemic and exit the
disruptive period in a strong position from which to capture market
share, including:
-- taking early action in February 2020 to manage risk and
conserve cash. The Group's offline marketing costs were reduced to
zero whilst online marketing costs flexed down with holiday search
demand. The Group further limited other non-essential costs,
meaning that monthly cash operating costs were reduced to less than
GBP2m across the entire Group. However, the Group maintained all
costs associated with the delivery of its future strategy;
-- increasing the total available bank facility from GBP50m to
GBP75m in the form of an incremental GBP25m RCF under the
Coronavirus Large Business Interruption Loan Scheme ("CLBILS")
whilst also securing an extension of the facilities to 2023;
and
-- raising GBP65.1m (net of fees) through a share placing of
19.9% of the Group's share capital.
Whilst FY21 was not expected to be a normal year for travel, the
industry and the UK population did not foresee an extended lockdown
and travel ban for the first six months of calendar year 2021. As
outlined in the Group's interim results released on 15 June 2021,
this has had a material impact on OTB's trading performance due to
exceptionally low levels of consumer demand and a significant
number of cancellations.
Whilst the vaccine rollout in the UK has been successful, the
Government remains cautious about reopening borders for leisure
travel. The implementation of a traffic light system in early May
has presented continued and significant uncertainty for consumers.
As a result and based on feedback from both consumer research and
OTB's own search / sales data, OTB made the decision to extend its
off-sale period from 30 June to 31 August 2021, focusing on
supporting customers with bookings due to travel this summer and
taking bookings for winter 2021 and summer 2022. Since this
decision, concerns relating to the short-term recovery of
international leisure travel have been compounded as a result of
the continued spread of the Delta variant and the recent tightening
of restrictions on UK travel into some European destinations.
The Group reiterates that it remains focused on growing its
market share in the long term and believes that any potential
upside from incremental summer 2021 bookings would be marginal and
would be offset by disruption and loss of goodwill for holidays
that would need to be cancelled or re-arranged.
Cash and liquidity position
As previously announced, the Board has proactively managed the
Group's liquidity throughout the pandemic.
As at 31 March 2021 OTB had a cash balance of GBP30.0m,
excluding GBP24.1m of customer monies held in a ring-fenced trust
account and GBP11.8m owing from airlines for forward refunding
flights, and has access to an undrawn Revolving Credit Facility
("RCF") of GBP75m. The GBP75m RCF has two elements, a core facility
of GBP50m expiring in December 2023 and a CLBILS facility of GBP25m
expiring in May 2023. The RCF has not been drawn since 22 May 2020.
On 25 May 2021, the Group exercised its one year extension to the
CLBILS facility. In addition, covenant tests have been amended
through September 2022 to account for the prolonged impact of
COVID-19 to trading.
Whilst the actions taken by the Group around cash management and
credit facility negotiations have allowed it to continue to operate
throughout the sustained disruption caused by the pandemic, the
prolonged delay in the recovery of the UK travel sector has meant
that the Group's cash position has reduced to a level not foreseen
at the time of the placing in May 2020.
Rationale for the proposed Placing
Given the extended disruption to international travel from the
UK throughout 2021 and the ongoing trading environment across the
sector, the Board believes it is in the Group's best interest to
seek supplementary financing now to:
-- provide OTB with greater resilience, flexibility and
firepower through the current downturn by restoring the Group's
cash position to a similar position to where it was following the
placing in May 2020;
-- ensure that, ahead of an expected recovery of the
international travel market in calendar year 2022 involving the
release of pent-up demand, OTB will have sufficient funding
available to increase marketing spend and to support the necessary
short-term investment in working capital to capitalise upon that
demand; and
-- ensure that, even in more pessimistic scenarios where
international travel continues to be significantly impacted due to
the pandemic, OTB is able to protect its strong market position and
position itself to gain market share when there is an eventual
recovery in demand.
The Directors believe the headroom from the Placing would allow
the Group to simultaneously increase investment in its digital
platforms; continue to drive brand through investment in online and
offline marketing activity and improve conversion with attractive
low deposit schemes.
A disciplined approach to investment will be maintained, in line
with the Group's track record.
Details of the Placing
Numis Securities Limited and Peel Hunt LLP (together, the
"Banks") will commence the Bookbuild immediately following the
release of this announcement. The book will open with immediate
effect following this announcement and close as soon after that as
the Banks shall determine. The number of Placing Shares and the
Placing Price will be agreed by the Banks and the Company at the
close of the Bookbuild. The allocations will be at the Company's
discretion, having consulted with the Banks. Details of the Placing
Price and the number of Placing Shares will be announced as soon as
practicable after the close of the Bookbuild.
The Placing is subject to the terms and conditions set out in
the appendix (the "Appendix") to this announcement (which forms
part of this announcement). Members of the public are not entitled
to participate in the Placing.
The Placing Shares, if issued, will be credited as fully paid
and rank pari passu in all respects with each other and with the
existing issued Ordinary Shares. This includes, without limitation,
the right to receive all dividends and other distributions declared
or paid in respect of such Ordinary Shares after the date of issue
of the Placing Shares.
The Placing is not conditional upon approval by the Company's
shareholders. The Company acknowledges that it is seeking to issue
Placing Shares representing approximately 5.0 per cent. of its
existing issued ordinary share capital on a non pre-emptive basis
and has therefore consulted, where possible, with the Company's
major institutional shareholders ahead of this announcement. The
Placing structure has been chosen as it minimises cost, time to
completion and use of management time. The consultation has
confirmed the Board's view that the Placing is in the best
interests of shareholders, as well as wider stakeholders in
OTB.
Applications have been made (i) to the Financial Conduct
Authority (the "FCA") for the Placing Shares to be admitted to the
premium listing segment of the Official List of the FCA and (ii) to
London Stock Exchange plc (the "London Stock Exchange") for the
admission of the Placing Shares to trading on its main market for
listed securities (together "Admission"). It is expected that
Admission will take place at or around 8.00 a.m. (London time) on 9
July 2021.
The Placing is conditional upon, inter alia, Admission becoming
effective and the placing agreement between the Company and the
Banks (the "Placing Agreement") becoming unconditional and not
being terminated in accordance with its terms.
For the purposes of MAR, UK MAR, Article 2 of Commission
Implementing Regulation (EU) 2016/1055 and the UK version of
Commission Implementing Regulation (EU) 2016/1055, the person
responsible for releasing this announcement is Kirsteen
Vickerstaff, Company Secretary.
Capitalised terms which are defined in the Appendix shall have
the meanings stated in the Appendix when used in this
announcement.
*the UK's leading online travel agent for ATOL protected package
holidays
Simon Cooper, Chief Executive of On the Beach Group plc,
commented:
"The duration of the pandemic and its disruption to the travel
sector has been more than anyone could have imagined and whilst On
the Beach has undertaken numerous actions to best navigate the
crisis, manage risk and conserve cash, this placing will provide
the Group with greater resilience, flexibility and firepower as
demand for holidays recover.
"The Group is well funded with GBP30m of cash as at 31 March
2021 and has access to a GBP75m undrawn Revolving Credit Facility.
This fundraise will restore our cash position back to a similar
level to where we were following our placing in May 2020. The
Placing will position the Group strongly for growth while ensuring
On the Beach is able to protect its strong market position and
appropriately gain market share when there is an eventual recovery
in demand.
"On the Beach's asset light, flexible model and ring-fenced
trust account for customer monies sets us apart from our
competitors as our lack of reliance on customer deposits to fund
working capital allows us to focus on what is right for the
customer. As a result of this, the previously announced extension
of our off-sale period from 30 June to 31 August 2021 was a
decision taken to focus on supporting customers with bookings due
to travel this summer and, given the continued uncertainty across
the sector as evidenced in Portugal, it appears this was the right
call. During this period of little to no travel, we continue to
maintain, repair and re-invigorate the On the Beach brand, recently
launching our 'we're ready when you are' campaign, designed to
increase brand awareness, welcoming our customers back when there
is more certainty across the short-haul beach holiday market.
"I would like to take this opportunity to thank our existing
shareholders for their continued support and I would also like to
thank the wider team across the Group for their resilience and
professionalism in helping our customers through these challenging
times."
For further information, please contact:
On the Beach Group plc: via FTI Consulting
Simon Cooper, Chief Executive Officer
Shaun Morton, Chief Financial Officer
Numis (Joint Bookrunner and Joint Corporate +44 (0)20 7260
Broker): 1000
Heraclis Economides / Tom Jacob
Oliver Steele / Duncan Wilson
Peel Hunt (Joint Bookrunner and Joint +44 (0)20 7418
Corporate Broker): 8900
Adrian Trimmings / Andrew Clark / Will
Bell
Alastair Rae / Michael Burke / Sohail
Akbar
Rothschild & Co (Financial Adviser to +44 (0) 20 7280
the Company): 5000
Andrew Thomas / Shannon Nicholls
+44 (0) 20 3727
FTI Consulting: 1000
A lex Beagley
F iona Walker / Sam Macpherson
This announcement should be read in its entirety. In particular,
you should read and understand the information provided in the
"Important Notices" section of this announcement. Investors who
have chosen to participate in the Placing, by making an oral or
written offer to acquire Placing Shares, will be deemed to have
read and understood this announcement in its entirety (including
the Appendix) and to be making such offer on the terms and subject
to the conditions herein, and to be providing the representations,
warranties, agreements, acknowledgements and undertakings contained
in the Appendix.
