TIDMTBLD
RNS Number : 5943X
tinyBuild, Inc.
21 December 2023
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY, TO OR FOR THE ACCOUNT OR BENEFIT OF
US PERSONS, AS DEFINED IN REGULATION S PROMULGATED UNDER THE US
SECURITIES ACT OF 1933, AS AMED (THE "US SECURITIES ACT"), OR IN OR
INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN, NEW ZEALAND OR
THE REPUBLIC OF SOUTH AFRICA OR ANY OTHER JURISDICTION WHERE SUCH
RELEASE, PUBLICATION OR DISTRIBUTION WOULD BE UNLAWFUL. THIS
ANNOUNCEMENT IS NOT AN OFFER TO SELL OR A SOLICITATION TO BUY
SECURITIES IN ANY JURISDICTION. NEITHER THIS ANNOUNCEMENT NOR
ANYTHING CONTAINED HEREIN SHALL FORM THE BASIS OF, OR BE RELIED
UPON IN CONNECTION WITH, ANY OFFER OR COMMITMENT WHATSOEVER IN ANY
JURISDICTION.
This announcement contains inside information for the purposes
of Article 7 of EU Regulation 596/2014 as it forms part of domestic
law of the United Kingdom by virtue of the European Union
(Withdrawal) Act 2018, as amended (together, "MAR"). In addition,
market soundings were taken in respect of the matters contained in
this announcement, with the result that certain persons became
aware of such inside information. Upon the publication of this
announcement, this inside information is now considered to be in
the public domain and such persons shall therefore cease to be in
possession of inside information.
21 December 2023
tinyBuild, Inc
("tinyBuild" or the "Company" or the "Group")
Placing, Private Placement, Subscription and Open Offer of Offer
Shares
tinyBuild (AIM:TBLD), a premium video games publisher and
developer with global operations, today announces its intention to
raise gross proceeds of up to c.US$14 million through the issue of
new common shares in the capital of the Company (the "Offer
Shares") at a price of 5 pence (the "Issue Price") per new common
share, through a combination of:
-- a placing to raise at least US$10 million (the "Placing");
-- in conjunction with the Placing, Alex Nichiporchik, the CEO has agreed to:
(i) underwrite the Placing and the Open Offer by way of a
subscription of (a) any Shares not taken up in the Open Offer
(defined below) and (b) such number of Shares not subscribed for by
Placees in the Placing, together amounting up to a maximum of US$10
million;
(ii) subscribe for such number of Shares representing a maximum
of 37.8% raised in the Private Placement (defined below);
(iii) subject to investor demand and allocation, subscribe for
such number of any additional Shares to be issued in connection
with the transaction,
such that the CEO's total subscription amount results in his
shareholding percentage not falling below his current shareholding
of 37.8% (the "Subscription");
-- a private placement of Shares at the Issue Price to Atari, SA
("Atari"), the interactive entertainment company and an iconic
gaming industry brand, of US$2 million (the "Private Placement");
and
-- post the Placing, the Private Placement and the Subscription,
the Company intends to launch an open offer to qualifying
stockholders for up to US$2.16 million (the "Open Offer") with each
qualifying stockholder's basic entitlement being 1 Open Offer Share
for every 6 Shares held at the Record Date,
in each case, if required, subject to the passing of all
Resolutions at a special meeting of the stockholders of the Company
(the "Special Meeting"),
(together, the "Fundraise").
The Placing will be conducted through an accelerated
bookbuilding process (the "Bookbuild") which will be launched
immediately following this announcement and will be made available
to eligible institutional investors. The Placing is subject to the
terms and conditions set out in Appendix 2 to this announcement
(which forms part of this announcement, such announcement and its
Appendices together being this "Announcement").
Joh. Berenberg, Gossler & Co. KG, London Branch
("Berenberg") is acting as Nominated Adviser and Sole Bookrunner
for the Company in connection with the Placing.
The final number and allocation of Placing Shares will be agreed
by Berenberg and the Company at the close of the Bookbuild and the
result will be announced as soon as practicable thereafter. It is
envisaged that the Bookbuild will be closed no later than 6.00 p.m.
on the date of this Announcement. A further announcement will be
made following the close of the Bookbuild, confirming the results
of the Placing.
The Placing is being made available to institutional investors
and is not being made available to the public. The Company also
considers it important that existing retail stockholders have an
opportunity (where it is practicable for them to do so) to
participate in, to the extent possible, the Fundraise on equivalent
terms and conditions to the Placing. Accordingly, the Company
intends to offer existing retail shareholders the opportunity to
participate through the Open Offer. A separate announcement will be
made by the Company regarding the Open Offer. For the avoidance of
doubt, the Open Offer does not form part of the Placing.
The Placing and Open Offer will be underwritten by Alex
Nichiporchik up to a maximum of US$10 million. Whilst the Company
is not subject to The City Code on Takeovers and Mergers (the
"Takeover Code") because its registered office and its place of
central management and control are outside the UK, the Channel
Islands and the Isle of Man, any subscription by Alex Nichiporchik
pursuant to the Subscription that results in him holding more than
his current percentage holding will be subject to stockholder
approval representing at least 50% of stockholders with voting
rights to waive the requirement for the CEO to make a mandatory
offer for the Company pursuant to the Company's bylaws (a
"Whitewash Resolution"). A further stockholder resolution will be
required to give the directors authority to allot and issue the
Offer Shares on a non-pre-emptive basis by the approval of at least
75% of those stockholders present and voting at the Special Meeting
(the "Disapplication Resolution"). Alex Nichiporchik will not be
permitted to vote on the Whitewash Resolution, but he will be
permitted to vote on the Disapplication Resolution. Further details
regarding these stockholder resolutions will be included in the
Circular and Notice of Special Meeting to be published by the
Company in due course.
Subscription
In connection with the Subscription, the Company and the CEO
entered into a subscription agreement (" Subscription Agreement ")
on 21 December 2023. The Subscription Agreement is conditional on
the passing without amendment of the required Resolutions at the
Special Meeting.
Pursuant to the terms of the Subscription Agreement, the CEO
will, subject to the passing of the required Resolutions at the
Special Meeting, subscribe for Offer Shares at the Issue Price
by:
-- underwriting the Placing and the Open Offer by way of a
subscription of (a) any Shares not taken up in the Open Offer and
(b) such number of Shares not subscribed for by Placees in the
Placing, together amounting up to a maximum of US$10 million;
-- subscribing for such number of Shares representing a maximum
of 37.8% raised in the Private Placement;
-- subject to investor demand and allocation, subscribing for
such number of any additional Shares to be issued in connection
with the transaction,
such that the CEO's total subscription amount results in his
shareholding percentage not falling below his current shareholding
of 37.8%.
The CEO, Alex Nichiporchik, currently owns 37.8% of the Shares.
Immediately following the completion of the Fundraise, he will hold
between 37.8% and 59.7% of the Shares and voting rights in the
Company depending on the level of demand from proposed Placees in
the Placing and qualifying stockholders in the Open Offer. As a
result, the CEO will possess sufficient voting power to exercise
significant influence over all matters requiring shareholder
approval, including the election or removal of directors, the
declaration of dividends, whether to accept the terms of a takeover
offer and other matters to be determined by the Stockholders. In
exercising his voting rights, the CEO may be motivated by interests
that are different from those of other stockholders.
The Company entered into a relationship agreement with the CEO
and another individual who was deemed to be acting in concert with
him on 3 March 2021 to regulate their relationship following the
Company's IPO (the "Relationship Agreement"). That other individual
is no longer deemed to be acting in concert with the CEO.
Notwithstanding the Relationship Agreement, the ownership levels of
the CEO may have the effect of delaying, deferring or preventing a
change of control, merger, consolidation, takeover or other
business combination or discouraging a potential acquirer from
making a tender offer or otherwise attempting to obtain control of
the Company, which in turn could have an adverse effect on the
trading price of the Shares.
Private Placement Agreement
In connection with the Private Placement, the Company and Atari
entered into the Private Placement Agreement on 21 December 2023,
whereby Atari has agreed to conditionally subscribe for 31,416,902
Offer Shares at the Issue Price.
The Private Placement Agreement is conditional, inter alia, on
(i) Admission taking place and (ii) the passing without amendment
of the required Resolutions at the Special Meeting.
Open Offer
The Board recognises and is grateful for the continued support
received from stockholders and feels strongly that existing
qualifying stockholders (subject to certain restrictions that will
be imposed in relation to stockholders located in the United States
or other restricted jurisdictions) should, where it is practical
for them to do so, have the opportunity to participate in the
capital raising process on the same terms as those participating in
the Placing, Private Placement and the Subscription.
It is therefore the Board's intention to offer all qualifying
stockholders the opportunity to participate in the Open Offer to
raise up to c.US$2.16 million (before expenses), separate to the
funds raised pursuant to the Placing, Private Placement and the
Subscription. The CEO cannot participate in the Open Offer and has
the ability to take up shares that are not subscribed for in the
Open Offer through the Subscription.
The Company therefore intends to provide all qualifying
stockholders with the opportunity to subscribe for an aggregate of
up to 33,979,706 Open Offer Shares at the Issue Price, to raise up
to c.US$2.16 million (before expenses), on the basis of 1 Open
Offer Share for every 6 Shares held on the Record Date. Qualifying
stockholders subscribing for their full entitlement under the Open
Offer will also be able to request additional Open Offer Shares
through an excess application facility.
The Open Offer entitlements will be represented by the ISIN
USU8884H1116, along with Excess Open Offer entitlements under ISIN
USU8884H1298. Entitlements will not be listed to any exchange, and
are expected to be credited to the accounts of qualifying
stockholders on or around the 27 December 2023. The Open Offer
period is expected to operate until 11am on the 17 January
2024.
Further details on the Open Offer will be contained in the
Circular, which is expected to be posted to stockholders on or
around 22 December 2023 and will be available on the Company's
website.
Related Party Transaction
Alex Nichiporchik, CEO of tinyBuild, is considered a related
party of the Company pursuant to Rule 13 of the AIM Rules for
Companies by virtue of his role as director and as a substantial
shareholder of the Company. Therefore, Alex Nichiporchik' s entry
into the Subscription Agreement is classified as a related party
transaction.
The independent directors of the Company, excluding Alex
Nichiporchik, having consulted with the Company's nominated
adviser, Berenberg, consider that the terms of the Subscription
Agreement are fair and reasonable insofar as the stockholders of
the Company are concerned.
Background to the Fundraise
On 5 December 2023, the Company announced an update on trading
and a litigation settlement (the "Trading Update") including the
below excerpt:
" Current Trading and Cost Action
Since the publication of the Company's interim results in
September 2023 ("2023 Half Year Results"), the market has
deteriorated further and negotiations of certain large contracts
have extended into the final month of the year. These remain under
negotiation and may not be signed by year end, or at all. The
continued underperformance of Versus Evil which delayed into 2024
three out of four games originally planned for release in H2 2023,
including the widely anticipated Broken Roads, also weighed on
group performance. As a result, FY23 revenues are now likely to be
between $40-50 million with the top end of this range dependent on
the aforementioned large contracts being signed and anticipated
December trading before the year end.
