Proposed Capital Raising by way of a Placing of New Ordinary Shares
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION FOR THE
PURPOSES OF ARTICLE 7 OF EU REGULATION 596/2014.
NOT FOR PUBLICATION, DISTRIBUTION OR
RELEASE, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, IN OR INTO
THE UNITED STATES OF AMERICA, AUSTRALIA, CANADA, JAPAN AND SOUTH
AFRICA OR ANY OTHER JURISDICTION WHERE SUCH PUBLICATION,
DISTRIBUTION OR RELEASE WOULD BE UNLAWFUL OR REQUIRE REGISTRATION
OR OTHER MEASURES.
THIS ANNOUNCEMENT IS AN ADVERTISEMENT
AND DOES NOT CONSTITUTE A PROSPECTUS OR PROSPECTUS EQUIVALENT
DOCUMENT. NEITHER THIS ANNOUNCEMENT NOT ANYTHING CONTAINED HEREIN
SHALL FORM THE BASIS OF, OR BE RELIED UPON IN CONNECTION WITH, ANY
OFFER OR COMMITMENT WHATSOEVER IN ANY JURISDICTION. ANY DECISION TO
PURCHASE, SUBSCRIBE FOR, OTHERWISE ACQUIRE, SELL OR OTHERWISE
DISPOSE OF ANY SECURITIES REFERRED TO IN THIS ANNOUNCEMENT MUST BE
MADE SOLELY ON THE BASIS OF THE INFORMATION THAT IS CONTAINED IN
THE PROSPECTUS TO BE PUBLISHED BY THE COMPANY IN DUE
COURSE.
Acacia Pharma Group plc
Proposed Capital Raising by way of
a Placing of New Ordinary Shares
Cambridge, UK and Indianapolis, US – 13
August 2020: Acacia Pharma Group plc ("Acacia
Pharma" or the "Company") (EURONEXT:
ACPH), a commercial stage biopharmaceutical company focused on
developing and commercializing novel products to improve the care
of patients undergoing serious medical treatments such as surgery,
invasive procedures, or chemotherapy, intends to issue new ordinary
shares of a nominal value of £0.02 (the "New Ordinary
Shares") raising gross proceeds of approximately EUR 25m
($30m), by means of an accelerated bookbuild offering (the
"Placing").
The price at which the New Ordinary Shares will
be issued (the "Placing Price") and the total
number of New Ordinary Shares to be issued in the Placing will be
determined by way of an accelerated bookbuild process (the
"Bookbuild"). The Company believes that using the
flexibility provided by a non-pre-emptive placing is the most
appropriate structure for the Company at this time, allowing it to
raise capital in a timely and cost-effective manner and to
diversify the shareholder base.
Jefferies International Limited
("Jefferies") and Guggenheim Securities, LLC
("Guggenheim Securities") are acting as Joint
Global Coordinators and Joint Bookrunners and Bank Degroof Petercam
SA/NV ("Degroof Petercam") is acting as Joint
Bookrunner and Listing Agent (Jefferies, Guggenheim Securities and
Degroof Petercam together, the “Joint Bookrunners”
or the "Banks") in connection with the
Placing.
The Bookbuild will start immediately following
this announcement. Pricing and allocation of the New Ordinary
Shares in the Placing is expected to take place before beginning of
trading on Euronext Brussels at 09:00 CEST on 14 August 2020. The
exact timing of closing of the Bookbuild, pricing and allocation is
at the discretion of the Company and the Joint Global Coordinators
and Joint Bookrunners. The Company will announce the outcome of the
Placing after closing of the Bookbuild in a subsequent
announcement.
The Company has requested the Belgian Financial
Services and Markets Authority ("Belgian
FSMA") to suspend trading in Acacia Pharma’s
shares on Euronext Brussels during the Bookbuild. Trading in the
shares is expected to resume following the publication of the
results of the Placing.
The Company has separately announced today its
interim results for the six months ended 30 June 2020 (the
“Interim Results Announcement”). This announcement
should be read in conjunction with the Interim Results
Announcement.
The net proceeds of the Placing are intended to
be used for: (i) the
recruitment of an initial sales force of approximately 30, with an
additional ten support staff; (ii)
payment of marketing
costs relating to BARHEMSYS® and BYFAVO™ including brand
development and engagement with key opinion leaders, healthcare
professionals and medical conference and speaker programmes; (iii)
the implementation of
post-approval research and development commitments including
paediatric studies for BARHEMSYS® and BYFAVO™ and a renal study for
BARHEMSYS®; (iv) satisfaction
of interest and capital payments under existing loan agreements;
and (v) general corporate
purposes relating to ongoing commercial activities as well as
supplementing existing stock of both BARHEMSYS® and BYFAVO™.
In connection with the Placing, the Company has
agreed, pursuant to a lock-up undertaking, not to issue additional
shares for a period of 90 days following settlement of the Placing.
In addition, in connection with the Placing, senior managers and
directors of the Company as well as Cosmo Technologies Limited, a
substantial shareholder in the Company, have agreed not to sell any
shares in Acacia Pharma for a period of 90 days following the
settlement of the Placing, subject to customary exceptions.
Your attention is drawn to the detailed terms
and conditions of the Placing described in Appendix I to this
announcement (which form part of this announcement). The attention
of investors is drawn in particular to the "Conditions of the
Placing and Termination of the Placing Agreement" section of
Appendix I (including the condition that no Material Adverse Change
can have occurred immediately prior to the Closing Date and, in
respect of termination of the Placing Agreement, the various
applicable force majeure events set out therein).
Capitalised terms used but not otherwise defined
in the text of this announcement are defined in Appendix II of this
announcement.
Contacts
Acacia Pharma Group plcMike
Bolinder, CEOGary Gemignani, CFO+44 1223 919760 / +1 317 505
1280IR@acaciapharma.com
Citigate Dewe Rogerson (Financial
PR) Mark Swallow, Frazer Hall, David Dible+44 20 7638
9571acaciapharma@citigatedewerogerson.com
About Acacia Pharma
Acacia Pharma is a hospital pharmaceutical
company focused on the development and commercialization of new
products aimed at improving the care of patients undergoing
significant treatments such as surgery, other invasive procedures,
or cancer chemotherapy. The Company has identified important and
commercially attractive unmet needs in these areas that its product
portfolio aims to address.
Acacia Pharma's first product, BARHEMSYS®
(amisulpride injection) for postoperative nausea & vomiting
(PONV), has been approved by the US Food and Drug Administration,
with US launch planned for 2H 2020.
BYFAVO™ (remimazolam) for injection, a rapid
onset/offset IV benzodiazepine sedative is approved in the US for
use during invasive medical procedures in adults lasting 30 minutes
or less, such as colonoscopy and bronchoscopy. Acacia Pharma’s
rights to further develop and commercialise BYFAVO™ are in-licensed
from Paion UK Limited for the US market, and US launch is planned
for 2H 2020.
APD403 (intravenous and oral amisulpride), a
selective dopamine antagonist for chemotherapy induced nausea &
vomiting (CINV) has successfully completed one proof-of-concept and
one Phase 2 dose-ranging study in patients receiving highly
emetogenic chemotherapy.
Acacia Pharma is based in Cambridge, UK and its
US operations are centred in Indianapolis, IN. The Company is
listed on the Euronext Brussels exchange under the ISIN code
GB00BYWF9Y76 and ticker symbol ACPH.
www.acaciapharma.com
Important Information
The release or distribution of this announcement
may, in certain jurisdictions, be subject to restrictions. The
recipients of this announcement in jurisdictions where this
announcement has been published or distributed shall inform
themselves of and follow such restrictions. This announcement does
not constitute an offer, or a solicitation of any offer, to buy or
subscribe for any securities in Acacia Pharma in any jurisdiction,
neither from Acacia Pharma nor from someone else.
Any investment decision in connection with the
Placing must be made on the basis of the information contained in
the prospectus to be published by the Company in connection with
the Placing. The information contained in this announcement is for
background purposes only and does not purport to be full or
complete. No reliance may or should be placed by any person for any
purpose whatsoever on the information contained in this
announcement or its accuracy or completeness. The information in
this announcement is subject to change.