IMPORTANT NOTICES
THIS ANNOUNCEMENT (INCLUDING THE APPIX) AND THE TERMS AND
CONDITIONS SET OUT HEREIN (TOGETHER, THIS "ANNOUNCEMENT") IS FOR
INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE OR FORM ANY PART
OF AN OFFER TO SELL OR ISSUE, OR A SOLICITATION OF AN OFFER TO BUY,
SUBSCRIBE FOR OR OTHERWISE ACQUIRE ANY SECURITIES IN THE UNITED
STATES (INCLUDING ITS TERRITORIES AND POSSESSIONS, ANY STATE OF THE
UNITED STATES AND THE DISTRICT OF COLUMBIA (COLLECTIVELY, THE
"UNITED STATES")), AUSTRALIA, CANADA, THE REPUBLIC OF SOUTH AFRICA,
JAPAN OR ANY OTHER JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
WOULD BE UNLAWFUL OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION. NO PUBLIC OFFERING OF THE PLACING
SHARES IS BEING MADE IN ANY SUCH JURISDICTION. ANY FAILURE TO
COMPLY WITH THESE RESTRICTIONS MAY CONSTITUTE A VIOLATION OF THE
SECURITIES LAWS OF SUCH JURISDICTIONS.
This Announcement is not for public release, publication or
distribution, in whole or in part, directly or indirectly, in or
into the United States, Australia, Canada, the Republic of South
Africa, Japan or any other jurisdiction in which such release,
publication or distribution would be unlawful.
The securities referred to herein have not been and will not be
registered under the U.S. Securities Act of 1933, as amended (the
"Securities Act"), and may not be offered or sold in the United
States, except pursuant to an applicable exemption from the
registration requirements of the Securities Act and in compliance
with any applicable securities laws of any state or other
jurisdiction of the United States. No public offering of the
Placing Shares is being made in the United States.
No action has been taken by the Company, Numis Securities
Limited ("Numis"), Peel Hunt LLP ("Peel Hunt") and/or N.M.
Rothschild & Sons Limited ("Rothschild & Co") or any of
their respective affiliates, or any of its or their respective
directors, officers, partners, employees, advisers and/or agents
(collectively, "Representatives") that would permit an offer of the
Placing Shares or possession or distribution of this Announcement
or any other publicity material relating to such Placing Shares in
any jurisdiction where action for that purpose is required. Persons
receiving this Announcement are required to inform themselves about
and to observe any restrictions contained in this Announcement.
Persons (including, without limitation, nominees and trustees) who
have a contractual or other legal obligation to forward a copy of
this Announcement should seek appropriate advice before taking any
action. Persons distributing any part of this Announcement must
satisfy themselves that it is lawful to do so.
This Announcement is directed only at: (a) persons in member
states of the European Economic Area who are "qualified investors",
as defined in Article 2(e) of Regulation (EU) 2017/1129 (the
"Prospectus Regulation") ("Qualified Investors"), (b) persons in
the United Kingdom who are "qualified investors" within the meaning
of Article 2(e) of Regulation (EU) 2017/1129, as amended and
retained in UK law on 31 December 2020 by the European Union
(Withdrawal) Act 2018 (the "EUWA") (the "UK Prospectus Regulation")
(i) who have professional experience in matters relating to
investments who fall within the definition of "investment
professionals" in Article 19(5) of the Financial Services and
Markets Act 2000 (Financial Promotion) Order 2005, as amended (the
"Order") or (ii) are high net worth companies, unincorporated
associations or partnerships or trustees of high value trusts as
described in Article 49(2)(a) to (d) of the Order, or (c)
otherwise, persons to whom it may otherwise lawfully be
communicated (each such person in (a), (b) and (c), a "Relevant
Person"). No other person should act on or rely on this
Announcement and persons distributing this Announcement must
satisfy themselves that it is lawful to do so. By accepting the
terms of this Announcement, you represent and agree that you are a
Relevant Person. This Announcement must not be acted on or relied
on by persons who are not Relevant Persons. Any investment or
investment activity to which this Announcement or the Placing
relates is available only to Relevant Persons and will be engaged
in only with Relevant Persons.
No offering document or prospectus will be made available in any
jurisdiction in connection with the matters contained or referred
to in this Announcement or the Placing and no such prospectus is
required (in accordance with the Prospectus Regulation and the UK
Prospectus Regulation) to be published.
No prospectus has been filed with any securities commission or
other securities regulatory authorities in any jurisdiction in
Canada in connection with the offer or sale of the Placing Shares.
Any offer and sale of the Placing Shares in Canada is being made on
a private placement basis only and is exempt from the requirement
that the Company prepares and files a prospectus under applicable
Canadian securities laws. Any resale of the Placing Shares into
Canada must be made in accordance with applicable Canadian
securities laws, which may vary depending on the relevant
jurisdiction, and which may require resales to be made in
accordance with Canadian prospectus requirements, a statutory
exemption from the prospectus requirements, in a transaction exempt
from the prospectus requirements or otherwise under a discretionary
exemption from the prospectus requirements granted by the
applicable local Canadian securities regulatory authority. These
resale restrictions may under certain circumstances apply to
resales of the Placing Shares outside of Canada. There will be no
public offering of the Placing Shares in Canada. This Announcement
does not contain all of the information that would normally appear
in a prospectus under applicable Canadian securities laws. No
securities commission or similar authority in Canada has reviewed
or in any way passed upon this Announcement or the merits of the
Placing Shares. Any representation to the contrary is an offense.
This Announcement is not, and under no circumstances is to be
construed as, a prospectus, an advertisement or a public offering
of the Placing Shares in Canada.
No offer and sale of Placing Shares is or will be made in
Canada, except to persons who are: (a) an "accredited investor"
within the meaning of Section 1.1 of National Instrument 45-106 -
Prospectus Exemptions ("NI 45-106") of the Canadian Securities
Administrators or subsection 73.3(1) of the Securities Act
(Ontario) (the "OSA"), as applicable, and is either purchasing the
Placing Shares as principal for its own account, or is deemed to be
purchasing the Placing Shares as principal for its own account in
accordance with applicable Canadian securities laws, for investment
only and not with a view to resale or redistribution; (b) such
person was not created or used solely to purchase or hold the
Placing Shares as an accredited investor under NI 45-106; (c) a
"permitted client" within the meaning of National Instrument 31-103
- Registration Requirements, Exemptions and Ongoing Registrant
Obligations ("NI 31-103") of the Canadian Securities
Administrators; and (d) entitled under applicable Canadian
securities laws to purchase the Placing Shares without the benefit
of a prospectus under such securities laws.
Certain statements in this Announcement are forward-looking
statements with respect to the Company's expectations, intentions
and projections regarding its future performance, strategic
initiatives, anticipated events or trends and other matters that
are not historical facts and which are, by their nature, inherently
predictive, speculative and involve risks and uncertainty because
they relate to events and depend on circumstances that may or may
not occur in the future. All statements that address expectations
or projections about the future, including statements about
operating performance, strategic initiatives, objectives, market
position, industry trends, general economic conditions, expected
expenditures, expected cost savings and financial results, are
forward -- looking statements. Any statements contained in this
Announcement that are not statements of historical fact are, or may
be deemed to be, forward -- looking statements. These
forward-looking statements, which may use words such as "aim",
"anticipate", "believe", "could", "intend", "estimate", "expect",
"may", "plan", "project" or words or terms of similar meaning or
the negative thereof, are not guarantees of future performance and
are subject to known and unknown risks and uncertainties. There are
a number of factors including, but not limited to, commercial,
operational, economic and financial factors, that could cause
actual results, financial condition, performance or achievements to
differ materially from those expressed or implied by these forward
-- looking statements. Many of these risks and uncertainties relate
to factors that are beyond the Company's ability to control or
estimate precisely, such as changes in taxation or fiscal policy,
future market conditions, currency fluctuations, the behaviour of
other market participants, the actions of governments or
governmental regulators, or other risk factors, such as changes in
the political, social and regulatory framework in which the Company
operates or in economic or technological trends or conditions,
including inflation, recession and consumer confidence, on a
global, regional or national basis. Given those risks and
uncertainties, readers are cautioned not to place undue reliance on
forward-looking statements. Forward-looking statements speak only
as of the date of this Announcement. Each of the Company, Numis,
Peel Hunt and Rothschild & Co expressly disclaims any
obligation or undertaking to update or revise any forward-looking
statements, whether as a result of new information, future events
or otherwise unless required to do so by applicable law or
regulation.
Numis, Peel Hunt and Rothschild & Co, all of whom are
authorised and regulated in the United Kingdom by the Financial
Conduct Authority, are acting exclusively for the Company and for
no one else in connection with the Placing and will not regard any
other person (whether or not a recipient of this Announcement) as a
client in relation to the Placing or any other matter referred to
in this Announcement and will not be responsible to anyone other
than the Company for providing the protections afforded to their
respective clients or for giving advice in relation to the Placing
or any other matter referred to in this Announcement.