The mix of revenues remains tilted towards lower-margin
third-party games, which has a negative impact on gross profit
margin, when compared to FY22. In an effort to mitigate the impact
of lower expected cash inflows just before the end of the year, the
Company has promptly accelerated its cost reduction plan. Further
reduction of studio cash burn, the refocus on lower risk and higher
than expected return projects and the optimisation of the
publishing units are expected to contribute to a cash outflow
reduction by $5-10 million per annum, starting from FY24. One-off
severance charges and further impairments may be booked in FY 2023
as a result of further cost action.
Settlement Terms
On 4 December 2023, tinyBuild agreed to a binding summary of
terms relating to a global settlement agreement (the "Settlement
Terms") to be entered into with Steve Escalante, Lance James and
Stall Proof, LLC (the "Claimants") relating to the following claims
which have been made against tinyBuild following its acquisition of
Versus Evil LLC ("Versus Evil") and Red Cerberus LLC ("Red
Cerberus") in November 2021 (together, the "Claims"):
(a) MIPA Claim
As previously disclosed in tinyBuild's 2023 Half Year Results,
in November 2021, tinyBuild acquired Versus Evil and Red Cerberus
from the Claimants. The Claimants allege that tinyBuild breached
three material obligations under the relevant Membership Interest
Purchase Agreement (the "MIPA"). First, the Claimants allege that
tinyBuild was obligated and failed to make timely capital
contributions to Versus Evil during fiscal years 2022 and 2023.
Second, the Claimants allege that tinyBuild was obligated and
failed to release to the Claimants certain funds that were held
back under the terms of the MIPA. Third, the Claimants allege that
tinyBuild was obligated and failed to provide material support to
Versus Evil that was promised under the MIPA (together, the "MIPA
Claim").
(b) Escalante Claim
In connection with the aforementioned acquisitions, tinyBuild
entered into an employment agreement with Steve Escalante providing
for his employment as General Manager of Versus Evil and Red
Cerberus (the "Employment Agreement"). Among other things, the
Employment Agreement provided for a retention package worth $3
million in shares and options over three years. Mr. Escalante
commenced legal proceedings against tinyBuild and tinyBuild's
directors alleging that tinyBuild breached the Employment Agreement
by failing to pay him in a timely manner and sought to assert his
right to terminate the Employment Agreement.
As part of the Settlement Terms and in full and final settlement
of the Claims (including the MIPA Claim), tinyBuild has agreed to
pay to the Claimants $3.5 million in cash (in addition to legal
costs). The Settlement Terms cover the claims disclosed in the 2023
Half Year Results note on contingent liabilities and will also
relinquish the Company from any future obligation relating to
earnouts, which allows tinyBuild to consider all strategic options
for both Versus Evil and Red Cerberus.
The payment will be divided in two tranches: (i) $1.5 million on
signing of the Settlement Terms and (ii) the remaining funds due by
13 February 2024 (the "Deferred Payment"). tinyBuild's obligation
to make the Deferred Payment has been secured by founder and CEO
Alex Nichiporchik with a personal guarantee, should tinyBuild fail
to satisfy its obligations under the Settlement Terms.
Cash position
At the end of November, the Company had $5.7 million of cash,
which is expected to decline further due to limited cash inflow
from October sales, one-off charges as part of the cost reduction
plan and underlying software development investments due in
December. As a result, the Company's cash position at the end of
the year is expected to be in the low single digit millions,
assuming no large contracts are signed before the year end and
including the $1.5 million upfront cash payment related to the
Settlement Terms. The undrawn revolving credit facility with Bank
of America originally set up to fund potential M&A activity was
terminated and the Company continues to have no debt or undrawn
facilities.
Including payments to be made pursuant to the Settlement Terms
and assuming no large contracts are signed, the Company will
require new funding by the end of January 2024. As a result of
this, the Company is evaluating near-term options to strengthen its
balance sheet. As part of this process, Alex Nichiporchik has
expressed his support for the Company and willingness to underwrite
an equity fundraise of new common shares of the Company to raise up
to $10 million. The Company intends to offer shareholders and other
investors the opportunity to participate in any such potential
equity fundraise under the same terms and will provide a further
announcement as and when appropriate. Any such equity fundraise
would require shareholder approval with further details expected to
be published before the end of 2023."
Further to the announcement in the Trading Update of binding
Settlement Terms being agreed in respect of the Claims, a global
settlement agreement (the "Settlement Agreement") has been entered
into by the Company in full and final settlement of the Claims, in
respect of which each of the Company and its Directors were
potentially liable with the Deferred Payment due in February
2024.
No large contracts have been agreed or signed since the Trading
Update.
Rationale for the Fundraise and Use of Proceeds
The Trading Update stated the Company will require new funding
by the end of January 2024 and was therefore evaluating near-term
options to strengthen its balance sheet. The Directors gave careful
consideration to the structure of the Fundraise and concluded that
the Placing, together with the Private Placement, Subscription and
Open Offer, was the most suitable option available to the Company
and its stockholders at this time.
The anticipated proceeds of the Fundraise are expected to be
used in the following approximate amounts:
Use of proceeds $m
Settlement Agreement(1) 3.5
----
Investment in software
development during 2024 5+
----
Working capital 3+
----
Notes: (1) of which $1.5m was paid in mid-December pursuant to
the Settlement Agreement.
Any additional funds raised shall be used by the Company for
general working capital purposes.
The Fundraise, including the Placing, is conditional, inter
alia, on stockholder approval. If the resolutions to be put forward
to stockholders are not passed at the Special Meeting, the
Fundraise will not take place and the proceeds of the Fundraise
will not be received by the Company.
If the Company does not receive the proceeds of the Fundraise,
the Company would have to again seek other forms of emergency
financing. Whilst the CEO has indicated he is willing to support
the Company, no terms have been agreed beyond the proposed
Subscription and the Company is unable to provide any assurance
that alternative financing could be secured. Failure to secure
alternative forms of finance at all or on commercially acceptable
terms could have a material adverse effect on the Group's business,
financial condition, prospects, capital resources, cash flows,
share price, liquidity, results and/or future operations. In
particular, failure to conclude the Fundraise will materially
compromise the Group's ability to meet its financial obligations as
they fall due and, in the opinion of the Board, likely result in
the Group entering into a chapter 11 bankruptcy or some other form
of insolvency procedure under which the prospects for recovery of
value, if any, by stockholders would be uncertain.
Strategy update
As announced on 5 December 2023, the Company has promptly
accelerated its cost reduction plan in an effort to mitigate the
impact of lower than expected cash inflows. These actions are
expected to contribute to a cash outflow reduction by US$5-10
million per annum, starting from Q1 2024 and include the following
cost action items:
-- Refocusing on lower risk/higher return projects
-- Publishing unit optimisation
-- Streamlining of existing studios
-- One-off severance charges in 2023 and potential further
impairments with further details expected to be contained in the
Company's FY23 results
The current pipeline includes widely-awaited titles such as
Broken Roads, Streets of Rogue 2, SAND, Ferocious amongst
others.
Outlook
The Company's outlook remains unchanged from the 5 December
Trading Update:
"The outlook for FY24 remains cautious. The Company expects
continued pressure on discounting in a crowded market for new
releases. The planned launch of certain promising games in 2024
gives reason for optimism and this coupled with a leaner cost base
could translate into strong operating leverage in the event of a
recovery in video games sales."
Total Voting Rights
As at 20 December 2023, the issued share capital of the Company
now consists of 203,878,238 Common Shares, with a nominal value of
US$0.001 each, with voting rights (including 2,901,529 Common
Shares held by the Company's employee benefit trust).
The Company also intends to award shares to certain employees
including Giasone Salati at a date to be determined as part of
ongoing remuneration discussions. Where possible, the Company has
the option to issue shares from the employee benefit trust to
satisfy such awards.
Enquiries :
tinyBuild, Inc investorrelations@tinybuild.com
Alex Nichiporchik - Chief Executive Officer
Giasone (Jaz) Salati - Chief Financial
Officer
Michael Schauble - Chief Commercial Officer
Berenberg (Sole Bookrunner, Nominated
Adviser and Sole Broker)
Mark Whitmore, Ciaran Walsh, Milo Bonser +44 (0)20 3207 7800
SEC Newgate (Financial PR) tinybuild@secnewgate.co.uk
Robin Tozer, Harry Handyside, Molly Gretton +44 (0)7540 106366
Notes for editors
About tinyBuild:
Founded in 2013, tinyBuild (AIM: TBLD) is a global video games
publisher and developer, with a catalogue of more than 80 premium
titles across different genres. tinyBuild's strategy is to focus on
its own intellectual property (IP) to build multi-game and
multimedia franchises, in partnership with developers.
tinyBuild is headquartered in the USA with operations stretching
across the Americas and Europe. The Group's broad geographical
footprint enables the Company to source high-potential IP, access
cost-effective development resources, and build a loyal customer
base through its innovative grassroots marketing.
tinyBuild was admitted to AIM, a market by the London Stock
Exchange, in March 2021.
Important Notices
The securities referred to herein have not been and will not be
registered under the US Securities Act of 1933 (the "Securities
Act") or under the securities laws of any state or other
jurisdiction of the United States, and may not be offered, sold,
pledged or otherwise transferred in the United States absent
registration under the Securities Act, or pursuant to an available
exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and applicable
state securities law. tinyBuild, Inc (the "Company") does not
intend to register the securities or conduct a public offering in
the United States. Any failure to comply with the foregoing
restrictions may constitute a violation of US securities laws. This
announcement (the "Announcement") does not constitute or form part
of an offer or invitation to sell or a solicitation of an offer to
buy or subscribe for or otherwise acquire any securities in any
jurisdiction or an inducement to engage in investment activity.
There shall be no offers or sales of shares or other securities in
any jurisdiction in which such offer or sale would be unlawful
prior to registration or qualification under the securities laws of
such jurisdiction.
This Announcement has been issued by the Company 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
Berenberg or its affiliates or agents as to, or in relation to, the
accuracy or completeness of this Announcement or any other
information made available to or publicly available to any
interested party or its advisers, whether written, oral or in a
visual or electronic form, and howsoever transmitted or made
available, and any liability therefore is expressly disclaimed.
Berenberg is authorised and regulated by the German Federal
Financial Supervisory Authority and is authorised, and subject to
limited regulation by, the FCA in the United Kingdom. Berenberg is
acting exclusively for the Company and no one else in connection
with the contents of this Announcement and other matters described
in this Announcement and will not regard any other person as its
client in relation to the content of this Announcement and other
matters described in this Announcement and will not be responsible
to anyone other than the Company for providing the protections
afforded to its clients or for providing advice to any other person
in relation to the content of this Announcement or any other
matters referred to in this Announcement.
The distribution of this Announcement and the proposed equity
issuance in certain jurisdictions may be restricted by law. No
action has been taken by the Company or Berenberg that would permit
an offering of such shares or possession or distribution of this
Announcement or any other offering or publicity material relating
to such shares in any jurisdiction where action for that purpose is
required. Any failure to comply with these restrictions may
constitute a violation of the securities laws of such jurisdiction.
Persons into whose possession this Announcement comes are required
by the Company and Berenberg to inform themselves about, and to
observe, such restrictions.