The New Ordinary Shares have not been and will
not be registered under the U.S. Securities Act of 1933, as amended
(the “Securities Act”), or any state securities
laws and may not be offered or sold in the United States of America
absent registration or an applicable exemption from registration
under the Securities Act and applicable state securities law. The
securities have not been registered, and there is no intention to
register any securities referred to herein in the United States or
to make any public offering of securities of the Company in the
United States.
This announcement is an advertisement and not a
prospectus for the purposes of Regulation (EU) 2017/1129 of the
European Parliament and of the Council of 14 June 2017 (the
"Prospectus Regulation") and has not been approved
by any regulatory authority in any jurisdiction. A copy of the
prospectus will, following publication, be available from the
Company on its website at www.acaciapharma.com provided that the
prospectus will not, subject to certain exceptions, be available
(whether through the website or otherwise) to shareholders in the
United States, Australia, Canada, Japan, and South Africa, or any
other jurisdiction where the announcement, publication or
distribution of the information would not comply with applicable
laws and regulations or where such actions are subject to legal
restrictions or would require additional registration or other
measures than what is required under English law.
In relation to each member state of the EEA and
the United Kingdom (each a “Relevant State”) no
New Ordinary Shares have been offered or will be offered pursuant
to the Placing to the public in that Relevant State prior to the
publication of a prospectus in relation to the New Ordinary Shares
which has been approved by the competent authority in that Relevant
State or, where appropriate, approved in another Relevant State and
notified to the competent authority in that Relevant State, all in
accordance with the Prospectus Regulation, except that an offer to
the public in that Relevant State of any New Ordinary Shares may be
made at any time under the following exemptions under the
Prospectus Regulation:
- to any legal entity which is a qualified investor as defined
under the Prospectus Regulation;
- to fewer than 150 natural or legal persons (other than
qualified investors as defined in the Prospectus Regulation);
or
- in any other circumstances falling within Article 1(4) of the
Prospectus Regulation, provided that no such offer of New Ordinary
Shares shall require the Company or any Bank to publish a
prospectus pursuant to Article 3 of the Prospectus Regulation or
supplement a prospectus pursuant to Article 23 of the Prospectus
Regulation.
Jefferies is authorised and regulated by the FCA
in the United Kingdom. Degroof Petercam is authorised by and under
the supervision of the National Bank of Belgium and under the
supervision on investor and consumer protection of the Belgian
FSMA. You should note that, in connection with the Placing, each of
the Banks is acting exclusively for the Company and for no one else
in connection with the Placing and will not be responsible to
anyone (whether or not a recipient of this document) other than the
Company for providing the protections afforded to clients of the
Banks or for affording advice in relation to the Placing, the
contents of this document or any matters referred to herein. The
Banks are not responsible for, and have not approved, the contents
of or any part of this document and will not be responsible for or
approve any eventual final form prospectus that may be approved by
the FCA. This does not exclude any responsibilities which the Banks
may have under FSMA, or which are imposed by the FCA, the National
Bank of Belgium or the Belgian FSMA or the regulatory regimes
established thereunder (as applicable).
Apart from the liabilities and responsibilities
(if any) which may be imposed on the Banks by either FSMA, the FCA,
the National Bank of Belgium or the Belgian FSMA or the regulatory
regimes established thereunder, the Banks do not make any
representations, express or implied, or accept any responsibility
whatsoever for the contents of this document nor for any other
statement made or purported to be made by the Banks or on their
behalf in connection with the Company and the Placing. The Banks,
any of their respective directors, officers, employees, agents,
affiliates or advisers accordingly disclaim all and any liability
whether arising in tort or contract or otherwise which they might
otherwise have in respect of this document or any such
statement.
Information to distributors
Solely for the purposes of the product
governance requirements contained within: (a) EU Directive
2014/65/EU on markets in financial instruments, as amended
("MiFID II"); (b) Articles 9 and 10 of Commission
Delegated Directive (EU) 2017/593 supplementing MiFID II; and (c)
local implementing measures (together, the "MiFID II
Product Governance Requirements"), and disclaiming all and
any liability, whether arising in tort, contract or otherwise,
which any "manufacturer" (for the purposes of the MiFID II Product
Governance Requirements) may otherwise have with respect thereto,
the New Ordinary Shares have been subject to a product approval
process, which has determined that the New Ordinary Shares are: (i)
compatible with an end target market of retail investors and
investors who meet the criteria of professional clients and
eligible counterparties, each as defined in MiFID II; and (ii)
eligible for distribution through all distribution channels as are
permitted by MiFID II (the "Target Market
Assessment"). Notwithstanding the Target Market
Assessment, distributors should note that: the price of the New
Ordinary Shares may decline and investors could lose all or part of
their investment; the New Ordinary Shares offer no guaranteed
income and no capital protection; and an investment in the New
Ordinary 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 Placing.
Furthermore, it is noted that, notwithstanding the Target Market
Assessment, subject to certain limited exceptions, the Joint Global
Coordinators and Joint Bookrunners will only procure investors who
meet the criteria of professional clients and eligible
counterparties.
For the avoidance of doubt, the Target Market
Assessment does not constitute: (a) an assessment of suitability or
appropriateness for the purposes of MiFID II; or (b) a
recommendation to any investor or group of investors to invest in,
or purchase, or take any other action whatsoever with respect to
the New Ordinary Shares.
Each distributor is responsible for undertaking
its own target market assessment in respect of the New Ordinary
Shares and determining appropriate distribution channels.
Forward looking statements
This announcement may include certain
forward-looking statements, which are based on current expectations
and projections about future events. These statements may include,
without limitation, any statements preceded by, followed by or
including words such as "believe", "expect", "intend", "may",
"plan", "will", "should", "could" and other words and terms of
similar meaning or the negative thereof. Forward-looking statements
may and often do differ materially from actual results. These
forward-looking statements are subject to risks, uncertainties and
assumptions about the Company and its subsidiaries and investments,
including, among other things, the development of its business,
trends in its operating industry, and future capital expenditures
and acquisitions. By their nature, forward-looking statements
involve risk and uncertainty because they relate to future events
and circumstances. Any forward-looking statements reflect the
Company's current view with respect to future events and are
subject to risks relating to future events and other risks,
uncertainties and assumptions relating to the Group's business,
results of operations, financial position, prospectus, growth or
strategies and the industry in which it operates. Save as required
by law or applicable regulation, the Company and its affiliates
expressly disclaim any obligation or undertaking to update, review
or revise any forward-looking statement contained in this
announcement whether as a result of new information, future
developments or otherwise. Forward-looking statements speak only as
of the date they are made.
APPENDIX I
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 (SUBJECT TO CERTAIN LIMITED
EXCEPTIONS). THE TERMS AND CONDITIONS SET OUT HEREIN ARE FOR
INFORMATION PURPOSES ONLY AND ARE ONLY DIRECTED AT, AND BEING
DISTRIBUTED TO, PERSONS WHOSE ORDINARY ACTIVITIES INVOLVE THEM IN
ACQUIRING, HOLDING, MANAGING AND DISPOSING OF INVESTMENTS (AS
PRINCIPAL OR AGENT) FOR THE PURPOSES OF THEIR BUSINESS AND WHO HAVE
PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO INVESTMENTS AND ARE:
(A) IF IN A MEMBER STATE OF THE EUROPEAN ECONOMIC AREA (THE “EEA”),
PERSONS WHO ARE QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE
2(E) OF THE PROSPECTUS REGULATION ("QUALIFIED INVESTORS"); (B) IF
IN THE UNITED KINGDOM, PERSONS WHO ARE QUALIFIED INVESTORS WHO (I)
FALL WITHIN THE DEFINITION OF "INVESTMENT PROFESSIONALS" IN ARTICLE
19(5) OF THE ORDER, OR (II) ARE PERSONS FALLING WITHIN ARTICLE
49(2) OF THE ORDER, OR (III) ANY OTHER PERSON TO WHOM IT MAY
OTHERWISE LAWFULLY BE COMMUNICATED AND, IN EACH CASE, WHO HAVE BEEN
INVITED TO PARTICIPATE IN THE PLACING BY THE JOINT BOOKRUNNERS (ALL
SUCH PERSONS REFERRED TO IN (A) AND (B) ABOVE TOGETHER BEING
REFERRED TO AS "RELEVANT PERSONS").