This Announcement is being 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 or on
behalf of Numis, Peel Hunt and/or Rothschild & Co (apart from
the responsibilities or liabilities that may be imposed by the
Financial Services and Markets Act 2000, as amended ("FSMA") or the
regulatory regime established thereunder) and/or by any of their
respective affiliates and/or any of their respective
Representatives as to, or in relation to, the accuracy, adequacy,
fairness or completeness of this Announcement or any other written
or oral information made available to or publicly available to any
interested party or their respective advisers or any other
statement made or purported to be made by or on behalf of Numis,
Peel Hunt and/or Rothschild & Co and/or any of their respective
affiliates and/or by any of their respective Representatives in
connection with the Company, the Placing Shares or the Placing and
any responsibility and liability whether arising in tort, contract
or otherwise therefor is expressly disclaimed. No representation or
warranty, express or implied, is made by Numis, Peel Hunt and/or
Rothschild & Co and/or any of their respective affiliates
and/or any of their respective Representatives as to the accuracy,
fairness, verification, completeness or sufficiency of the
information or opinions contained in this Announcement or any other
written or oral information made available to or publicly available
to any interested party or their respective advisers, and any
liability therefor is expressly disclaimed.
The information in this Announcement may not be forwarded or
distributed to any other person and may not be reproduced in any
manner whatsoever. Any forwarding, distribution, reproduction or
disclosure of this Announcement, in whole or in part, is
unauthorised. Failure to comply with this directive may result in a
violation of the Securities Act or the applicable laws of other
jurisdictions.
This Announcement does not constitute a recommendation
concerning any investor's options with respect to the Placing.
Recipients of this Announcement should conduct their own
investigation, evaluation and analysis of the business, data and
other information described in this Announcement. This Announcement
does not identify or suggest, or purport to identify or suggest,
the risks (direct or indirect) that may be associated with an
investment in the Placing Shares. The price and value of securities
can go down as well as up and investors may not get back the full
amount invested upon the disposal of the shares. Past performance
is not a guide to future performance. The contents of this
Announcement are not to be construed as legal, business, financial
or tax advice. Each investor or prospective investor should consult
his or her or its own legal adviser, business adviser, financial
adviser or tax adviser for legal, business, financial or tax
advice.
Any indication in this Announcement of the price at which the
Company's shares have been bought or sold in the past cannot be
relied upon as a guide to future performance. Persons needing
advice should consult an independent financial adviser. No
statement in this Announcement is intended to be a profit forecast
or profit estimate for any period and no statement in this
Announcement should be interpreted to mean that earnings, earnings
per share or income, cash flow from operations or free cash flow
for the Company for the current or future financial periods would
necessarily match or exceed the historical published earnings,
earnings per share or income, cash flow from operations or free
cash flow for the Company.
All offers of the Placing Shares will be made pursuant to an
exemption under the Prospectus Regulation and the UK Prospectus
Regulation from the requirement to produce a prospectus. This
Announcement is being distributed and communicated to persons in
the United Kingdom only in circumstances in which section 21(1) of
FSMA does not apply.
The Placing Shares to be issued pursuant to the Placing will not
be admitted to trading on any stock exchange other than the main
market for listed securities of the London Stock Exchange.
The Appendix to this Announcement sets out the terms and
conditions of the Placing. By participating in the Placing, each
Placee will be deemed to have read and understood this Announcement
(including the Appendix) in its entirety, to be participating in
the Placing and making an offer to acquire and acquiring Placing
Shares on the terms and subject to the conditions set out in the
Appendix to this Announcement and to be providing the
representations, warranties, undertakings and acknowledgements
contained in the Appendix to this Announcement.
Members of the public are not eligible to take part in the
Placing and no public offering of Placing Shares is being or will
be made.
Neither the content of the Company's website (or any other
website) nor the content of any website accessible from hyperlinks
on the Company's website (or any other website) is incorporated
into, or forms part of, this Announcement.
This Announcement has been prepared for the purposes of
complying with applicable law and regulation in the United Kingdom
and the information disclosed may not be the same as that which
would have been disclosed if this Announcement had been prepared in
accordance with the laws and regulations of any jurisdiction
outside the United Kingdom.
UK Product Governance Requirements
Solely for the purposes of the product governance requirements
contained within the FCA Handbook Product Intervention and Product
Governance Sourcebook (the "UK Product Governance Rules"), and
disclaiming all and any liability, whether arising in tort,
contract or otherwise, which any 'manufacturer' (for the purposes
of the UK Product Governance Rules) may otherwise have with respect
thereto, the Shares have been subject to a product approval
process, which has determined that the Shares are: (i) compatible
with an end target market of (a) retail clients, as defined in
point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms
part of domestic law by virtue of the EUWA, (b) investors who meet
the criteria of professional clients as defined in Regulation (EU)
No 600/2014 as it forms part of domestic law by virtue of the EUWA
and (c) eligible counterparties as defined in the FCA Handbook
Conduct of Business Sourcebook ("COBS"); and (ii) eligible for
distribution through all distribution channels as are permitted by
Directive 2014/65/EU (the "UK Target Market Assessment").
Notwithstanding the UK Target Market Assessment, distributors
should note that: the price of the Shares may decline and investors
could lose all or part of their investment; the Shares offer no
guaranteed income and no capital protection; and an investment in
the Shares is compatible only with investors who do not need a
guaranteed income or capital protection, who (either alone or in
conjunction with an appropriate financial or other adviser) are
capable of evaluating the merits and risks of such an investment
and who have sufficient resources to be able to bear any losses
that may result therefrom. The UK Target Market Assessment is
without prejudice to the requirements of any contractual, legal or
regulatory selling restrictions in relation to the Placing.
Furthermore, it is noted that, notwithstanding the UK Target Market
Assessment, Numis and Peel Hunt will only procure investors who
meet the criteria of professional clients and eligible
counterparties. For the avoidance of doubt, the UK Target Market
Assessment does not constitute: (a) an assessment of suitability or
appropriateness for the purposes of COBS; 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 Shares. Each
distributor is responsible for undertaking its own target market
assessment in respect of the 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 such Placing Shares are: (i) compatible
with an end target market of retail investors and investors who
meet the criteria of professional clients and eligible
counterparties, each as defined in MiFID II; and (ii) eligible for
distribution through all distribution channels as are permitted by
MiFID II (the "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 Placing.
Furthermore, it is noted that, notwithstanding the EU Target Market
Assessment, Numis and Peel Hunt 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.
APPIX:
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION FOR INVITED PLACEES ONLY REGARDING THE
PLACING
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THIS ANNOUNCEMENT (INCLUDING THIS APPIX) AND THE TERMS AND
CONDITIONS SET OUT HEREIN (TOGETHER, THIS "ANNOUNCEMENT") ARE FOR
INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT: (A) IN MEMBER
STATES OF THE EUROPEAN ECONOMIC AREA (THE "EEA"), PERSONS WHO ARE
QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(E) OF
PROSPECTUS REGULATION (EU) 2017/1129 (THE "EU PROSPECTUS
REGULATION") ("EU QUALIFIED INVESTORS"); (B) IN THE UNITED KINGDOM,
PERSONS WHO (I) HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO
INVESTMENTS WHO FALL WITHIN THE DEFINITION OF "INVESTMENT
PROFESSIONALS" IN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND
MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMED (THE
"ORDER"), OR ARE HIGH NET WORTH COMPANIES, UNINCORPORATED
ASSOCIATIONS OR PARTNERSHIPS OR TRUSTEES OF HIGH VALUE TRUSTS AS
DESCRIBED IN ARTICLE 49(2) OF THE ORDER AND (II) ARE "QUALIFIED
INVESTORS" AS DEFINED IN THE EU PROSPECTUS REGULATION AS AMED AND
RETAINED IN UK LAW BY VIRTUE OF THE EUROPEAN UNION (WITHDRAWAL) ACT
2018 (AS AMED) (THE "UK PROSPECTUS REGULATION") ("UK QUALIFIED
INVESTORS"); AND ( C ) OTHERWISE, PERSONS TO WHOM IT MAY OTHERWISE
BE LAWFUL TO COMMUNICATE IT TO (EACH A "RELEVANT PERSON"). NO OTHER
PERSON SHOULD ACT OR RELY ON THIS ANNOUNCEMENT (INCLUDING THIS
APPIX) AND PERSONS DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY
THEMSELVES THAT IT IS LAWFUL TO DO SO. BY ACCEPTING THE TERMS OF
THIS ANNOUNCEMENT YOU REPRESENT AND AGREE THAT YOU ARE A RELEVANT
PERSON. THIS 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
ANNOUNCEMENT (INCLUDING 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. THIS ANNOUNCEMENT
(INCLUDING THIS APPIX) DOES NOT ITSELF CONSTITUTE AN OFFER TO SELL
OR ISSUE OR THE SOLICITATION OF AN OFFER TO BUY OR ACQUIRE
SECURITIES IN THE COMPANY.