This Announcement contains forward-looking statements.
Forward-looking statements are not historical facts but are based
on certain assumptions of management regarding our present and
future business strategies and the environment in which we will
operate, which the Company believes to be reasonable but are
inherently uncertain, and describe the Company's future operations,
plans, strategies, objectives, goals and targets and expectations
and future developments in the markets. Forward-looking statements
typically use terms such as "believes", "projects", "anticipates",
"expects", "intends", "plans", "may", "will", "would", "could" or
"should" or similar terminology. Any forward-looking statements in
this Announcement are based on the Company's current expectations
and, by their nature, forward-looking statements are subject to a
number of risks and uncertainties, many of which are beyond the
Company's control, that could cause the Company's actual results
and performance to differ materially from any expected future
results or performance expressed or implied by any forward-looking
statements. As a result, you are cautioned not to place undue
reliance on such forward-looking statements. Past performance
should not be taken as an indication or guarantee of future
results, and no representation or warranty, express or implied, is
made regarding future performance. Some of the information is still
in draft form and will only be finalised, if legally verifiable, at
a later date. The Company undertakes no obligation to release the
results of any revisions to any forward-looking statements in this
Announcement that may occur due to any change in its expectations
or to reflect events or circumstances after the date of this
Announcement and the parties named above disclaim any such
obligation.
Information to Distributors
Solely for the purposes of the product governance requirements
of Chapter 3 of the FCA Handbook Product Intervention and Product
Governance Sourcebook (the "UK Product Governance Requirements"),
and disclaiming all and any liability, whether arising in tort,
contract or otherwise, which any "manufacturer" (for the purposes
of the UK Product Governance Requirements) may otherwise have with
respect thereto, the Placing Shares have been subject to a product
approval process, which has determined that the Placing Shares are:
(i) compatible with an end target market of retail investors and
investors who meet the criteria of professional clients and
eligible counterparties, each defined in paragraph 3 of the FCA
Handbook Conduct of Business Sourcebook; and (ii) eligible for
distribution through all permitted distribution channels to
professional clients and eligible counterparties (the "Target
Market Assessment").
Notwithstanding the Target Market Assessment for the Placing
Shares, distributors should note that: the price of the Placing
Shares may decline and investors could lose all or part of their
investment; the Placing Shares offer no guaranteed income and no
capital protection; and an investment in the Placing Shares is
compatible only with investors who do not need a guaranteed income
or capital protection, who (either alone or in conjunction with an
appropriate financial or other adviser) are capable of evaluating
the merits and risks of such an investment and who have sufficient
resources to be able to bear any losses that may result
therefrom.
The Target Market Assessment is without prejudice to the
requirements of any contractual, legal or regulatory selling
restrictions in relation to the offering of the Placing Shares.
Furthermore, it is noted that, notwithstanding the Target Market
Assessment, Berenberg will only procure investors who meet the
criteria of professional clients and eligible counterparties.
For the avoidance of doubt, the Target Market Assessment does
not constitute: (a) an assessment of suitability or appropriateness
for the purposes of the UK Product Governance Requirements; 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 1
EXPECTED TIMETABLE OF PRINCIPAL EVENTS
Event(12) Date
Announcement of the Fundraise 21 December 2023
Record date for entitlement to 6.00 p.m. on 19 December
participate under the Open Offer 2023
Despatch of this Circular and (if 22 December 2023
applicable) the Form of Direction
and the Application Form
Ex-entitlement date of the Open 8.00 a.m. on 21 December
Offer 2023
Open Offer Entitlements and Excess As soon as practicable
CREST Open Offer Entitlements credited after 8.00 a.m. on 27 December
as soon as possible after stock 2023
accounts of Qualifying DI Holders
Recommended latest time and date 4.30 p.m. on 11 January
for requesting withdrawal of Open 2024
Offer Entitlements and Excess CREST
Open Offer from CREST
Latest time and date for depositing 3.00 p.m. on 12 January
Open Offer Entitlements into CREST 2024
Latest time and date for splitting 3.00 p.m. on 15 January
Application Forms (to satisfy bona 2024
fide market claims only)
Latest time and date for receipt 9.00 a.m. on 15 January
of Forms of Direction from Depository 2024
Interest holders
Latest time and date of receipt 9.00 a.m. on 16 January
for proxy votes and CREST voting 2024
instructions to be valid at the
Special Meeting
Latest time and date for receipt 11.00 a.m. on 17 January
of completed Application Forms 2024
and payment in full under the Open
Offer or settlement of relevant
CREST instructions (as appropriate)
Special Meeting 12.00 p.m. (noon) on 18
January 2024
Publication of the results of the 18 January 2024
Special Meeting
Admission and commencement of dealings 8.00 a.m. on 19 January
in the Placing Shares, the Open 2024
Offer Shares, the Subscription
Shares and the Private Placement
Shares on AIM
CREST accounts to be credited with as soon as possible on
Depositary Interests representing 19 January 2024
Offer Shares
Expected despatch of de nitive Within 14 days of Admission
share certi cates for Offer Shares
in certi cated form (certificated
holders only)
Notes:
1. Each of the times and dates mentioned in this Appendix 1 is
subject to change by the Company (with the agreement of Berenberg),
in which event details of the new times and dates will be noti ed
to the London Stock Exchange and the Company will make an
appropriate announcement to a Regulatory Information Service.
2. References to times in this Appendix 1 are to London time
unless otherwise stated.
APPIX 2
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION ON THE PLACING FOR INVITED PLACEES
ONLY
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THIS ANNOUNCEMENT (INCLUDING THE APPICES) AND THE TERMS
AND CONDITIONS SET OUT HEREIN (THE "ANNOUNCEMENT") ARE FOR
INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT PERSONS WHOSE
ORDINARY ACTIVITIES INVOLVE THEM ACQUIRING, HOLDING, MANAGING AND
DISPOSING OF INVESTMENTS (AS PRINCIPAL OR AGENT) FOR THE PURPOSES
OF THEIR BUSINESS AND WHO HAVE PROFESSIONAL EXPERIENCE IN MATTERS
RELATING TO INVESTMENTS AND ARE: (A) IF IN A MEMBER STATE OF THE
EUROPEAN ECONOMIC AREA (THE "EEA"), PERSONS WHO ARE QUALIFIED
INVESTORS ("QUALIFIED INVESTORS") WITHIN THE MEANING OF ARTICLE
2(E) OF REGULATION (EU) 2017/1129, AS AMED (THE "EU PROSPECTUS
REGULATION"); (B) IF IN THE UNITED KINGDOM, QUALIFIED INVESTORS
WITHIN THE MEANING OF ARTICLE 2(E) OF THE EU PROSPECTUS REGULATION
AS IT FORMS PART OF UK DOMESTIC LAW BY VIRTUE OF THE EUROPEAN UNION
(WITHDRAWAL) ACT 2018, AS AMED (THE "UK PROSPECTUS REGULATION") WHO
ARE (I) PERSONS WHO FALL WITHIN THE DEFINITION OF "INVESTMENT
PROFESSIONAL" IN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND
MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMED (THE
"ORDER"); OR (II) PERSONS WHO FALL WITHIN ARTICLE 49(2)(A) TO (D)
("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF
THE ORDER; OR (III) PERSONS TO WHOM THEY MAY OTHERWISE BE LAWFULLY
COMMUNICATED (ALL SUCH PERSONS IN (B) TOGETHER BEING REFERRED TO AS
"RELEVANT PERSONS").
THIS ANNOUNCEMENT MUST NOT BE ACTED ON OR RELIED ON BY PERSONS
IN ANY MEMBER STATE OF THE EEA WHO ARE NOT QUALIFIED INVESTORS OR
PERSONS IN THE UNITED KINGDOM WHO ARE NOT RELEVANT PERSONS. PERSONS
DISTRIBUTING THIS ANNOUNCEMENT MUST SATISFY THEMSELVES THAT IT IS
LAWFUL TO DO SO. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH
THIS ANNOUNCEMENT RELATES IS AVAILABLE ONLY TO QUALIFIED INVESTORS
IN ANY MEMBER STATE OF THE EEA AND RELEVANT PERSONS IN THE UNITED
KINGDOM AND WILL BE ENGAGED IN ONLY WITH SUCH PERSONS. THIS
ANNOUNCEMENT DOES NOT ITSELF CONSTITUTE AN OFFER FOR SALE OR
SUBSCRIPTION OF, OR THE SOLICITATION OF AN OFFER TO ACQUIRE OR
SUBSCRIBE FOR, ANY SECURITIES IN THE COMPANY.
THE SECURITIES REFERRED TO HEREIN HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS AMED (THE
"SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION OF THE UNITED STATES, AND MAY NOT BE OFFERED OR
SOLD DIRECTLY OR INDIRECTLY WITHIN, INTO OR IN THE UNITED STATES,
EXCEPT PURSUANT TO AN EXEMPTION FROM 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. THE
PLACING IS BEING MADE OUTSIDE THE UNITED STATES IN OFFSHORE
TRANSACTIONS WITHIN THE MEANING OF, AND IN RELIANCE ON, REGULATION
S UNDER THE SECURITIES ACT IN ACCORDANCE WITH AND IN RELIANCE ON
THE SAFE HARBOUR FROM REGISTRATION PROVIDED BY SECTION 903(B)(3),
OR CATEGORY 3, OF REGULATION S UNDER THE SECURITIES ACT. THERE WILL
BE NO PUBLIC OFFER OF THE PLACING SHARES IN THE UNITED STATES, THE
UNITED KINGDOM, ANY OTHER RESTRICTED TERRITORY (AS DEFINED BELOW)
OR ELSEWHERE.
EACH PLACEE SHOULD CONSULT WITH ITS OWN ADVISERS AS TO LEGAL,
TAX, BUSINESS, FINANCIAL AND RELATED ASPECTS OF AN INVESTMENT IN
THE PLACING SHARES.
This Announcement is for information only and does not itself
constitute or form part of an offer to sell or issue or the
solicitation of an offer to buy or subscribe for securities
referred to herein in any jurisdiction including, without
limitation, the United States or any other Restricted Territory (as
defined below) or any jurisdiction where such offer or solicitation
is unlawful.
This Announcement, and the information contained herein, is not
for release, publication or distribution, directly or indirectly,
to persons in Australia, South Africa, Canada, Japan or the United
States or any jurisdiction in which such release, publication or
distribution is unlawful (each a "Restricted Territory"). The
distribution of this Announcement, the Placing and/or the offer or
sale of the Placing Shares in certain jurisdictions may be
restricted by law. No action has been taken by the Company or by
Joh. Berenberg, Gossler & Co. KG, London Branch ("Berenberg")
or any of its Affiliates or any of its Representatives which would
permit an offer of the Placing Shares or possession or distribution
of this Announcement or any other offering or publicity material
relating to such Placing Shares in any jurisdiction where action
for that purpose is required. Persons distributing any part of this
Announcement must satisfy themselves that it is lawful to do so.
Persons (including, without limitation, nominees and trustees) who
have a contractual or other legal obligation to forward a copy of
this Announcement should seek appropriate advice before taking any
such action. Persons into whose possession this Announcement comes
are required by the Company and Berenberg to inform themselves
about, and to observe, any such restrictions.