SUBJECT TO CERTAIN LIMITED EXCEPTIONS,
THE TERMS AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR
RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. ANY PERSON WHO
HAS RECEIVED OR IS DISTRIBUTING THESE TERMS AND CONDITIONS MUST
SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR
INVESTMENT ACTIVITY TO WHICH THESE TERMS AND CONDITIONS RELATE IS
AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY WITH
RELEVANT PERSONS. THESE TERMS AND CONDITIONS DO NOT THEMSELVES
CONSTITUTE AN OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN
THE COMPANY.
THE SECURITIES HAVE NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES LAWS
OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES AND THE
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED,
DIRECTLY OR INDIRECTLY IN, INTO OR WITHIN THE UNITED STATES, EXCEPT
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS. THERE WILL BE NO PUBLIC OFFERING OF THE
SECURITIES IN THE UNITED STATES.
THE SECURITIES ARE BEING OFFERED AND
SOLD: (1)WITHIN THE UNITED STATES IN RELIANCE ON RULE 144A UNDER
THE US SECURITIES ACT (“RULE 144A”) ONLY TO PERSONS THAT ARE
QUALIFIED INSTITUTIONAL BUYERS (EACH A “QIB”) WITHIN THE MEANING OF
RULE 144A ACTING ON THEIR OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER
QIB; AND (2)OUTSIDE THE UNITED STATES TO PERSONS OTHER THAN US
PERSONS (AS DEFINED IN REGULATION S UNDER THE US SECURITIES ACT) IN
AN OFFSHORE TRANSACTION IN RELIANCE ON REGULATION S.
EACH PLACEE SHOULD CONSULT WITH ITS OWN
ADVISERS AS TO LEGAL, TAX, BUSINESS AND RELATED ASPECTS OF AN
ACQUISITION OF PLACING SHARES.
Unless otherwise defined in these terms and
conditions, capitalised terms used in these terms and conditions
shall have the meaning given to them in this announcement.
If a person indicates to the Joint Bookrunners
that it wishes to participate in the Placing by making an oral or
written offer to acquire Placing Shares pursuant to the Placing it
will be deemed to have read and understood these terms and
conditions and the announcement of which it forms part and the
Placing Proof in their entirety and to be making such offer on the
terms and conditions, and to be providing the representations,
warranties, indemnities, agreements and acknowledgements, contained
in these terms and conditions. In particular, each such Placee
represents, warrants and acknowledges that:
- it is a Relevant Person and undertakes that it will acquire,
hold, manage and dispose of any of the Placing Shares that are
allocated to it for the purposes of its business only;
- in the case of a Relevant Person in the United Kingdom who
acquires any Placing Shares pursuant to the Placing, it is a person
who has professional experience in matters relating to investments
and who falls within the definition of "investment professionals"
in Article 19(5) of the Order or who falls within Article 49(2) of
the Order and it is a "Qualified Investor";
- in the case of a Relevant Person in a member state of the EEA
who acquires any Placing Shares pursuant to the Placing, it is a
Qualified Investor;
- it is acquiring the Placing Shares for its own account or is
acquiring the Placing Shares for an account with respect to which
it exercises sole investment discretion and has the authority to
make and does make the representations, warranties, indemnities,
agreements and acknowledgements, contained in these terms and
conditions;
- it understands (or, if acting for the account of another
person, such person understands) the resale and transfer
restrictions set out in this appendix; and
- it is (and the person it represents (if any) is) and, at the
time the Placing Shares are acquired, will be either (1) within the
United States and a QIB or (2) outside the United States and
acquiring the Placing Shares in an offshore transaction in
accordance with Rule 903 and Rule 904 of Regulation S for its own
account or purchasing the Placing Shares for an account with
respect to which it exercises sole investment discretion.
These terms and conditions do not constitute an
offer to sell or issue or the invitation or solicitation of an
offer to buy or acquire Placing Shares in the United States or any
other jurisdiction where to do so may be unlawful, including,
without limitation, Australia, Canada, Japan, and South Africa.
These terms and conditions and the information
contained herein are not for release, publication or distribution,
directly or indirectly, in whole or in part, to persons in
Australia, Canada, Japan, South Africa, the United States or any
other jurisdiction where to do so may be unlawful.
In particular, the Placing Shares referred to in
these terms and conditions have not been and will not be registered
under the Securities Act or the securities laws of any state or
other jurisdiction of the United States and the Placing Shares may
not be offered or sold directly or indirectly in, into or within
the United States, except pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act and applicable state securities laws. Accordingly,
the Placing Shares will only be offered and sold to qualified
institutional buyers in accordance with Rule 144A under the
Securities Act, and to non-US persons in offshore transactions
pursuant to Regulation S under the Securities Act. In connection
with the Placing, prospective investors are hereby notified that
the Company and the Joint Bookrunners may be relying on the
exemption from the provision of Section 5 of the Securities Act
provided by Rule 144A. There will be no public offering of the
Placing Shares in the United States. The Placing Shares have not
been approved or disapproved by the US Securities and Exchange
Commission, or state securities commission in the United States or
any other regulatory authority in the United States, nor have any
of the foregoing authorities passed upon or endorsed the merits of
the Placing or the accuracy or adequacy of these terms and
conditions. Any representation to the contrary is a criminal
offence in the United States.
The distribution of these terms and conditions
and the offer and/or placing of Placing Shares in certain other
jurisdictions may be restricted by law. No action has been taken by
the Joint Bookrunners or the Company that would permit an offer of
the Placing Shares or possession or distribution of these terms and
conditions or any other offering or publicity material relating to
the Placing Shares in any jurisdiction where action for that
purpose is required, save as mentioned above. Persons into whose
possession these terms and conditions come are required by the
Joint Bookrunners and the Company to inform themselves about and to
observe any such restrictions.
Each Placee's commitments will be made solely on
the basis of the information set out in this announcement and the
Placing Proof. Each Placee, by participating in the Placing, agrees
that it has neither received nor relied on any other information,
representation, warranty or statement made by or on behalf of any
of the Joint Bookrunners or the Company and none of the Joint
Bookrunners, the Company, or any person acting on such person's
behalf nor any of their respective affiliates has or shall have
liability for any Placee's decision to participate in the Placing
based on any other information, representation, warranty or
statement. Each Placee acknowledges and agrees that it has relied
on its own investigation of the business, financial or other
position of the Company in accepting a participation in the
Placing. Nothing in this paragraph shall exclude the liability of
any person for fraudulent misrepresentation.
No undertaking, representation, warranty or any
other assurance, express or implied, is made or given by or on
behalf of any Joint Bookrunner or any of its affiliates, their
respective directors, officers, employees, agents, advisers, or any
other person, as to the accuracy, completeness, correctness or
fairness of the information or opinions contained in the Placing
Proof and the Prospectus (when published), this announcement or for
any other statement made or purported to be made by any of them, or
on behalf of them, in connection with the Company or the Placing
and no such person shall have any responsibility or liability for
any such information or opinions or for any errors or omissions.
Accordingly, save to the extent permitted by law, no liability
whatsoever is accepted by any Joint Bookrunner or any of their
respective directors, officers, employees or affiliates or any
other person for any loss howsoever arising, directly or
indirectly, from any use of this announcement or such information
or opinions contained herein or otherwise arising in connection
with the Placing Proof and the Prospectus (when published).
These terms and conditions do not constitute or
form part of, and should not be construed as, any offer or
invitation to sell or issue, or any solicitation of any offer to
purchase or subscribe for, any Placing Shares or any other
securities or an inducement to enter into investment activity, nor
shall these terms and conditions (or any part of them), nor the
fact of their distribution, form the basis of, or be relied on in
connection with, any investment activity. No statement in this
announcement is intended to be nor may be construed as a profit
forecast and nor should any such statement be interpreted to mean
that the Company's profits or earnings per share for any future
period will necessarily match or exceed historical published
profits or earnings per share of the Company.
Proposed Placing of Placing
Shares
Placees are referred to these terms and
conditions, this announcement and the Placing Proof containing
details of, inter alia, the Placing. These terms and conditions,
this announcement and the Placing Proof have been prepared and
issued by the Company, and each of these documents is the sole
responsibility of the Company and its directors.
Applications will be made to Euronext Brussels
for admission of the Placing Shares to trading on on the regulated
market of Euronext Brussels.