THE INFORMATION CONTAINED HEREIN IS NOT FOR RELEASE, PUBLICATION
OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR
INTO THE UNITED STATES (INCLUDING ITS TERRITORIES AND POSSESSIONS,
ANY STATE OF THE UNITED STATES AND THE DISTRICT OF COLUMBIA
(COLLECTIVELY, THE "UNITED STATES")), AUSTRALIA, CANADA, THE
REPUBLIC OF SOUTH AFRICA OR JAPAN OR ANY OTHER JURISDICTION IN
WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL
OR REQUIRE A PROSPECTUS OR SIMILAR DOCUMENT TO BE FILED. THIS
ANNOUNCEMENT AND THE INFORMATION CONTAINED HEREIN DO NOT CONSTITUTE
AN OFFER OF SECURITIES FOR SALE IN THE UNITED STATES, AUSTRALIA,
CANADA, THE REPUBLIC OF SOUTH AFRICA, JAPAN OR IN ANY OTHER
JURISDICTION IN WHICH THE SAME WOULD BE UNLAWFUL.
THE PLACING SHARES HAVE NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE US SECURITIES ACT OF 1933, AS AMED (THE "SECURITIES
ACT"), OR UNDER THE APPLICABLE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED,
SOLD, TAKEN UP, RESOLD, TRANSFERRED OR DELIVERED, DIRECTLY OR
INDIRECTLY WITHIN, INTO OR IN THE UNITED STATES, EXCEPT PURSUANT TO
AN APPLICABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
COMPLIANCE WITH THE SECURITIES LAWS OF ANY RELEVANT STATE OR OTHER
JURISDICTION OF THE UNITED STATES. THERE WILL BE NO PUBLIC OFFER OF
THE PLACING SHARES IN THE UNITED STATES, THE UNITED KINGDOM OR
ELSEWHERE.
EACH PLACEE SHOULD CONSULT ITS OWN ADVISERS AS TO LEGAL,
BUSINESS, FINANCIAL, TAX AND RELATED ASPECTS OF ACQUIRING THE
PLACING SHARES.
Persons who are invited to and who choose to participate in the
placing (the "Placing") of the Placing Shares (as defined below) by
making an oral or written offer to acquire Placing Shares
(including any individuals, funds or others on whose behalf a
commitment to acquire Placing Shares is given) ("Placees") will be
deemed to have read and understood this Announcement in its
entirety and to be making such offer on the terms and conditions,
and to be providing (and shall only be permitted to participate in
the Placing on the basis that they have provided) the
representations, warranties, indemnities, acknowledgements,
undertakings and agreements, contained in this Appendix. In
particular, each such Placee represents, warrants, acknowledges and
agrees to each of On the Beach Group plc (the "Company"), Numis
Securities Limited ("Numis") and Peel Hunt LLP ("Peel Hunt")
that:
1. it is a Relevant Person and undertakes that it will acquire,
hold, manage or dispose of any Placing Shares that are allocated to
it for the purposes of its business;
2. it is acquiring the Placing Shares for its own account or is
acquiring the Placing Shares for an account with respect to which
it exercises sole investment discretion and has the authority to
make and does make the representations, warranties, indemnities,
acknowledgments, undertakings and agreements contained in this
Announcement;
3. it understands (or if acting for the account of another
person, such person has confirmed that such person understands) the
resale and transfer restrictions set out in this Announcement
(including this Appendix) ;
4. it understands that the Placing Shares have not been and will
not be registered under the Securities Act or with any securities
regulatory authority of any state or other jurisdiction of the
United States and may not be offered, sold or transferred, directly
or indirectly, within the United States except pursuant to an
exemption from the registration requirements of the Securities Act
and in compliance with any applicable securities laws of any state
or other jurisdiction of the United States ;
5. it and the person(s), if any, for whose account or benefit it
is acquiring the Placing Shares are either (a)(i) outside the
United States and will be outside the United States at the time the
Placing Shares are acquired by it and (ii) acquiring the Placing
Shares in an "offshore transaction" within the meaning of
Regulation S; or (b) a "qualified institutional buyer" as defined
in Rule 144A ("Rule 144A") under the Securities Act (a "QIB") who
has executed and delivered to the Company, Numis and Peel Hunt a US
investor letter substantially in the form provided to it ;
6. if it is a Placee resident in Canada, it (i) qualifies as an
"accredited investor" within the meaning of Section 1.1 of National
Instrument 45-106 - Prospectus Exemptions ("NI 45-106") of the
Canadian Securities Administrators or subsection 73.3(1) of the
Securities Act (Ontario) (the "OSA"), as applicable, and it is
either purchasing the Placing Shares as principal for its own
account, or it is deemed to be purchasing the Placing Shares as
principal for its own account in accordance with applicable
Canadian securities laws, for investment only and not with a view
to resale or redistribution; (ii) was not created or used solely to
purchase or hold the Placing Shares as an accredited investor under
NI 45-106; (iii) qualifies as a "permitted client" within the
meaning of National Instrument 31-103 - Registration Requirements,
Exemptions and Ongoing Registrant Obligations ("NI 31-103"); (iv)
is entitled under applicable Canadian securities laws to purchase
the Placing Shares without the benefit of a prospectus under such
securities laws; and (v) if required by applicable Canadian
securities laws, it will execute, deliver and file or assist the
Company in obtaining and filing such reports, undertakings and
other documents relating to the purchase of the Placing Shares by
it as may be required by any Canadian securities commission or
other regulatory authority; and
7. the Company, Numis and Peel Hunt will rely upon the truth and accuracy of the foregoing representations, warranties, acknowledgements and agreements.
The Placing Shares have not been approved or disapproved by the
US Securities and Exchange Commission, any state securities
commission or other regulatory authority in the United States, nor
have any of the foregoing authorities passed upon or endorsed the
merits of the Placing or the accuracy or adequacy of this
Announcement. Any representation to the contrary is a criminal
offence in the United States.
No representation is made by the Company, Numis or Peel Hunt to
any Placees regarding an investment in the Placing Shares.
Bookbuild
Numis and Peel Hunt (together, the "Joint Bookrunners") will
today commence the bookbuilding process in respect of the Placing
(the "Bookbuild") to determine demand for participation in the
Placing by Placees. This Appendix gives details of the terms and
conditions of, and the mechanics of participation in, the Placing.
No commissions will be paid to Placees or by Placees in respect of
any Placing Shares. Members of the public are not entitled to
participate.
The Joint Bookrunners and the Company shall be entitled to
effect the Placing by such alternative method to the Bookbuild as
they may, in their absolute discretion, determine.
Details of the Placing Agreement and of the Placing Shares
The Company has today entered into an agreement (the "Placing
Agreement") with the Joint Bookrunners under which, subject to the
conditions set out therein, each of the Joint Bookrunners has
agreed, subject to the terms set out in such agreement, severally,
and not jointly or jointly and severally, as agent for and on
behalf of the Company, to use its reasonable endeavours to procure
Placees for new ordinary shares of one penny each in the capital of
the Company (the "Placing Shares") representing up to approximately
5 per cent. of the Company ' s existing issued share capital at a
price to be determined following completion of the Bookbuild, and
to the extent that any Placee defaults in paying the Placing Price
(as defined below) in respect of any of the Placing Shares
allocated to it, each of the Joint Bookrunners has agreed,
severally and not jointly or jointly and severally, to subscribe
for such Placing Shares at the Placing Price. Numis and Peel Hunt
are acting as joint bookrunners in connection with the Placing.
The Placing Shares will, when issued, be credited as fully paid
and will rank pari passu in all respects with the existing ordinary
shares of one penny each in the capital of the Company (the
"Ordinary Shares"), including the right to receive all dividends
and other distributions declared, made or paid in respect of such
Ordinary Shares after the date of issue of the Placing Shares.
Applications for listing and admission to trading
Applications will be made to the Financial Conduct Authority
(the "FCA") for admission of the Placing Shares to listing on the
premium listing segment of the Official List of the FCA (the
"Official List") and to London Stock Exchange plc (the "London
Stock Exchange") for admission of the Placing Shares to trading on
its main market for listed securities (together, "Admission").
It is expected that Admission will become effective at or around
8.00 a.m. on 9 July 2021 and that dealings in the Placing Shares
will commence at that time.
Participation in, and principal terms of, the Placing
1. The Joint Bookrunners are acting as joint bookrunners and
agents of the Company in connection with the Placing.
2. Participation in the Placing will only be available to
persons who may lawfully be, and are, invited to participate by the
Joint Bookrunners. Each of the Joint Bookrunners and their
respective agents and affiliates are each entitled to enter bids in
the Bookbuild as principal.
3. The Bookbuild, if successful, will establish a single price
per Placing Share payable to the Joint Bookrunners by all Placees
whose bids are successful (the "Placing Price"). The final number
of Placing Shares and the Placing Price will be determined by the
Company (in consultation with the Joint Bookrunners) following
completion of the Bookbuild. Any discount to the market price of
the existing Ordinary Shares of the Company will be determined in
accordance with the FCA's Listing Rules. The Placing Price and the
number of Placing Shares will be announced on a FCA-listed
regulatory information service (a "Regulatory Information Service")
following the completion of the Bookbuild.
4. To bid in the Bookbuild, prospective Placees should
communicate their bid by telephone or in writing to their usual
sales contact at Peel Hunt or Numis. Each bid should state the
number of Placing Shares which the prospective Placee wishes to
subscribe for at either the Placing Price which is ultimately
established by the Company and the Joint Bookrunners 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 11
below.