All offers of the Placing Shares will be made pursuant to an
exemption under the EU 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 to which section 21(1) of
the Financial Services and Markets Act 2000, as amended (the
"FSMA") does not apply.
Subject to certain exceptions, the securities referred to in
this Announcement may not be offered or sold in any Restricted
Territory or to, or for the account or benefit of, a citizen or
resident, or a corporation, partnership or other entity created or
organised in or under the laws of a Restricted Territory.
This Announcement has been issued by, and is the sole
responsibility of, the Company. No representation or warranty,
express or implied, is or will be made as to, or in relation to,
and no responsibility or liability is or will be accepted by
Berenberg or any of its Affiliates or Representatives as to or in
relation to, the accuracy or completeness of this Announcement or
any other written or oral information made available to or publicly
available to any party or its advisers, and any liability therefore
is expressly disclaimed.
Berenberg is acting exclusively for the Company and no-one else
in connection with the Placing and is not, and will not be,
responsible to anyone (including the Placees) other than the
Company for providing the protections afforded to its clients nor
for providing advice in relation to the Placing and/or any other
matter referred to in this Announcement.
None of the Company, Berenberg or any of their respective
Affiliates or Representatives makes any representation or warranty,
express or implied to any Placees regarding any investment in the
securities referred to in this Announcement under the laws
applicable to such Placees.
By participating in the Placing, Placees (including individuals,
funds or otherwise) by whom or on whose behalf a commitment to
acquire Placing Shares has been given will be deemed (i) to have
read and understood this Announcement in its entirety; (ii) to be
participating, making such offer on the terms and conditions
contained in this Appendix; and (iii) to be providing (and shall
only be permitted to participate in the Placing on the basis that
they have provided) the representations, warranties, indemnities,
agreements, acknowledgements and undertakings contained in this
Appendix.
In particular, each such Placee represents, warrants,
undertakes, agrees and acknowledges that:
1. if it is in any member state of the EEA it is a Qualified
Investor and if it is in the United Kingdom it is a Relevant
Person, and undertakes that it will subscribe for, hold, manage or
dispose of any Placing Shares that are allocated to it for the
purposes of its business;
2. it is subscribing for Placing Shares for its own account or
is subscribing for 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. if it is a financial intermediary, as that term is used in
Article 5(1) of the EU Prospectus Regulation or the UK Prospectus
Regulation (as applicable), (i) the Placing Shares subscribed for
by it in the Placing will not be subscribed for on a
non-discretionary basis on behalf of, nor will they be subscribed
for with a view to their offer or resale to, persons in a member
state of the EEA other than to Qualified Investors, or persons in
the United Kingdom other than to Relevant Persons, or in
circumstances in which the prior consent of Berenberg has been
given to each proposed offer or resale; or (ii) where Placing
Shares have been subscribed for by it on behalf persons in a member
state of the EEA other than Qualified Investors, or in the United
Kingdom other than Relevant Persons, the offer of those Placing
Shares to it is not treated under the EU Prospectus Regulation or
the UK Prospectus Regulation (as applicable) as having been made to
such persons;
4. it and the person(s), if any, for whose account or benefit it
is acquiring the Placing Shares are (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;
5. the Placing Shares will be subject to the conditions listed
under Section 903(b)(3), of Category 3, of Regulation S. The
Placing Shares are "restricted securities" as defined in Rule 144
under the Securities Act; and
6. the Company and Berenberg will rely upon the truth and
accuracy of and compliance with the foregoing representations,
warranties, undertakings, acknowledgements and agreements. Each
Placee hereby agrees with the Company and Berenberg to be bound by
these terms and conditions as being the terms and conditions upon
which Placing Shares will be issued. A Placee shall, without
limitation, become so bound if Berenberg confirms to such Placee
its allocation of Placing Shares.
Bookbuild
Following this Announcement, Berenberg will today commence the
bookbuilding process (the "Bookbuild") to determine demand for
participation in the Placing by Placees. No commissions will be
paid to Placees or by Placees in respect of any Placing Shares. The
Bookbuild will open with immediate effect. Members of the public
are not entitled to participate in the Placing. This Appendix gives
details of the terms and conditions of, and the mechanics of
participation in, the Placing.
Berenberg and the Company shall be entitled to effect the
Placing by such alternative method to the Bookbuild as they may, in
their sole discretion, determine.
Details of the Placing Agreement and of the Placing Shares
Berenberg has today entered into an agreement with the Company
(the "Placing Agreement") under which, subject to the conditions
set out therein, Berenberg has agreed, as agent for and on behalf
of the Company, to use its reasonable endeavours to procure Placees
for the Placing Shares at the Issue Price. The Placing is not being
underwritten by Berenberg.
The final number of Placing Shares will be determined at the
close of the Bookbuild by the Company and Berenberg, following
which the Company and Berenberg will execute placing terms
recording the final details of the Placing (the "Placing Terms").
The timing of the closing of the book and allocations are at the
discretion of the Company and Berenberg. Details of the number of
Placing Shares will be announced as soon as practicable after the
close of the Bookbuild.
The Placing Shares will, when issued, be subject to the
Company's corporate documents, be credited as fully paid and will
rank pari passu in all respects with the existing Shares, including
the right to receive all dividends and other distributions
declared, made or paid in respect of the Shares after the date of
issue of such Placing Shares. The Placing Shares will be issued
free of any encumbrances, liens or other security interests.
Applications for listing and admission to trading
Application will be made to the London Stock Exchange for the
Offer Shares to be admitted to trading on AIM ("Admission"). It is
expected that, subject to the passing of the Resolutions as the
Special Meeting, Admission will become effective at 8.00 a.m.
(London time) on 19 January 2024 or such later time and date (being
not later than 8.00 a.m. (London time) on 31 January 2024) as
Berenberg and the Company may agree.
Participation in, and principal terms of, the Placing
1. Berenberg is acting as sole bookrunner and agent 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
Berenberg. Berenberg and its Affiliates are entitled to enter bids
in the Bookbuild as principal.
3. The Placing Shares will be issued to Placees at the Issue Price.
4. The Bookbuild, if successful, will establish the number of
Placing Shares to be issued in the Placing. The number of Placing
Shares will be announced on a Regulatory Information Service
following completion of the Bookbuild (the "Placing Results
Announcement").
5. To bid in the Bookbuild, prospective Placees should
communicate their bid by telephone or in writing to their usual
sales contact at Berenberg. Each bid should state the number of
Placing Shares which the prospective Placee wishes to subscribe for
at the Issue Price. Bids may be scaled down by Berenberg on the
basis referred to in paragraphs 8 and 9 below.
6. 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
consent of Berenberg, 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 Berenberg. Each Placee
will also have an immediate, separate, irrevocable and binding
obligation, owed to Berenberg, to pay to Berenberg (or as Berenberg
may direct) as agent for the Company in cleared funds an amount
equal to the product of the Issue Price and the number of Placing
Shares that such Placee has agreed to subscribe for and the Company
has agreed to allot and issue to that Placee.
7. The Bookbuild will open with immediate effect and is expected
to close as soon as practicably possible on 21 December 2023.
However, the timing of the closing of the Bookbuild and allocations
are at the absolute discretion of the Company and Berenberg.
Berenberg may, in agreement with the Company, accept bids that are
received after the Bookbuild has closed.
8. Each Placee's allocation will be determined by the Company in
consultation with Berenberg and will be confirmed to Placees orally
by Berenberg following the close of the Bookbuild, and a trade
confirmation will be dispatched as soon as possible thereafter.
Berenberg's oral confirmation to such Placee will constitute an
irrevocable legally binding commitment upon such person (who will
at that point become a Placee) in favour of Berenberg and the
Company, under which such Placee agrees to subscribe for the number
of Placing Shares allocated to it and to pay the Issue Price for
each such Placing Shares on the terms and conditions set out in
this Appendix and in accordance with the Company's corporate
documents.
9. Berenberg will, in effecting the Placing, agree with the
Company the identity of the Placees and the basis of allocation and
pricing of the Placing Shares. Subject to paragraphs 4 and 5 above,
Berenberg 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. Berenberg may also, notwithstanding paragraphs 4 and
5 above, and subject to the prior consent of the Company, (i)
allocate Placing Shares after the time of any initial allocation to
any person submitting a bid after that time; and (ii) allocate
Placing Shares after the Bookbuild has closed to any person
submitting a bid after that time. The acceptance of offers shall be
at the absolute discretion of Berenberg. The Company reserves the
right (upon agreement with Berenberg) to reduce or seek to increase
the amount to be raised pursuant to the Placing.
10. Except as required by law or regulation, no press release or
other announcement will be made by Berenberg or the Company using
the name of any Placee (or its agent), in its capacity as Placee
(or agent), other than with such Placee's prior written
consent.
11. Irrespective of the time at which a Placee's allocation(s)
pursuant to the Placing is/are 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".
12. All obligations under the Bookbuild and the Placing will be
subject to fulfilment or (where applicable) waiver of the
conditions referred to below under "Conditions of the Placing" and
to the Placing not being terminated on the basis referred to below
under "Termination of the Placing Agreement".
13. By participating in the Bookbuild, each Placee agrees that
its rights and obligations in respect of the Placing will terminate
only in the circumstances described below and will not be capable
of rescission or termination by the Placee after confirmation (oral
or otherwise) by Berenberg.
14. To the fullest extent permissible by law, none of the
Company, Berenberg, 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 particular, none of the
Company, Berenberg nor any of their respective Affiliates nor any
of their respective Representatives shall have any responsibility
or liability (including to the extent permissible by law, any
fiduciary duties) in respect of Berenberg's conduct of the
Bookbuild or of such alternative method of effecting the Placing as
Berenberg and its respective Affiliates and the Company may
agree.
Conditions of the Placing
The Placing is conditional upon, inter alia, upon approval by
Shareholders of the Resolutions and the Placing Agreement becoming
unconditional and not having been terminated in accordance with its
terms. The obligations of Berenberg under the Placing Agreement are
conditional on certain conditions, including, amongst other
things:
1. the Placing Terms having been executed and delivered by the
Company and Berenberg by no later than 5.00 p.m. on the date of
this Announcement;
2. subject to the publication of the Placing Results
Announcement, the Company having published an announcement relating
to the launch of the Open Offer by no later than 7.00 a.m. on 22
December 2023 and the despatch by the Company of the Circular as
soon as reasonably practicable and in any event before 5.00 p.m. 22
December 2023;
3. the passing of the Resolutions (without amendment) at the
Special Meeting (and not, except with the written agreement of
Berenberg, at any adjournment of such meeting);
4. the Company having complied with its obligations or
undertakings under the Placing Agreement or the terms and
conditions set out in this Announcement which fall to be performed
or satisfied prior to Admission;
5. the representations and warranties contained in the Placing
Agreement being true, accurate and not misleading on and as at each
of the dates that they are given, in each case, as though they had
been given and made on the relevant date by reference to the facts
and circumstances then subsisting;
6. no matter having arisen in respect of which indemnification
or contribution may be sought from the Company by Berenberg or
other indemnified person pursuant to the Placing Agreement;
7. in the opinion of Berenberg (acting in good faith), there not
having been any Material Adverse Change (whether or not foreseeable
at the date of the Placing Agreement);
8. the Subscription Agreement and the Private Placement
Agreement, inter alia, remaining in full force and effect and no
event occurring which may constitute a breach of the Subscription
Agreement or the Private Placement Agreement;
9. certain customary documents having been delivered; and
10. Admission taking place by no later than 8.00 a.m. on the
Closing Date (or such later time and/or date as the Company and
Berenberg may agree in writing, not being later than 31 January
2024).