Placing
The Joint Bookrunners have severally agreed,
pursuant to the Placing Agreement, to use reasonable endeavours to
place, as agents for the Company, the Placing Shares at the Placing
Price with Placees. With effect from the completion of the
institutional Bookbuild, to the extent that any Placee fails to
subscribe for any or all of the Placing Shares which have been
allocated to it or which it has agreed to take up at the Placing
Price, the Joint Bookrunners have severally agreed, on the terms
and subject to the conditions in the Placing Agreement, to
subscribe for the Placing Shares at the Placing Price. In such
circumstances, each Joint Bookrunner shall be required to subscribe
for such Placing Shares at the Placing Price only in respect of the
Placees it has procured.
Subject to the conditions below being satisfied,
it is expected that Admission will become effective on 18 August
2020 and that dealings for normal settlement in the Placing Shares
will commence at 8.00 a.m. on the same day. The Placing Shares,
when issued and fully paid, will be identical to, and rank pari
passu with, the Existing Ordinary Shares, including the right to
receive all dividends and other distributions declared, made or
paid on the Existing Ordinary Shares by reference to a record date
on or after Admission.
The Placing is conditional, inter alia,
upon:
(i)
Admission becoming effective by not later than 8.00 a.m. on 18
August 2020 (or such later time and/or date as the Company and the
Banks may agree); and
(ii)
the Placing Agreement having become unconditional in all
respects.
The Prospectus to be issued by the Company in
connection with the Placing will be submitted for approval by the
FCA under section 87A of the FSMA and, once approved, will be made
available to the public in accordance with Rule 3.2 of the
Prospectus Regulation Rules made under Part VI of the FSMA. The
Belgian FSMA will be notified of the passporting of the Prospectus
in accordance with Article 25 of the Prospectus Regulation.
Bookbuild of the Placing
Commencing today, the Joint Bookrunners will be
conducting the Bookbuild to determine demand for participation in
the Placing. The Joint Bookrunners will seek to procure Placees as
agents for the Company as part of this Bookbuild. These terms and
conditions give details of the terms and conditions of, and the
mechanics of participation in, the Placing.
The Joint Bookrunners and the Company shall be
entitled to effect the Placing by such alternative method to the
Bookbuild as they may agree between them.
Principal terms of the
Bookbuild
(a)
By participating in the Placing, Placees will be deemed to have
read and understood this announcement, these terms and conditions
and the Placing Proof in their entirety and to be participating and
making an offer for any Placing Shares on these terms and
conditions, and to be providing the representations, warranties,
indemnities, agreements, acknowledgements and undertakings,
contained in these terms and conditions.
(b)
The Joint Bookrunners are arranging the Placing severally, and not
jointly, nor jointly and severally, as agents of the
Company.
(c)
Participation in the Placing will only be available to persons who
are Relevant Persons and who may lawfully be and are invited to
participate by any of the Joint Bookrunners. The Joint Bookrunners
and their respective affiliates are entitled to enter bids as
principal in the Bookbuild.
(d)
To bid in the Bookbuild, Placees should communicate their bid by
telephone or in writing to their usual sales contact at any Joint
Bookrunner. Each bid should state the aggregate number of Placing
Shares which the Placee wishes to acquire or the total monetary
amount which it wishes to commit to acquire Placing Shares at the
Placing Price. Bids may be scaled down by the Joint Bookrunners on
the basis referred to in paragraphs (g) and (k) below.
(e)
The Bookbuild is expected to close no later than 11.00 p.m. CEST on
13 August 2020 but may close earlier or later, at the discretion of
the Joint Bookrunners and the Company. The timing of the closing of
the books and allocations will be agreed between the Joint
Bookrunners and the Company following completion of the Bookbuild.
The Joint Bookrunners may, in agreement with the Company, accept
offers to acquire Placing Shares that are received after the
Bookbuild has closed.
(f)
An offer to acquire Placing Shares in the Bookbuild will be made on
the basis of these terms and conditions (which shall be deemed to
be incorporated in such offer) and the Placing Proof and will be
legally binding on the Placee by which, or on behalf of which, it
is made and will not be capable of variation or
revocation.
(g)
Subject to paragraph (e) above, the Joint Bookrunners reserve the
right not to accept an offer to acquire Placing Shares, either in
whole or in part, on the basis of allocations agreed with the
Company and may scale down any offer to acquire Placing Shares for
this purpose.
(h)
If successful, each Placee's allocation will be confirmed to it by
the Joint Bookrunners following the close of the Bookbuild. Oral or
written confirmation (at the Joint Bookrunners' discretion) from
the Joint Bookrunners to such Placee confirming its allocation will
constitute a legally binding commitment upon such Placee (who at
that point will become a Placee), in favour of the Joint
Bookrunners and the Company to acquire the number of Placing Shares
allocated to it (and in the respective numbers of Placing Shares so
allocated) on the terms and conditions set out herein (which shall
be deemed to be incorporated in such legally binding commitment).
Each Placee will have an immediate, separate, irrevocable and
binding obligation, owed to the Joint Bookrunners, to pay to the
Joint Bookrunners (or as the Joint Bookrunners may direct) as agent
for the Company in cleared funds an amount equal to the product of
the Placing Price and the sum of the number of Placing Shares,
which such Placee has agreed to acquire.
(i)
Each Placee's allocation and commitment together with settlement
arrangements will be confirmed by an electronic contract note
and/or electronic trade confirmation issued to such Placee by one
of the Joint Bookrunners in due course.
(j)
The Company will make a further announcement detailing the number
of Placing Shares to be issued. It is expected that the Placing
Results Announcement will be made as soon as practicable after the
close of the Bookbuild.
(k)
Subject to paragraphs (g) and (h) above, the Joint Bookrunners
reserve the right not to accept bids or to accept bids, either in
whole or in part, on the basis of allocations determined at the
Joint Bookrunners' discretion and may scale down any bids as the
Joint Bookrunners may determine, subject to agreement with the
Company. The acceptance of bids shall be at the Joint Bookrunners'
absolute discretion, subject to agreement with the
Company.
(l)
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 acquired pursuant to the Placing will be required to be made
at the time specified and all Placing Shares to be acquired
pursuant to the Placing will be required to be made at the later
time specified, on the basis explained below under the paragraph
entitled "Registration and Settlement".
(m)
No commissions are payable to Placees in respect of the
Placing.
(n)
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. All obligations under
the Placing will be subject to the fulfilment of the conditions
referred to below under the paragraph entitled "Conditions of the
Placing and Termination of the Placing Agreement".
(o)
To the fullest extent permissible by law, no Joint Bookrunner nor
any of its affiliates nor any of its or their respective
affiliates' agents, directors, officers or employees, respectively,
shall have any liability to Placees (or to any other person whether
acting on behalf of a Placee or otherwise). In particular, no Joint
Bookrunner nor any of its affiliates nor any of its or their
respective affiliates' agents, directors, officers or employees,
respectively, shall have any liability (including, to the extent
permissible by law, any fiduciary duties) to Placees (or to any
person whether acting on behalf of a Placee or otherwise) in
respect of the Joint Bookrunners' conduct of the Bookbuild or of
such alternative method of effecting the Placing as the Joint
Bookrunners and the Company may agree.