5. A bid in the Bookbuild will be made on the terms and subject
to the conditions in this Appendix and will be legally binding on
the Placee on behalf of which it is made and, except with the Joint
Bookrunners' consent, will not be capable of variation or
revocation after the time at which it is submitted. Each Placee's
obligations will be owed to the Company and the Joint Bookrunners.
Each Placee will also have an immediate, separate, irrevocable and
binding obligation, owed to each of the Joint Bookrunners as agent
of the Company, to pay in cleared funds immediately on the
settlement date, in accordance with the registration and settlement
requirements set out below, an amount equal to the product of the
Placing Price and the number of Placing Shares such Placee has
agreed to subscribe for and the Company has agreed to allot to
them.
6. The Bookbuild is expected to close later today, but may be
closed earlier or later at the absolute discretion of the Joint
Bookrunners. The Joint Bookrunners may, in agreement with the
Company, accept bids that are received after the Bookbuild has
closed.
7. Each prospective Placee's allocation will be agreed between
the Joint Bookrunners and the Company and will be confirmed orally
or in writing by either of the Joint Bookrunners (each as agent of
the Company) following the close of the Bookbuild. This
confirmation to such Placee will constitute an irrevocable legally
binding commitment upon that person (who will at that point become
a Placee) in favour of the Joint Bookrunners and the Company to
subscribe for the number of Placing Shares allocated to it at the
Placing Price on the terms and conditions set out in this Appendix
and in accordance with the Company's articles of association and
each Placee will be deemed to have read and understood this
Announcement (including this Appendix) in its entirety.
8. All obligations under the Bookbuild and Placing will be
subject to fulfilment or, where applicable, waiver of the
conditions referred to below under "Conditions of the Placing" and
to the Placing not being terminated on the basis referred to below
under "Right to terminate under the Placing Agreement".
9. By participating in the Bookbuild, each Placee will agree
that its rights and obligations in respect of the Placing will
terminate only in the circumstances described below and will not be
capable of rescission or termination by the Placee.
10. Each prospective Placee's allocation and commitment will be
evidenced by a contract note or trade confirmation issued to such
Placee by either of the Joint Bookrunners. The terms of this
Appendix will be deemed incorporated by reference therein.
11. Subject to paragraphs 4 and 5 above, the Joint Bookrunners
may choose to accept bids, either in whole or in part, on the basis
of allocations determined in agreement with the Company and may
scale down any bids for this purpose on such basis as they may
determine. The Joint Bookrunners may also, notwithstanding
paragraphs 4 and 5 above, subject to the prior consent of the
Company (i) allocate Placing Shares after the time of any initial
allocation to any person submitting a bid after that time; and (ii)
allocate Placing Shares after the Bookbuild has closed to any
person submitting a bid after that time. The Company reserves the
right (upon agreement with the Joint Bookrunners) to reduce or seek
to increase the amount to be raised pursuant to the Placing.
12. 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.
13. Irrespective of the time at which a Placee's allocation
pursuant to the Placing is confirmed, settlement for all Placing
Shares to be subscribed for pursuant to the Placing will be
required to be made at the same time, on the basis explained below
under "Registration and settlement".
14. To the fullest extent permissible by law, neither the Joint
Bookrunners nor the Company or any of their respective affiliates
or any of their respective agents, directors, officers, employees
or advisers (collectively, "Representatives") shall have any
responsibility or liability to Placees (or to any other person
whether acting on behalf of a Placee or otherwise). In particular,
none of the Joint Bookrunners, the Company, or any of their
respective affiliates or any of their respective Representatives
shall have any responsibility or liability (including to the
fullest extent permissible by law, any fiduciary duties) in respect
of the conduct of the Bookbuild or of such alternative method of
effecting the Placing as the Joint Bookrunners and the Company may
agree.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming
unconditional and not having been terminated in accordance with its
terms. The obligations of the Joint Bookrunners under the Placing
Agreement in respect of the Placing Shares are conditional on,
inter alia:
15. each of the representations and warranties of the Company
contained in the Placing Agreement being true and accurate and not
misleading on the date of the Placing Agreement and at all times
before Admission;
16. the Company complying with its obligations under the Placing
Agreement, so far as the same fall to be performed or satisfied on
or prior to Admission;
17. agreement being reached between the Company and the Joint
Bookrunners on the Placing Price and the number of Placing Shares
to be issued pursuant to the Placing;
18. there not having occurred or been disclosed any Material
Adverse Change (as such term is defined in the Placing
Agreement);
19. the Company allotting, subject only to Admission, the
Placing Shares in accordance with the terms of the Placing
Agreement; and
20. Admission taking place by not later than 8.00 a.m. (London
time) on 9 July 2021 (or such later time and/or date as may be
agreed between the Company and the Joint Bookrunners, being not
later than 16 July 2021).
The Joint Bookrunners have discretion to waive compliance with
certain of the conditions and/or agree an extension in time for
their satisfaction. Any such extension or waiver will not affect
Placees' commitments as set out in this Announcement.
If (a) any of the conditions contained in the Placing Agreement,
including those described above, are not fulfilled (or, where
permitted, waived or extended in writing by the Joint Bookrunners)
or become incapable of fulfilment on or before the date or time
specified for the fulfilment thereof (or such later date and/or
time as the Joint Bookrunners may agree); or (b) 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.
Neither the Joint Bookrunners nor any of their respective
affiliates nor any of their respective Representatives shall have
any responsibility or liability to any Placee (or to any other
person whether acting on behalf of a Placee or otherwise) in
respect of any decision they may make as to whether or not to waive
or to extend the time and/or the date for the satisfaction of any
condition to the Placing nor for any decision they may make as to
the satisfaction of any condition or in respect of the Placing
generally, and by participating in the Placing each Placee agrees
that any such decision is in the absolute discretion of the Joint
Bookrunners.
Lock-up
The Company has undertaken that it will not, and will procure
that none of its subsidiaries will, at any time between the date of
the Placing Agreement and the date which is 180 days after the date
of the Placing Agreement without the prior written consent of the
Joint Bookrunners enter into certain transactions involving or
relating to the ordinary Shares, provided the foregoing will not
prevent or restrict the allotment and issue of the Placing Shares
and the allotment and issue of ordinary shares (in accordance with
the Company's normal practice) pursuant to share option schemes in
existence as at the date of the Placing Agreement.
By participating in the Placing, Placees agree that the exercise
by the Joint Bookrunners of any power to consent to waive the
undertaking by the Company of a transaction which would otherwise
be subject to the lock-up under the Placing Agreement shall be
within the absolute discretion of the Joint Bookrunners, and that
they do not need to make any reference to, consult with, or seek
consent from, Placees and that the Joint Bookrunners shall have no
liability to Placees whatsoever in connection with any such
exercise of the power to grant consent or failure so to
exercise.
Right to terminate under the Placing Agreement
At any time before Admission, each of the Joint Bookrunner is
entitled to terminate the Placing Agreement in the following
circumstances, amongst others: (i) if any of the Company's
warranties or representations are not or cease to be true and
accurate or have become misleading; or (ii) if any of the
conditions have not been satisfied (or waived by the Joint
Bookrunners) by the date specified therein; or (iii) in the good
faith opinion of the Joint Bookrunners, there shall have occurred
any Material Adverse Change (as defined in the Placing Agreement);
or (iv) the occurrence of a force majeure or market disruption
event, each, as specified in the Placing Agreement.
Upon such termination, the parties to the Placing Agreement
shall be released and discharged (except for any liability arising
before or in relation to such termination) from their respective
obligations under or pursuant to the Placing Agreement, subject to
certain exceptions.
By participating in the Placing, Placees agree that the exercise
by the Joint Bookrunners of any right of termination or other
discretion under the Placing Agreement shall be within the absolute
discretion of the Joint Bookrunners, and that they do not need to
make any reference to, consult with, or seek consent from, Placees
and that the Joint Bookrunners shall have no liability to Placees
whatsoever in connection with any such exercise or failure so to
exercise.
No prospectus
No offering document or prospectus has been or will be prepared
or submitted to be approved by the FCA or submitted to the London
Stock Exchange or in any other jurisdiction in relation to the
Placing and no such prospectus is required ( in accordance with the
EU Prospectus Regulation or the UK Prospectus Regulation ) to be
published. Placees' commitments will be made solely on the basis of
their own assessment of the Company, the Placing and the Placing
Shares based on information contained in this Announcement
(including this Appendix) released by the Company today and any
information publicly announced to a Regulatory Information Service
by or on behalf of the Company on or prior to the date of this
Announcement, and subject to the further terms set forth in the
contract note or trade confirmation to be provided to individual
prospective Placees. Each Placee, by accepting a participation in
the Placing, agrees that the content of this Announcement and all
other publicly available information previously and simultaneously
released by or on behalf of the Company is exclusively the
responsibility of the Company and has not be independently verified
by the Joint Bookrunners. Each Placee, by accepting a participation
in the Placing, further confirms that it has neither received nor
relied on any other information, representation, warranty or
statement made by or on behalf of the Company, the Joint
Bookrunners or any other person and neither the Joint Bookrunners
nor the Company nor any of their
respective affiliates nor any of their respective
Representatives will be liable for any Placee's decision to
participate in the Placing based on any other information,
representation, warranty or statement which the Placee may have
obtained or received. Each Placee acknowledges and agrees that it
has relied on its own investigation of the business, financial or
other position of the Company in accepting a participation in the
Placing. Nothing in this paragraph shall exclude or limit the
liability of any person for fraud or fraudulent misrepresentation
by that person.