(all conditions included in the Placing Agreement being
together, the "Conditions").
Berenberg may, in its absolute discretion and upon such terms as
it thinks fit, waive fulfilment or agree an extension in time for
their satisfaction, in whole or in part, of any or all of the
Conditions, other than that relating to, inter alia, Admission (to
the extent permitted by law or regulations), by giving notice in
writing to the Company. Any such waiver or extension will not
affect Placees' commitments as set out in this Announcement.
If: (i) any of the Conditions are not fulfilled or, where
permitted, waived or extended by Berenberg in accordance with the
Placing Agreement; or (ii) the Placing Agreement is terminated in
the circumstances specified below, the Placing will lapse and the
Placees' rights and obligations hereunder in relation to the
Placing Shares shall cease and terminate at such time and each
Placee agrees that no claim can be made by or on behalf of the
Placee (or any person on whose behalf the Placing is acting) in
respect thereof.
None of the Company, Berenberg nor any of their respective
Affiliates or their respective Representatives shall have any
liability or responsibility to any Placee (or to any other person
whether acting on behalf of a Placee or otherwise) in respect of
any decision it or another person may make as to whether or not to
waive or to extend the time and/or date for the satisfaction of any
Condition nor for any decision it may make as to the satisfaction
of any Condition or in respect of the Placing generally and by
participating in the Placing each Placee agrees that any such
decision is within the absolute discretion of Berenberg. Placees
will have no rights against Berenberg, the Company or any of their
respective Affiliates or their respective Representatives under the
Placing Agreement pursuant to the Contracts (Rights of Third
Parties) Act 1999 (as amended) or otherwise.
By participating in the Bookbuild, each Placee agrees that its
rights and obligations hereunder terminate only in the
circumstances described above and under "Termination of the Placing
Agreement" below, and will not be capable of rescission or
termination by the Placee.
Termination of the Placing Agreement
Berenberg may, in its absolute discretion, terminate the Placing
Agreement in accordance with its terms in certain circumstances,
including, amongst others, if, at any time prior to Admission:
1. any statement in any document or announcement issued or
published by or on behalf of the Company in connection with the
Placing or the Open Offer is or has been discovered to be untrue,
incorrect or misleading in any respect, or any matter has arisen
which would, if such document had been issued at that time,
constitute an inaccuracy or omission therefrom;
2. there has been an alleged breach or breach by the Company of
any of the warranties, undertakings or any other provision of the
Placing Agreement;
3. there has been a breach of any provision of the Subscription
Agreement or the Private Placement Agreement or a waiver of any
condition thereto;
4. an event has occurred or matter has arisen on or after the
date of the Placing Agreement and before Admission which would have
rendered any of the warranties given pursuant to the Placing
Agreement untrue, inaccurate or misleading in any respect;
5. in the opinion of Berenberg (acting in good faith) there has
been a Material Adverse Change (whether or not foreseeable at the
date of the Placing Agreement);
6. there has occurred, or in the opinion of Berenberg (acting in
good faith) it is reasonably likely that there will occur:
(a) any material adverse change in the financial markets in the
United States, the United Kingdom or in any member or associate
member of the European Union or the international financial
markets, any outbreak or escalation of hostilities, war, act of
terrorism, declaration of emergency or martial law or other
calamity or crisis or event or any change or development involving
a prospective change in national or international political,
financial, economic, monetary or market conditions or currency
exchange rates or controls, whether or not foreseeable at the date
of this Agreement; or
(b) suspension of, or occurrence of material limitations to
trading in any securities of the Company by the London Stock
Exchange or any exchange or over the counter market, or of trading
generally on the London Stock Exchange, or minimum or maximum
prices for trading having been fixed, or maximum ranges for prices
of securities having been required, by any of said exchanges or by
order of any governmental authority, or a material disruption in
commercial banking or securities settlement or clearance services
in the United States or in Europe; or
(c) a declaration of a banking moratorium by the United States,
the United Kingdom or any member or associate member of the
European Union; or
such as to make it in the judgment of Berenberg (acting in good
faith) (following consultation with the Company if reasonably
practicable in the circumstance) impracticable or inadvisable to
proceed with the Placing or the Open Offer or the delivery of the
Shares pursuant to the Placing Agreement; or
7. there has occurred or, in the opinion of Berenberg (acting in
good faith), it is reasonably likely that there will occur, any
other event either singly or in conjunction with any other event
referred to in paragraph 6 above such as to make it in the judgment
of Berenberg (acting in good faith) impracticable or inadvisable to
proceed with the Placing or the Open Offer or the delivery of the
Shares pursuant to the Placing Agreement; or
8. the application for Admission is refused by the London Stock
Exchange or, in the opinion of Berenberg (acting in good faith),
and after consultation where practicable with the Company, will not
be granted.
If the Placing Agreement is terminated by Berenberg in
accordance with its terms, the rights and obligations of each
Placee in respect of the Placing as described in this Announcement
shall cease and terminate at such time and no claim may be made by
any Placee in respect thereof.
By participating in the Placing, each Placee agrees with the
Company and Berenberg that the exercise or non-exercise by
Berenberg of any right of termination or other right or other
discretion under the Placing Agreement shall be within the absolute
discretion of Berenberg or for agreement between the Company and
Berenberg (as the case may be) and that neither the Company nor
Berenberg need make any reference to, or consult with, Placees and
that none of the Company, Berenberg nor any of their respective
Affiliates or respective Representatives shall have any liability
to Placees whatsoever in connection with any such exercise or
failure to so exercise or otherwise.
No prospectus
No prospectus, offering memorandum, offering document or
admission document has been or will be prepared or submitted to be
approved by the FCA in relation to the Placing or Admission and no
such prospectus is required (in accordance with the UK Prospectus
Regulation) to be published in the United Kingdom or any equivalent
jurisdiction.
Placees' commitments will be made solely on the basis of
publicly available information taken together with the information
contained in this Announcement, the Placing Results Announcement
and any Exchange Information (as defined below) previously
published by or on behalf of the Company simultaneously with or
prior to the date of this Announcement and subject to the further
terms set forth in the electronic contract note and/or electronic
trade confirmation to be provided to individual prospective
Placees.
Each Placee, by accepting its allocation in the Placing, agrees
that the content of this Announcement and the publicly available
information previously and simultaneously released by or on behalf
of the Company is exclusively the responsibility of the Company and
has not been independently verified by Berenberg. Each Placee, by
accepting its allocation in the Placing, further confirms to the
Company and Berenberg that it has neither received nor relied on
any other information, representation, warranty or statement made
by or on behalf of the Company (other than publicly available
information) or Berenberg or their respective Affiliates or any
other person and neither Berenberg, the Company nor any of their
respective Affiliates nor any other person will be liable for any
Placee's decision to participate in the Placing based on any other
information, representation, warranty or statement which the
Placees may have obtained or received (regardless of whether or not
such information, representation, warranty or statement was given
or made by or on behalf of any such persons). By participating in
the Placing, each Placee acknowledges and agrees that it has relied
on its own investigation of the business, financial or other
position of the Company. Nothing in this paragraph shall exclude or
limit the liability of any person for fraudulent misrepresentation
by that person.
Lock-up
The Company has undertaken to Berenberg that, between the date
of the Placing Agreement and the date which is 180 calendar days
after the Closing Date, it will not, without the prior written
consent of Berenberg, enter into certain transactions involving or
relating to the Shares, subject to certain customary carve-outs
agreed between Berenberg and the Company.
By participating in the Placing, Placees agree that the exercise
by Berenberg of any power to grant consent to waive the
aforementioned undertaking by the Company shall be within the
absolute discretion of Berenberg and that it need not make any
reference to, or consult with, Placees and that they shall have no
liability to Placees whatsoever in connection with any such
exercise of the power to grant consent.
Registration and settlement
Settlement of transactions in the Placing Shares (represented by
the Depositary Interests) (ISIN: USU8884H1371 with the marker "REG
S Cat 3") following Admission will take place within the CREST
system, subject to certain exceptions. The Company and Berenberg
reserve the right to require settlement for, and delivery of, the
Placing Shares to Placees by such other means that they deem
necessary, including in certificated form, if delivery or
settlement is not possible or practicable within the CREST system
within the timetable set out in this Announcement or would not be
consistent with the regulatory requirements in the Placee's
jurisdiction.
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 Berenberg or otherwise as Berenberg may
direct.
The Company will deliver the Depositary Interests representing
the Placing Shares to a CREST account operated by Berenberg as
agent for and on behalf of the Company and Berenberg will enter its
delivery (DEL) instruction into the CREST system. Berenberg will
hold any Depositary Interests representing the Placing Shares
delivered to this account as nominee for the Placees. The input to
CREST by a Placee of a matching or acceptance instruction will then
allow delivery of the relevant Depositary Interests representing
the Placing Shares to that Placee against payment.
It is expected that settlement will be on 19 January 2024 and on
a delivery versus payment basis in accordance with the instructions
given to Berenberg.
Interest is chargeable daily on payments not received from
Placees on the due date in accordance with the arrangements set out
above, in respect of either CREST or certificated deliveries, at
the rate of two percentage points above SONIA as determined by
Berenberg.
Each Placee agrees that, if it does not comply with these
obligations, Berenberg may sell any or all of the Placing Shares
allocated to that Placee on such Placee's behalf and retain from
the proceeds, for its own account and benefit, an amount equal to
the aggregate amount owed by the Placee plus any interest due. The
relevant Placee will, however, remain liable for any shortfall
below the aggregate amount owed by it and shall be required to bear
any stamp duty, stamp duty reserve tax or other stamp, securities,
transfer, registration, execution, documentary or other similar
impost, duty or tax (together with any interest, fines or
penalties) which may arise upon the sale of such Placing Shares on
such Placee's behalf. By communicating a bid for Placing Shares,
each Placee confers on Berenberg all such authorities and powers
necessary to carry out any such transaction and agrees to ratify
and confirm all actions which Berenberg lawfully takes on such
Placee's behalf.
If Placing Shares are to be delivered to a custodian or
settlement agent, Placees should ensure that, upon receipt, the
electronic contract note and/or electronic 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 UK
stamp duty reserve tax. If there are any circumstances in which any
other stamp duty or stamp duty reserve tax (and/or any interest,
fines or penalties relating thereto) is payable in respect of the
allocation, allotment, issue or delivery of the Placing Shares (or
for the avoidance of doubt if any stamp duty or stamp duty reserve
tax is payable in connection with any subsequent transfer of or
agreement to transfer Placing Shares), neither Berenberg nor the
Company shall be responsible for the payment thereof.