Conditions of the Placing and
Termination of the Placing Agreement
Placees will only be called on to acquire
Placing Shares if the obligations of the Banks under the Placing
Agreement have become unconditional in all respects and the Banks
have not terminated the Placing Agreement prior to Admission. The
Banks’ respective obligations under the Placing Agreement are
subject to certain conditions, including:
(a)
Admission occurring not later than 8.00 a.m. on 18 August 2020 (or
such later time or date as the Banks may agree with the
Company);
(b)
the Company having complied with its obligations under the Placing
Agreement or under the terms or conditions of the Placing which
fall to be performed on or prior to the Closing Date, save where,
in the good faith opinion of the Banks, such non-compliance is not
material in the context of the Placing, the underwriting of
settlement for the Placing Shares or Admission (and provided, if
applicable, that any consents required pursuant to the Company’s
articles of association or the Companies Act 2006 are obtained from
the relevant persons);
(c)
the warranties given by the Company to the Banks as contained in
the Placing Agreement being true, accurate and not misleading on
and as of (i) the date of the Placing Agreement, (ii) 7.00 a.m. on
the Business Day following the date of the Placing Agreement (or
such other time as may be agreed by the Company and the Banks),
(iii) the date of any supplementary prospectus, the date of the
Prospectus, and (iv) the Closing Date, in each case as though they
had been given and made on such date by reference to the facts and
circumstances then subsisting, and no matter having arisen prior to
the time of Admission which might reasonably be expected to give
rise to a claim in accordance with the Placing
Agreement;
(d)
the Terms of Subscription having been executed by the Company and
the Banks;
(e)
the publication by the Company of the Placing Results Announcement
as soon as reasonably practicable after the execution of the Terms
of Subscription and in any event by 7.00 am on the Business Day
following the date of the Placing Agreement (or such later time or
date as the Company and the Banks may agree);
(f)
the Company allotting and issuing, subject only to Admission, the
Placing Shares in accordance with the Placing
Agreement;
(g)
the Prospectus being approved pursuant to the Prospectus Regulation
Rules by the FCA and passported to the Belgian FSMA;
(h)
the Prospectus being published and made available in the manner
specified in the Prospectus Regulation Rules (or in such other
manner as the Banks may agree in writing with the Company) by not
later than 5.00 p.m. on the Business Day after the date of the
Placing Agreement (or such later time and/or date as the Banks may
agree in writing with the Company);
(i)
any supplementary prospectus which may be required pursuant to
Article 23(1) of the Prospectus Regulation and/or Article 18 of
Regulation (EU) 2019/979 or any supplementary prospectus being
approved by the FCA and being filed, published and made available
prior to Admission; and
(j)
in the good faith opinion of the Banks, immediately prior to the
Closing Date there not having been a Material Adverse Change since
the date of the Placing Agreement (whether or not foreseeable at
the date of the Placing Agreement).
The Placing Agreement can be terminated at any
time before Admission by the Banks by giving notice to the Company
in certain circumstances, including (but not limited to):
(a)
where the Company fails to comply with any of its obligations under
the Placing Agreement which fall to be performed prior to
Admission, where such failure is considered (in the good faith
opinion of the Banks) to be material in the context of the Placing,
the underwriting of the Placing Shares or Admission;
(b)
where there has been a breach by the Company of any warranty in the
Placing Agreement or an event occurs or is likely to occur which,
if those warranties were repeated immediately after that event,
would make any of those warranties untrue or incorrect in any
material respect or misleading;
(c)
in the good faith opinion of a Bank, there being or there having
been a Material Adverse Change (whether or not foreseeable at the
date of the Placing Agreement); or
(d)
in the opinion of the Banks (acting in good faith) there has
occurred or it is likely that there will occur (i) any change, or
development involving a prospective change, whether or not
foreseeable at the date of the Placing Agreement, in financial,
political (including an outbreak or escalation of hostilities or
act of terrorism, declaration of emergency or martial law),
economic or market conditions or currency exchange rates or
exchange controls in the United Kingdom, the United States, any
member state of the European Economic Area, or elsewhere, or (ii)
any change, or development involving a prospective change, in
taxation adversely affecting the Company or the Group (taken as a
whole), the Placing Shares or the transfer of shares, or (iii) any
other outbreak or material escalation of a calamity or crisis
(whether or not foreseeable at the date of this Agreement), in each
case as would, in the good faith opinion of the Banks make it
impracticable or inadvisable to proceed with the Placing;
or
(e)
if the Company’s application for the admission of the Placing
Shares to trading on the regulated market of Euronext Brussels has
been refused by Euronext Brussels and the Belgian
FSMA.
If any of the conditions contained in the
Placing Agreement (save for certain excluded condition(s) as
specified in the Placing Agreement), including those described
above, has not been satisfied or (where applicable) waived in
writing by the Banks by the relevant time and/or date specified in
the Placing Agreement, the Placing Agreement shall cease to have
any effect at such time and all obligations under these terms and
conditions will automatically terminate.
By participating in the Placing, each Placee
agrees that its rights and obligations hereunder are conditional
upon the Placing Agreement becoming unconditional in all respects
in respect of the Placing (in respect of Placing Shares acquired
under the Placing) and that its rights and obligations will
terminate only in the circumstances described above and will not be
capable of rescission or termination by it after oral or written
confirmation by the Joint Bookrunners (at the Joint Bookrunners'
discretion) following the close of the Bookbuild.
The Banks may in their discretion in writing
waive compliance with the whole or any part of any of the
conditions in the Placing Agreement, save that the condition
relating to Admission taking place may not be waived. Any such
waiver will not affect Placees' commitments as set out in these
terms and conditions.
By participating in the Placing each Placee
agrees that the exercise by the Company or any Bank of any right or
other discretion under the Placing Agreement shall be within the
absolute discretion of the Company and each Bank (as the case may
be) and that neither the Company nor any Bank need make any
reference to such Placee (or to any other person whether acting on
behalf of any Placee or otherwise) and that neither the Company nor
any Bank shall have any liability to such Placee (or to any other
person whether acting on behalf of any Placee or otherwise)
whatsoever in connection with any such exercise.
Neither the Company nor any Bank shall have any
liability to any Placee (or to any other person whether acting on
behalf of a Placee or otherwise) in respect of any decision made by
the Banks as to whether or not to waive or to extend the time
and/or date for the fulfilment of any condition in the Placing
Agreement and/or whether or not to exercise any such termination
right.
Withdrawal Rights
Placees acknowledge that their acceptance of any
of the Placing Shares is by way of a collateral contract and as
such Article 23 of the Prospectus Regulation does not entitle
Placees to withdraw in the event that the Company publishes a
supplementary prospectus in connection with the Placing and/or
Admission. If, however, a Placee is entitled to withdraw, by
accepting the offer of a placing participation, the Placee agrees
to confirm their acceptance of the offer on the same terms
immediately after such right of withdrawal arises.
Placing Procedure
Placees shall acquire the Placing Shares to be
issued pursuant to the Placing and any allocation of the Placing
Shares to be issued pursuant to the Placing will be notified to
them on or around 14 August 2020 (or such other time and/or date as
the Company and the Joint Bookrunners may agree).
Payment in full for any Placing Shares so
allocated in respect of the Placing at the Placing Price must be
made by no later than 14 August 2020 (or such other date as shall
be notified to each Placee by the relevant Joint Bookrunner) on the
closing date for the Placing (or such other time and/or date as the
Company and the Joint Bookrunners may agree). The Joint Bookrunners
will notify Placees if any of the dates in these terms and
conditions should change, including as a result of delay in the
posting of the Prospectus, or the production of a supplementary
prospectus or otherwise.
Registration and Settlement
Settlement of transactions in the Placing Shares
following Admission will take place within the Euroclear Belgium
clearance system, subject to certain exceptions. The Joint
Bookrunners and the Company reserve the right to require settlement
for, and delivery of, the Placing Shares to Placees by such other
means that they deem necessary if delivery or settlement is not
possible within the Euroclear Belgium clearance system within the
timetable set out in the Placing Proof and/or Prospectus or would
not be consistent with the regulatory requirements in the Placee's
jurisdiction. Each Placee will be deemed to agree that it will do
all things necessary to ensure that delivery and payment is
completed in accordance with either the Euroclear Belgium or
certificated settlement instructions which they have in place with
the relevant Joint Bookrunner.
Settlement for the Placing will be on a T+2 and
delivery versus payment basis and settlement is expected to take
place on or around 18 August 2020. Each Placee is deemed to agree
that if it does not comply with these obligations, the Joint
Bookrunners may sell any or all of the Placing Shares allocated to
it on its behalf and retain from the proceeds, for its own account
and benefit, an amount equal to the aggregate amount owed by the
Placee. By communicating a bid for Placing Shares, each Placee
confers on the Joint Bookrunners all such authorities and powers
necessary to carry out any such sale and agrees to ratify and
confirm all actions which the Joint Bookrunners lawfully take in
pursuance of such sale. The relevant Placee will, however, remain
liable for any shortfall below the aggregate amount owed by it and
may be required to bear any stamp duty or stamp duty reserve tax
which may arise upon any transaction in the Placing Shares on such
Placee's behalf.