Registration and settlement
Settlement of transactions in the Placing Shares (ISIN:
GB00BYM1K758) following Admission will take place within the CREST
system, subject to certain exceptions. The Joint Bookrunners and
the Company reserve the right to require settlement for and
delivery of the Placing Shares (or a portion thereof) to Placees in
certificated form or by such other means that they deem necessary
if delivery or settlement is not possible or practicable within the
CREST system or would not be consistent with the regulatory
requirements in the Placee's jurisdiction.
Following the close of the Bookbuild, each Placee allocated
Placing Shares in the Placing will be sent a contract note or trade
confirmation stating the number of Placing Shares to be allocated
to it at the Placing Price and settlement instructions. It is
expected that such contract note will be despatched on or around 7
July 2021 and that this will also be the trade date.
Each Placee agrees that it will do all things necessary to
ensure that delivery and payment is completed in accordance with
the standing CREST or certificated settlement instructions that it
has in place with the relevant Joint Bookrunner.
The Company will deliver the Placing Shares to a CREST account
operated by the relevant Joint Bookrunner as agent for the Company
and the relevant Joint Bookrunner will enter its delivery
instruction into the CREST system. The input to CREST by a Placee
of a matching or acceptance instruction will then allow delivery of
the relevant Placing Shares to that Placee against payment.
It is expected that settlement will be on 9 July 2021 on a T+2
basis and on a delivery versus payment basis in accordance with the
instructions given to the Joint Bookrunners.
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 Joint Bookrunners.
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 account and benefit of each of
the Joint Bookrunners, an amount equal to the aggregate amount owed
by the Placee plus any interest due. The relevant Placee will,
however, remain liable for any shortfall below the aggregate amount
owed by it and may be required to bear any stamp duty or stamp duty
reserve tax or other similar taxes (together with any interest or
penalties thereon) imposed in any jurisdiction 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 each
of the Joint Bookrunners all such authorities and powers necessary
to carry out any such transaction and agrees to ratify and confirm
all actions which the Joint Bookrunners lawfully takes on such
Placee's behalf.
If Placing Shares are to be delivered to a custodian or
settlement agent, Placees should ensure that the contract note or
trade confirmation is copied and delivered immediately to the
relevant person within that organisation.
Insofar as Placing Shares are registered in a Placee's name or
that of its nominee or in the name of any person for whom a Placee
is contracting as agent or that of a nominee for such person, such
Placing Shares should, subject as provided below, be so registered
free from any liability to UK stamp duty or stamp duty reserve tax.
If there are any other circumstances in which any stamp duty or
stamp duty reserve tax or other similar taxes (and/or any interest,
fines or penalties relating thereto) is payable in respect of the
allocation, allotment, issue or delivery of the Placing Shares (or
for the avoidance of doubt if any stamp duty or stamp duty reserve
tax is payable in connection with any subsequent transfer of or
agreement to transfer Placing Shares), neither the Joint
Bookrunners nor the Company shall be responsible for the payment
thereof.
Placees will not be entitled to receive any fee or commission in
connection with the Placing.
Representations and warranties
By submitting a bid and/or participating in the Placing, each
prospective Placee (and any person acting on such Placee's behalf)
irrevocably acknowledges, confirms, undertakes, represents,
warrants and agrees (as the case may be) with the Joint Bookrunners
and the Company, in each case as a fundamental term of its
application for Placing Shares, that:
21. it has read and understood this Announcement (including this
Appendix) in its entirety and that its participation in the
Bookbuild and the Placing and its acquisition of Placing Shares is
subject to and based upon all the terms, conditions,
representations, warranties, indemnities, acknowledgements,
agreements and undertakings and other information contained herein
and it undertakes not to redistribute or duplicate this
Announcement and that it has not relied on, and will not rely on,
any information given or any representations, warranties or
statements made at any time by any person in connection with
Admission, the Bookbuild, the Placing, the Company, the Placing
Shares or otherwise;
22. no offering document or prospectus has been or will be
prepared in connection with the Placing or is required under the UK
Prospectus Regulation or the EU Prospectus Regulation and it has
not received and will not receive a prospectus or other offering
document in connection with Admission, the Bookbuild, the Placing,
the Company or the Placing Shares;
23. the Placing does not constitute a recommendation or
financial product advice and the Joint Bookrunners have not had
regard to its particular objectives, financial situation and needs
;
24. it has neither received nor relied on any "inside
information" as defined in EU Regulation No. 596/2014 ("EU MAR") or
the retained UK law version of Market Abuse Regulation (Regulation
(EU) 596/2014) pursuant to the Market Abuse (Amendment) (EU Exit)
Regulations 2019 (SI 2019/310) ("UK MAR") concerning the Company or
its shares or other securities or related financial instruments in
accepting its invitation to participate in the Placing;
25. it has the power and authority to carry on the activities in
which it is engaged, to subscribe and/or acquire Placing Shares and
to execute and deliver all documents necessary for such
subscription and/or acquisition;
26. neither the Joint Bookrunners 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 none of them will provide, it with any material
regarding the Placing Shares or the Company or any other person
other than this Announcement, nor has it requested any of the Joint
Bookrunners, the Company or any of their respective affiliates or
any person acting on behalf of any of them to provide it with any
such material;
27. (i) it has made its own assessment of the Company, the
Placing Shares and the terms of the Placing based on this
Announcement and any information publicly announced to a Regulatory
Information Service by or on behalf of the Company on or prior to
the date of this Announcement (the "Publicly Available
Information"); (ii) the Company's Ordinary Shares are listed on the
Official List and the Company is therefore required to publish
certain business and financial information in accordance with the
rules and practices of the London Stock Exchange and relevant
regulatory authorities (the "Exchange Information"), which includes
a description of the nature of the Company's business, most recent
balance sheet and profit and loss account, and similar statements
for preceding years, and it has reviewed such Exchange Information
as it has deemed necessary or that it is able to obtain or access
the Exchange Information without undue difficulty; and (iii) it has
had access to such financial and other information (including the
business, financial condition, prospects, creditworthiness, status
and affairs of the Company, the Placing and the Placing Shares, as
well as the opportunity to ask questions) concerning the Company,
the Placing and the Placing Shares as it has deemed necessary in
connection with its own investment decision to acquire any of the
Placing Shares and has satisfied itself that the information is
still current and relied on that investigation for the purposes of
its decision to participate in the Placing;
28. (i) neither the Company nor the Joint Bookrunners nor any of
their respective affiliates has made any warranties or
representations to it, express or implied, with respect to the
Company, the Placing and the Placing Shares or the accuracy,
completeness or adequacy of the Publicly Available Information or
the Exchange Information, and each of them expressly disclaims any
liability in respect thereof; and (ii) it will not hold the Joint
Bookrunners or any of their respective affiliates responsible for
any misstatements in or omissions from any Publicly Available
Information or any Exchange Information. Nothing in this paragraph
or otherwise in this Announcement excludes the liability of any
person for fraudulent misrepresentation made by that person;
29. the content of this Announcement is exclusively the
responsibility of the Company and that neither the Joint
Bookrunners nor any of their respective affiliates nor any of their
respective Representatives nor any person acting on their behalf
has or shall have any responsibility or liability for any
information, representation or statement contained in this
Announcement or any information previously or subsequently
published by or on behalf of the Company and will not be liable for
any Placee's decision to participate in the Placing based on any
information, representation or statement contained in this
Announcement or any information previously published by or on
behalf of the Company or otherwise. Each Placee further represents,
warrants and agrees that the only information on which it is
entitled to rely and on which such Placee has relied in committing
itself to acquire the Placing Shares is contained in this
Announcement and any Publicly Available Information including
(without limitation) the Exchange Information, such information
being all that it deems necessary and/or appropriate to make an
investment decision in respect of the Placing Shares and that it
has neither received nor relied on any other information given,
investigation made or representations, warranties or statements
made by either of the Joint Bookrunners or the Company or any of
their respective affiliates or any of their respective
Representatives or any person acting on their behalf and neither
the Joint Bookrunners nor the Company nor any of their respective
affiliates nor any of their respective Representatives will be
liable for any Placee's decision to accept an invitation to
participate in the Placing based on any other information,
representation, warranty or statement;
30. in making any decision to take up Placing Shares, it has
such knowledge and experience in financial, business and
international investment matters as is required to evaluate the
merits and risks of taking up the Placing Shares. It further
confirms that it is experienced in investing in securities of a
similar nature to the Ordinary Shares and in the sector in which
the Company operates and is aware that it may be required to bear,
and is able to bear, the economic risk of participating in, and is
able to sustain a complete loss in connection with, the Placing. It
further confirms that it relied on its own examination and due
diligence of the Company and its associates taken as a whole, and
the terms of the Placing, including the merits and risks involved,
and not upon any view expressed or information provided by or on
behalf of the Joint Bookrunners;
31. (i) it and each account it represents is not and, at the
time the Placing Shares are acquired, will not be, a resident of