CREST: Regulation S Category 3 Settlement
The Placing Shares have not been, and will not be, registered
under the Securities Act or under any securities laws of any state
or other jurisdiction of the United States. The Placing Shares are
being offered only outside the United States in "offshore
transactions" to non-US Persons as defined in and pursuant to
Regulation S. The Placing Shares will be subject to the conditions
listed under Section 903(b)(3), or Category 3, of Regulation S. The
Placing Shares are "restricted securities" as defined in Rule 144
under the Securities Act. Purchasers of the Placing Shares may not
offer, sell, pledge or otherwise transfer Placing Shares, directly
or indirectly, in or into the United States or to, or for the
account or benefit of, any US Person, except pursuant to a
transaction meeting the requirements of Rules 901 to 905 (including
the Preliminary Notes) of Regulation S, pursuant to an effective
registration statement under the Securities Act or pursuant to an
exemption from the registration requirements of the Securities
Act.
Each subscriber for Placing Shares, by subscribing for such
Placing Shares, agrees to reoffer or resell the Shares only
pursuant to registration under the Securities Act or in accordance
with the provisions of Regulation S or pursuant to another
available exemption from registration, and agrees not to engage in
hedging transactions with regard to such securities unless in
compliance with the Securities Act. The above restrictions severely
restrict purchasers of Placing Shares from reselling the Placing
Shares in the United States or to a US Person. These restrictions
may remain in place or be reintroduced following the expiry of the
one-year Distribution Compliance Period in relation to the Placing
Shares, at the discretion of the Company, for example in the event
the Company subsequently issues additional Shares under the same
ISIN as the Placing Shares. Upon the expiration of the Distribution
Compliance Period, the Company may choose to merge the Placing
Shares into its existing unrestricted line of Shares.
Once the Placing Shares are admitted to trading on AIM, the
Placing Shares will trade in the Company's restricted line of
Common Stock under the symbol TBLS or such symbol to be later
confirmed via RNS, and the Placing Shares (represented by the
Depository Interests) subscribed for and held by non-Affiliates of
the Company will be held in the CREST system and will be segregated
into a separate trading system within CREST identified with the
marker "REG S Cat 3". The "REG S Cat 3" marker indicates that the
Shares held in the CREST system will also bear a legend setting out
certain transfer restrictions and other information, including
that: (i) transfers of the Shares are prohibited except in
accordance with the provisions of Regulation S, pursuant to
registration under the Securities Act or in a transaction not
subject to the registration requirements of the Securities Act; and
(ii) hedging transactions involving the Shares may not be conducted
unless in compliance with the Securities Act.
Representations, warranties and certifications must be made
through the CREST system by those selling or acquiring the Shares
with the "REG S Cat 3" marker. If such representations, warranties
and certifications cannot be made or are not made, settlement
through CREST will be rejected. Furthermore, Placing Shares held by
US Persons and Affiliates of the Company shall be held in
certificated form and accordingly settlement shall not be permitted
via CREST until such time as the relevant restrictions are no
longer applicable. Affiliates of the Company at the time of the
Placing, or investors that become Affiliates at any time after the
Placing, should seek independent US legal counsel prior to selling
or transferring any Shares.
Representations and warranties
By participating in the Placing, each Placee (and any person
acting on such Placee's behalf) irrevocably acknowledges, confirms,
undertakes, represents, warrants and agrees (as the case may be)
with Berenberg (in its capacity as sole bookrunner and as placing
agent of the Company in respect of the Placing) and the Company, in
each case as a fundamental term of its application for Placing
Shares, that:
1. 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 subscription for Placing Shares
is subject to and based upon all the terms, conditions,
representations, warranties, indemnities, acknowledgements,
agreements and undertakings and other information contained herein
and undertakes not to redistribute or duplicate this Announcement
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;
2. no offering document, prospectus, offering memorandum or
admission document has been or will be prepared in connection with
the Placing or is required under the EU Prospectus Regulation or
the UK Prospectus Regulation and it has not received and will not
receive a prospectus, offering memorandum, admission document or
other offering document in connection with the Bookbuild, the
Placing or the Placing Shares;
3. (i) it has made its own assessment of the Company, the
Placing Shares and the terms of the Placing based on this
Announcement (including this Appendix) 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; (ii) the
Shares are admitted to trading on AIM and that the Company is
therefore required to publish certain business and financial
information in accordance with the Market Abuse Regulation and the
AIM Rules (collectively and together with the information referred
to in (i) above, the "Exchange Information") which includes a
description of the Company's business and the Company's most recent
balance sheet and profit and loss account, and similar statements
for preceding financial years, and that it has reviewed such
Exchange Information and that it is able to obtain or access such
information, or comparable information concerning any other
publicly traded company, in each case without undue difficulty; and
(iii) it has had access to such financial and other information
concerning the Company, the Placing and the Placing Shares as it
has deemed necessary in connection with its own investment decision
to subscribe for any of the Placing Shares and has satisfied itself
that the information is still current and has relied on that
investigation for the purposes of its decision to participate in
the Placing;
4. neither Berenberg, nor the Company nor any of their
respective Affiliates or their respective Representatives nor any
person acting on behalf of any of them has provided, and none of
them will provide, it with any material or information regarding
the Placing Shares, the Bookbuild, the Placing or the Company or
any other person other than this Announcement, nor has it requested
Berenberg, the Company, any of their respective Affiliates or
Representatives or any person acting on behalf of any of them to
provide it with any such material or information;
5. unless otherwise specifically agreed with Berenberg, it
and/or the person on behalf it is participating is not, and at the
time the Placing Shares are subscribed for, neither it nor the
beneficial owner of the Placing Shares will be, a resident of a
Restricted Territory or any other jurisdiction in which it is
unlawful to make or accept an offer to acquire the Placing
Shares;
6. the Placing Shares have not been and will not be registered
or otherwise qualified, for offer and sale nor will an offering
document, prospectus, offering memorandum or admission document be
cleared or approved in respect of any of the Placing Shares under
the securities legislation of any Restricted Territory and, subject
to certain exceptions, may not be offered, sold, transferred,
delivered or distributed, directly or indirectly, in or into those
jurisdictions or in any country or jurisdiction where any such
action for that purpose is required;
7. the content of this Announcement has been prepared by and is
exclusively the responsibility of the Company and that neither
Berenberg nor any of its respective Affiliates or its or their
Representatives nor any person acting on behalf of any of them has
or shall have any responsibility or liability for any information,
representation or statement contained in this Announcement or any
information previously or simultaneously published by or on behalf
of the Company, including, without limitation, any Exchange
Information, and will not be liable for any Placee's decision to
participate in the Placing based on any information, representation
or statement contained in this Announcement or any information
previously or simultaneously published by or on behalf of the
Company or otherwise;
8. the only information on which it is entitled to rely and on
which such Placee has relied in committing itself to subscribe for
the Placing Shares is contained in this Announcement and any
Exchange Information, it received and reviewed all information that
it believes is necessary 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 or
investigations, representations, warranties or statements made by
Berenberg or the Company or any of their respective Affiliates or
their respective Representatives or any person acting on behalf of
any of them and neither Berenberg nor the Company nor any of their
respective Affiliates or 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;
9. it has relied on its own investigation, examination and due
diligence of the business, financial or other position of the
Company in deciding to participate in the Placing and neither
Berenberg nor any of its Affiliates or its Representatives nor any
person acting on behalf of any of them have made any
representations to it, express or implied, with respect to the
Company, the Bookbuild, the Placing and the Placing Shares or the
truth, accuracy, completeness or adequacy of the Exchange
Information, and each of them expressly disclaims any liability in
respect thereof; and it will not hold Berenberg or any of its
Affiliates or its Representatives or any person acting on behalf of
Berenberg responsible or liable for any misstatements in or
omission from 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;
10. it has not relied on any information relating to the Company
contained in any research reports prepared by Berenberg, any of its
Affiliates or any person acting on its behalf and understands that
(i) neither Berenberg nor any of its Affiliates nor any person
acting on its behalf has or shall have any responsibility or
liability for (x) public information or any representation; or (y)
any additional information that has otherwise been made available
to such Placee, whether at the date of publication, the date of
this Announcement or otherwise; and (ii) neither Berenberg nor any
of its Affiliates nor any person acting on its behalf makes any
representation or warranty, express or implied, as to the truth,
accuracy or completeness of such information, whether at the date
of publication, the date of this Announcement or otherwise;
11. (i) the allocation, allotment, issue and delivery to it, or
the person specified by it for registration as holder of Placing
Shares will not give rise to a liability under any of sections 67,
70, 93 or 96 of the Finance Act 1986 (depositary receipts and
clearance services); (ii) it is not participating in the Placing as
nominee or agent for any person to whom the allocation, allotment,
issue or delivery of the Placing Shares would give rise to such a
liability; and (iii) the Placing Shares are not being acquired in
connection with arrangements to issue depositary receipts or to
issue or transfer Placing Shares into a clearance service;
12. no action has been or will be taken by the Company,
Berenberg or any person acting on behalf of the Company or
Berenberg that would, or is intended to, permit a public offer of
the Placing Shares in the United States or in any country or
jurisdiction where any such action for that purpose is
required;
13. (i) it (and any person acting on its behalf) is entitled to
subscribe for the Placing Shares under the laws of all relevant
jurisdictions which apply to it; (ii) it has paid or will pay any
issue, transfer or other taxes due in connection with its
participation in any territory; (iii) 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;
(iv) it has not taken any action or omitted to take any action
which will or may result in Berenberg, the Company or any of their
respective Affiliates or Representatives acting in breach of the
legal or regulatory requirements of any jurisdiction in connection
with the Placing; and (v) the subscription for the Placing Shares
by it or any person acting on its behalf will be in compliance with
applicable laws and regulations in the jurisdiction of its
residence, the residence of the Company, or otherwise;
14. it (and any person acting on its behalf) 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;
15. it has complied with its obligations under the Criminal
Justice Act 1993, the Market Abuse Regulation, any delegating acts,
implementing acts, technical standards and guidelines, and in
connection with money laundering and terrorist financing under the
Proceeds of Crime Act 2002, the Terrorism Act 2000, the
Anti-Terrorism Crime and Security Act 2001, the Terrorism Act 2006,
the Money Laundering, Terrorist Financing and Transfer of Funds
(Information on the Payer) Regulations 2017 and any related or
similar rules, regulations or guidelines issued, administered or
enforced by any government agency having jurisdiction in respect
thereof (together the "Regulations") and, if making payment on
behalf of a third party, that satisfactory evidence has been
obtained and recorded by it to verify the identity of the third
party as required by the Regulations. If within a reasonable time
after a request for verification of identity, Berenberg has not
received such satisfactory evidence, Berenberg may, in its absolute
discretion, terminate the Placee's Placing participation in which
event all funds delivered by the Placee to Berenberg will be
returned without interest to the account of the drawee bank or
CREST account from which they were originally debited;
16. 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, and does 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 Berenberg and the Company 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;
17. it undertakes that it will (as principal or agent) subscribe
for, hold, manage and (if applicable) dispose of any Placing Shares