Acceptance
By participating in the Placing, a Placee (and
any person acting on such Placee's behalf) irrevocably
acknowledges, confirms, undertakes, represents, warrants and agrees
(as the case may be) with the Banks and the Company, the
following:
- in consideration of its allocation of a placing participation,
to acquire at the Placing Price for any Placing Shares comprised in
its allocation for which it is required to acquire pursuant to
these terms and conditions;
- it has read and understood this announcement (including these
terms and conditions) and the Placing Proof in their entirety and
that it has neither received nor relied on any information given or
any investigations, representations, warranties or statements made
at any time by any person in connection with Admission, the
Placing, the Company, the Placing Shares, or otherwise, other than
the information contained in this announcement (including these
terms and conditions) and the Placing Proof and that in accepting
the offer of its placing participation it will be relying solely on
the information contained in this announcement (including these
terms and conditions) and the Placing Proof, receipt of which is
hereby acknowledged, and undertakes not to redistribute or
duplicate such documents;
- its oral or written commitment will be made solely on the basis
of the information set out in this announcement, the Placing Proof
and the information publicly announced by or on behalf of the
Company on or prior to the date of this announcement, such
information being all that such Placee deems necessary or
appropriate and sufficient to make an investment decision in
respect of the Placing Shares and that it has neither received nor
relied on any other information given, or representations or
warranties or statements made, by any Bank or the Company nor any
of their respective affiliates and no Bank nor the Company will be
liable for any Placee's decision to participate in the Placing
and/or the Placing based on any other information, representation,
warranty or statement;
- the content of this announcement, these terms and conditions
and the Placing Proof are exclusively the responsibility of the
Company and agrees that no Bank nor any of its affiliates nor any
person acting on behalf of any of such persons will be responsible
for or shall have liability for any information, representation or
statements contained therein or any information previously
published by or on behalf of the Company, and no Bank nor the
Company nor any of their respective affiliates or any person acting
on behalf of any such person will be responsible or liable for a
Placee's decision to accept its placing participation;
- (i) it has not relied on, and will not rely on, any information
relating to the Company contained or which may be contained in any
research report or investor presentation prepared or which may be
prepared by any Bank or any of its affiliates; (ii) no Bank nor any
of its affiliates nor any person acting on behalf of any of such
persons has or shall have any responsibility or liability for
public information relating to the Company; (iii) no Bank nor any
of its affiliates nor any person acting on behalf of any of such
persons has or shall have any responsibility or liability for any
additional information that has otherwise been made available to
it, whether at the date of publication of such information, the
date of these terms and conditions or otherwise; and that (iv) no
Bank nor any of its affiliates nor any person acting on behalf of
any of such persons makes any representation or warranty, express
or implied, as to the truth, accuracy or completeness of any such
information referred to in (i) to (iii) above, whether at the date
of publication of such information, the date of this announcement
or otherwise;
- it has made its own assessment of the Company and has relied on
its own investigation of the business, financial or other position
of the Company in deciding to participate in the Placing, and has
satisfied itself concerning the relevant tax, legal, currency and
other economic considerations relevant to its decision to
participate in the Placing;
- it is acting as principal only in respect of the Placing or, if
it is acting for any other person: (i) it is duly authorised to do
so and has full power to make the acknowledgments, representations
and agreements herein on behalf of each such person; (ii) it is and
will remain liable to the Company and the Joint Bookrunners for the
performance of all its obligations as a Placee in respect of the
Placing (regardless of the fact that it is acting for another
person); (iii) if it is in the United Kingdom, it is a person who
has professional experience in matters relating to investments and
who falls within the definition of "investment professionals" in
Article 19(5) of the Order or who falls within Article 49(2) of the
Order and it is a "qualified investor" within the meaning of
Article 2(e) of the Prospectus Regulation; (iv) if it is in a
member state of the EEA, it is Qualified Investor; and (v) if it is
a financial intermediary, as that term is used in Article 2(d) of
the Prospectus Regulation, the Placing Shares acquired by it in the
Placing are not being acquired on a non-discretionary basis for, or
on behalf of, nor will they be acquired with a view to their offer
or resale to persons in a member state of the EEA or to which the
Prospectus Regulation otherwise applies in circumstances which may
give rise to an offer of shares to the public, other than their
offer or resale to qualified investors or in circumstances in which
the prior consent of the Joint Bookrunners has been given to the
offer or resale;
- it is (and the person it represents (if any) is) and, at the
time the Placing Shares are acquired, will be either (1) within the
United States and a QIB or (2) outside the United States and
acquiring the Placing Shares in an offshore transaction in
accordance with Rule 903 and Rule 904 of Regulation S for its own
account or purchasing the Placing Shares for an account with
respect to which it exercises sole investment
discretion;
- if it has received any "inside information" (as defined in the
Market Abuse Regulation No. 596/2014) about the Company in advance
of the Placing, it has not (i) dealt in the securities of the
Company; (ii) encouraged or required another person to deal in the
securities of the Company; or (iii) disclosed such information to
any person, prior to the information being made generally
available;
- it has complied with its obligations in connection with money
laundering and terrorist financing under the
Regulations and, if it is making payment on behalf
of a third party, it has obtained and recorded satisfactory
evidence to verify the identity of the third party as may be
required by the Regulations;
- it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
section 21 of FSMA) relating to the Placing Shares in circumstances
in which section 21(1) of FSMA does not require approval of the
communication by an authorised person;
- it is not acting in concert (within the meaning given in the
City Code on Takeovers and Mergers) with any other Placee or any
other person in relation to the Company;
- it has complied and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to the
Placing Shares in, from or otherwise involving the United
Kingdom;
- it and any person acting on its behalf is entitled to acquire
the Placing Shares under the laws of all relevant jurisdictions and
that it has all necessary capacity and has obtained all necessary
consents and authorities to enable it to commit to this
participation in the Placing and to perform its obligations in
relation thereto (including, without limitation, in the case of any
person on whose behalf it is acting, all necessary consents and
authorities to agree to the terms set out or referred to in these
terms and conditions);
- unless otherwise agreed by the Company (after agreement with
the Joint Bookrunners) and subject to paragraph 8 above, it is not,
and at the time the Placing Shares are acquired will not be,
subscribing for and on behalf of a resident of Australia, Canada,
Japan, South Africa, the United States or any other jurisdiction
where to do so may be unlawful and further acknowledges that the
Placing Shares have not been and will not be registered under the
securities legislation of any Restricted Jurisdiction and, subject
to certain exceptions, may not be offered, sold, transferred,
delivered or distributed, directly or indirectly, in or into those
jurisdictions;
- none of the Placing Shares have been or will be registered
under the Securities Act or with any securities regulatory
authority of any state or other jurisdiction of the United States
and may not be offered, sold or otherwise transferred by the Placee
except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of Section 5 of the
Securities Act;
- it understands that the Placing Shares are “restricted
securities” within the meaning of Rule 144(a)(3) under the
Securities Act and, to the extent they are in certificated form,
for so long as such Placing Shares are “restricted securities” they
will bear a restrictive legend as set forth in the Placing Proof
and the Prospectus (when published), unless otherwise determined by
the Company in accordance with applicable law;
- it does not expect the Banks to have any duties or
responsibilities towards it for providing protections afforded to
clients under the Rules or advising it with regard to the Placing
Shares and that it is not, and will not be, a client of any of the
Banks as defined by the Rules. Likewise, any payment by it will not
be treated as client money governed by the Rules;
- any exercise by a Bank of any right to terminate the Placing
Agreement or of other rights or discretions under the Placing
Agreement or the Placing shall be within that Bank's absolute
discretion and no Bank shall have any liability to it whatsoever in
relation to any decision to exercise or not to exercise any such
right or the timing thereof;
- neither it, nor the person specified by it for registration as
a holder of Placing Shares is, or is acting as nominee(s) or
agent(s) for, and the Placing Shares will not be allotted to, a
person/person(s) whose business either is or includes issuing
depository receipts or the provision of clearance services and
therefore the issue to the Placee, or the person specified by the
Placee for registration as holder, of the Placing Shares will not
give rise to a liability under any of sections 67, 70, 93 and 96 of
the Finance Act 1986 (depositary receipts and clearance services)
and the Placing Shares are not being acquired in connection with
arrangements to issue depository receipts or to issue or transfer
Placing Shares into a clearance system;
- it has the funds available to pay for, and will make payment to
the Joint Bookrunners (as the Joint Bookrunners may direct) for,
the Placing Shares allocated to it in accordance with the terms and