Australia, Canada (unless paragraph 12 below applies), the Republic
of South Africa, Japan or any other jurisdiction in which it is
unlawful to make or accept an offer to acquire the Placing Shares,
and it and each account it represents is either (1)(a) outside the
United States and will be outside the United States at the time the
Placing Shares are acquired by it and (b) acquiring the Placing
Shares in an "offshore transaction" within the meaning of
Regulation S; or (2) a QIB who has executed and delivered to the
Company and the Joint Bookrunners a US investor letter
substantially in the form provided to it; and (ii) it is not
acquiring any of the Placing Shares as a result of any form of
"directed selling efforts" within the meaning of Regulation S or as
a result of any form of "general solicitation" or "general
advertising" within the meaning of Rule 502(c) under the Securities
Act;
32. if it is a Placee resident in Canada, it (i) qualifies as an
"accredited investor" within the meaning of Section 1.1 of NI
45-106 or subsection 73.3(1) of the OSA, as applicable, and it is
either purchasing the Placing Shares as principal for its own
account, or it is deemed to be purchasing the Placing Shares as
principal for its own account in accordance with applicable
Canadian securities laws, for investment only and not with a view
to resale or redistribution; (ii) was not created or used solely to
purchase or hold the Placing Shares as an accredited investor under
NI 45-106; (iii) qualifies as a "permitted client" within the
meaning of NI 31-103; (iv) is entitled under applicable Canadian
securities laws to purchase the Placing Shares without the benefit
of a prospectus under such securities laws; and (v) if required by
applicable Canadian securities laws, it will execute, deliver and
file or assist the Company in obtaining and filing such reports,
undertakings and other documents relating to the purchase of the
Placing Shares by it as may be required by any Canadian securities
commission or other regulatory authority;
33. it understands, and each account it represents has been
advised, that the Placing Shares have not been and will not be
registered or qualified for distribution by way of a prospectus
under the securities legislation of the United States, Australia,
Canada, the Republic of South Africa, Japan and, subject to certain
exceptions, may not be offered, sold, taken up, renounced,
distributed or delivered or transferred, directly or indirectly,
within or into those jurisdictions;
34. it understands, and each account it represents has been
advised that, (i) the Placing Shares have not been and will not be
registered under the Securities Act or with any regulatory
authority of any other state or other jurisdiction of the United
States; (ii) the Placing Shares are being offered and sold only (a)
to persons reasonably believed to be QIBs in transactions exempt
from the registration requirements of the Securities Act or (b) in
"offshore transactions" within the meaning of and pursuant to
Regulation S under the Securities Act; and (iii) the Placing Shares
may only be reoffered or resold in transactions exempt from, or not
subject to, the registration requirements of the Securities Act and
no representation has been made as to the availability of any
exemption under the Securities Act or any relevant state or other
jurisdiction's securities laws for the reoffer, resale, pledge or
transfer of the Placing Shares;
35. it understands, and each account it represents has been
advised that, (i) any offer and sale of the Placing Shares in
Canada is being made on a private placement basis only and is
exempt from the requirement that the Company prepares and files a
prospectus under applicable Canadian securities laws; and (ii) any
resale of the Placing Shares into Canada must be made in accordance
with applicable Canadian securities laws, which may vary depending
on the relevant jurisdiction, and which may require resales to be
made in accordance with Canadian prospectus requirements, a
statutory exemption from the prospectus requirements, in a
transaction exempt from the prospectus requirements or otherwise
under a discretionary exemption from the prospectus requirements
granted by the applicable local Canadian securities regulatory
authority and that these resale restrictions may under certain
circumstances apply to resales of the Placing Shares outside of
Canada;
36. it will not distribute, forward, transfer or otherwise
transmit this Announcement or any other materials concerning the
Placing (including any electronic copies thereof), directly or
indirectly, whether in whole or in part, in or into the United
States, Australia, Canada the Republic of South Africa or
Japan;
37. if it is a pension fund or investment company, its
acquisition of Placing Shares is in full compliance with applicable
laws and regulations;
38. neither it, nor the person specified by it for registration
as holder of Placing Shares is, or is acting as nominee or agent
for, and the Placing Shares will not be allotted to, a person who
is or may be liable to stamp duty or stamp duty reserve tax under
any of sections 67, 70, 93 and 96 of the Finance Act 1986
(depositary receipts and clearance services);
39. it has complied with its obligations under the Criminal
Justice Act 1993, MAR and any delegating acts, implementing acts,
technical standards and guidelines thereunder, and in connection
with money laundering and terrorist financing, 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 (as amended) (the "Regulations") and the
Money Laundering Sourcebook of the FCA and, if making payment on
behalf of a third party, that satisfactory evidence has been
obtained and recorded by it to verify the identity of the third
party as required by the Regulations;
40. i f it is a financial intermediary, as that term is used in
Article 5(1) of the UK Prospectus Regulation: (i) any Placing
Shares acquired by it in the Placing have not been acquired on
behalf of, nor have they been acquired with a view to their offer
or resale to, persons in the United Kingdom or to which the UK
Prospectus Regulation otherwise applies other than UK Qualified
Investors or in circumstances in which the prior consent of the
Joint Bookrunners has been given to the offer or resale; or (ii)
where Placing Shares have been acquired by it on behalf of persons
in the United Kingdom other than UK Qualified Investors, the offer
of those Placing Shares to it is not treated under the UK
Prospectus Regulation as having been made to such persons;
41. if it is a financial intermediary, as that term is used in
Article 5(1) of the EU Prospectus Regulation: (i) the Placing
Shares acquired by it in the Placing have not been acquired on
behalf of, nor have they been acquired with a view to their offer
or resale to, persons in any member state of the EEA or to which
the EU Prospectus Regulation otherwise applies other than EU
Qualified Investors or in circumstances in which the prior consent
of the Joint Bookrunners has been given to the offer or resale; or
(ii) where Placing Shares have been acquired by it on behalf of
persons in any member state of the EEA other than EU Qualified
Investors, the offer of those Placing Shares to it is not treated
under the EU Prospectus Regulation as having been made to such
persons;
42. that any offer of Placing Shares may only be directed at
persons in the UK who are UK Qualified Investors and represents,
warrants and undertakes that it has not offered or sold and, prior
to the expiry of a period of six months from Admission, will not
offer or sell any Placing Shares to persons in the United Kingdom,
except to Relevant Persons or otherwise in circumstances which have
not resulted and which will not result in an offer to the public in
the United Kingdom within the meaning of section 85(1) of the
Financial Services and Markets Act 2000, as amended ("FSMA");
43. that any offer of Placing Shares may only be directed at
persons in member states of the EEA who are EU Qualified Investors
and represents, warrants and undertakes that it has not offered or
sold and will not offer or sell any Placing Shares to persons in
the EEA prior to Admission except to EU Qualified Investors or
otherwise in circumstances which have not resulted in and which
will not result in an offer to the public in any member state of
the EEA within the meaning of the EU Prospectus Regulation;
44. if it is in the United Kingdom, it and any person acting on
its behalf is (a) a UK Qualified Investor and (b) falls within
Article 19(5) and/or Article 49(2)(a) to (d) of the Financial
Services and Markets Act 2000 (Financial Promotion) Order 2005 and
undertakes that it will acquire, hold, manage and (if applicable)
dispose of any Placing Shares that are allocated to it for the
purposes of its business only;
45. if it is in a member state of the EEA, it is an EU Qualified Investor;
46. 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;
47. it has complied and will comply with all applicable laws
(including all relevant provisions of FSMA) with respect to
anything done by it in relation to the Placing Shares in, from or
otherwise involving, the United Kingdom;
48. that no action has been or will be taken by either the
Company or the Joint Bookrunners or any person acting on behalf of
the Company or the Joint Bookrunners that would, or is intended to,
permit a public offer of the Placing Shares in any country or
jurisdiction where any such action for that purpose is
required;
49. it is acting as principal only in respect of the Placing or,
if it is acting for any other person: (i) it is duly authorised to
do so and has full power to make the acknowledgments, undertakings,
representations and agreements and give the indemnities herein on
behalf of each such person ; and (ii) it is and will remain liable
to the Company and/or the Joint Bookrunners for the performance of
all its obligations as a Placee in respect of the Placing
(regardless of the fact that it is acting for another person). Each
Placee agrees that the provisions of this paragraph shall survive
the resale of the Placing Shares by or on behalf of any person for
whom it is acting ;
50. it and any person acting on its behalf is entitled to
acquire the Placing Shares under the laws of all relevant
jurisdictions which apply to it and it has fully observed such laws
and obtained all such governmental and other guarantees, permits,
authorisations, approvals and consents which may be required
thereunder and complied with all necessary formalities and that it
has not taken any action or omitted to take any action which will
or may result in the Joint Bookrunners, the Company or any of their
respective affiliates or any of their respective Representatives
acting in breach of the legal or regulatory requirements of any
jurisdiction in connection with the Placing ;
51. it (and any person acting on its behalf) has the funds
available to pay for, and has all necessary capacity and has
obtained all necessary consents and authorities to enable it to
commit to its participation in the Placing and to perform its
obligations in relation thereto (including, without limitation, in
the case of any person on whose behalf it is acting, all necessary
consents and authorities to agree to the terms set out or referred
to in this Announcement) and will honour such obligations;
52. it (and any person acting on its behalf) will make payment
for the Placing Shares allocated to it in accordance with the terms