that are allocated to it for the purposes of its business only;
18. it understands that any investment or investment activity to
which this Announcement relates is available only to Qualified
Investors in a member state of the EEA and Relevant Persons in the
United Kingdom and will be engaged in only with Qualified Investors
in a member state of the EEA and Relevant Persons in the United
Kingdom, and further understands that this Announcement must not be
acted on or relied on by persons who are not Qualified Investors in
a member state of the EEA or Relevant Persons in the United
Kingdom;
19. if in a member state of the EEA, it is a Qualified Investor;
20. if in the United Kingdom, it is a Relevant Person;
21. in the case of any Placing Shares subscribed for by it as a
financial intermediary, as that term is used in Article 5(1) of the
EU Prospectus Regulation or Article 5(1) of the UK Prospectus
Regulation, (i) the Placing Shares subscribed for by it in the
Placing will not be subscribed for on a non-discretionary basis on
behalf of, nor will they be subscribed for with a view to their
offer or resale, to persons in a member state of the EEA other than
Qualified Investors, or persons in the United Kingdom other than
Relevant Persons, or in circumstances in which the prior consent of
Berenberg have been given to each such proposed offer or resale; or
(ii) where the Placing Shares have been subscribed for by it on
behalf of persons in any member state of the EEA other than
Qualified Investors, or in the United Kingdom other than Relevant
Persons, the offer of those Placing Shares to it is not treated
under the EU Prospectus Regulation or the UK Prospectus Regulation
(as applicable) as having been made to such persons;
22. it is and, at the time the Placing Shares are acquired, will
be located outside the United States and (i) is subscribing for
Placing Shares are purchasing the Placing Shares in an "offshore
transaction" as defined in, and in accordance with, Regulation S;
(ii) is aware of the restrictions on the offer and sale of the
Placing Shares pursuant to Regulation S; and (iii) the Placing
Shares have not been offered to it by means of any "directed
selling efforts" as defined in Regulation S;
23. it will not engage in hedging transactions, directly or
indirectly with regard to the Placing Shares unless in compliance
with the Securities Act;
24. it will not distribute, forward, transfer or otherwise
transmit this Announcement or any part of it, or any other
presentation or other materials concerning the Placing (including
electronic copies thereof), in or into any Restricted Territory to
any person and it has not distributed, forwarded, transferred or
otherwise transmitted any such materials to any person;
25. where it is subscribing for the Placing Shares for one or
more managed accounts, it is authorised in writing by each managed
account to subscribe for the Placing Shares for each managed
account and it has full power to make, and does make, the
acknowledgements, representations and agreements herein on behalf
of each such account;
26. if it is a pension fund or investment company, its
subscription for Placing Shares is in full compliance with
applicable laws and regulations;
27. it has not offered or sold and, prior to the expiry of a
period of six months from Admission, will not offer or sell any
Placing Shares to persons in the United Kingdom, except to persons
whose ordinary activities involve them acquiring, holding, managing
or disposing of investments (as principal or agent) for the
purposes of its business or otherwise in circumstances which have
not resulted and which will not result in an offer to the public in
the United Kingdom within the meaning of section 85(1) of the
FSMA;
28. any offer of Placing Shares may only be directed at persons
in member states of the EEA who are Qualified Investors and 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 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;
29. it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
section 21 of the FSMA) relating to the Placing Shares in
circumstances in which section 21(1) of the FSMA does not require
approval of the communication by an authorised person;
30. it has complied and will comply with all applicable laws
(including, in the United Kingdom, all relevant provisions of the
FSMA and the Financial Services Act 2012) with respect to anything
done by it in relation to the Placing Shares;
31. if it has received any "inside information" as defined in
the Market Abuse Regulation about the Company in advance of the
Placing, it has not: (i) dealt in the securities of the Company;
(ii) encouraged or required another person to deal in the
securities of the Company; or (iii) disclosed such information to
any person except as permitted by the Market Abuse Regulation,
prior to the information being made publicly available;
32. (i) it (and any person acting on its behalf) has the funds
available to pay for the Placing Shares it has agreed to subscribe
for and it (and any person acting on its behalf) will make payment
for the Placing Shares allocated to it in accordance with this
Announcement on the due time and date set out herein against
delivery of such Placing Shares to it, failing which the relevant
Placing Shares may be placed with other persons or sold as
Berenberg may in its discretion determine and without liability to
such Placee. It will, however, remain liable for any shortfall
below the net proceeds of such sale and the placing proceeds of
such Placing Shares and may be required to bear any stamp duty or
stamp duty reserve tax (together with any interest, fines 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;
33. its allocation (if any) of Placing Shares will represent a
maximum number of Placing Shares to which it will be entitled, and
required, to acquire, and that Berenberg 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;
34. neither Berenberg nor any of its Affiliates or its
Representatives nor any person acting on behalf of any of them, is
making any recommendations to it or advising it regarding the
suitability or merits 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 Berenberg and
Berenberg does not have any duties or responsibilities to it for
providing the protections afforded to its clients or customers or
for providing advice in relation to the Placing nor in respect of
any representations, warranties, undertakings or indemnities
contained in the Placing Agreement nor for the exercise or
performance of any of Berenberg's rights and obligations thereunder
including any rights to waive or vary any conditions or exercise
any termination right;
35. the exercise by Berenberg of any right or discretion under
the Placing Agreement shall be within the absolute discretion of
Berenberg and the Berenberg need not have any reference to any
Placee and shall have no liability to any Placee whatsoever in
connection with any decision to exercise or not to exercise any
such right and each Placee agrees that it has no rights against
Berenberg, the Company or any of their respective Affiliates under
the Placing Agreement pursuant to the Contracts (Rights of Third
Parties) Act 1999 (as amended) or otherwise;
36. 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 Berenberg, nor the Company nor any of their
respective Affiliates will be responsible for any liability to
stamp duty or stamp duty reserve tax or other similar duties or
taxes (together with any interest, fines or penalties) resulting
from a failure to observe this requirement. Each Placee and any
person acting on behalf of such Placee agrees to indemnify the
Company, Berenberg and their respective Affiliates and
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 Berenberg who will hold them as nominee on behalf of
such Placee until settlement in accordance with its standing
settlement instructions;
37. 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 Wales and it submits (on behalf of
itself and on behalf of any person on whose behalf it is acting) to
the exclusive jurisdiction of the English courts as regards any
claim, dispute or matter arising out of any such contract, except
that enforcement proceedings in respect of the obligation to make
payment for the Placing Shares (together with any interest
chargeable thereon) may be taken by Berenberg or the Company 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;
38. each of Berenberg, the Company and their respective
Affiliates and others will rely upon the truth and accuracy of the
representations, warranties, agreements, undertakings and
acknowledgements set forth herein and which are given to Berenberg
on its own behalf and on behalf of the Company and are irrevocable
and it irrevocably authorises Berenberg and the Company to produce
this Announcement, pursuant to, in connection with, or as may be
required by any applicable law or regulation, administrative or
legal proceeding or official inquiry with respect to the matters
set forth herein;
39. it will indemnify on an after-tax-basis and hold the
Company, Berenberg and their respective Affiliates and
Representatives and any person acting on behalf of any of them
harmless from any and all costs, claims, liabilities and expenses
(including legal fees and expenses) arising out of, directly or
indirectly, 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;
40. it irrevocably appoints any director or authorised signatory
of Berenberg as its agent for the purposes of executing and
delivering to the Company and/or its registrars any documents on
its behalf necessary to enable it to be registered as the holder of
any of the Placing Shares agreed to be taken up by it under the
Placing;
41. its commitment to acquire Placing Shares on the terms set
out herein and in any contract note will continue notwithstanding
any amendment that may in future be made to the terms and
conditions of the Placing and that Placees will have no right to be
consulted or require that their consent be obtained with respect to
the Company's or Berenberg's conduct of the Placing;
42. in making any decision to subscribe for the Placing Shares:
(i) it has sufficient knowledge, sophistication and experience in
financial, business and international investment matters as is
required to evaluate the merits and risks of subscribing for the
Placing Shares; (ii) it is experienced in investing in securities
of a similar nature to the 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 and has
no need for liquidity with respect to its investment in the Placing
Shares; (iii) it has relied solely on its own investigation,
examination, due diligence and analysis of the Company and its
Affiliates taken as a whole, including the markets in which the
Group operates, 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 Berenberg; (iv) it has had sufficient
time and access to information to consider and conduct its own
investigation with respect to the offer and purchase of the Placing
Shares, including the legal, regulatory, tax, business, currency
and other economic and financial considerations relevant to such
investment and has so conducted its own investigation to the extent
it deems necessary to enable it to make an informed and intelligent
decision with respect to making an investment in the Placing
Shares; (v) it is aware and understands that an investment in the
Placing Share involves a considerable degree of risk; and (vi) it
will not look to the Company, Berenberg or any of their respective
Affiliates or their respective Representatives or any person acting
behalf of any of them for all or part of any such loss or losses it
or they may suffer;
43. neither the Company nor Berenberg owes any fiduciary or
other duties to it or any Placee in respect of any representations,
warranties, undertakings or indemnities in the Placing Agreement or
these terms and conditions;
44. may not rely on any investigation that Berenberg or any
person acting on its behalf may or may not have conducted with
respect to the Company and its Affiliates or the Placing and none
of such persons has made any representation or warranty to it,
express or implied, with respect to the suitability or merits of
the Placing, the subscription for or purchase of the Placing
Shares, or as to the condition, financial or otherwise, of the
Company and its Affiliates, or as to any other matter relating
thereto, and nothing herein shall be construed as any investment or
other recommendation to it to acquire the Placing Shares. It
acknowledges and agrees that no information has been prepared by,
or is the responsibility of, Berenberg for the purposes of this
Placing;
45. in connection with the Placing, Berenberg and any of its
Affiliates acting as an investor for its own account may take up
shares in the Company and in that capacity may retain, purchase or
sell for its own account such 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 Placing Shares being issued, offered or placed
should be read as including any issue, offering or placement of
such shares in the Company to Berenberg or any of its Affiliates
acting in such capacity. In addition, Berenberg or any of its
Affiliates may enter into financing arrangements and swaps with
investors in connection with which Berenberg or any of its
Affiliates may from time to time acquire, hold or dispose of such
securities of the Company, including the Placing Shares. Neither
Berenberg nor any of its Affiliates intends to disclose the extent
of any such investment or transactions otherwise than in accordance
with any legal or regulatory obligation to do so; and
46. a communication that the Placing or the book is "covered"
(i.e. indicated demand from investors in the book equals or exceeds
the amount of the securities being offered) is not any indication
or assurance that the book will remain covered or that the Placing
and securities will be fully distributed by Berenberg. Berenberg
reserves the right to take up a portion of the securities in the
Placing as a principal position at any stage at its sole
discretion, among other things, to take account of the Company's
objectives, UK MiFID II requirements and/or its allocation
policies.
The foregoing acknowledgements, agreements, undertakings,
representations, warranties and confirmations are given for the
benefit of each of the Company and Berenberg (for their own benefit
and, where relevant, the benefit of their respective Affiliates and
any person acting on their behalf) and are irrevocable.