conditions of this announcement on the due times and dates set out
in this announcement, failing which the relevant Placing Shares may
be sold to or placed with other persons on such terms as the Joint
Bookrunners determine in their absolute discretion without
liability to the Placee and on the basis that such Placee will
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 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;
- the person who it specifies for registration as holder of the
Placing Shares will be (i) itself or (ii) its nominee, as the case
may be, and acknowledges that the Banks and the Company will not be
responsible for any liability to pay stamp duty or stamp duty
reserve tax (together with interest and penalties) resulting from a
failure to observe this requirement; and each Placee and any person
acting on behalf of such Placee agrees to participate in the
Placing on the basis that the Placing Shares will be allotted to a
Euroclear stock account of Degroof Petercam (CREST participant ID:
56XKJ) who will hold them as nominee on behalf of the Placee until
settlement in accordance with its standing settlement instructions
with it;
- where it is acquiring Placing Shares for one or more managed
accounts, it is authorised in writing by each managed account to
acquire Placing Shares for that managed account;
- if it is a pension fund or investment company, its acquisition
of any Placing Shares is in full compliance with applicable laws
and regulations;
- it has not offered or sold and will not offer or sell any
Placing Shares to persons in the United Kingdom, except to persons
whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for
the purposes of their business or otherwise in circumstances which
have not resulted and which will not result in an offer to the
public in the United Kingdom within the meaning of section 85(1) of
the FSMA;
- it has not offered or sold and will not offer or sell any
Placing Shares to persons in any member state of the EEA prior to
Admission except to persons whose ordinary activities involve them
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purpose of their business or otherwise
in circumstances which have not resulted and will not result in an
offer to the public in any member state of the EEA within the
meaning of the Prospectus Regulation;
- participation in the Placing is on the basis that, for the
purposes of the Placing, it is not and will not be a client of any
Bank and that no Bank has any duties or responsibilities to it for
providing the protections afforded to such Bank's clients nor for
providing advice in relation to the Placing nor in respect of any
representations, warranties, undertakings or indemnities contained
in the Placing Agreement or the contents of these terms and
conditions;
- to provide the Banks with such relevant documents as they may
reasonably request to comply with requests or requirements that
either they or the Company may receive from relevant regulators in
relation to the Placing, subject to its legal, regulatory and
compliance requirements and restrictions;
- any agreements entered into by it pursuant to these terms and
conditions shall be governed by and construed in accordance with
the laws of England and Wales and it submits (on its behalf and on
behalf of any Placee on whose behalf it is acting) to the exclusive
jurisdiction of the English courts as regards any claim, dispute or
matter arising out of any such contract, except that enforcement
proceedings in respect of the obligation to make payment for the
Placing Shares (together with any interest chargeable thereon) may
be taken by the Banks 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;
- to fully and effectively indemnify and hold harmless the
Company and the Banks and each of their respective Indemnified
Persons from and against any and all losses, claims, damages,
liabilities and expenses (including legal fees and expenses) (i)
arising from any breach by such Placee of any of the provisions of
these terms and conditions and (ii) incurred by any Indemnified
Person arising from the performance of the Placee's obligations as
set out in these terms and conditions;
- in making any decision to acquire Placing Shares: (i) it has
knowledge and experience in financial, business and international
investment matters as is required to evaluate the merits and risks
of acquiring the Placing Shares; (ii) it is experienced in
investing in securities of this nature and is aware that it may be
required to bear, and is able to bear, the economic risk of, and is
able to sustain a complete loss in connection with, the Placing;
(iii) it has relied on its own 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); (iv) it
has had sufficient time 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 (v) will not look to the Banks, any of their
respective affiliates or any person acting on their behalf for all
or part of any such loss or losses it or they may
suffer;
- the Banks and the Company and their respective affiliates and
others will rely upon the truth and accuracy of the foregoing
representations, warranties, acknowledgments and undertakings which
are irrevocable;
- to the fullest extent permitted by law, it acknowledges and
agrees to the disclaimers contained in the announcement, including
this appendix; and
- its commitment to acquire Placing Shares will continue
notwithstanding any amendment that may in future be made to the
terms and conditions of the Placing, and that Placees will have no
right to be consulted or require that their consent be obtained
with respect to the Company's or the Joint Bookrunners' conduct of
the Placing.
Please also note that the agreement to allot and
issue Placing Shares to Placees (or the persons for whom Placees
are contracting as agent) free of stamp duty and stamp duty reserve
tax in the UK relates only to their allotment and issue to Placees,
or such persons as they nominate as their agents, direct from the
Company for the Placing Shares in question. Such agreement assumes
that such Placing Shares are not being acquired in connection with
arrangements to issue depositary receipts or to transfer such
Placing Shares into a clearance service. If there were any such
arrangements, or the settlement related to other dealing in such
Placing Shares, UK stamp duty or stamp duty reserve tax may be
payable, for which neither the Company nor the Banks would be
responsible and Placees shall indemnify the Company and the Banks
on an after-tax basis for any stamp duty or stamp duty reserve tax
payable by them in respect of any such arrangements or dealings.
Furthermore, each Placee agrees to indemnify on an after-tax basis
and hold each of the Banks and/or the Company and their respective
affiliates harmless from any and all interest, fines and/or
penalties in relation to stamp duty, stamp duty reserve tax and all
other similar duties or taxes to the extent that such interest,
fines and/or penalties arise from the unreasonable default or delay
of that Placee or its agent. If this is the case, it would be
sensible for Placees to take their own advice and they should
notify the relevant Bank accordingly. In addition, Placees should
note that they will be liable for any capital duty, stamp duty and
all other stamp, issue, securities, transfer, registration,
documentary or other duties or taxes (including any interest, fines
and/or penalties relating thereto) payable outside the UK by them
or any other person on the acquisition or subsequent transfer by
them of any Placing Shares or the agreement by them to acquire or
subsequently transfer any Placing Shares.
Selling Restrictions
By participating in the Placing, a Placee (and
any person acting on such Placee's behalf) irrevocably
acknowledges, confirms, undertakes, represents, warrants and agrees
(as the case may be) with the Banks and the Company, the
following:
- it is not a person who has a registered address in, or is a
resident, citizen or national of, a country or countries, in which
it is unlawful to make or accept an offer to acquire Placing
Shares;
- it has fully observed and will fully observe the applicable
laws of any relevant territory, including complying with the
selling restrictions set out herein and obtaining any requisite
governmental or other consents and it has fully observed and will
fully observe any other requisite formalities and pay any issue,
transfer or other taxes due in such territories;
- if it is in the United Kingdom, it is a person who has
professional experience in matters relating to investments and who
falls within the definition of "investment professionals" in
Article 19(5) of the Order or who falls within Article 49(2) of the
Order and it is a Qualified Investor;
- if it is in a member state of the EEA, it is a "Qualified
Investor;
- it is a person whose ordinary activities involve it (as
principal or agent) in acquiring, holding, managing or disposing of
investments for the purpose of its business and it undertakes that
it will (as principal or agent) acquire, hold, manage or dispose of
any Placing Shares that are allocated to it for the purposes of its
business;
- if it is within the United States it and the person it
represents (if any) is a QIB or, if it is outside the United States
it is a non-US person (as defined in Regulation S) and at the time
the Placing Shares are purchased, it will be outside the United
States, purchasing in an offshore transaction pursuant to
Regulation S; and
- it (on its behalf and on behalf of any Placee on whose behalf
it is acting) has (a) fully observed the laws of all relevant
jurisdictions which apply to it; (b) obtained all governmental and
other consents which may be required; (c) fully observed any other
requisite formalities; (d) paid or will pay any issue, transfer or
other taxes; (e) not taken any action which will or may result in
the Company or the Banks (or any of them) being in breach of a
legal or regulatory requirement of any territory in connection with
the Placing; (f) obtained all other necessary consents and
authorities required to enable it to give its commitment to acquire
the relevant Placing Shares; and (g) the power and capacity to, and
will, perform its obligations under the terms contained in these
terms and conditions.
Miscellaneous
The Company reserves the right to treat as
invalid any application or purported application for Placing Shares
that appears to the Company or its agents to have been executed,
effected or dispatched from the any Restricted Jurisdiction or in a
manner that may involve a breach of the laws or regulations of any
jurisdiction or if the Company or its agents believe that the same
may violate applicable legal or regulatory requirements or if it
provides an address for delivery of the share certificates of
Placing Shares in, to a CREST member whose registered address would
be in any Restricted Jurisdiction or any other jurisdiction outside
the United Kingdom in which it would be unlawful to deliver such
share certificates or make such a credit.