and conditions of this Announcement (including this Appendix) on
the due time and date set out herein, failing which the relevant
Placing Shares may be placed with other persons or sold as the
Joint Bookrunners may in their absolute discretion determine and
without liability to such Placee, and it will remain liable for any
amount by which the net proceeds of such sale falls short of the
product of the Placing Price and the number of Placing Shares
allocated to it and may be required to bear any stamp duty or stamp
duty reserve tax or other similar taxes (together with any interest
or penalties due pursuant to the terms set out or referred to in
this Announcement) which may arise upon the sale of such Placee's
Placing Shares on its behalf;
53. its allocation (if any) of Placing Shares will represent a
maximum number of Placing Shares which it will be entitled, and
required, to acquire, and that the Joint Bookrunners or the Company
may call upon it to acquire a lower number of Placing Shares (if
any), but in no event in aggregate more than the aforementioned
maximum;
54. neither the Joint Bookrunners nor any of their respective
affiliates nor any of their respective Representatives nor any
person acting on behalf of any of them, are making any
recommendations to it or advising it regarding the suitability of
any transactions it may enter into in connection with the Placing
and participation in the Placing is on the basis that it is not and
will not be a client of the Joint Bookrunners and the Joint
Bookrunners have no duties or responsibilities to it for providing
the protections afforded to their respective clients or customers
or for giving advice in relation to the Placing nor in respect of
any representations, warranties, undertakings or indemnities
contained in the Placing Agreement nor for the exercise or
performance of any of their rights and obligations thereunder
including any rights to waive or vary any conditions or exercise
any termination right;
55. the person whom it specifies for registration as holder of
the Placing Shares will be (i) itself; or (ii) its nominee, as the
case may be. Neither the Joint Bookrunners nor the Company will be
responsible for any liability to stamp duty or stamp duty reserve
tax or other similar taxes resulting from a failure to observe this
requirement. Each Placee and any person acting on behalf of such
Placee agrees to indemnify on an after-tax basis and hold harmless
the Company, each of the Joint Bookrunners and their respective
affiliates and each of their respective Representatives in respect
of the same on an after-tax basis on the basis that the Placing
Shares will be allotted to the CREST stock account of the Joint
Bookrunners (or any one of them) who will hold them as nominee on
behalf of such Placee until settlement in accordance with its
standing settlement instructions;
56. it will indemnify, on an after-tax basis, and hold harmless
the Company, the Joint Bookrunners and their respective affiliates
and their respective Representatives from any and all costs,
claims, liabilities and expenses (including legal fees and
expenses) arising, directly or indirectly, out of or in connection
with any breach by it of the representations, warranties,
acknowledgements, agreements and undertakings in this Appendix and
further agrees that the provisions of this Appendix shall survive
after completion of the Placing;
57. in connection with the Placing, the Joint Bookrunners and
any of their respective affiliates acting as an investor for their
own account may acquire Placing Shares and in that capacity may
acquire, retain, purchase or sell for their own account such
Ordinary Shares in the Company and any securities of the Company or
related investments and may offer or sell such securities or other
investments otherwise than in connection with the Placing.
Accordingly, references in this Announcement to shares being
issued, offered or placed should be read as including any issue,
offering or placement of such shares to the Joint Bookrunners and
their respective affiliates in such capacity. In addition, the
Joint Bookrunners may enter into financing arrangements and swaps
with investors in connection with which the Joint Bookrunners may
from time to time acquire, hold or dispose of such securities of
the Company, including the Placing Shares. The Joint Bookrunners do
not intend to disclose the extent of any such investment or
transactions otherwise than in accordance with any legal or
regulatory obligation to do so;
58. its commitment to acquire Placing Shares on the terms set
out in this Announcement (including this Appendix) and in the
contract note or trade confirmation will continue notwithstanding
any amendment that may in the future be made to the terms and
conditions of the Placing and that Placees will have no right to be
consulted or require that their consent be obtained with respect to
the Company's or the Joint Bookrunners' conduct of the Placing;
59. neither the Company nor the Joint Bookrunners owe any
fiduciary or other duties to any Placee in respect of any
acknowledgements, confirmations, representations, warranties,
undertakings or indemnities in the Placing Agreement;
60. these terms and conditions and any agreements entered into
by it pursuant to these terms and conditions (including any
non-contractual obligations arising out of or in connection with
such agreements) shall be governed by and construed in accordance
with the laws of England and 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 agreements and such non-contractual
obligations, 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 Joint
Bookrunners in any jurisdiction in which the relevant Placee is
incorporated or in which any of its securities have a quotation on
a recognised stock exchange; and
61. the Company, the Joint Bookrunners and their respective affiliates and their respective Representatives and others will rely upon the truth and accuracy of the acknowledgements, representations, warranties, indemnities, undertakings and agreements set forth herein and which are given to the Joint Bookrunners on its own behalf and on behalf of the Company and are irrevocable and it irrevocably authorises the Company and the Joint Bookrunners to produce this Announcement, pursuant to, in connection with, or as may be required by any applicable law or regulation, administrative or legal proceeding or official inquiry with respect to the matters set forth herein. It agrees that if any of the acknowledgements, representations, warranties, undertakings and agreements made in connection with its subscribing and/or acquiring of Placing Shares is no longer accurate, it shall promptly notify the Company and the Joint Bookrunners.
The agreement to allot and issue Placing Shares to Placees (or
the persons for whom Placees are contracting as agent) free of
stamp duty and stamp duty reserve tax relates only to their
allotment and issue to Placees, or such persons as they nominate as
their agents, direct from the Company for the Placing Shares in
question. Such agreement is subject to the representations,
warranties and further terms above and assumes, and is based on the
warranty and representation from each Placee, that the Placing
Shares are not being acquired in connection with arrangements to
issue depositary receipts or to issue or transfer the Placing
Shares into a clearance service. If there are any such
arrangements, or the settlement relates to any other dealing in the
Placing Shares, stamp duty or stamp duty reserve tax or other
similar taxes may be payable, for which neither the Company nor the
Joint Bookrunners will be responsible and each Placee shall
indemnify on an after-tax basis and hold harmless the Company, the
Joint Bookrunners and their respective affiliates and their
respective Representatives for any stamp duty or stamp duty reserve
tax or other similar tax paid by them in respect of any such
arrangements or dealings. If this is the case, each Placee should
seek its own advice and notify the Joint Bookrunners
accordingly.
Neither the Company nor the Joint Bookrunners is liable to bear
any capital duty, stamp duty and all other stamp, issue,
securities, transfer, registration, documentary or other duties or
taxes (including any interest, fines or penalties relating thereto)
payable in or outside the United Kingdom by any Placee or any other
person on a Placee's acquisition of any Placing Shares or the
agreement by a Placee to acquire any Placing Shares. Each Placee
agrees to indemnify on an after-tax basis and hold harmless the
Company, the Joint Bookrunners and their respective affiliates and
their respective Representatives from any and all interest, fines
or penalties in relation to any such duties or taxes to the extent
that such interest, fines or penalties arise from the unreasonable
default or delay of that Placee or its agent.
Each Placee should seek its own advice as to whether any of the
above tax liabilities arise and notify the Joint Bookrunners
accordingly.
Each Placee, and any person acting on behalf of each Placee,
acknowledges and agrees that the Joint Bookrunners and/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. Each Placee acknowledges and is aware that the Joint
Bookrunners are receiving a fee in connection with their role in
respect of the Placing as detailed in the Placing Agreement. When a
Placee or person acting on behalf of the Placee is dealing with the
either of the Joint Bookrunners any money held in an account with
the relevant Joint Bookrunner on behalf of the Placee and/or any
person acting on behalf of the Placee will not be treated as client
money within the meaning of the rules and regulations of the FCA
made under FSMA. The Placee acknowledges that the money will not be
subject to the protections conferred by the client money rules; as
a consequence, this money will not be segregated from the relevant
Joint Bookrunner's money in accordance with the client money rules
and will be used by the relevant Joint Bookrunner in the course of
its own business; and the Placee will rank only as a general
creditor of the relevant Joint Bookrunner.
The rights and remedies of the Joint Bookrunners and the Company
under these terms and conditions are in addition to any rights and
remedies which would otherwise be available to each of them and the
exercise or partial exercise of one will not prevent the exercise
of others.
All times and dates in this Announcement may be subject to
amendment by the Joint Bookrunners (in their absolute discretion).
The Joint Bookrunners shall notify the Placees and any persons
acting on behalf of the Placees of any changes.
In this Announcement, "after - tax basis" means in relation to
any payment made to the Company, the Joint Bookrunners or their
respective affiliates, agents, directors, officers and employees
pursuant to this Announcement where the payment (or any part
thereof) is chargeable to any tax, a basis such that the amount so
payable shall be increased so as to ensure that after taking into
account any tax chargeable (or which would be chargeable but for
the availability of any relief unrelated to the loss, damage, cost,
charge, expense or liability against which the indemnity is given
on such amount (including on the increased amount)) there shall
remain a sum equal to the amount that would otherwise have been so
payable.
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END
IOEFLFLEDFIRIIL
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