The agreement to allot and issue Placing Shares to Placees (or
the persons for whom Placees are contracting as nominee or agent)
free of UK stamp duty and UK 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. Neither the Company nor Berenberg will be
responsible for any UK stamp duty or UK stamp duty reserve tax
(including any interest, fines and penalties relating thereto)
arising in relation to the Placing Shares in any other
circumstances.
Such agreement is subject to the representations, warranties and
further terms above and also assumes, and is based on a warranty
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.
Neither the Company nor Berenberg are liable to bear any stamp duty
or stamp duty reserve tax or any other similar duties or taxes
(including, without limitation, other stamp, issue, securities,
transfer, registration, capital, or documentary duties or taxes)
("transfer taxes") that arise (i) if there are any such
arrangements (or if any such arrangements arise subsequent to the
acquisition by Placees of Placing Shares) or (ii) on a sale of
Placing Shares, or (iii) otherwise than under the laws of the
United Kingdom. Each Placee to whom (or on behalf of whom, or in
respect of the person for whom it is participating in the Placing
as an agent or nominee) the allocation, allotment, issue or
delivery of Placing Shares has given rise to such transfer taxes
undertakes to pay such transfer taxes forthwith, and agrees to
indemnify on an after-tax basis and hold Berenberg and/or the
Company and their respective Affiliates (as the case may be)
harmless from any such transfer taxes, and all interest, fines or
penalties in relation to such transfer taxes. Each Placee should,
therefore, take its own advice as to whether any such transfer tax
liability arises.
In this Announcement, "after-tax basis" means in relation to any
payment made to the Company, Berenberg or their respective
Affiliates or their or their Representatives 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.
Each Placee, and any person acting on behalf of each Placee,
acknowledges and agrees that Berenberg and/or any of its Affiliates
may, at their absolute discretion, agree to become a Placee in
respect of some or all of the Placing Shares. Each Placee
acknowledges and is aware that Berenberg is receiving a fee in
connection with its 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 Berenberg, any money held in an account with Berenberg
on behalf of the Placee and/or any person acting on behalf of the
Placee will not be treated as client money within the meaning of
the rules and regulations of the FCA made under the FSMA. The
Placee acknowledges that the money will not be subject to the
protections conferred by the client money rules; as a consequence,
this money will not be segregated from Berenberg 's money in
accordance with the client money rules and will be used by the
Berenberg in the course of its own business; and the Placee will
rank only as a general creditor of Berenberg.
Time is of the essence as regards each Placee's obligations
under this Appendix.
Any document that is to be sent to it in connection with the
Placing will be sent at its risk and may be sent to it at any
address provided by it to Berenberg.
The rights and remedies of Berenberg and the Company under the
terms and conditions set out in this Appendix 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.
Each Placee may be asked to disclose, in writing or orally to
Berenberg: (a) if they are an individual, their nationality; or
(ii) if they are a discretionary fund manager, the jurisdiction in
which the funds are managed or owned.
The price of shares and any income expected from them may go
down as well as up and investors may not get back the full amount
invested upon disposal of the shares. Past performance is no guide
to future performance and persons needing advice should consult an
independent financial adviser.
All times and dates in this Announcement may be subject to
amendment. Berenberg shall notify the Placees and any person acting
on behalf of the Placees of any changes.
APPIX 3
DEFINITIONS
The following definitions apply throughout this Announcement
unless the context otherwise requires:
"Admission" means admission of the Offer Shares to
trading on AIM becoming effective in accordance
with the AIM Rules;
"Affiliate" has the meaning given in Rule 501(b) of
Regulation D under the Securities Act or
Rule 405 under the Securities Act, as applicable
and, in the case of the Company, includes
its subsidiary undertakings;
"AIM" means the market of that name operated
by the London Stock Exchange;
"AIM Rules" means the AIM Rules for Companies published
by the London Stock Exchange from time
to time;
"Announcement" means this announcement (including its
Appendices);
"Atari" means Atari, SA
"Berenberg" means Joh. Berenberg, Gossler & Co. KG,
London Branch;
"Board" means the board of directors of the Company;
"Bookbuild" means the bookbuilding process to be commenced
by Berenberg immediately following release
of this Announcement to use reasonable
endeavours to procure Placees for the Placing
Shares, as described in this Announcement
and subject to the terms and conditions
set out in this Announcement and the Placing
Agreement;
"Circular" means the circular of the Company giving
(amongst other things) details of the Offer
and incorporating the Notice of Special
Meeting, which is expected to be dispatched
on or around 22 December 2023;
"Closing Date" means the day on which the transactions
effected in connection with the Placing
will be settled;
"Company" means tinyBuild, Inc.;
"CREST" means the relevant system (as defined in
the Uncertificated Securities Regulations
2001 (SI 2001 No. 3755)) in respect of
which Euroclear is the Operator (as defined
in such Regulations) in accordance with
which securities may be held and transferred
in uncertificated form;
"Depositary" means Link Market Services Trustees Limited
in its capacity as issuer of the Depositary
Interests;
"Depositary Interests" means the dematerialised depositary interests
representing underlying Shares that can
be settled electronically through and held
in CREST issued or to be issued by the
Depositary;
"Distribution Compliance means the period during which the Placing
Period" Shares are subject to the conditions listed
under Section 903(b)(3) of Regulation S,
or such longer period as may be required
under applicable law, being until at least
the expiry of one year after the later
of (i) the time when the Placing Shares
are first offered to persons other than
distributors in reliance upon Regulation
S and (ii) the date of closing of the Placing;
"Euroclear" means Euroclear UK & Ireland Limited, a
company incorporated under the laws of
England and Wales;
"EU Prospectus Regulation" means Regulation (EU) 2017/1129;
"EUWA" means the European Union (Withdrawal) Act
2018, as amended;
"FCA" means the Financial Conduct Authority;
"FSMA" means the Financial Services and Markets
Act 2000 (as amended);
"Group" or "tinyBuild" means the Company and its subsidiary undertakings;
"Issue Price" means 5 pence per Share at which the Offer
Shares are to be subscribed;
"London Stock Exchange" means London Stock Exchange plc;
"Market Abuse Regulation" means Regulation (EU) 596/2014 as it forms
part of UK domestic law by virtue of the
EUWA;
"Material Adverse Change" means any material adverse change in, or
any development reasonably likely to give
rise to or involving a material adverse
change in, or affecting, the condition
(financial, operational, legal or otherwise)
or the earnings, management, business affairs,
solvency, credit rating or prospects of
the Company, or of the Group (taken as
a whole) whether or not arising in the
ordinary course of business;
"Notice of Special means the notice convening the Special
Meeting" Meeting to be set out in the Circular;
"Offer Shares" means together the Placing Shares, the
Open Offer Shares, the Subscription Shares
and the Private Placement Shares;
"Open Offer" the conditional invitation to qualifying
stockholders to apply to subscribe for
Open Offer Shares at the Issue Price on
the terms and subject to the conditions
to be set out in the Circular;
"Open Offer Shares" means the Shares to be subscribed by investors
under the Open Offer;
"Placee" means any person (including individuals,
funds or otherwise) by whom or on whose
behalf a commitment to acquire Placing
Shares has been given;
"Placing" means the placing to take place by way
of an accelerated bookbuild for which Berenberg
has been appointed as sole bookrunner;
"Placing Agreement" has the meaning given to it in Appendix
2 to this Announcement;
"Placing Results Announcement" means the announcement published by the
Company confirming the results of the Placing
on a Regulatory Information Service immediately
following the execution of the Placing
Terms;
"Placing Shares" means the new Shares to be subscribed by
the Placees under the Placing;
"Placing Terms" has the meaning given to it in Appendix
2 to this Announcement;
"PRA" means the Prudential Regulation Authority;
"Private Placement" means the private placement of the Private
Placement Shares at the Issue Price to
Atari, SA pursuant to the Private Placement
Agreement outside the Placing;
"Private Placement means the agreement entered into between
Agreement" Atari, SA and the Company in connection
with the Private Placement;
"Private Placement means the 31,416,902 Shares to be subscribed
Shares" for by Atari, SA pursuant to the terms
of the Private Placement Agreement;
"Regulation S" means Regulation S promulgated under the
Securities Act;
"Regulatory Information has the meaning given to it in the AIM
Service" Rules;
"Representative" means in respect of any person, any of
their respective Affiliates or any of their
respective agents, directors, officers
or employees;
"Resolutions" means the resolutions set out in the Notice
of Special Meeting to authorise the issue
of the Offer Shares in connection with
the Placing, the Open Offer, the Private
Placement and the Subscription;
"Restricted Territory" means Australia, South Africa, Canada,
Japan, the United States or any jurisdiction
in which the release, publication or distribution
of this Announcement is unlawful;
"Rule 144A" means Rule 144A under the Securities Act;
"Securities Act" means the U.S. Securities Act of 1933,
as amended;
"Shares" means the common shares of US$0.001 each
in the capital of the Company and any securities
or dematerialised interests representing
such common shares, including Depositary
Interests;
"Special Meeting" means the special meeting of the Company
to be held at the of ces of Goodwin Procter
(UK) LLP, 100 Cheapside, London EC2V 6DY,
United Kingdom at 12 p.m. noon on 18 January
2024;
"Subscription" means the subscription by Alex Nichiporchik
for the Subscription Shares pursuant to
the terms of the Subscription Agreement;
"Subscription Agreement" means the subscription agreement entered
into by Alex Nichiporchik and the Company
in connection with the Subscription;
"Subscription Shares" means the Shares to be subscribed for by
Alex Nichiporchik pursuant to the terms
of the Subscription Agreement;
"subsidiary" or "subsidiary each have the meaning given to that term
undertaking" in the Companies Act 2006;
"UK MiFID II" means EU Directive 2014/65/EU as it forms
part of UK domestic law by virtue of the
EUWA;
"UK Prospectus Regulation" means the Regulation (EU) 2017/1129 as
it forms part of UK domestic law by virtue
of the EUWA;
"uncertificated" or means in respect of a share or other security,
"in uncertificated form" where that share or other security is recorded
on the relevant register of the share or
security concerned as being held in uncertificated
form in CREST and title to which may be
transferred by means of CREST;
"United Kingdom" or means the United Kingdom of Great Britain
"UK" and Northern Ireland; and
"United States" or means the United States of America, its
"US" territories and possessions, any state
of the United States of America, the District
of Columbia and all other areas subject
to its jurisdiction and any political sub-division
thereof.
Unless otherwise indicated in this Announcement, all references
to "GBP", "GBP", "pounds", "pound sterling", "sterling", "p",
"penny" or "pence" are to the lawful currency of the United
Kingdom. All references to "US$", "$" or "dollars" are to the
lawful currency of the United States of America.
This information is provided by RNS, the news service of the
London Stock Exchange. RNS is approved by the Financial Conduct
Authority to act as a Primary Information Provider in the United
Kingdom. Terms and conditions relating to the use and distribution
of this information may apply. For further information, please
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END
IOEQFLBLXLLLFBE
(END) Dow Jones Newswires
December 21, 2023 02:00 ET (07:00 GMT)
Grafico Azioni Tinybuild (LSE:TBLD)
Storico
Da Dic 2024 a Gen 2025
Grafico Azioni Tinybuild (LSE:TBLD)
Storico
Da Gen 2024 a Gen 2025