When a Placee or person acting on behalf of the
Placee is dealing with any of the Joint Bookrunners, any money held
in an account with any of the Joint Bookrunners 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 and/or the Belgian FSMA.
The Placee acknowledges that the money will not be subject to the
protections conferred by the client money rules; as a consequence,
this money will not be segregated from the Joint Bookrunners' money
in accordance with the client money rules and will be used by each
Joint Bookrunner in the course of its own business; and the Placee
will rank only as a general creditor of the relevant Joint
Bookrunner.
Times
Unless the context otherwise requires, all
references to time are to Belgium time. All times and dates in
these terms and conditions may be subject to amendment. The Joint
Bookrunners will notify Placees and any persons acting on behalf of
the Placees of any changes.
ENDS
APPENDIX
IIDEFINITIONS
The following definitions apply throughout this
announcement unless the context otherwise requires:
Admission |
|
means the admission of the Placing Shares to trading on the
regulated market of Euronext Brussels; |
Banks |
|
means Jefferies, Guggenheim Securities and Degroof Petercam; |
Belgian FSMA |
|
means the Belgian Financial Services and Markets Authority; |
Bookbuild |
|
means the accelerated bookbuild by which the Placing is being
conducted; |
Business Day |
|
means a day (other than a Saturday or Sunday or a public holiday in
England or Belgium) on which banks generally are open for business
in London and Brussels; |
Closing Date |
|
means the day on which the Placing will be settled; |
Company or Acacia |
|
means Acacia Pharma Group plc, a company incorporated in England
and Wales with registered number 09759376; |
CREST |
|
means the relevant system (as defined in the CREST Regulations) in
respect of which Euroclear is the operator (as defined in the CREST
Regulations); |
CREST member |
|
means a person who has been admitted by Euroclear as a
system-member (as defined in the Uncertificated Securities
Regulations); |
CREST Regulations |
|
means the relevant system (as defined in the Uncertificated
Securities Regulations 2001 (SI 2001 No. 3755)) as
amended from time to time; |
Degroof Petercam |
|
means Bank Degroof Petercam SA/NV; |
EEA |
|
means the European Economic Area; |
Euroclear |
|
means Euroclear UK & Ireland Limited; |
Euroclear Belgium |
|
means Euroclear Belgium, the Belgian central securities depository,
Koning Albert II laan 1, 1210 Brussels, Belgium; |
Existing Ordinary Shares |
|
means the Ordinary Shares in issue as at the date of this
announcement |
FCA or Financial Conduct Authority |
|
means the UK Financial Conduct Authority; |
FCA Handbook |
|
means the FCA's Handbook of Rules and Guidance, as amended from
time to time; |
FSMA |
|
means the Financial Services and Markets Act 2000 (as
amended); |
Group |
|
means the Company and its subsidiary undertakings; |
Guggenheim Securities |
|
means Guggenheim Securities, LLC; |
Indemnified Person |
|
means, in relation to any person, its affiliates (as defined in
Rule 501(b) under the Securities Act) and each person, if any, who
controls such person within the meaning of Section 15 of the
Securities Act or Section 20 of the US Exchange Act of 1934, as
amended, and any such person’s respective affiliates, subsidiaries,
branches, associates and holding companies, and in each case their
respective directors, employees, officers and agents; |
Interim Results Announcement |
|
means the announcement published by the Company confirming its
interim results for the six months ended 30 June 2020; |
Jefferies |
|
means Jefferies International Limited; |
Joint Bookrunners |
|
means Jefferies, Guggenheim Securities and Degroof Petercam; |
Joint Global Coordinators |
|
means Jefferies and Guggenheim Securities; |
Material Adverse Change |
|
means any material adverse change in the condition (financial,
operational, legal or otherwise), or in the earnings, management,
business affairs, solvency, credit rating or prospects of the
Company or the Group, whether or not arising in the ordinary course
of business and whether or not covered by insurance, or any
development as a result of which it is reasonably likely that such
a material adverse change will occur; |
MiFID II |
|
means EU Directive 2014/65/EU on markets in financial instruments,
as amended; |
MiFID II Product Governance Requirements |
|
means MiFID II, Articles 9 and 10 of the Delegated Directive and
local implementing measures; |
New Ordinary Shares |
|
means the Ordinary Shares to be issued by the Company pursuant to
the Placing; |
the Order |
|
means the Financial Services and Markets Act 2000 (Financial
Promotion) Order 2005, as amended; |
Ordinary Share |
|
means an ordinary share of £0.02 each in the capital of the
Company; |
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 conditional placing by the Joint Bookrunners, as agents
of and on behalf of the Company, of the Placing Shares on the terms
and subject to the conditions contained in the Placing
Agreement; |
Placing Agreement |
|
means the placing agreement dated 13 August 2020 between the
Company, Jefferies, Guggenheim Securities and Degroof
Petercam; |
Placing Price |
|
means the price per Ordinary Share at which the Placing Shares are
placed; |
Placing Proof |
|
means for the purposes of the Placing, the draft prospectus dated
13 August 2020 prepared by, and relating to, the Company; |
Placing Results Announcement |
|
means the announcement published by the Company confirming the
results of the Placing immediately following the execution of the
Terms of Subscription; |
Placing Shares |
|
means the New Ordinary Shares which are to be issued pursuant to
the Placing; |
Prospectus |
|
means the prospectus (when published), relating to the Company for
the purpose of the Placing and Admission; |
Prospectus Regulation |
|
means the Prospectus Regulation (EU) 2017/1129; |
Prospectus Regulation Rules |
|
means the prospectus regulation rules made by the FCA pursuant to
Part VI of FSMA (as set out in the FCA Handbook), as amended; |
QIB |
|
means qualified institutional buyers as defined under Rule 144A of
the Securities Act; |
Relevant State |
|
means each member state of the EEA and the United Kingdom; |
Regulations |
|
means the Market Abuse Regulation (EU) No.596/2014 and in
connection with money laundering and terrorist financing under the
Proceeds of Crime Act 2002 (as amended), the Terrorism Act 2000,
the Terrorism Act 2006 and the Money Laundering, Terrorist
Financing and Transfer of Funds (Information on the Payer)
Regulations 2017, the Money Laundering Sourcebook of the FCA and
the Criminal Justice (Money Laundering and Terrorism Financing) Act
2010 and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any government agency having
jurisdiction in respect thereof; |
Regulation S |
|
means Regulation S promulgated under the Securities Act; |
Restricted Jurisdiction |
|
means the United States, Australia, Canada, South Africa or
Japan; |
Rules |
|
means the rules of the FCA Handbook; |
Securities Act |
|
means the US Securities Act of 1933, as amended; |
subsidiary |
|
has the meaning given to that term in the Companies Act 2006; |
subsidiary undertaking |
|
has the meaning given to that term in the Companies Act 2006; |
Target Market Assessment |
|
means the product approval process that the Placing Shares have
been subject, which has determined that such Placing Shares are:
(i) compatible with an end target market of retail investors and
investors who meet the criteria of professional clients and
eligible counterparties, each as defined in MiFID II; and (ii)
eligible for distribution through all eligible distribution
channels for dissemination of the Placing Shares, each as set out
in this announcement, as are permitted by MiFID II; |
Terms of Subscription |
|
means the terms of subscription in respect of the Placing, setting
out the Placing Price, the final number of Placing Shares and the
Placing Shares allotted to the Banks’ respective placees; |
Uncertificated Securities Regulations |
|
means the Uncertified Securities Regulations (2001) S.I.
2001/3755; |
uncertificated or in uncertificated form |
|
means in respect of a share or other security, 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 UK |
|
means the United Kingdom of Great Britain and Northern Ireland;
and |
United States or US |
|
means the United States of America, its 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 “€” or “EUR” are to the single currency
introduced at the start of the third stage of the European Economic
and Monetary Union, pursuant to the Treaty Establishing the
European Community as amended, all references to “£”, “pence” and
“p” are to the lawful currency of the United Kingdom, and all
references to “$” are to the lawful currency of the United States
of America.